A Citizen Times analysis of arrest records spanning five years found 7 percent of arrests involved a charge of “resist, delay or obstruct,” or RDO.

Of those, 166 RDO arrests had no other charges; 34 percent of those 166 were black.

Asheville’s NAACP leader says resisting arrest language is too subjective.

A police advocate counters that leeway gives an important tool to officers.

ASHEVILLE – Johnnie Rush did run – for 12 seconds – before he thought better of it and slowed, according to his account and video that captured his beating at the hands of police who had threatened an arrest on a jaywalking charge.

Among the ironies of that night in 2017, Rush would later be charged with resisting an officer though video from an officer’s body camera showed him pinned to the ground as he took repeated blows to the head.

That video, after a leaked version was published five months later by the Citizen Times, unleashed a storm of outrage and put police struggles to develop relationships in minority communities back in the spotlight.

Related: Should Johnnie Rush have run?

Rush later said the extent to which he resisted arrest had to do with frustration over being stopped as he crossed a deserted street late at night following a 13-hour shift washing dishes at a Cracker Barrel restaurant.

The charge of resisting arrest was later dropped. For Rush and critics of police who believe race played a role, the fact the charge was even made points to a bigger issue.

Analyzing 5 years of arrest records

In Asheville, African-Americans like Rush are far more likely to be charged with resisting an officer during encounters with police than are white people, according to a Citizen Times analysis of arrest records spanning five years.

In response to public outcry over Rush's arrest, the newspaper examined data from July 2013 through June 2018. That investigation found:

Of 24,265 arrests, a little more than 1,800, or about 7 percent, involved a charge of resisting an officer, sometimes called "resist, delay, obstruct" — or simply "RDO."

Thirty-five percent of resist charges were made against African-Americans, though people who are black make up 12 percent of the city’s population.

Among the 1,800 RDO arrests, 166 had no other charges than resisting an officer, something even some in law enforcement say raises a red flag.

Of people receiving standalone RDOs, 34 percent were black.

That racial disparity is greater than what is seen in all arrests. In the last five years, 28 percent of all APD arrests were of people who are black.

Even when dismissed — which happened more than half the time with the 166 standalone RDOs for which there are court documents — the charge remains on a person’s record, and it will follow them through life.

A stained record

For William Ray Jr., that has meant having to explain his dismissed resist charge in job interviews, something he said he believes has hurt his income for years.

“I do body work and paint work. That is probably the only job I can get in my field because of it,” the 29-year-old father of two said.

The charge stemmed from a terrifying night when someone shot into his parents’ home, where Ray lived with his children, according to an account from former APD officer Ervin Hunter, whom Ray considers a mentor and whose aunt lived next door.

Early in the morning of Sept. 28, 2014, APD officer Carrie Lee interviewed Ray at the Montford home about the bullets fired into the residence, according to Hunter and court records.

In the interview, Ray used his brother’s name instead of his own. Later that morning, when Hunter stopped by to see what had happened, Ray confided to him that he lied because there was a warrant out for him related to child support.

Ray was worried if he had given his real name, he would have been arrested, leaving his children alone while the person who shot into their home remained at large.

Lee, meanwhile, had a warrant taken out on him for resisting an officer.

“He lied, but he did it to protect his family,” said Hunter, who left APD in 2015 to work for the Henderson County Sheriff’s Office.

The charge was dismissed by then-District Attorney Ron Moore.

Asheville police said there was no link between bias and resist charges.

“Arrests for RDO are based on probable cause and have nothing to do with the race of the person committing the offense,” APD spokeswoman Christina Hallingse said.

Hallingse said officers have more than a half dozen training courses on race, equity and de-escalation, including "Fair and Impartial Policing," which seeks to help participants recognize conscious and implicit bias.

The Class 2 misdemeanor carries a maximum penalty of 60 days in jail and a $1,000 fine. Asheville Fraternal Order of Police President Rondell Lance, who advocates for officers on issues ranging from pay to body cams, said RDO can be overused. A retired career APD officer, Lance said it is common for people to lie to police.

“But I wouldn’t charge you for that unless what you said took me hours to clear up," he said.

