Chief explains why hog-tying death didn’t violate directives

The Greensboro police acknowledge that a man who died after hog-tying incident was lying face down, but Chief Wayne Scott says the directive prohibiting that position only applies to the transport of persons in custody.

Greensboro police Chief Wayne Scott has acknowledged that Marcus Smith was lying face-down when officers applied a controversial restraint known as “hog-tying” shortly before he became unresponsive and died, corroborating a critical point in an account by the family’s lawyer, who has reviewed police body-camera footage.

The only guidance in the department’s directives that reference the technique, which is also known as Ripp Hobble, stipulate that a person in the restraints should be “seated in an upright position or on their side.” The department announced through a city press release in mid-November that an administrative investigation found no violations of directives, and the officers were being returned to regular duty.

The chief noted that the directive falls under a section referencing “handling and transporting persons in custody.”

“Those specific things you’re indicating are designed for when we’re transporting persons in custody,” Scott said. “Unfortunately, we never got to the point where we’re transporting Mr. Smith.”

Scott said the department doesn’t have a specific directive on applying the Ripp Hobble, or hog-tying, restraint prior to transporting detainees, adding that officers follow the recommendations of the manufacturer of the device and learn the proper techniques in training.

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A training video by Black Dog Tactical, a Phoenix company that sells hobble devices to police agencies, shows a subject lying face down while the restraint is applied. The video shows the subject being rolled on his side after the successful application of the restraint. Scott Williams, the special-agent-in-charge for the State Bureau of Investigation’s Northern Piedmont District — who oversaw the investigation of the officers’ handling of the incident — stressed a point also made by the chief. Agent Williams and Chief Scott said there’s no way to apply the restraint unless the person is lying face down, adding that as soon as possible the officers should turn the person on to their side.

“It was a fast-evolving situation when they were placing that Ripp Hobble,” said Williams, who has reviewed the police body-camera video. He added, “You can’t apply that device without someone being placed down briefly. That’s what happened in this situation. The goal is once it’s applied to immediately turn them over on their side.”

The city’s initial disclosure of the incident, in a Sept. 8 press release, did not mention that officers applied any kind of restraints on Smith, noting only that “the subject became combative and collapsed.”

Graham Holt, a lawyer for Marcus Smith’s family, described the incident in a Nov. 12 letter to Mayor Nancy Vaughan and members of city council, while asking council members to review the video.

“While multiple officers held him down, one officer cuffed Marcus’ hands behind his back,” Holt wrote. “Another officer then grabbed Marcus’ ankles and pushed up on his feet forcing Marcus to bend his knees. The officer pushed his feet all the way to the point that Marcus’ feet were touching his handcuffed hand at the small of his back. Then they hogtied him. Using a strap of some kind they bound his hands to his feet behind his back. He was still face down. The officers tightened the strap so tight that Marcus’ shoulders and his knees were suspended above the ground.

“Marcus’ breathing quickly became strained and under a minute later he stopped breathing altogether,” the letter continues. “The officers were talking to each other over his body while he stopped breathing. A few moments after Marcus stopped breathing, one of the officers looked down and saw that Marcus’ eyes were closed and ascertained that Marcus was unresponsive. Knowing that the hog-tie was the problem, one of the officers exclaimed, ‘Untie him now!’ But it was too late. EMS tried to resuscitate him in the ambulance, and it looked to me like he had already passed or else he passed a short time later.”

The directive on “handling and transporting persons in custody,” references a health risk widely associated with the use of the Ripp Hobble device, or hog-tying. The directive states that if the Ripp Hobble device is applied, “the knees of the arrestee will not be bent more than 90 degrees (unless extenuating circumstances exist) to prevent stress being placed on the arrestee’s chest muscles or diaphragm, which might contribute to a positional asphyxiation situation.”

Holt said that during the roughly one-minute period from the time officers began applying the restraint to when Smith became unresponsive, the officers continuously adjusted the straps while one officer pushed Smith’s legs “to the point where his toes were back pointing at the back of Marcus’ head.

