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Video shows:

  • An Army lieutenant is pulled over by Virginia police, with firearms dawn upon exiting police cruiser. "I’m honestly afraid to get out of the car,” Lieutenant Nazario says.

  • “Yeah,” says one of the officers, Joe Gutierrez, according to footage from his body camera. “You should be.”

  • “What’s going on?” Lieutenant Nazario then asks.

  • “What’s going on is you’re fixing to ride the lightning, son,” Officer Gutierrez yells. (Later, after striking Lieutenant Nazario behind his knees, the officer told him to “lay down or I’m going to tase you,” as the officers appeared to struggle to get Lieutenant Nazario on the ground.)

The questions are asked in the context of weapons drawn and pointed at the driver.

Questions:

  • Is the verbal threats " you’re fixing to ride the lightning" from an officer in violation of law or Lt. Narario's rights?

  • Did the officers have cause to stop the driver?

  • If the did not have cause, are the officer's subsequent actions (pepper spraying, leg strikes, detainment) criminal in nature or are they protected under qualified immunity?

I believe that riding the lightning is slang for execution (electrocution).

At one point, Gutierrez told Nazario he was "fixin' to ride the lightning," according to the lawsuit. The phrase was a line from the movie "The Green Mile," a film about a Black man facing execution, and references the electric chair, the lawsuit states.

https://www.nytimes.com/2021/04/10/us/caron-nazario-windsor-police-virginia.html

https://abc7ny.com/lawsuit-virginia-police-threaten-pepper-spray-army-lieutenant-during-stop/10504779/

UPDATE: stated reason for stop / detainment

In a report from that night the officers said they had pulled over Lieutenant Nazario because his S.U.V. did not have license plates. Lieutenant Nazario said he had recently bought a Chevrolet Tahoe and was waiting for license plates. Temporary ones had been taped inside the rear window and were visible, according to the lawsuit.

gatorback
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    Riding the lightening probably refers to getting the taser in this context, not the electric chair. – Damila Apr 11 '21 at 02:19
  • @Damila. Interesting comment, a different interpretation. Always good to hear the counterargument. This comment now begs the question, "What would a reasonable man believe?" – gatorback Apr 11 '21 at 13:59
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    Personally, I think it sounds like a threat. It's not clear what exactly is being threatened, but it's hard to find a meaning which is not either violent or illegal. – Paul Johnson Apr 11 '21 at 17:55
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    @gatorback Arguably, a threat to tase Nazario would be more problematic than a threat to have him sent to the chair. A) No one uses the electric chair anymore, B) Virginia doesn't even have a death penalty as of a couple weeks ago, and most importantly C) tasing is something a cop on the street can just do. "I'm going to get you the death penalty" is just not a credible threat. – cpast Apr 11 '21 at 19:05
  • I must be getting old, as I find it weird they attribute the phrase to The Green Mile (1996 book, 1999 movie), when Metallica released a song and album by that name, where the song is quite explicitly from the perspective of a death row inmate facing the chair, in 1984. And Kirk Hammet of Metallica himself said the title was inspired directly by a line in Stephen King's novel The Stand (1978). And I don't even know where King might have gotten it from. I guess the racial complications are much more explicit in The Green Mile, though. – zibadawa timmy Apr 12 '21 at 09:39
  • The OP doesn't tell us what reason was given for the stop. This information is critical to answering the question, although part of it might be answerable without knowing that. – ohwilleke Apr 13 '21 at 20:40
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    @ohwilleke OP is updated with reason for stop: quote from NYT – gatorback Apr 13 '21 at 22:50

1 Answers1

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Is the verbal threats " you’re fixing to ride the lightning" from an officer in violation of law or Lt. Narario's rights?

Probably not directly, although it may have violated department policy. Courts have often ruled that profanity or other negative language from a citizen toward a police officer is not grounds for arrest or additional penalties, see Wikipedia on "Contempt of Cop". Verbal abuse by the police is rarely subject to any sanction.

However, threats may be taken to show improper motives for challenged actions, such as an arrest or the use of force. That might affect a judgement as to whether rights were violated.

Did the officers have cause to stop the driver?

The police officers have reported that they thought the vehicle had no license plate displayed. If so, that would be valid grounds to stop the vehicle and question the driver. The vehicle apparently had a temporary license which was not in the normal position for a permanent plate. That suggests this police statement is plausible. But if they did in fact observe the temporary plate, then they had no apparent valid reason for the stop.

If the did not have cause, are the officer's subsequent actions (pepper spraying, leg strikes, detainment) criminal in nature or are they protected under qualified immunity?

The principle of qualified immunity applies to civil suits against police officers, primarily to federal suits under 42 USC 1983, the "under color of law" provision, originally the Enforcement Act of 1871 often known just as "section 1983". It does not apply to criminal charges.

However, if a "reasonable police officer" would have perceived a threat and acted similarly to deal with it, that would be a defense to accusations of excessive use of force and other possible charges against the police officers involved, such as assault and battery. There is some overlap with the ideas behind "qualified immunity", but more emphasis on what a reasonable person or reasonable officer would have done, and less on previous court rulings making a particular right "clearly established". It can in most cases be said that if an officer has qualified immunity in a civil suit, that officer will have a defense to a criminal charge based on the same actions, but the reverse does not follow.

If the police did not have valid cause to stop the vehicle, the case for their subsequent actions is weaker than if they did. But even when a stop is later ruled to be without valid cause, police are entitled to take measures to protect themselves, which may in many cases include ordering a driver or passenger to step out of the car. People are generally required to comply with the lawful orders of a police officer, and are often well-advised to comply even with orders arguably not lawful, and complain later.

And whether the stop was valid or not, police are not entitled to use excessive force, in light of the actual circumstances. That judgement will no doubt be made in a court in due time in this case. The force shown on the video looks excessive to me.

David Siegel
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  • nice narrative / argument. What exactly in the video (elements present or absent) leads you to the conclusion of excessive force? It seems excessive to me because there was no clear and present danger, the demeanor of the driver was calm and the officer (Gutierrez) was clearly angry and seemed to be looking for an excuse to use force. – gatorback Apr 14 '21 at 03:49
  • @gator The officer told Nazario that he was under arrest for obstruction of justice, which was absurd. I did not see anything in Nazario's actions or attitude that seemed to justify the use of pepper spray nor the forceful arrest. However this is now being investigated at the state level, and there may be a Federal investigation., Thatr will probably get better evidence on the overall circumstances and events. The problem with such videos is that often important details have already occurred before the start of the video, which cannot be shown. Thus I cannot be sure if the force was ok. – David Siegel Apr 14 '21 at 13:31