Asheville Black Lives Matter President Delores Venable said the disparity in RDOs shows “predatory and biased policing.”

"As far as resisting arrest, that can be boiled down to cultural differences, language barriers, and implicit bias. Accidentally letting spit come out of your mouth that hits an officer, stepping on an officer's foot by accident, having a muscle spasm while being cuffed, all can be seen as resisting an officer,” she said.

Questioning an officer’s intent

Keith Ellis, who is also black, was arrested on a standalone resist charge on the night of July 5, 2013. Then a 20-year-old resident of South French Broad Avenue, Ellis had a clean record and worked for a grocery store. He said he was visiting Lee Walker Heights, a subsidized apartment complex south of downtown.

“Somebody had reported people firing fireworks, I believe,” he said in an August 2018 interview with the Citizen Times.

Ellis said he wasn’t involved in the fireworks and hadn’t done anything wrong, so he walked away.

But an officer hurried over to him, he said, and grabbed his arm. “(He) jerked my arm and put it behind my back.”

MORE: Recent APD data show racial disparities in traffic stops, resisting arrest charges

The officer told him he had been trying to get his attention, Ellis said, and arrested him for resisting.

Police spokeswoman Hallingse said the arresting officer was Evan Flanders, who was assigned to APD’s public housing unit along with Officer Justin Wilson, who was connected to the arrest in court documents.

Both were senior police officers at the time, according to personnel records. Flanders has since been promoted to sergeant. Neither has been suspended or demoted.

In court, Moore dismissed the charge.

While APD gave little new information on the arrests, police advocate Brandon McGaha said to make an arrest the officer would need to have reasonable suspicion Ellis was committing a crime and Ellis would have to “reasonably understand” he was the target of an investigation.

“He had no obligation to obey the officer’s order,” said McGaha, a Southern States Police Benevolent Association staff representative.

Questions of bias, disrespect

A six-month statewide study conducted in 2015 at UNC Chapel Hill showed African-Americans were charged with 51 percent of RDOs, more than double the 22 percent black population. But that’s a smaller gap than Asheville, where black RDO arrestees are nearly triple the city’s African-American population.

Asheville’s numbers raise serious questions about bias, said Frank Baumgartner, a UNC Chapel Hill political science professor who specializes in policing and bias and wrote the study.

It's possible black people are resisting officers more than white people, Baumgartner said, but he doubted it.

“The $64,000 question is whether these disparities are justified,” he said. “To me, I can't really see it.”

Other states have examples of similar disparities, said Baumgartner, who was invited by Charlotte to speak in a March 2018 public broadcast with the city’s police chief on the concept of “driving while black.”

In Ferguson, Missouri, where police treatment of black residents ushered in a new phase in racial politics, resist charges were widely abused, according to former federal prosecutor Chiraag Bains, who sued Ferguson.

Bains said the high number of black suspects facing the charge made federal investigators suspect racial bias. Communications they obtained between officers backed that up, he said.

Many times, police would stop a black resident without a lawful reason, he said, and the person stopped didn't want to comply or complained. For that, Bains said, they were charged with resisting.

"An officer would bring (the charge) in retaliation for something someone was doing that is lawful First Amendment conduct."

In cases of unlawful arrest, a person has the right to resist, legal experts say. In North Carolina, that is backed up as recently as 2008 by the N.C. Court of Appeals’ State v. Branch ruling, where it was found a motorist had the right to drive away from Fayetteville police after no problems were found with his license and there was no reasonable suspicion the driver had done anything wrong.

North Carolina Central University law professor Scott Holmes said at the root of many RDOs are officers not liking how someone talked to them. Holmes’ class conducted a nearly three-year study, from 2014-16, on resist charges in Durham, finding the large majority went to people who were black.

When he was a defense attorney, Holmes said he took a special interest in RDOs. He mailed letters to people charged and offered to represent them.

"I noticed with these resisting charges, especially when they stood alone, usually an officer felt disrespected and wanted to punish that person," he said.

MORE: Does a resisting arrest charges keep police from getting sued later?

What explains Asheville's disparity?

