Opinion: In Whitmire arrest, cops did their jobs — and the protest was off base

If we’re going to lambaste the police and stage protests when they mishandle arrests and cause bodily injury or death — and society and the media absolutely must hold cops accountable — we also need to recognize when a controversial arrest was handled well.

This is especially true when the situation was racially charged, as was the case with the May 13 arrest of 27-year-old Devon Whitmire, an African American man, by three white Asheville Police Department officers. It was not pretty to watch, as it involved a prolonged struggle, but I can’t see where the officers displayed inappropriate force or behavior, especially after watching police body camera footage.

I’ll concede the initial six minute, 39 second video released from a bystander, Whitmire’s fiancee, looked bad, as it showed a discussion between the officers and Whitmire and then all three quickly pouncing on him in an effort to subdue him and pin his hands behind his back. Whitmire’s arm was in a sling, and bystanders told officers he had a broken arm.

At one point, a female officer was on top of Whitmire with her arm crossing over his neck and making contact with his jaw. It looked bad, but it also appeared to me that the cop’s arm was under his jaw, not on his throat.

Officers said Whitmire had told them he had a gun, and that’s why they pounced, but from this initial video the verbal exchange was difficult to hear. Even from this video, though, it was clear Whitmire did not comply with officers, pushed one, kneed another and spat at them.

While bystanders yelled, “He can’t breathe,” Whitmire never said that, and he continued talking throughout the video. Still, in a post-George Floyd world, the racial optics were bad, and some in the community were outraged and staged a protest May 17.

Then, on May 25, the cops’ body camera footage was released, after the city of Asheville, with APD’s blessing, petitioned a judge for its release. This is how the law works in North Carolina – a judge is petitioned and decides if the footage will be released.

Here’s what’s clear from the body camera footage:

• Whitmire lied to police about his identity, claiming to be his twin brother. Police were able to identify him by his tattoos. Whitmire claimed, “Me and my brother have the same tattoos.”

• Early on, one officer asked Whitmire about his arm. He replied, “There’s nothing wrong with it,” and raised it. Whitmire also was wearing a hospital name tag with his brother’s name on it.

• Whitmire very clearly told the three officers, “Can y’all back up so I can get my gun off of me.” When an officer asked where the gun was, Whitmire said, “Don’t worry about it.”

• Whitmire clearly pushed one officer in the chest and then said, “Man, y’all weak as (inaudible).”

• He spit on or attempted to spit on officers three times.

• Whitmire told the female officer, “Girl, you about to get your ass kicked.”

• Once he was cuffed and officers got him on his feet, Whitmire immediately tried to knee a male officer in the groin. 

• The video appears to show the female officer was not exerting pressure on Whitmire’s windpipe but was bracing her hand on the ground while applying pressure on his jaw, possibly in an effort to prevent him from spitting again.

The Police Department also released a 911 call that came in before the incident in which Whitmire’s mother said he’d been making threats against his family, broke a window at his grandmother’s residence and “did her tires.”

“I wish someone would please get this boy,” the mother said in the 911 call. 

Whitmire was further described as violent and threatening to kill various people around him. Police were trying to serve a warrant on Whitmire for communicating threats when the struggle ensued in the 310 block of Livingston Street. 

Whitmire has been charged with two counts of assault on a government official inflicting serious injury, three counts of assault on a government official, three counts of malicious conduct of a prisoner and resist/delay/obstruct. He was booked at the Buncombe County Detention Center on an $85,000 secured bond.

‘Can y’all back up so I can get my gun off of me?’

Whitmire’s mother subsequently told the Citizen Times she wanted her son involuntarily committed for mental health issues he suffers from, but she did not want him arrested. She also criticized police for using the arm hold in the area of his neck.

While mental health issues clearly complicate this case, they do not give Whitmire a free pass. In short, police still have to approach him as a dangerous person.

The whole key to this situation is this remark Whitmire made: “Can y’all back up so I can get my gun off of me?”

In an arrest scenario — or any scenario involving police — that changes everything.

According to the National Fraternal Order of Police, “as of midnight on 30 April, there have been 135 officers shot in the line of duty so far in 2023,” and 15 of them died. The shooting numbers have climbed 48 percent from 2021 and 52 percent from 2020.

“There have been 38 ambush-style attacks on law enforcement officers this year,” the report states. “These ambush-style attacks have resulted in 43 officers shot, 6 of whom were killed by gunfire.”

Honestly, I was stunned by the statement from Judge Edwin Clontz during a bond hearing, as reported by the Asheville Citizen Times, that officers “didn’t act appropriately” after Whitmire claimed to have a gun.

“They didn’t see a gun. He didn’t brandish a weapon. But they chose to lay hands on him without first requesting that he submit to their authority,” Clontz said.

Does the judge honestly expect officers to wait to see a gun before acting? Especially when Whitmire had not submitted to their authority in any way? Does the judge understand just how quickly someone can pull a gun and fire?

“A gun can turn a situation deadly in under a second,” Ian T. Adams, a professor in the department of criminology and criminal justice at the University of South Carolina, told me in a phone interview. “There’s really no room for error in those moments.”

Further, Adams said, officers “have a right to protect themselves,” and they are “not required to take a lethal risk with themselves and hope the person is not being honest.”

On my request, Adams watched the fiancee’s video and the officer’s body camera footage. 

