Judge: $85K bond for Black Asheville man pinned by throat; faults police, man in arrest

ASHEVILLE - A judge criticized the controversial May 13 arrest of a Black man, saying the white officers "didn't act appropriately" by grabbing him without giving him a chance to submit and putting arms "across his face, then across his neck" when he was handcuffed on the ground.

But Buncombe County District Court Judge Edwin Clontz, who in a May 22 bond hearing viewed video of Devon Whitmire's arrest, including police body camera footage shown for the first time publicly, also said Whitmire did not act appropriately.

"Anyone who thinks this was handled appropriately by Mr. Whitmire, or for that fact, by the officers, is sadly mistaken," Clontz said.

The 27-year-old Whitmire lied about his name and "kicked after he was handcuffed," Clontz said, and therefore would continue to be held in the county jail under a high $85,000 bond his attorney had asked the judge to reduce.

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"Given the nature of the charges and viewing what I have seen today ... the bond is more than appropriate," Clontz said.

The arrest led to outrage among those who said police used excessive force, including members of a group of neighbors who gathered in the Erskine-Walton neighborhood during the encounter, shouting for officers to stop and saying "he can't breathe."

The Asheville Police Department characterized the crowd as "hostile," though others, such as Whitmire's public defender, Brooks Kamczik, said they were "afraid that they are about to witness another Black man die at the hands of law enforcement officers."

Some, such as City Council member Sheneika Smith, who is Black, defended officers' actions, saying Whitmire was "terrorizing" people.

Along with the original charge of communicating threats, Whitmire was charged with multiple counts of assault, including assault on a government official inflicting serious injury.

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In court Whitmire appeared behind an area with bars, wearing a brown prison jumpsuit and a mask. At one point when Assistant District Attorney Katie Kurdys sought to downplay his arm injury, saying he bought the sling himself, he interjected loudly, shouting he got it from the hospital. He continued to shout, though much of it was inaudible.

His next court date is June 2, with both prosecution and defense attorneys saying they are ready to go to trial.

A crowd of 20 activists joined Whitmire's fiancé, Carrie Speigle, in the courtroom and said they were working to help raise the $8,500 to pay a bail bondsman and free him.

Along with video taken by Speigle, the judge was shown footage from officers' body cameras, which is not public record, but can be used as evidence in court. Looking to counter criticism of the arrest, APD Chief David Zack has backed a city effort to get the videos released to the general public, something City Attorney Brad Branham is seeking through a Superior Court order. As of May 22, no date had been set for the hearing on the possible order, though Branham has said it could take only a matter of days.

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The footage backed up police accounts that after being told he was wanted on a warrant, Whitmire said, "OK, well, can you back up so I can get my gun off of me?" An officer then can be heard in the footage asking where his gun is, with Whitmire responding, "Don't worry about it boss."

In the ensuing struggle, Whitmire and Speigle tell officers multiple times he does not have a gun, something borne out by a final search.

Kamczik, the public defender, criticized officers for failing to de-escalate the situation and grabbing Whitmire after his comments about the gun. Three officers were standing closely around him, blocking him against a car, video showed. Whitmire had his left arm in sling from an injured elbow and was holding a phone with his right hand while wearing flipflops.

"He is calm, and he's leaning back against the car, speaking with officers. He's not in a threatening position or posture. He's got his legs crossed," Kamczik said. But rather than the officers telling Whitmire he is under arrest and that he should turn around to be handcuffed, "they immediately go hands on. They immediately take him to the ground," the attorney said.

They also knew about mental health problems suffered by Whitmire and should have taken them into account, he said.

Arm on throat to prevent spitting?

Kurdys, the assistant district attorney, said the incident was "traumatic for everyone involved." But that officers' perspective mattered. She recounted a history of assault charges against Whitmire and said he might have mental health problems, but "what is clear is that he is assaultive."

"As you can see from that video, the escalation was on the part of Mr. Whitmire. It was not on the part of the Asheville Police Department and their actions in this matter have not been excessive. In fact they were appropriate under the circumstances," Kurdys said.

But Clontz said 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," the judge said.

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Attorneys also argued about the arm on Whitmire's throat. District Attorney Todd Williams has ruled out any probable cause of a crime by police, and APD officials have said officers broke no policies ― though the arm restraint appears to meet the department's definition of a chokehold, something APD policies define as lethal force.

Kamczik said officers had him "in a position where his air supply could be cut off at several points in this interaction."

Kurdys countered that an arm was placed on his throat after Whitmire "repeatedly" spat in officers faces and after being requested not to, said he would continue.

One of the officers, Lt. Michael McClanahan, was present in court but declined an opportunity to speak. Kurdys read aloud a statement from Officer Shelby Middleton, who appeared in footage with her arm on Whitmire's neck. Middleton said Whitmire's words and actions "put many officers, bystanders and most importantly himself in danger," and that they were part of a pattern that should be stopped through prosecution, according to the statement read by Kurdys, who noted officers were injured, including one who was kicked in the groin and treated and released from the hospital.

While Clontz criticized officers putting hands on Whitmire's neck, he declined to give a further opinion on the encounter, saying it would be handled in later proceedings.

"There's a lot to be hashed out and it is not my job to hash it out," the judge said.

Activists, meanwhile, said they will continue to protest, with a 4 p.m. May 23 gathering at Pack Square Park. They have called for APD officials to meet with them and work on bias training and other measures to prevent such situations.

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 at jburgess@citizentimes.com, 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times.