Officer who pepper-sprayed Army Lieutenant may not be decertified, despite new Virginia law

Virginia Politics

RICHMOND, Va. (WRIC)- The officer fired after video of a controversial traffic stop in Windsor went viral may not be prohibited from getting another policing job elsewhere in Virginia, despite a new state law reforming the decertification process.

In the body camera footage, former Officer Joe Gutierrez is shown pepper spraying and pointing his gun at U.S. Army 2nd Lt. Caron Nazario, who is Black and Latino. When Nazario says he’s afraid to get out of the car, Gutierrez responds “Yeah, you should be.” Later, he’s seen kicking Nazario and forcing him to the ground, along with fellow Officer Daniel Crocker, who has not been terminated.

While the incident occurred in December 2020, Gutierrez was not fired until last Sunday, according to Windsor Police Chief Rodney Riddle.

Lt. Nazario’s Attorney Jonathan Arthur told 8News that’s not good enough.

“We don’t know whether or not he is still certified. So just because they have terminated him, if he hasn’t been decertified, he is free to go to some other law enforcement operation in Virginia and do it again, get hired. So the danger from that man is not over,” Arthur said.

Herndon Police Chief Maggie DeBoard, who also serves as president of the Virginia Association of Chiefs of Police, said she has seen separated officers get rehired several times over her 35-year career.

“That’s a very painful thing to see when we feel they are not good for our communities,” DeBoard.

In an effort to “be part of the solution,” law enforcement groups pushed for a significant expansion in Virginia’s decertification law last year. The General Assembly passed the changes during a special session largely dedicated to police reform in 2020. The amendments took effect on March 1, 2021.

According to the Virginia Department of Criminal Justice Services, a total of 51 law enforcement officers and jailers were decertified between 2016 and 2020, with one reinstated.

DeBoard said the former law was essentially “worthless,” as it only applied to felony convictions, certain misdemeanor offenses, failures to comply with training standards and drug screening issues.

“If someone commits a criminal offense, we’re going to find that in a background check anyway. So we need stronger decertification laws across the country. Period,” DeBoard said. “The states have to work on updating those codes for those lists to really be valuable to us.”

DeBoard said the new Virginia law broadened decertification criteria, which now includes terminations and resignations related to lying, serious misconduct and violations of recently passed use of force standards.

“Those are the things that have really caused the damage for us as a profession,” DeBoard said.

State and federal investigations into the Windsor traffic stop are currently underway. Depending on its outcome, DeBoard said the officers involved could be considered eligible for decertification under the Commonwealth’s updated excessive force definition.

She said the incident could also fall under “serious misconduct.” However, the statewide standards of conduct referenced in that section of the new law aren’t yet finished, according to DeBoard.

“The problem is the code section was enacted before it was complete,” she said.

That’s not the only barrier.

When asked if Gutierrez’s decertification was underway on Wednesday, Windsor Police Chief Rodney Riddle said, “The current decertification process from the Department of Criminal Justice Services, to me, is unclear. It has been reported to DCJS that his employment status is terminated.”

DCJS Director of Policy and Legislative Affairs David Cotter told 8News in an email on Wednesday that the new law was not in effect in December 2020, when the incident that led to the termination appears to have occurred. Therefore, he said the expanded criteria cannot be used as the basis for decertification, even though Gutierrez was fired earlier this week.

“In terms of eligibility for decertification, the language in the bills speak to when the offense or misconduct was committed, not when the termination or investigation occurred,” Cotter clarified.

However, DeBoard said another new police reform could prevent Gutierrez from being hired elsewhere in Virginia. As of March 1, law enforcement agencies are required to request personnel records on officers during the hiring process and former employers are mandated to turn them over within 14 days, according to DeBoard.

“Sometimes officers get separated and we don’t get requests to look at records. That’s a concern. Now, you have to go look at them and that is a really positive piece that we advocated for,” DeBoard said.

DeBoard said these requirements do not apply to out-of-state hires because those departments aren’t subject to Virginia code.

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