“The declaration that he has a gun changes the dynamic,” Adams said, adding that standard officer practice would be “to restrict his ability to get to that gun. The generally accepted practice here would be definitely to restrict his ability to get to that gun.”

The reason for that is obvious, but I asked Adams to state it anyway: “Guns cause death, and officers are trained that guns cause a great deal of injury. It’s a leading cause of death in the United States; it’s a leading cause of death for officers. So, it’s safer for everybody to get control of that gun.”

Further, Adams said, from his viewing of the videos, the officers talked at length to Whitmire and “weren’t rushing the situation in any way up to the point he declared he had a gun.”

Buncombe D.A.: ‘These officers really should be commended’

Buncombe County District Attorney Todd Williams, who previously brought charges against an APD officer who punched a handcuffed suspect, declined to pursue any charges in this case.

“I have determined that at this time there is no probable cause that an excessive use of force by law enforcement officers occurred that would require referral of this arrest to the NC State Bureau of Investigation for criminal investigation,” Williams said via Twitter.

Williams declined an interview with me on this case, but he did go on WWNC-570 AM radio and briefly discussed the case. Once Whitmire made the gun statement, Williams said, the officers made efforts to control his hands, and they never threw punches, cursed at Whitmire, or otherwise overreacted.

I’ll add that these officers easily could have gone for their Tasers or possibly even their firearms. They did not.

“These officers really should be commended,” Williams said on the radio. “They used a reasonable amount of force. It was not excessive. They brought this gentleman into custody as pursuant to a lawful court order.”

APD is still trying to overcome the 2017 Johnny Rush case, in which a white police officer brutally beat and choked Rush as he walked home after buying a six-pack of beer. Officers said he was jaywalking. That arrest escalated out of control, as video clearly showed.

The Whitmire arrest is not that case. It’s not George Floyd. It’s not Michael Brown, or Eric Garner or Tamir Rice or countless other black men and boys killed by cops.

Those cases were horrendous and highlighted what African Americans have been saying for decades: They receive unequal, unfair and often brutal treatment at the hands of largely white police forces.

The officers in the Whitmire arrest, as Williams said on the radio, behaved “extremely professionally.”

“For all the folks who want to say they want to see a professional police department, they want to see de-escalation, they want to see all these things, these officers did exactly what they should have done,” Williams said. “What people are missing is we’ve been saying for years that we want to see this. Well, it’s here, it’s right here in this video.”

Zack: Judge was ‘unprofessional, arrogant and completely irresponsible’

As I said to start with, we have to hold officers to the highest standards today, and we have to hold them accountable for bad behavior. But we also have to recognize they have a very dangerous job, and when someone says they have a gun, that changes everything.

Asheville Police Chief David Zack told me in a phone interview that when a suspect claims to have a gun, the dynamic shifts. Police have to respond, and quickly.

“They could have tackled him. They could have stood back, and possibly drew weapons,” Zack told me. “They acted using the least amount of force necessary to protect themselves and the individual, and the citizens who were standing nearby.”

He also was baffled by Judge Clontz’s comments, saying the judge shouldn’t have been commenting during a bond hearing to start with, and that his comments were off base.

“He was reacting emotionally, and you don’t expect that sort of behavior from a judge,” Zack said. “So I found his comments to be inappropriate, unprofessional, and quite frankly, arrogant. And completely irresponsible.”

Officers cannot win in these situations. 

If they don’t serve the warrant on Whitmire for communicating threats, they look like they’re ignoring the pleas of the Black community. If they politely ask Whitmire to put his hands in the air so they can search him for the gun, after he says he has one, they might end up shot.

“I very much would have preferred that this individual just said, ‘Thank you for letting me know that I have a warrant. I’ll come on downtown,’” Williams said on the radio. “But that’s not what happened.”

To ask officers to gently cajole a person in this scenario is absurd, and it’s equally absurd to suggest Whitmire was treated roughly because he’s Black. He was treated roughly because he lied to officers, told them he had a gun, threatened them and fought with them. 

And he had threatened his family, according to his mother.

Zack feels the officers did everything right in this case, showing “an amazing amount of patience, restraint and professionalism,” and they were vilified for it.

“I mean, is it any wonder why no one wants to be a police officer?” Zack said.

Credibility of protesters eroded

Honestly, to stage a protest over this kind of arrest diminishes the cause of justice, and it causes protesters to lose credibility.

When I called Asheville City Councilwoman Sheneika Smith for comment on this aspect, she hit the nail on the head.

“You lose a lot of credibility when you run a bad protest,” Smith said, noting that it is important to hold police accountable. “But without context, you do run the risk of losing credibility and losing the momentum when it comes to holding police accountable.”

In a statement she sent out previously, Smith said officers “managed the situation accordingly.” She also said she did not view the female officer’s restraint of Whitmire as a “chokehold.”

“Although it was not the best restraint tactic, the overriding fact is, the events leading up to detainment are completely unacceptable,” Smith said. “This individual had been on the rampage for days; terrorizing and oppressing our females, elders and youth and when confronted to be held accountable, he chose force by resisting, mocking and tussling.”

I’ll put this more bluntly: Save the outrage for real injustice.

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Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. John Boyle has been covering Asheville and surrounding communities since the 20th century. You can reach him at (828) 337-0941, or via email at jboyle@avlwatchdog.org