Asheville police officials noted local resist charges in general weren’t that common, with the 1,800 over the five years amounting to 7 percent of all arrests. Hallingse said that indicated “the vast majority of offenders comply with officers during arrest.”

Some police advocates, like McGaha, said the racial disparity has occurred because officers tend to encounter more people face-to-face in poor neighborhoods, which have higher crimes rates and higher minority populations.

“So when an officer goes to deal with a situation and there is a large crowd out there, there’s more chance that somebody is going to get involved with that," the Southern States Police Benevolent Association staffer said. "Because, Mom sees son getting arrested, Dad sees son getting arrested, friend sees friend getting arrested, so they are going to get involved with these things."

McGaha’s counterpart, Asheville Police Benevolent Association President Rick Tullis, said he couldn’t speak to the disparity and would have to look at "case-by-case circumstances.” Tullis is also an APD police sergeant but isn’t authorized to speak for the department.

Fraternal Order of Police President Lance said a high number of resist charges by an officer can raise a red flag. Lance once commanded APD’s crisis negotiation team, where he would use RDOs to screen applicants.

"One of the questions we asked was how many times have you charged RDO? We asked that to see how many times you tried to talk to people. It shows if you charge all the time, you’re not good at talking to people, you’re not good at de-escalation," he said.

With the 166 standalone RDOs, there was no pattern of particular officers making the charge in the last five years. The most frequent charging officer averaged just over one standalone resist arrest per year, according to the Citizen Times analysis.

While APD doesn’t prefer standalone RDO charges, Hallingse said they can be necessary.

"We understand it may be perceived or abused as a catch-all, however, it is not prohibited because there may be circumstances that warrant it,” the APD spokeswoman said.

Broad charge, links to use of force

The broadness of the RDO law gives it potential for abuse, civil rights advocates say.

Under North Carolina General Statute 14-223, anyone who "willfully and unlawfully" resists, delays or obstructs an officer who is attempting to discharge a duty can be charged. In practice that can mean struggling with an officer, running away or even giving false information.

“A person doesn't have to actually physically resist,” said Asheville NAACP President Carmen Ramos-Kennedy. “If you are perceived to have 'delayed' an officer in his or her duties, in any way, you can be charged.”

Ramos-Kennedy said the language is too subjective and can be dangerous when coupled with an officer’s bias or “warrior attitude.”

“It's difficult to hone in on exactly what behavior constitutes RDO.”

McGaha said that leeway gives an important tool to officers. Lawmakers "left the language broad for a purpose because they know officers have to solve problems on the street,” he said.

While RDOs can stem from nonviolent incidents, the charges can be indicators officers use force, said longtime Asheville defense attorney Andy Banzhoff. That is because if “police use force, there will almost always be an RDO."

"The old saw for years has been if the cops put their hands on you, they’re charging you with a crime. And it’s going to be that charge," he said.

Establishing a direct link between an RDO and a specific use of force can be difficult. That is because detailed use-of-force reports are not public record. APD reformed its use-of-force policies in 2017 and despite one high-profile beating saw a decline in incidents.

In December, following lengthy negotiations with open data activists, police made public more use-of-force data, though the released information only covers 2018. Activists say they are still combing through it for any trends. APD has said it will "continue to work to make additional data sets available."

FOP President Lance said officers are careful with charges because they are scrutinized by multiple parties, including prosecutors and judges

"It's nonsense to think these officers are out there trying to circumvent the laws and trying to get out of trouble, especially in this day and time with cameras," Lance said. "That's the last thing they are going to do."

But one notable instance of what APD officials called unwarranted lethal police force was captured by a body cam. Release of that footage depicting a black man charged with resisting an officer sparked widespread outrage.

The Johnnie Rush police beating

Rush was a dishwasher living in one of Asheville's poorest neighborhoods when video of his violent Aug. 24, 2017, arrest thrust him into the national spotlight.

He said he encountered police late at night after a long work shift. He was on his second trip to a convenience store to buy forgotten cigarettes when APD trainee Verino Ruggiero stopped him and asked his name.

MORE: Johnnie Rush was charged with resisting an officer. Here's what happened, word for word

No video of that part of the encounter has been seen by the public. Interviewed months later, Rush, now 33, said he pushed back, asking why Ruggiero needed his name.

