Special prosecutor says Virginia police officer who pepper-sprayed Army lieutenant should not face state charges

By Rob Frehse, CNN

A Virginia police officer who pepper-sprayed an Army lieutenant and pushed him to the ground during a traffic stop in 2020 should not face state charges, a special prosecutor says, though he formally referred the case to the US Attorney’s Office for a federal civil rights investigation.

“Although I find the video very disturbing and frankly unsettling, (Officer Raymond) Gutierrez’s use of force to remove (Caron) Nazario did not violate state law as he had given multiple commands for Nazario to exit the vehicle,” Special Prosecutor and Commonwealth’s Attorney Anton Bell wrote after his investigation.

Two Windsor Police officers pulled over 2nd Lt. Nazario, who is Black, in December 2020 and repeatedly used pepper spray on him and pointed their guns at him, according to a news release from former Attorney General Mark Herring’s Office. Officer Gutierrez was fired after the incident but another officer remained on the job, Windsor Town Manager William Saunders previously confirmed to CNN.

CNN previously reported on the video that captured the encounter.

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

CNN has been unable to identify a representative for Gutierrez for comment.

CNN has reached out to the town of Windsor and the US Attorney’s Office for the Eastern District of Virginia for comment.

After Gutierrez was fired in 2021, Windsor Police Chief R.D. Riddle told reporters that Gutierrez’s use of the phrase “ride the lightning” in reference to the Taser during the incident was “inappropriate and created unnecessary fear.”

Riddle said he “lost faith” in Gutierrez’s ability to live up to the department’s standards, adding, “I personally felt that there was no way he could effectively serve our community anymore.”

An attorney for Nazario applauded the Commonwealth’s Attorney for requesting the US Attorney’s Office investigate Gutierrez but disagreed with the findings that Gutierrez should not face state charges.

“It should not be the Commonwealth’s Attorney’s place to determine alone that no crime has been committed (especially when the Commonwealth’s Attorney harbors such concerns that they refer the matter to US DOJ,” Attorney Jonathan Arthur said in an email to CNN. “That is why we have the jury system. That is why we have judges. That is not why we have Commonwealth’s Attorneys.”

“All too often, when it comes to law enforcement violating the laws, we see our Commonwealth’s Attorneys fail to apply the same zeal and standards when “prosecuting” law enforcement as they do with other citizens,” Arthur added.

Former Virginia Attorney General Mark Herring sued the town of Windsor in December 2021 as a result of the incident, accusing the town’s police department of discriminating against African Americans and violating their civil rights.

The lawsuit was the first case brought under a new law that allows the state’s leading law-enforcement officer “to sue to stop systemic violations of Virginians’ rights,” according to a previous release from Herring’s office.

A spokesperson for Attorney General Jason Miyares told CNN Tuesday that the lawsuit is still pending.

The attorney general’s office would not comment on the result of the special prosecutor’s investigation or the formal request for the US Attorney’s Office to open a federal civil rights investigation.

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CNN’s Amanda Musa contributed to this story