STATE OF NORTH CAROLINA GENERAL COURT OF JUSTICE

COUNTY OF NEW HANOVER SUPERIOR COURT DIVISION

FILE NO. 20 CVS 1996

In the Matter of Custodial Law

Enforcement Agency Recording Sought by
Sterling Cheatham, Wilmington City
Manager.
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RESPONDENTS’ MOTION SEEKING AN IN-PERSON

HEARING AND FOR A CONTINUANCE

Now comes Respondents Kevin Piner and Jesse Moore II and

respectfully move this Court to enter an order permitting the hearing to

be a live in-person hearing as opposed to a remote electronic hearing

pursuant to WebEx. This hearing was recently initially scheduled for

July 29, 2020 1120 am. Respondents also move the Court for a short

continuance.

Background

The Petition filed on June 30, 2020 seeks to publicly disclose a

recording made of Wilmington police officers on or about June 3, 2020.

N.C.G.S. 132-1.4(g) sets forth the statutory framework for the Court’s

consideration of the Petition. This hearing is of vital importance to

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Respondents and their families, and the police community – especially

because their personal safety which has been threatened and is at risk.

Respondents Piner and Moore are former Wilmington police officers, who

resigned following disclosure of a private conversation that contained

highly inappropriate and grossly inflammatory language.

The subject recording occurred on June 3, 2020 on a Wilmington

police car camera system that had not been activated but inadvertently

captured a private conversation that occurred on a private cellular

telephone. The conversation included extremely poor, and highly

inflammatory provoking language that followed a period of traumatizing

events and attacks on police officers following the death of Mr. George

Floyd in Minneapolis on May 25, 2020.

Mr. Floyd’s tragic death prompted massive protest related activity

including criminal violence directed at law enforcement officers in

Wilmington, North Carolina and at many locations throughout the

country. Like in many other areas, the protest activity in Wilmington

turned criminal, violent and destructive. Wilmington experienced chaos

including attempts to incite riots, property damage, assaults on law

enforcement officers and riot like conditions. Protests that often started

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peacefully turned violent and resulted in violence, vandalism and

destruction.

Former Officers Piner and Moore have been subjected to death

threats; their children and families have been harassed. They have had

to leave their homes in order to minimize risks to their families. The

hearing to be held will adjudicate whether the recording should be made

public.

If the police recording is made public, there is an extraordinary

likelihood that more criminal violence will resume in Wilmington and

against Respondents. Therefore, the hearing on this matter is of utmost

importance, not just to Respondents but to the entire Wilmington

community. The public safety is directly at risk. An in-person hearing

would better promote the ends of justice.

Respondents’ counsel has concerns regarding the overall feasibility

of this hearing without at least a limited in person segment as

Respondents have a witness and exhibits. The feasibility of handling the

entire hearing electronically appears very, very difficult. In order to

avoid risk of electronic or other failure, and to ensure the submission of

Respondents’ exhibits, Respondents’ counsel respectfully requests to be

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able to physically appear so as to ensure being able to have the exhibits

submitted for admission and to offer the witness.

The undersigned sole practitioner counsel does not have an office

computer system with either a camera, video or audio capability.

Counsel has a cell phone and can attempt communications via cell phone,

but counsel does not want to risk having electronic and or other failure

jeopardize his clients’ ability to be heard.

An in-person hearing could be done with the participants masked

and gloved while maintaining a dozen feet or more so as to be completely

safe from coronavirus risks.

Under these particular circumstances, an in-person hearing

appears much simpler to accomplish and should be able to be completed

in a quick expedited manner.

Moreover, the Court will need to consider several constitutional

considerations as well as statutory factors, in making its determination.

N.C.G.S. 132-1.4(g) contains criteria and standards for the Court to

consider. This statute provides:

“[T]he court shall consider the applicability of all of the following

standards:

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(1) Release is necessary to advance a compelling public interest.
(2) The recording contains information that is otherwise confidential or
exempt from disclosure or release under State or federal law.
(3) The person requesting release is seeking to obtain evidence to
determine legal issues in a current or potential court proceeding.
(4) Release would reveal information regarding a person that is of a
highly sensitive personal nature.
(5) Release may harm the reputation or jeopardize the safety of a
person.
(6) Release would create a serious threat to the fair, impartial, and
orderly administration of justice.
(7) Confidentiality is necessary to protect either an active or inactive
internal or criminal investigation or potential internal or criminal
investigation.
(8) There is good cause shown to release all portions of a recording.”

Counsel therefore expects there to be much to address, from

exhibits, testimony, and law.

Of course, Respondents’ counsel will attempt to participate however

directed but believes that it is essential for counsel and the witness to be

present at the Courthouse in the event that there is electronic or other

failure, so as to be able present Respondents’ exhibits and the witness to

the Court.

Wherefore, Respondents respectfully pray that this Court issue an

order permitting the hearing on a live in-person basis and for a short

continuance.

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 _/S/_______________________
J. Michael McGuinness
The McGuinness Law Firm
P.O. Box 952
Elizabethtown N.C. 28337
910-862-7087 (Telephone)
Jmichael@mcguinnesslaw.com

Certificate of Service

I hereby certify that I have served the foregoing motion by email on

Counsel for the City of Wilmington, Meredith Everhart and Daniel
Thurston, and I have copied other persons who have appeared on email
communications from the Court this 28th day of July 2020.

/s/
J. Michael McGuinness