But he said the trainee wouldn’t tell him and asked for identification. Rush, feeling aggravated, said he again questioned why he was being stopped. But wanting to go home, he relented, he said.

After checking for outstanding warrants Ruggiero told Rush he had jaywalked and he would let him go with a warning, Rush said.

“So, I’m like, ‘Yes, sir. No problem.'"

During Asheville Tourists minor league baseball games, Biltmore Avenue is crossed by hundreds of fans, against traffic, to get to McCormick Field. But Rush said he tried to obey the rules on the walk back to his apartment at Lee Walker Heights.

He was stopped once more by Ruggiero and the officer training him, Christopher Hickman, and in the portion of the encounter captured on video, Hickman can be heard saying Rush jaywalked again. Ruggiero confronted Rush, who alternately protested and apologized, saying at one point, “I’m so sorry,” and “you’re right.”

When Ruggiero told Rush to look at him, he said he didn’t have to and told the officers they were harassing him. Rush then cursed, and police moved to arrest him.

He ran briefly while saying, “sir, look.” Hickman chased and said Rush was “going to get (expletive) up hardcore.” Hickman tackled him, used a stun gun and choked and punched him, while Ruggiero and another officer tried to hold Rush.

Along with impeding traffic, second-degree trespassing and assault on a government official, police alleged Rush had resisted an officer.

A complaint from Rush led to his charges being dropped and an internal investigation culminating in Hickman’s resignation. But the incident remained largely unknown until the Citizen Times’ publication of Hickman’s leaked body cam footage six months later.

Hickman then was charged with felony assault by strangulation, misdemeanor assault inflicting serious injury and misdemeanor communicating threats. He is awaiting trial in Buncombe County Superior Court.

Minority residents poured into public meetings with police and city officials calling for changes. City manager Gary Jackson was fired. Ten months later, Police Chief Tammy Hooper would resign. The city ordered police to curtail searches and do intervention training to stop use of excessive force, among other reforms.

Rush’s beating was a culmination of other issues driving change. In 2017, open data activists have presented numbers saying 24 percent of police traffic stops were of black motorists and that African-Americans made up 46 percent of those searched after stops.

The birthday party RDO in Hillcrest

A year earlier, video of an officer roughly throwing a 16-year-old girl to the ground spread on social media and led to accusations of excessive force and over policing in minority communities.

The girl, not identified in news reports at the time because of her age, was charged with assault on a government official and resisting. The charges were later dropped.

Now 18, KaCee Fleming told the Citizen Times in an October interview that she was trying to stop police from being too rough with her older brother, Dominique Fore, who had been experiencing seizures.

Fleming said her brother previously had served jail time and was wearing an ankle monitor on Sept. 5, the night of her 16th birthday party, when officers came to Hillcrest to arrest him for failing to appear in court.

MORE: Racial disparity found in resisting arrest charges in NC, other parts of U.S.

In the security footage, officers are seen attempting to handcuff Fleming. She pulled away and within a matter of seconds an officer shoved her to the ground. Fleming landed on her back with her legs in the air and the officer rushed toward her.

A crowd can be seen swarming around the officer and the teen. A few seconds later, the crowd dispersed. An officer took Fleming to a police car, which was not in the frame of the video. She appeared to be struggling.

“I guess at that point, they were probably tired of my voice and me following them and he turned around and, like, slammed me,” she said. “I don’t remember exactly how he grabbed me or whatever. I know he slammed me really, really hard and he hurt me. I know that.”

A warrant for her arrest said Fleming struck the officer's arm "with a free hand while officer (Shalin) Oza was attempting to affect arrest, kicking/stepping on officer Oza's feet as officer Oza attempted to bring the defendant under his control."

Fore’s warrant was later considered invalid, Fleming said, though court records don’t provide a clear picture.

Fleming, who is multiracial but considers herself black, said she thinks race played a role in her arrest.

Police have given her brother extra scrutiny, she said, because he is a black man with tattoos, the assumption being, “he’s in a gang.” Police lumped them together, she said.

