Police videos like the Windsor one that went viral usually stay secret in Virginia

The now-viral footage that captured a small-town Virginia police officer pepper spraying a Black man during a routine traffic stop in December gave the public a rare glimpse inside the state’s historically secretive criminal justice system.

Virginia law gives police departments a lot of power to hide information from public view, and they often employ it.

That means records like the body-camera video showing two Windsor police officers’ treatment of Caron Nazario rarely see the light of day. And even with a recent flurry of new laws aimed at making police more accountable, it’s not clear whether that will change soon.

“To be perfectly honest, I was surprised we got the documents,” said Nazario’s attorney, Jonathan Arthur, who has filed a lawsuit against the department alleging it violated Nazario’s constitutional rights. “There are a whole lot of different contours that they can use … to not turn the documents over.”

The Virginia Freedom of Information Act lets police, prosecutors and sheriff’s offices statewide decide whether to release police investigative files — and related photos or videos, such as body-camera footage. But departments almost always say no to all such requests as a matter of policy.

The video Arthur got shows two officers shouting conflicting orders at Nazario as he pleaded to know why he was pulled over. Dressed in military fatigues, Nazario told the officers he was afraid of them, to which one replied he “should be” before macing and dragging Nazario to the ground as he cried.

The Virginian-Pilot made that footage public last week, triggering outrage across the state and nation. Gov. Ralph Northam on Sunday told state police to investigate the treatment of Nazario, a Black and Latino Army second lieutenant. Hours later, the town announced one of the officers had been fired.

Since claiming control of the General Assembly two years ago, Democrats have pushed many new laws that aim to rein in police power. Those efforts intensified as protesters gathered across the country to denounce officer misconduct in the wake of George Floyd’s police killing.

A new law, which takes effect July 1, aims to end state law enforcement agencies’ longstanding practice of shielding nearly all their files from the public — whether they are incident reports from the past week or case files that haven’t been looked at in decades.

It will force police and sheriffs to release records of “criminal investigations” that are no longer ongoing. It’s not clear whether that will apply to records like the video of the officers’ stop of Nazario, which resulted in no criminal charges, though Andrew Bodoh, an attorney who specializes in FOIA law for the same law firm as Arthur, said he thinks it would apply to the video of Nazario’s encounter with police.

For now, police investigative files typically remain secret only and until someone decides to sue and obtain records through the discovery process.

Del. Chris Hurst, who sponsored the bill that led to the new law, touted it as “monumental” change.

“It is major, major FOIA reform,” Hurst said, “and part of a larger criminal justice suite of legislation that we have tried to do to respond to the public’s demand that there’s more accountability.”

Ana Ley, 757-446-2478, ana.ley@pilotonline.com