RICHMOND, Va. (WRIC) — A former Windsor police officer accused of using excessive force on a Black Army lieutenant should not face criminal charges but should be investigated for federal civil rights violations, according to a special prosecutor.

Meanwhile, an attorney representing Army 2nd Lt. Caron Nazario is calling the conclusion that former Windsor Police Officer Joe Gutierrez didn’t break state law “worthless” and “wrong.” 

The controversy stems from a traffic stop on Dec. 5, 2020. In body camera video, Gutierrez is seen pepper spraying Nazario multiple times. Gutierrez and another officer, Daniel Crocker, repeatedly tell Nazario to get out of the car but he initially refuses. Nazario verbalizes that he is “honestly afraid to get out,” as both officers point their guns at him. Gutierrez later pulls Nazario out of the vehicle and both men shove him to the ground.

Hampton Commonwealth’s Attorney Anton Bell, who was chosen as the special prosecutor, detailed his findings in a July 29 letter after overseeing an investigation led by Virginia State Police.

“Although I find the video very disturbing and frankly unsettling, Gutierrez’s use of force to remove Nazario did not violate state law as he had given multiple commands for Nazario to exit the vehicle,” Bell wrote.

In that same letter, Bell also raised concerns about the statements made by Gutierrez during the interaction.

“The problematic issue, however, were Gutierrez’s statements throughout the entire ordeal, which would lead a reasonable person to wonder whether underlying bias was at the root of how and why Nazario was treated in a like manner,” Bell continued. 

Bell is formally asking the U.S. Attorney’s Office for the Eastern District of Virginia to open an investigation into whether Gutierrez violated the civil rights of Lt. Nazario. 

Karoline Foote, public affairs director for the U.S. Attorney’s Office, declined to comment on Tuesday. 

Tom Roberts, who is representing Nazario in a separate federal civil rights lawsuit, said Bell’s decision will have no impact on that case. He said a jury will ultimately find excessive force was used, the search of the vehicle was unlawful and Nazario’s First Amendment rights were violated. 

Roberts praised Bell’s referral to the U.S. Attorney’s Office but said, otherwise, he got it wrong.

“We simply believe the prosecutor is wrong in his ultimate conclusion when he says no state law was violated because the facts are pretty clear in this case,” Roberts said.

Roberts said Bell’s letter lacks analysis and his statement that Gutierrez gave “multiple commands for Nazario to exit the vehicle” leaves out key facts. 

“That’s a single fact and it ignores the fact that he was also told to ‘keep your hands out the window’ the entire time so he couldn’t do that,” Roberts said. 

Roberts said, even if Bell had come to another conclusion, his decision came too late to have a meaningful impact. He said the statute of limitations for charging someone with misdemeanor assault and battery is one year after the offense date. 

“It’s, I don’t want to say worthless, but I can’t think of a better word because, even if he had come to a separate conclusion, what could he have done? Nothing,” Roberts said. “The state has failed on multiple fronts.” 

John Becker Mumford, the attorney representing Gutierrez, has yet to respond to a request for comment. 

In a statement, Virginia State Conference NAACP President Robert N. Barnette, Jr., also criticized Bell’s decision not to criminally prosecute Gutierrez and praised the push to further investigate federal civil rights violations. 

“It clearly indicates that we all agree the video itself was not just disturbing but clearly highlights the bias held by this former police officer. What does this justification say about the culture of policing which time and time again, Black people are stopped for minor offenses and have guns drawn on them? This automatic assumption of guilt and perceived danger must and will stop,” Barnette said.  

The statement said the Virginia NAACP will continue to fight for reform, including ending qualified immunity.  

Currently, Roberts said the defense of qualified immunity is stalling their case in federal court. 

Last year, news of this traffic stop revived calls to eliminate the legal standard that can make it difficult to successfully sue police for violating a person’s civil rights but multiple efforts in the General Assembly ultimately failed. 

In response to the traffic stop, former Virginia Attorney General Mark Herring filed a lawsuit alleging that the Windsor Police Department had exhibited a pattern of discrimination against Black people. 

Victoria LaCivita, a spokesperson for Attorney General Jason Miyares, said the case remains pending but she couldn’t give a timeline for when it would be concluded.

The Windsor Police Department could not be reached for comment on Tuesday. 

The town of Windsor asked for the lawsuit to be thrown out earlier this year, arguing Herring lacked adequate facts to make the accusations, made errors in the lawsuit and relied upon “erroneous and speculative conclusions.”