Attorney Josh Nielson said he took Fleming's case for free because he “felt strongly about that type of treatment of citizens by law enforcement."

“They’ll tag someone with a resist charge almost as standard procedure, because, for example, they don’t like the way the defendant interacted with them.”

Fleming had a bruised arm and leg and they considered a civil lawsuit but decided against it, Nielson said.

Fleming said that was likely because she was arrested a second time and charged for simple affray and RDO. Fleming said she was defending herself and those charges were dropped.

The results of an internal investigation into her Sept. 5 arrest are not public record.

Oza’s publicly available personnel file showed no demotions or suspensions. He resigned June 11, 2017, nine months after Fleming’s arrest. He didn’t respond to a message seeking comment. He now works for the Henderson County Sheriff's Office, according to former APD officer Hunter.

Fleming is now a single mother of a 1-year-old girl. She works at a restaurant on Tunnel Road. Her 2016 charges, or any others before she was 18, are not public record and would not be easily found by potential employers.

But her lawyer, Nielson, said they "still might have some effect on her life.”

A data system used by police can tell officers quickly about arrest history, including RDOs. Knowing that and having a "heightened sense of awareness" can be important for officer safety Asheville Police Benevolent Association President Tullis said.

Whites charged, say arrests violent

Several white RDO arrestees were struck and forcefully held by police, according to interviews and documents, including an internal police report obtained by the Citizen Times.

Kessler Watson was walking home from Asheville to Fairview the night of July 29, 2013, when a police car stopped the then-21-year-old musician.

Barefoot and with his guitar on his back, Watson had just stepped onto a portion of U.S. 74 also designated as interstate, the most logical route, he said.

The officer asked Watson why he was barefoot on the interstate, to which Watson replied he didn't have shoes or a car. Watson said the officer was being aggressive, and he tried unsuccessfully to get the officer's name.

MORE: Asheville police and disparity in resisting arrest charges: How we reported this story

“He questioned me for a minute and found out I had nothing illegal on me and had done nothing wrong except for being on the interstate,” Watson said. “He said, ’Take your guitar off your back and put your cigarette out and you’re going to jail.’”

Watson said he had never run from police before, though he had faced charges, such as misdemeanor marijuana possession. But that night he scrambled away and hid under a bridge near railroad tracks.

Multiple officers searched for him, and when one shined a light on his hiding spot, he said he came out with his hands up and asked them not to hurt his guitar. But they ran at him "like a football team,” he said, ripping his guitar off and throwing it aside.

“They kept saying stuff like, ‘Stop resisting,’ which I wasn’t. Then they all took turns beating the (expletive) out of me under the bridge,” he said. “I don’t think I even got read my rights that night. I totally got brutalized.”

At the jail he said he tried to tell officials what happened but got little sympathy. He was charged with second-degree trespassing and trespassing on a railroad right-of-way along with RDO. He pleaded guilty to the three misdemeanors, court records show.

Watson, who is now 26, said he wasn’t badly injured and his guitar surprisingly wasn't damaged.

Arresting officer Stephen E. Pinkerton resigned less than two months later, on Sept. 7, 2013, records show. Hired in 2010, Pinkerton had no suspensions or demotions.

'I wasn't doing anything wrong'

Justin Cantrell was in a car with friends coming back from downtown bars early on Sept. 11, 2015, when they saw a police traffic stop, he said. The driver was taking them back to her house on W.T. Weaver Boulevard near UNC Asheville and pulled into her driveway about 300 yards before the police car blockade.

Cantrell, then a 23-year-old student and house painter, said they weren't avoiding the police, but officers came quickly to the house.

Cantrell said he told his friends to get out of the car and go into the house, but officers told them to come back.

“I didn’t want to. I wasn’t doing anything wrong," he said. "It kind of got to where they put us all in handcuffs."

Standing with his back to police, Cantrell said he was "a little agitated," and tried to turn back to say something. But an officer kicked out his legs and sent him crashing to the ground face first.

“I skinned my face pretty badly, the officer put her knee in my back."

While Cantrell said the officer who kicked him was a woman, the arresting officer was listed as Benjamin Shelton. Shelton was fired less than a year later for unspecified reasons, though his public personnel file showed no demotions or suspensions. He had worked for APD for nine years.

