ASHEVILLE - Buncombe County's district attorney has said he will not call for a criminal investigation of white police officers who pinned a Black man by his neck in a May 13 arrest captured on bystander video.
DA Todd Williams' May 18 decision not to request a North Carolina State Bureau of Investigation probe comes a day after activists met to protest the arrest of Devon Lewis Rayshawn Whitmire and the Citizen Times published a story on the incident. The online article included a video taken by Whitmire's fiancé Carrie Speigle, who along with one leading activist, called actions by Asheville Police Department officers an "assault."
Officers were seeking to arrest Whitmire for communicating threats. He was charged with that along with multiple counts of assault, including assault on a government official inflicting serious injury. On May 18 he remained in the Buncombe County Detention Facility on an $85,000 bond.
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APD Chief David Zack told the Citizen Times he was out of town but that APD officers referred the incident to the DA's office the morning of May 18.
Later on the same day, Williams told the Citizen Times through a text that he reviewed body camera footage in consultation with two of his top assistant district attorneys.
"I have determined that at this time there is no probable cause that excessive use of force by law enforcement officers occurred that would require referral of this arrest to the N.C. SBI for a criminal investigation," the DA said.
APD's referral to Williams follows a 2020 "Memorandum of Understanding" between the DA and local law enforcement agencies on handling potential police misconduct. The agreement followed a 2017 incident in which Williams said police did not make a timely and full disclosure about a white officer's beating of a Black pedestrian, Johnny Rush. The Citizen Times obtained police bodycam video of that incident and published it.
Williams did not respond to a follow-up question asking whether he saw Speigle's video. It's not clear if the bodycam footage showed the officer's arm on Whitmire's neck.
By state law, bodycam video is not public record. It can be viewed by those recorded in it, but they cannot have a copy without a Superior Court judge's order. Members of the public can also get access through a Superior Court judge but must show an important reason, such as compelling public interest. A recent N.C. Court of Appeals Decision made that harder, saying members of the public must bring a civil action, rather than using a simpler petition process that was once allowed.
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The Citizen Times made a public records request for any 911 call that led to the arrest, but city officials on May 18 said there was no such record.
APD had opened an internal investigation into whether disciplinary action should be taken against officers for policy violations during the arrest, a normal procedure after police use of force. On the afternoon of May 18 a department spokesperson said the investigation had concluded there were no policy violations.
Spokesperson Samantha Booth said officer bodycam videos and Speigle's video "were an integral part of the review process."
"Following those reviews, both the department and the D.A.’s office have determined that there was no excessive force used by law enforcement officers," Booth said.
An appropriate amount of force was used, Booth said, "to detain a man who told officers he had a gun and actively resisted arrest by kicking and spitting at police officers."
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What the video shows
Officers reported that Whitmire said he had a gun. Speigle said she believed Whitmire said he did not. Her video did not clearly capture that part of his conversation with officers, but she and Whitmire both can be heard during the following struggle saying several times he was not armed.
The encounter happened in the Erskine-Walton neighborhood near the River Arts District. A group of neighbors characterized by police as "hostile" can be heard in the video growing increasingly loud and emotional as the struggle continues with one bystander shouting "he can't breathe," in reference to Whitmire.
Before three officers reached in to grab him, Whitmire was leaning back on a car holding a phone in his right hand with a sling on his left arm, which Speigle said was broken. The officers were standing closely around him. Whitmire was wearing flip-flops, which he lost in the altercation. Following his takedown and struggle with the officers, the video showed no gun was found, a fact confirmed by Booth.
"It turned out he did not have a gun. It is not clear why he said he did," the spokesperson said.
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The Citizen Times reached out to Booth with follow-up questions asking for confirmation that a chokehold was used. The Citizen Times also asked why the chokehold, a form of lethal force, was warranted.
According to the department's use of force policies, a chokehold "includes, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."
A little more than four minutes into the video, as posted May 17 on the Citizen Times website, a female officer can be seen pushing a forearm onto Whitmire's throat. He is lying on his back and two other officers are assisting in restraining him.
What is lethal force?
The department policy lists chokeholds as lethal force. That level of force can only be used for limited circ*mstances, including to protect an officer or someone else from serious injury or "to prevent the escape from custody of a person the officer reasonably believes is attempting to escape by means of a deadly weapon," according to APD Policy 402.3.
Department policies also call for de-escalation before using force, something that activists argue was not done.
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Michael Hayes, former mayoral candidate and director of the nonprofit Umoja Health Wellness and Justice Collective, said regardless of the decisions by the DA and police internal investigators, there should be changes to local policing.
"I'm surprised but not surprised," Hayes said. "It still doesn't take our focus off what has to happen for the safety of the community."
Hayes helped organize a May 17 rally near the jail and police station and said that he would continue to hold daily events until the police chief met with community members to find "a collaborative solution that will keep us safe."
Even after news of the decisions not to pursue criminal or departmental punishments, Speigle told the Citizen Times she continues to believe her fiancé was assaulted.
"I definitely think there was a crime committed, and she deserves to get her proper punishment. Just because she is a police officer doesn't mean she can break the law," Speigle said.
Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Got a tip? Contact Burgess atjburgess@citizentimes.com, 828-713-1095 or on Twitter@AVLreporter. Please help support this type of journalism with asubscriptionto the Citizen Times.
