Monday, March 4, 2024

After contentious hearing, Judge blocks release of recording showing racist Wilmington cops

A Superior Court judge cited the uncertain risk of violence in the wake of a release as well as the threats to the safety of the officers who were caught on camera making racist statements.

Thursday’s hearing in Superior Court decided the fate of audio-video recordings of three racist Wilmington police officers. (Port City Daily photo / Benjamin Schachtman)

Warning: This article contains profanity and racial slurs that may be disturbing to some readers.

WILMINGTON — A Superior Court judge ruled today that video footage of three Wilmington cops having racist and threatening conversations will not be released, saying the need for transparency had already been met and citing potential risk to the officers involved.

During a hearing on Thursday morning, Superior Court Judge Josh Willey ruled on a request from the City of Wilmington to release the footage, which inadvertently captured former WPD officers Kevin Piner, Jesse Moore II, and Brian Gilmore during two separate conversations.

State statute provides eight considerations for the release of law enforcement recordings; Judge Willey focused on the public interest, confidentiality, potential risk to the safety of an individual, and whether there was good cause to release the entire recording.

Willey found that while there was compelling public interest, the need for transparency had already been achieved by WPD’s release of information in June and the material on the recordings was otherwise confidential. Willey said that while it was difficult to determine the risk of public violence, he saw a clear risk of retaliation or violence against the fired officers, citing death threats sent to those officers and their families.

Hearing

By and large, the argument in court came down to how the public would react to the full, unedited recordings.

While reports from WPD’s Internal Affairs division and a partial transcript of these conversations — including Piner’s now infamous statement “We are just gonna go out and start slaughtering them fucking ni—–s. I can’t wait. God, I can’t wait” — were released by the WPD in June, the actual audio and video of the incident remained sealed under state law governing law enforcement recordings. In an unusual twist, the city attorney usually tasked with arguing against the release of such recordings argued for releasing them in this case, as city representatives stated they wanted to provide as much transparency as possible.

Opposing the release was attorney J. Michael McGuinness, who represents former WPD officers Kevin Piner and Jesse Moore II. The third officer fired in June, Brian Gilmore, was not involved but indicated through his own attorney that he supports the release of the recording, believing they will support his appeal to be reinstated at WPD.

Arguments for and against

After a delayed start, the hearing began with Assistant City Attorney Daniel Thurston, McGuinness, and Judge Willey in chambers for roughly a half-hour. Thurston then made a relatively brief argument followed by a longer presentation, including an expert witness, by McGuinness.

Thurston acknowledged that the case was “highly unusual,” noting that the city had not always strongly objected to releasing recordings, but had never petitioned or argued for it. Thurston cited the “disgusting language” on the recordings and the “significant outrage” of the public as the reason for the department to be as transparent as possible.

In addition to the compelling public interest, Thurston said the city believed that transparency was also in the best interests of the department’s other 300-some officers, who Thurston argued should be protected from any sense that the city was trying to cover anything up. Thurston worked through the other considerations required by state law regulating the release of law enforcement records, saying the city saw no conflict; Thurston also noted that there were no active investigations or pending charges, saying that while the FBI was “considering” an investigation, there was no current movement on that front that he was aware of.

McGuinness reiterated arguments he had made in previous statements, saying that the release of the recordings would cause a violent public reaction, leading to both rioting and potential violence against the officers he represents. McGuinness provided nearly 20 exhibits, including photographs of damage from Wilmington protests and a sample of a death threat written to one of the officers.

McGuinness set his argument against a social background he described as “an actual declared war on the American police community,” using the ongoing protests in Kenosha, Wisconsin, as an example.

McGuinness called the language used by the three officers “horrible, heinous, and abominable” but then attempted to mitigate it, arguing it “grew out of frustration” with the public’s negative attitude — and in some cases violence towards — police officers, claiming the “700 police officers injured in recent protests” were on the WPD officers’ mind during their conversation.

McGuinness stated that Wilmington, like other American cities, was effectively a powder keg and that the release of the audio-video recordings would be the spark.

‘Fighting words’

Much of the courtroom argument came down to what the potential reaction from the public would be if the full recordings were released.

McGuinness called expert witness John Eric Combs, a longtime law enforcement officer, certification trainer, and consultant.

Combs’ testimony indicated, in short, that if the recordings were released “the likelihood of violent reaction and retaliation is present.” McGuinness concluded that the recordings’ release would reignite the “terrible violence” of the May 31 protests in downtown Wilmington (an event, it should be noted, about which many questions remain).

Related: Wilmington mayor says ‘this was to incite a riot,’ but protestors dispute leaders’ claims

To get to this conclusion, McGuinness walked Combs through a series of questions about “fighting words.” Combs was asked, in his professional opinion, how an individual might react to a law enforcement officer using “racial epithets,” how crowds might react, and ultimately how he felt the public might react to learning a sworn officer had used ‘fighting words.’

During a short cross-examination, Thurston pointed to an obvious problem with this conclusion: in the two months since WPD had released excerpts from the recordings, including the most profoundly racist statements, the violence McGuinness warned of had not materialized.

Pointedly, Thurston asked Combs if he considered calling someone a “fucking n-word” or saying that one wanted to “fucking slaughter those n-words” to be “fighting words.”

Combs agreed that, in some contexts, they would be.

Thurston concluded his cross-examination by noting that all of Wilmington’s emergency orders and curfews had happened in the nine days after the May 31 protest, with no rioting or violence against the public, businesses, or police officers following WPD’s release.

McGuinness and Combs offered a brief counter, suggesting that the duration of the video and in particular the “inflection” of the officers’ voices, would make a significant difference in the public reaction. McGuinness also made the suggestion that not all potential protestors or members of the press were aware of the WPD’s release in late June — a dubious argument, given that dozens of local and regional outlets covered it (to say nothing of coverage by national media outlets, the New York Times, Washington Post, as well as foreign press).

Concluding remarks

McGuinness concluded by again returning to civil unrest on May 31, pointing to the public testimony of Wilmington Mayor Bill Saffo, District Attorney Ben David, and New Hanover County Sheriff Ed McMahon — all of whom described and decried ‘criminal actions’ of protestors as the evening turned violent.

“These weren’t flower children in 1968,” McGuinness said. “This was much worse.”

McGuinness made a point of noting that ‘they’ had attacked the New Hanover County courthouse, where the hearing was being held, and where — McGuinness emphasized — protestors would seek remedy if their civil rights as legitimate protestors had been violated by police.

McGuinness aruged, in closing, that releasing the recordings would cause violence in Wilmington and across the country.

Thurston concluded by reiterating that the city was committed to transparency, both because it offered the best protection for the public and police alike and because it was “the right thing to do.”

Wilmington Police Chief Donny Williams issued the following statement:

“We petitioned the court to release this video in an effort to be transparent; however, we understand and support the judge’s decision.

As I said in my statement on June 24: Please do not judge our agency based on the conduct a few. We have great officers who go above and beyond to do what’s right, and I proudly stand with them and beside them.

We are all hurt by this incident. We are all angry. Let this be an opportunity for us to come together as a community and heal. We will be stronger for it.”


Send comments and tips to Benjamin Schachtman at ben@localdailymedia.com, @pcdben on Twitter, and (910) 538-2001.

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