constitutional-law
Nazario Police stop questions
<p><a href="https://www.youtube.com/watch?v=ktiozJt7WJQ" rel="nofollow noreferrer">Video shows</a>:</p>
<ul>
<li><p>An Army lieutenant is pulled over by Virginia police, with firearms dawn upon exiting police cruiser. &quot;I’m honestly afraid to get out of the car,” Lieutenant Nazario says.</p>
</li>
<li><p>“Yeah,” says one of the officers, Joe Gutierrez, according to footage from his body camera. “You should be.”</p>
</li>
<li><p>“What’s going on?” Lieutenant Nazario then asks.</p>
</li>
<li><p><strong>“What’s going on is you’re fixing to ride the lightning, son,”</strong> 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.)</p>
</li>
</ul>
<p>The questions are asked <strong>in the context of</strong> weapons drawn and pointed at the driver.</p>
<p>Questions:</p>
<ul>
<li><p>Is the verbal threats &quot; you’re fixing to ride the lightning&quot; from an officer in violation of law or Lt. Narario's rights?</p>
</li>
<li><p>Did the officers have cause to stop the driver?</p>
</li>
<li><p>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?</p>
</li>
</ul>
<p>I believe that <em><a href="https://abc7ny.com/lawsuit-virginia-police-threaten-pepper-spray-army-lieutenant-during-stop/10504779/" rel="nofollow noreferrer">riding the lightning</a></em> is slang for execution (electrocution).</p>
<blockquote>
<p>At one point, Gutierrez told Nazario he was &quot;fixin' to ride the
lightning,&quot; according to the lawsuit. The phrase was a line from the
movie &quot;The Green Mile,&quot; a film about a Black man facing execution, and
references the electric chair, the lawsuit states.</p>
</blockquote>
<p><a href="https://www.nytimes.com/2021/04/10/us/caron-nazario-windsor-police-virginia.html" rel="nofollow noreferrer">https://www.nytimes.com/2021/04/10/us/caron-nazario-windsor-police-virginia.html</a></p>
<p><a href="https://abc7ny.com/lawsuit-virginia-police-threaten-pepper-spray-army-lieutenant-during-stop/10504779/" rel="nofollow noreferrer">https://abc7ny.com/lawsuit-virginia-police-threaten-pepper-spray-army-lieutenant-during-stop/10504779/</a></p>
<p>UPDATE: stated reason for stop / detainment</p>
<blockquote>
<p>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.</p>
</blockquote>

<blockquote>
<p>Is the verbal threats &quot; you’re fixing to ride the lightning&quot; from an officer in violation of law or Lt. Narario's rights?</p>
</blockquote>
<p>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 <a href="https://en.wikipedia.org/wiki/Contempt_of_cop#Federal_case_law" rel="nofollow noreferrer">&quot;Contempt of Cop&quot;</a>. Verbal abuse by the police is rarely subject to any sanction.</p>
<p>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.</p>
<blockquote>
<p>Did the officers have cause to stop the driver?</p>
</blockquote>
<p>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.</p>
<blockquote>
<p>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?</p>
</blockquote>
<p>The principle of <a href="https://en.wikipedia.org/wiki/Qualified_immunity" rel="nofollow noreferrer"><em>qualified immunity</em></a>  applies to <strong>civil</strong> suits against police officers, primarily to federal suits under <a href="https://www.law.cornell.edu/uscode/text/42/1983" rel="nofollow noreferrer">42 USC 1983</a>, the &quot;under color of law&quot; provision, originally the <a href="https://en.wikipedia.org/wiki/Ku_Klux_Klan_Act" rel="nofollow noreferrer">Enforcement Act of 1871</a> often known just as &quot;section 1983&quot;. It does not apply to criminal charges.</p>
<p>However, if a &quot;reasonable police officer&quot; 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 &quot;qualified immunity&quot;, but more emphasis on what a reasonable person or reasonable officer would have done, and less on previous court rulings making a particular right &quot;clearly established&quot;. 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.</p>
<p>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.</p>
<p>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.</p>
