Are Words Alone a Violation of Fourth Amendment Protections Against Unreasonable Seizures?

In January 2023, a federal jury delivered a decisive verdict in Nazario v. Gutierrez largely vindicating the conduct of Windsor, Virginia police officers Daniel Crocker and Joesph Gutierrez during a December 5, 2020, traffic stop.

As a result of the traffic stop that evening, Caron Nazario filed an eight count Complaint against Crocker, represented by Pender & Coward, and Gutierrez, claiming Fourth and First Amendment violations, common law assault, battery, and false imprisonment, and an illegal search of his vehicle under Virginia Code § 19.2-59.

Crocker and Gutierrez received qualified immunity on summary judgment regarding Nazario’s unreasonable seizure, excessive force, and First Amendment retaliation claims. See Nazario v. Gutierrez, 2022 U.S. Dist. LEXIS 142044 (E.D. Va. Aug. 9, 2022). After a five-day trial on the remainder of the Complaint,

The jury returned a verdict that was largely in favor of the Policemen. Crocker was found not liable for assault, battery, or false imprisonment. The jury awarded no damages for Crocker’s unconstitutional search. As for the search in violation of Virginia law, Crocker was found liable for punitive damages in the sum of $1,000, but no compensatory damages were awarded. Gutierrez was found not liable for an unconstitutional search, battery, false imprisonment, or search in violation of Virginia law. Gutierrez, however, was found liable for assault and for $2,685 in compensatory damages.

Nazario v. Gutierrez, 103 F.4^th 213, 224-25 (4^th Cir. 2024). Nazario appealed the awarding of qualified immunity on summary judgment to the U.S. Fourth Circuit.

The U.S. Fourth Circuit reversed the trial court’s awarding of summary judgment to Gutierrez on Count I of the Complaint, an alleged Fourth Amendment violation based on an unreasonable seizure. In a matter of first impression and in what may well be an attempt to scale back qualified immunity protections, the Court’s majority ruled that the additional factor of unprofessional statements by law enforcement that do not further the purpose of the traffic stop may constitute an illegal seizure under the Fourth Amendment.

During the traffic stop in question, Gutierrez, gun drawn, told Nazario that “you’re fixin’ to ride the lightning son,” and responded to an assertion by Nazario that he was afraid to exit his vehicle by saying, “you should be.” The Dissenting Opinion correctly pointed out that these two statements by Gutierrez occurred over a mere four seconds and did not actually extend the duration of the traffic stop. Regardless, the Majority Opinion put public officials in the U.S. Fourth Circuit, including law enforcement, on notice that such conduct can still equate to an unconstitutional seizure even if it actually does not extend the stop. The Majority wrote that Gutierrez’s statements constituted a Fourth Amendment violation as they were “outside the tasks required to complete the mission of [the] traffic stop” and when “combined with Gutierrez’s conduct . . . was a clear violation of the Fourth Amendment that lies outside the protection of qualified immunity.”

Put simply, the U.S. Fourth Circuit opinion in Nazario v. Gutierrez is a warning. The Court will look askance upon what it believes is obnoxious behavior during traffic stops and police officers who engage in such conduct may not be afforded the protections of qualified immunity in the future.

Andy Harding is a Pender & Coward attorney focusing his practice on litigation, government affairs and relations, and criminal and traffic matters.