Possible plea pending for man in violent arrest with Asheville police officers

ASHEVILLE - A court hearing has been delayed on a communicating threats allegation that preceded a man's violent arrest by police officers.

The scheduled July 13 Buncombe County District Court hearing on a misdemeanor communicating threats charge against Devon Whitmire, 27, has been continued. It is now set to be heard Aug. 31.

That is three days after the deadline for Whitmire and his attorney to officially respond to a plea deal offer on nine other charges. Those came after the May 13 arrest of Whitmire, who is Black, during which white officers said he assaulted them but Whitmire's attorney said an officer cut off his airway while he was lying on his back in handcuffs. A judge, meanwhile, said the arrest was improper because officers did not give him a chance to submit.

Public Defender Brooks Kamczik and Assistant District Attorney Katie Kurdys did not respond to July 13 questions about progress on the plea deal. They also did not respond to questions about the nature of the prosecution's offer.

Whitmire is scheduled to appear Aug. 28 in Superior Court on the nine charges: two felony counts of assault on a law enforcement officer, inflicting physical injury; three felony counts of malicious conduct by a prisoner, spitting on law enforcement officers; one misdemeanor count of resisting an law enforcement officer; and three misdemeanor counts of assaulting a law enforcement officer.

He remains in the county jail on an $85,000 bond that judges have declined to reduce. One, though, District Court Judge Edwin Clontz, said police were wrong to lay hands on Whitmire before asking him to submit. Clontz declined to state an opinion on whether Whitmire was choked.

Asheville Police Department officers were in the Erskine-Walton neighborhood south of the River Arts District May 13 when they recognized Whitmire, who had an open warrant for communicating threats, according to bystander and police video.

Whitmire was standing with his back against a car, one arm in a sling, the other holding a cellphone and surrounded by three officers. In total, there were at least four officers in involved: Lt. Michael McClanahan, Shelby Middleton, Matthew Milillo and Sgt. Joshua Veridal.

Whitmire initially gave his identity of that as his twin brother. When officers said they planned to take him to jail, he said he had a gun, the videos showed. Officers asked where the weapon was but he refused to say and they grabbed him. During the ensuing struggle Whitmire and his fiancé said he did not have gun, something born out by a police search after a struggle.

During the fight, but after he was handcuffed and on his back, Middleton put a forearm on Whitmire's throat. Members of a crowd that gathered could be heard voicing concerns, one shouting "he can't breathe." Whitmire at other times appeared to spit at officers and kick at them with bare feet. One officer was treated for injuries at the hospital and released that day.

APD policy forbids, except in extreme circumstances, putting "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air." Such a chokehold is considered lethal force. But police said an internal investigation determined there was no excessive force. Chief David Zack had publicly criticized the Citizen Times for its description of Whitmire being "pinned" by the neck.

After a reviewing body cam footage, District Attorney Todd Williams said their was no probable cause for a criminal investigation of officers' actions.

The encounter drew protests from activists, who pointed to nationally known fatal police encounters with Black men such as Eric Garner and George Floyd. Former mayoral candidate Michael Hayes, who is Black, said Whitmire was known to have mental health issues and police escalated the situation. Hayes called for Zack to meet with him and other activists and work on policies to prevent similar incidents. City Council member Sheneika Smith, who is also Black, backed police and said Whitmire had been "terrorizing" people in the community.

On June 2, Whitmire's mother told the Citizen Times her son has multiple mental health problems and that she had been trying to get him involuntarily committed. When Conita Whitmire called asking for that, officers instead arrested him, using what she said was excessive force.

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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 [email protected], 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times. 

This article originally appeared on Asheville Citizen Times: Possible plea pending for Devon Whitmire, involved in violent arrest