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BENJAMIN R.

DAVID State of North Carolina POST OFFICE BOX 352


DISTRICT ATTORNEY General Court of Justice PHONE: (910) 772-6610

Sixth Prosecutorial District FAX: (910) 772-6611

Wilmington, NC 28402

July 2, 2020

Chief Donny Williams


Wilmington Police Department
615 Bess Street
Wilmington, NC 28402

Re: Former WPD Officers Piner, Moore, and Gilmore

Dear Chief Williams:

On Monday, June 22 you alerted me to findings from an internal audit of in*car camera footage
of one of your former officers. This footage, which captured an accidental activation of Officer
Michael Kevin Piner’s in*car camera, recorded conversations between Piner, Cpl. Jesse Moore, and
Officer James Gilmore that were racist and hate*filled. The language was vile and repugnant and has
no place anywhere in our society. They have tarnished the badge and damaged the trust that men
and women of law enforcement fight every day to earn and maintain. I applaud you for your decisive
action in immediately firing all three of them.

You asked my office to do three things: determine Giglio impairment of Piner, Moore, and
Gilmore; review their pending cases; and identify any violations of the criminal law of North
Carolina. For the past week, I and senior members of my staff have undertaken these
responsibilities. This letter is intended to update you on our progress.

1. Determine Giglio impairment of Piner, Moore, and Gilmore

For nearly 50 years, it has been incumbent upon prosecutors to disclose to defendants any
information about witnesses that could affect their credibility and character for truthfulness,
prejudice, or bias. Giglio v. United States, 405 U.S. 150 (1972). This applies to both work*related and
off*duty conduct of witnesses, including law enforcement officers. My office implemented extensive
Giglio procedures in 2013 and the committee entrusted with adherence to this policy met with WPD
Internal Affairs and reviewed their investigation of Piner, Moore, and Gilmore’s conversations. It
was the unanimous agreement of the committee that these former officers are Giglio impaired and
cannot be called as witnesses for the State going forward.

Consistent with our Giglio policy, I met with attorneys representing the former officers earlier
today to inform them of my office’s decision. Pursuant to that same policy, we have sent a letter to
Former WPD Officers Piner, Moore, and Gilmore 2

North Carolina Law Enforcement Training and Standards, which certifies law enforcement officers
working in the state. These officers should not only lose their jobs with the WPD, but, in the view of
my office, have lost the right to wear the badge for any law enforcement agency in the future.

2. Review of Pending Cases

My office has reviewed each of the pending cases identified in the pending case database in which
these three former officers were the charging officer. The majority of these cases, 70 of them, were
dismissed. These were largely traffic and misdemeanor offenses. Due to the officers’ evident bias
against African Americans, we can no longer rely upon them in the fair and impartial administration
of justice.

There are a handful of cases that the State will be able to proceed with, even without the
testimony of these officers. These cases have other witnesses to the crime or victims who can testify
about what occurred during an incident. The terminated officers will not be called as witnesses. A
spreadsheet of all the cases reviewed as a result of this incident and their current status is attached.

3. Violations of the Criminal Laws

You have asked whether the criminal laws have been violated by any of these former officers.
The answer to that question will depend upon whether there is any conduct that has accompanied
their hate*filled speech.

Many have openly wondered whether the conversation that is on the videotape is enough,
standing alone, to warrant criminal charges. The answer is no. Words alone – spoken in private, not
intended by the speaker to be heard by the person whom the speaker is victimizing, and not part of a
plan that the speaker and others have agreed upon – cannot constitute a crime for which someone
can be arrested or prosecuted. This is not a close legal call. There is no law in North Carolina that
would authorize criminal prosecution under this set of facts because of the protections regarding
free speech that are enshrined in the First Amendment.