Cantrell's friend was charged with driving while intoxicated, and he was arrested on an RDO. Swollen and bruised, but with no permanent injuries, Cantrell said he remembers paying upward of $500 in getting the charge dismissed. His record prior to that was clean, he said.

Now 26 and working as a cook in a brewery restaurant, Cantrell said officers could have handled the situation better and that his actions didn’t warrant what was done to him.

“When I think of resisting arrest, I’m thinking you’re, like, forcefully being over the top — not that you’re moving your shoulder the wrong way.”

Another arrest by Chris Hickman

Another arrest of a white person was made by Hickman, only a week before his encounter with Johnnie Rush. Security personnel at an Aug. 18, 2017, Downtown After Five Music event said Anthony Morrow was being disruptive so Hickman told him to leave. Morrow wouldn't and when Hickman tried to arrest him, he resisted, refusing to put his hands behind his back and pushing his fists toward the officer, according to a police narrative written by Hickman. Narratives are not public record but police accidentally sent Hickman's to the Citizen Times.

Two officers, Doug Williams and Ruggiero, the trainee who would later help subdue Rush, came to help in the arrest.

Hickman grabbed Morrow from behind his head and picked him up “from his shoulders and drop(ped) him onto the ground.” Morrow tried to stand back up and wouldn’t give officers his hands, the report said, so Williams kneed him in the lower legs and abdomen.

Once in handcuffs, Hickman cut off Morrow’s backpack to search it. The report didn’t indicate if anything was found.

The arrest of Morrow, who had a history of homelessness and minor offenses, would have stayed off the public radar had it not been for federal investigators’ interest in the Rush case as a potential civil rights violation.

U.S. Attorney for the Western District of North Carolina Andrew Murray subpoenaed information including body cam video and records of the Morrow arrest. Murray decided not to proceed with the case.

Attempts to reach Morrow were unsuccessful.

Police charged Morrow with three counts of resisting a public officer, one count of trespassing and one count of damage to personal property for causing $50 in damage to Hickman's handheld radio microphone earpiece. All are misdemeanors.

At the Buncombe County Detention Center, Hickman said Morrow argued and was “belligerent," so the magistrate denied him bail.

Hickman said Magistrate Sherri Barber was frustrated there were three RDOs and wouldn’t grant the three charges because she knew “it would be dropped in court.”

Officers didn’t “engage the magistrate any further on this issue,” he said, and wrote two RDOs as citations with the same court date as the charges. Hickman said officers felt three RDOs were justified since “each individual officer did encounter resistance."

On Feb. 28, 2018, Morrow’s public defender agreed to a deal dropping one of the resist charges. That night, Hickman’s body cam video of the Rush beating was published and Morrow’s attorney appealed to Superior Court.

District Attorney Todd Williams dropped Morrow's case along with more than two dozen others tied to Hickman.

The internal investigation found Hickman had not violated APD policies against excessive force with Morrow.

Morrow filed no complaint, and the video of his arrest has not been seen by the public.

Most standalone RDOs dismissed in court

Once they got to court, most of the 166 standalone resist charges for which there are records were dismissed. Some, for which court records could not be found, probably were never officially charged, clerk of court personnel said.

Of the black defendants, 57 percent had their charges dismissed, while 53 percent of whites had theirs dropped. As of August 2018, six cases were pending and 23 had no court records.

It's not clear what the dismissal rate was for all 1,800 RDOs issued over the last five years. The public court record system does not allow for data downloading and sorting.

Williams said dismissal rates aren't useful for drawing "broad conclusions" about the justice system because they don't take into account socioeconomic factors.

But the district attorney said the dismissal rates presented by the Citizen Times “seem to indicate that our prosecutorial discretion is being exercised without reference to racial bias or other irrelevant factors, which is always our focus in doing justice.”

Civil rights leaders like Asheville NAACP President Ramos-Kennedy said court results back up the idea police have broad discretion with RDOs and that discretion is used disproportionately against African-Americans.

“RDO should have the word ‘black’ before the acronym,” she said.