WINDSOR, Va. (WAVY) — Virginia Attorney General Mark Herring has filed a lawsuit against the Town of Windsor after a months-long investigation found “disturbing evidence” of what Herring called discriminatory and unconstitutional policing practices.

It’s the first time enforcement action has been taken against a Virginia law enforcement agency under a new state law that allows the attorney general to sue to stop violation of Virginians’ civil rights.

The investigation into the town’s police force was launched after video footage showed U.S. Army 2nd Lt. Caron Nazario, a Black and Latino man, being pepper-sprayed multiple times during a traffic stop in December 2020 as officers pointed their guns at him. One of the two officers involved was eventually fired after video of the incident surfaced months after the stop.

Nazario has also filed a federal lawsuit asking for at least $1 million in damages, saying the two officers violated his rights, including rights under the Fourth Amendment.

“While our investigation was spurred by the egregious treatment against Lt. Nazario that we all saw in bodycam footage, we discovered that this incident was indicative of much larger problems within the department,” Herring said in a press release Thursday. “Our months-long investigation uncovered huge disparities in enforcement against African American drivers, and a troubling lack of policies and procedures to prevent discriminatory or unconstitutional policing. We even discovered evidence that officers were actually being trained to go ‘fishing’ and engage in pretextual stops. That is why I have now filed suit to ensure accountability and to protect Virginians’ rights.”

The suit filed in Isle of Wight Circuit Court alleges that the Town of Windsor violated the Virginia Human Rights Act and the Virginia Public Integrity and Law Enforcement Misconduct Act, and that “the Department lacks adequate policies to ensure that it is using force in a non-discriminatory manner, that it is performing traffic stops in a constitutional, non-pretextual, and bias-free manner, and that members of the public are able to submit and have their complaints heard in a transparent way that upholds the principles of due process.”

Herring says the investigation found that Black drivers were pulled over for traffic stops and had their vehicles searched at disproportionately high rates, with Black drivers accounting for about 42% (810 of 1,907) of the department’s stops from July 1, 2020, through September 30, 2021. That’s 200-500% more often than would be expected based on the number of Black residents in the town and county according to Herring’s office.

There was also a discrepancy in the data on traffic stops and citations sent to the town’s council and what’s reported to Virginia State Police. Numbers reported to the commonwealth were lower than those shared with the council and Herring says the town has yet to explain why.

Herring says the suit is seeking a court order to bar Windsor’s police department from engaging in discriminatory practices, and make the department change its policies.

Those changes include:

  • ensuring that traffic stops are conducted in a constitutional bias-free, non-pretextual manner
  • ensuring that the use of force is consistently applied and that use of force incidents are properly reported to the Department of State Police in accordance with state law
  • ensuring the public can file complaints, have their complaints taken seriously, and provide the opportunity for an appeal

The lawsuit also requests a court-ordered period of third-party monitoring of the department to ensure compliance with the Virginia Human Rights Act, Virginia Public Integrity and Law Enforcement Misconduct Act and U.S. Constitution, at the town’s expense, and a civil penalty of $50,000 of $50,000 for each proven violation of the Virginia Human Rights Act.

You can read the full complaint here.

The Town of Windsor released a statement on Thursday afternoon, calling Herring’s lawsuit “clearly political,” and an “eleventh-hour action,” as Herring is about to leave office. Republican Jason Miyares takes over as attorney general in the new year.

“Given that the Complaint cites questionable data on the quantity and nature of traffic stops and searches, as well as its reporting, the suit lacks any context as to what the Town has done over the past year to address any concerns. The Town is stunned that this suit was filed on December 30, just hours before Courts closed for the year. This matter certainly should have been left to the incoming Attorney General to pursue, if it indeed had merit in the first place,” a statement from the town said.

In mid-April, Windsor Police Chief Rodney Riddle said he hoped to help regain community trust by revising policies and procedures, increasing officer training, overhauling the department’s hiring process and stepping up on community policing efforts by reducing police’s role in traffic enforcement.

Specifically, Riddle said he estimated it would cost $26,000 for the department to use the services of Lexipol, LLC. It’s a company that “provides police departments with policies and up-to-date revisions based upon changes in laws and guidance.” 

On Thursday, a spokesperson for the town said the revision of town policies and procedures is ongoing.

10 On Your Side asked Herring why he decided to file a lawsuit if the town has already committed funds to fix possible issues.

“There is still a lot they need to do to make needed reforms. And we’ve given them ample opportunity to adopt them and make those changes and they haven’t,” Herring said. “We’d like a court to order the police department to adopt policies and practices to prevent bias policing and constitutional violations.”

Valarie Butler, president of the Isle of Wight NAACP Chapter, said she was disappointed to hear the town thought the whole issue was political.

“I am elated with the findings from the AG office. It just confirms what we always thought what was going on in the Town of Windsor and the police department,” Butler said. “It is my hope the new AG will take into consideration what the old AG did.” 

The Isle of Wight NAACP Chapter released a full statement Friday.

“The Isle of Wight County NAACP is thankful for Attorney General Mark Herring and the Office of Civil Rights in their legal pursuit for a more fair and equal justice system.

The town’s knee-jerk response to the lawsuit is a reflection of the practice and culture of the town of Windsor and its police department. Since the horrendous video of Lt. Nazario surfaced, the Town of Windsor has spent more time trying to salvage its image and reputation, instead of protecting the civil and constitutional rights of African Americans in the Windsor community.

In June the Department Of Justice Office of Community Relation Services stepped in to serve as mediators between the Town of Windsor, their police department, The NAACP, and the African American community to tackle the very issues that have been raised in Attorney General Mark Herring’s lawsuit. For months we have tried to sit down at the table to negotiate in good faith and at every opportunity, The Town of Windsor has denied us that right. We hope with this lawsuit the Town of Windsor will take this matter seriously and they will have no other choice but to sit down and have a results-driven conversation with the African American community.

Unlike the Town of Windsor, it is our hope that Attorney General – Elect Jason Miyares will focus on protecting the civil rights of African Americans and fully pursue this lawsuit once his office takes over in January.

The NAACP will continue to communicate to the public our next steps regarding this matter in the coming days.”