When conflict and hatreds arise or are revealed in society, so often the courthouse is where the
incidents they fuel are brought to be resolved. If the incident is a matter of words not intended to be
conveyed to victims and disconnected from any discernible action, then free speech provisions in
our Constitution bar the government from taking any action in the matter. For those whom the
bigots are talking about, who see time and again that the courts can provide no remedy to even the
most vile language, in the depths of their pain, it must seem almost as if free speech protections were
created for the benefit of hate speech. That is not so. Free speech protections were created so that
those in power in the government could not start deciding what words should be acted against with
criminal sanction and what words should not, because inevitably that ability to arrest and prosecute
based on words would be turned against words of dissenters who offended those in power. As U.S.
Supreme Court Justice Robert Jackson, who prosecuted Nazis at Nuremburg, wrote, “It seems trite
but necessary to say that the First Amendment to our Constitution was designed to avoid these ends
by avoiding these beginnings.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
A long line of precedent has relied upon this bedrock principle to immunize mere words from
criminal prosecution. In a recent case, Matal v. Tam, 137 S. Ct. 1744 (2017), Justice Kennedy,
explained that there is no “hate speech” exception that would allow government action against
Former WPD Officers Piner, Moore, and Gilmore 3

words alone. Writing for a unanimous Court, he reasoned that, “a law that can be directed against
speech…can be turned against minority and dissenting views…The First Amendment does not
entrust that power to the government’s benevolence.”

There are times, of course, when words are intended to convey a threat or provoke others into
violent retaliation. In these cases, criminal charges are warranted. Yelling “fire” in a crowded theatre
is not protected by the First Amendment because it would instill fear in others and lead to imminent
lawlessness. Schenck v. United States, 249 U.S. 47 (1919). For that reason, the misdemeanor offenses of
communicating threats, inciting to riot, and creating a public disturbance are enforceable. See § 14*
277.1, § 14*288.2, and § 14*288.4 and interpreting precedent. Essential to charging any of these
offenses is the requirement that the words that are intended to cause fear or retaliation are intended
to be conveyed to a third party.

These three officers shared their hatreds only in private—as cowards are wont to do—and did
not take any discernible overt acts that furthered their violent fantasies. The recording of these
words was not intended by the speakers to be disseminated or heard by anyone, including the targets
of their hatred. This point is made obvious by the fact that Piner immediately shut off the video
when Moore inquired about whether their conversations were being accidentally recorded.

This same reasoning explains why the misdemeanor of ethnic intimidation, § 14*401.14, cannot
be charged. As the North Carolina Court of Appeals recently decided, all prosecutions for crimes
involving threats require that the communication in question be intended to reach the target of said
threat. State v. Taylor, 841 S.E.2d 776 (2020)(emphasis added). Based on the private nature of the
conversations between them, there is insufficient evidence to show that the statements made by
these officers were intended to reach any target of the threat.

Even though the former officers’ words alone cannot lead to criminal charges, this does not end
our inquiry. These three officers have been enforcing the law in our city, collectively, for over 60
years. We are now left to question whether they have, under the “color of law,” deprived people of
their liberty, not because of a crime, but because of the color of their skin.

In an attempt to get answers to that question, you and I have joined in calling for a federal
investigation. Both of us have been in touch with the Federal Bureau of Investigation. I have also
conferred with members of the United States Attorney’s Office. Federal law may provide a remedy
that is not available under state law.

Last week I also sent a letter to the New Hanover County Defense Bar, including the Public
Defender’s Office, requesting that they contact my office if they are aware of any client who was
charged by these officers who may have been subject to differential treatment. To date, no attorney
or member of the public has contacted my office with information regarding any of these officers’
cases. In the event that any complaint is made, we will not only entertain whether any prior
conviction should be overturned on a Motion for Appropriate Relief, but will also immediately
transmit that information to the federal authorities. If my office learns of new information, from the
public, members of the defense bar, or the federal investigation, we will, of course, determine
whether any state statute has been violated.
Former WPD Officers Piner, Moore, and Gilmore 4

This is a time of great introspection for all of us in the criminal justice system. We can do better,
and we must do better. Your leadership is crucial as we continue to set the tone that racism has no
place in our ranks and should be drummed out at all levels.

Sincerely,

Benjamin R. David
District Attorney

cc: Members of the Media

Enclosures: Cases Charged by Piner, Moore, or Gilmore – Pending on June 22, 2020
Letter to the Defense Bar Re: Terminated Officers, June 26, 2020