Moffitt renews call for investiation of APD

Press release from N.C. House Rep. Tim Moffitt:

MOFFITT RENEWS CALL FOR INDEPENDENT INVESTIGATION OF APD
AMID CHARGES OF POSSIBLE OBSTRUCTION OF JUSTICE,
FAILURE TO DISCHARGE OFFICIAL DUTIES

Asheville – Recent public statements by the Chief of the Asheville Police Department, William Anderson, concerning his knowledge of expired calibrations for many of the city’s speed detection radar units raise a number of very troubling questions, according to Representative Tim Moffitt.

In an on-camera interview with WLOS’ Mike Mason taped October 3, Anderson stated that he had no knowledge about the issue of expired radar units prior to being informed of it during Mason’s interview.

However, the official minutes from APD Staff Meetings attended by Chief Anderson indicate that this issue was discussed in Chief Anderson’s presence weeks before the WLOS interview occurred.

“It is absolutely shameful that the City of Asheville continues to turn a blind eye to the apparent misconduct by Chief Anderson,” said Representative Moffitt. “Now that possible criminal misconduct by Chief Anderson has been brought to light by Lieutenant Byrd, I again request that an investigation be brought immediately by District Attorney Ron Moore and Attorney General Roy Cooper — with the full cooperation of Governor Pat McCrory and the State Bureau of Investigation.”

Moffitt is referring to the fact that on August 21, when Lt. Mark Byrd first learned of the problem with the expired radar units, Byrd notified two APD captains about the problem (Acting Captain Wally Welch and the Captain of the APD Patrol Division Stony Gonce) and recommended that all use of the radar units be discontinued until the status of the units could be confirmed and the problem corrected.

Both Welch and Gonce report directly to Chief Anderson. Despite this prior knowledge of the problem by the chief’s senior command staff, nothing was done to stop the use of the defective radar units. APD’s use of the units was not discontinued until they were ordered to do so by the District Attorney’s Office on October 3.

State law requires that all such units be calibrated and certified every year (N.C. G.S. § 8-50.29(c)). It is Chief Anderson’s duty to see that this is done and it is now clear that it was not. The APD has so far identified over 300 criminal citations issued to citizens in the past 12 months which were based on the unlawful use of these units. The lack of calibrations for some of the Units go back over three years.

Likewise, it would also be a violation of state law for any public officer to knowingly allow such uncalibrated units to be used for law enforcement purposes (N.C.G.S. § 14-230 “Willfully failing to discharge duties”). This was clearly allowed for over six weeks by senior command staff at the APD.

Based upon these facts, there are strong indications that laws of the State of North Carolina have been broken, and it also appears that there is a strong likelihood that statements have been made by a public official which were designed to mislead the press, the public, and possibly other law enforcement officials as to these issues. If so, any such statements would also likely represent an obstruction of justice under North Carolina law.

“I’m therefore calling on the District Attorney of the 28th Judicial District, Ron Moore, to work with the Governor and the Attorney General to utilize the State Bureau of Investigations — and, if necessary, arrange for the appointment of a special state prosecutor (pursuant to the provisions of N.C.G.S. § 114-11.6) — to fully investigate all of the facts and to hold accountable any member of the APD command staff found to have committed any violations of state law,” said Representative Moffitt.

44 officers of the Asheville Police Department (nearly a quarter of the force) delivered a four-page petition on October 16 to Police Chief Anderson outlining how these problems within the department are creating a threat to public safety and demanding they be immediately addressed. Several veteran officers have also called for embattled Anderson to resign.

The North Carolina Police Benevolent Association (NCPBA), the state’s largest law enforcement association, has joined with Moffitt to call for an independent investigation into the matter. In a bizarre and unsettling turn of events, Asheville City Councilman Cecil Bothwell contacted the group in response — criticizing the integrity of one of the officers who came forward, Lt. Bill Wilke, and asking the group to “back off” from concerns about Chief Anderson until after the election on November 4. The NCBPA’s executive director, John Midgette, called Bothwell’s comments about Wilke “repugnant” and is considering taking legal action against Bothwell.

“As for the 44 officers who initially came forward to shine a light on these systemic problems within the APD, their courage should not be punished,” said Moffitt. If any officer has experienced retribution of any kind for their willingness to speak out, I ask that they contact me immediately.”

“As for Bothwell, his irresponsible behavior and comments are disappointing but not surprising,” concluded Moffitt. “It’s become a pattern of behavior in the city that reflects not only a reckless disregard for the law but for common decency. I’ve said it before and I’ll say it again: the lunatics are running the asylum in Asheville. These people need to be kept on a very short leash.”

Cited N.C. Statutes:

§ 8-50.2.  Results of speed-measuring instruments; admissibility.
(c)  All radio microwave, laser, and other electronic speed-measuring instruments shall be tested for accuracy within a 12-month period prior to the alleged violation by a technician possessing at least a General Radiotelephone Operator License from the Federal Communications Commissions or possessing a Certified Electronics Technician certificate issued by a Federal Communications Commission Commercial Operators License Examination Manager or by a laboratory established by the International Association of Chiefs of Police. A written certificate by the technician or laboratory showing that the test was made within the required period and that the instrument was accurate shall be competent and prima facie evidence of those facts in any proceeding referred to in subsection (a) of this section.

All radio microwave, laser, and other speed enforcement instruments shall be tested in accordance with standards established by the North Carolina Criminal Justice Education and Training Standards Commission. The Commission shall provide for certification of all radio microwave, laser, and other speed enforcement instruments.

§ 14-230.  Willfully failing to discharge duties.

If any clerk of any court of record, sheriff, magistrate, school board member, county commissioner, county surveyor, coroner, treasurer, or official of any of the State institutions, or of any county, city or town, shall willfully omit, neglect or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a Class 1 misdemeanor. If it shall be proved that such officer, after his qualification, willfully and corruptly omitted, neglected or refused to discharge any of the duties of his office, or willfully and corruptly violated his oath of office according to the true intent and meaning thereof, such officer shall be guilty of misbehavior in office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offense (1901, c. 270, s. 2; Rev., s. 3592; C.S., s. 4384; 1943, c. 347; 1973, c. 108, s. 5; 1993, c. 539, s. 142; 1994, Ex. Sess., c. 24, s. 14(c); 2009-107, s. 1.)

N.C. Common Law Offense of Obstruction of Justice

“Our Supreme Court in Kivett defined obstruction of justice as preventing, obstructing, impeding, or hindering “ ‘public or legal justice.’ ” 309 N.C. at 670, 309 S.E.2d at 462 (quoting 67 C.J.S. Obstructing Justice §§ 1, 2 (1978)). That definition prompts the question: What constitutes “public justice”? In the subchapter of our criminal code entitled “Offenses Against Public Justice ” (emphasis added), the General Assembly included as offenses against “public justice,” among others, offenses involving perjury, bribery, obstructing justice, secret listening, and misconduct in public office. “Public justice” is, thus, a broad concept.

Defendant’s preventing, obstructing, impeding, and hindering of the SBOE’s and the public’s ability to review what defendant was doing with respect to campaign contributions and funds constitutes preventing, obstructing, impeding, or hindering public justice. …. [w]e hold that under Kivett’s definition, this conduct amounts to common law obstruction of justice….”

State v. Wright, 206 N.C. App. 239, 244, 696 S.E.2d 832, 836 (2010)
Sincerely,

Representative Tim Moffitt
North Carolina House of Representatives
Western North Carolina Delegation Chair
116th District – Buncombe County
www.nchouse116.com