Open Letter to Judge Clontz From Former Law Officer About Whitmire Case - TribPapers

Open Letter to Judge Clontz From Former Law Officer About Whitmire Case

Photo submitted.

Asheville, NC – Judge Clontz,

I am writing to you out of concern for statements that were made during a bond hearing for Devon Whitmire, who, as you know, was arrested recently by the Asheville Police Department on multiple charges.

You may or may not remember me – I have appeared and testified numerous times in your courtroom as a police officer and detective during the approximately 14 years I was a sworn law enforcement officer in Buncombe County. I became aware of your statements after being contacted by numerous individuals as well as reading the comments in the Asheville Citizen-Times, where you were quoted as saying “Anyone who thinks this was handled appropriately by Mr. Whitmire, or for that fact, by the officers, is sadly mistaken”.

Please, Judge – do count me in with those mistaken.

I have reviewed not only the bystander video taken of the incident, but also the newly released body-worn camera video of the encounter and subsequent altercation and arrest. Not only was I previously a sworn officer, I was also a law enforcement instructor, and I will say with absolute certainty that the officers’ actions during this incident were nearly textbook in application and use of force. They actually showed great restraint in their application of force and remained extremely professional throughout the encounter, despite being surrounded by an angry crowd of bystanders and those who wished to interfere with their duties.

While I find it troubling, I can understand how members of the community at large who were upset at seeing the bystander video could have misinterpreted some of the actions that took place, especially without the benefit of all the facts. While I don’t condone such a rush to judgment, people sometimes have a knee jerk reaction to highly charged situations such as this, especially when they don’t have all the facts or have a basic understanding of the law, use of force, or police policy and operations.
What I find completely unfathomable and reprehensible is how you, as a sitting judge, were able to review the now released body camera video and facts of the case and still come to such a misguided and inappropriate conclusion as you did.

As I’m sure you are well aware, the Asheville Police Department consulted with District Attorney Todd Williams on this use of force. After reviewing the facts and evidence, DA Williams came to the correct determination that the use of force was lawful, appropriate, and not excessive.

The purpose of a bond hearing is to determine if the defendant is a flight risk or a danger to the community – it is not for a District Court Judge to interject his opinion as to whether officers acted correctly or within policy; – a settled matter of fact that had already been addressed and determined by May 25, 2023 those charged with that responsibility. Not to mention that your published statements could have a potential prejudicial effect on a future juror should the criminal charges against Mr. Whitmire result in a trial.

I also want to address your statement that the ACT quoted as “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”.

You are correct – they didn’t see a gun. However, Whitmire told them, very clearly, that he was armed with one. When asked where the gun was, he told them not to worry about it. You see, Judge, an officer need not “see” a weapon when, given the totality of the circumstances, it is likely that a violent felon with a history of assaults (including assaults on officers) has a warrant for arrest and has said he has a gun, prior to acting on that information. This is so officers are able to maintain their safety as well as that of members of the community. Officers are trained to recognize physical, verbal, and non-verbal cues for when a suspect is likely to exhibit assaultive or resistive behavior. These officers clearly recognized something was amiss. This theory is similar to the fact that officers may not always have time or opportunity to order someone to “drop the gun” before firing upon an armed person to defend themselves. There is no legal requirement for officers to request that a suspect “submit to their authority” prior to detaining them or taking them into custody if it is not safe to do so.

Suppose for a moment that Whitmire was telling the truth about being armed and these officers ignored their duty and hesitated to act—an already clearly unstable armed subject with multiple people around. That could be a recipe for disaster. Thankfully, these officers acted bravely and swiftly, and no one was injured in the process.
It is also my understanding that you made a statement to the effect of (paraphrased) “Once he was handcuffed, he couldn’t get a gun to shoot”. While not directly reported in the ACT, this was related to me from a credible person inside the courtroom. I’m certain there are a number of officers (some of whom are no longer with us) that would vehemently disagree with this ridiculous assertion – I’d be happy to cite multiple instances in which officers were shot, and some murdered, by handcuffed suspects.

I’d like to point out that in the week’s preceding this event, a Deputy Sheriff of the Buncombe County Sheriff’s Office, while trying to serve a warrant on a suspect, had the suspect produce a handgun and fire upon the Deputy, striking him. Thankfully, the Deputy was not more seriously injured and was able to return fire. I would think that given this incident being so fresh on the minds of area law enforcement, you would certainly be able to understand why officers take the threat of guns so very seriously – but, as you would say, I guess I’m “mistaken”.

It is not lost on me that you made your misguided pronouncements from the safety of your courtroom, where everyone has passed through metal detectors and security checks, prior to being allowed to enter. And even then, you have an armed deputy sheriff assigned to you as a bailiff for additional protection.

The only explanation I can come to is that you were pandering to a courtroom audience. Your comments added fuel to a fire that was smoldering in our community, and you have done a disservice to the citizens of Asheville and Buncombe County by your statements.

It is the responsibility of a jurist to seek the truth. Unfortunately, in this instance, you set aside what we can all plainly see is true and chose to admonish these officers in a public setting.

You owe these officers an apology, and I hope you will consider doing so, in just as public of a setting.

Respectfully, David Plyler
Asheville, NC