“I think the officers used reasonable force, knowing an encounter with an individual is a fluid process,” Chief Scott said.

The departmental directive requires officers who use the Ripp Hobble, or hog-tying, to keep the person under direct observation at all times. The directive, which also falls under the heading of “handling and transporting persons in custody,” states, “It is the responsibility of the arresting officer to ensure the arrestee is under direct observation from the time he is restrained in this manner until the restraints are removed or the custody of the arrestee is turned over to another agency.” (Smith was not arrested or charged with any crime; he was restrained after trying to kick through a police-car window while awaiting EMS transport to a mental health evaluation.)

“They were not paying attention to his face,” Holt said. “They were not monitoring how he was doing. I don’t think this is a matter of interpretation. It is crystal clear what happened. The video isn’t obscured. You can see what happened.”

Chief Scott that “there were just seconds between the change in [Smith’s behavior] and the response of the officers.”

“I do believe they were attentive,” he added.

‘No evidence of any criminal liability’

As detailed in a letter from the Guilford County District Attorney’s office to Greensboro Police Department, Assistant District Attorney Stephen W. Cole informed Chief Scott that he had met with Eric Frey, the SBI assistant special agent who served as the lead investigator into the circumstances surrounding Smith’s death. Cole wrote in the letter, which was obtained by City Beat, that Frey had “shared the extent of his findings to date, including video footage from body-worn cameras” capturing the incident. While acknowledging that the SBI investigation was not complete — an autopsy and toxicology report have not been released to date — Cole reported to Chief Scott that “there is no evidence of any criminal liability on the part of the named officers.”

Special Agent-in-Charge Williams told City Beat that the district attorney’s determination that the Greensboro police officers bear no criminal liability in the death of Marcus Smith is consistent with what his agency’s forthcoming report will show.

“I don’t know that they will ever determine a cause of death,” Williams said in reference to a pending autopsy anticipated from the Office of the State Medical Examiner. He added that a pending toxicology report “will explain why the person was acting the way they were.”

Williams acknowledged that a finding that Smith’s death was caused by positional asphyxiation would be relevant to the district attorney’s finding on potential criminal liability by the officers. Asked whether the district attorney’s determination was premature in advance of the autopsy report, Williams said an agent observed the autopsy, and “the [medical examiner] told us they couldn’t determine anything that caused the death.”

Williams said the medical examiner reviewed the police body-camera video.

“They wanted to make sure no officer had their knee on Mr. Smith’s back, (which no officer did) which could put pressure on the chest, which could cause positional asphyxiation,” Williams said in an email.

In response to an attempt to speak with the medical examiner responsible for Smith’s autopsy, a spokesperson for the state Department of Health and Human Services indicated in an email on Wednesday that “individual reports and information are not released from the Office of the Medical Examiner (OCME) prior to the completion of the case, and individual cases are not discussed outside the publicly available documents.”

‘Proven to contribute to serious injury or death’

The risk of positional asphyxiation is widely referenced in directives governing the use of hogtying or hobbling — also known as prone maximum restraint position and maximum restraint — by Triad law enforcement agencies.

Police Attorney Brian Beasley told City Beat that the High Point Police Department, like its counterpart in Greensboro, issues hobbles and trains officers on their use. The High Point Police Department’s General Order on Use of Force spells out the requirements for adjusting the person’s position as soon as the restraint is applied in a way that the Greensboro Police Department directive doesn’t.

“Once a resistant subject is under control and handcuffed, place the subject on their side or in a seated position while awaiting transportation to a detention facility to avoid the possibility of positional asphyxiation,” the High Point general order states.

The Winston-Salem Police Department, along with the sheriff’s offices in Forsyth and Guilford counties, does not allow its officers to hog-tie detainees.

In response to an inquiry from City Beat on department policy on the use of hog-tying, Ripp Hobble, or prone maximal restraint position, Police Attorney Lori Sykes responded that the Winston-Salem Police Department’s Use of Force policy “strictly prohibits this technique.” The prohibited maximum restraint position is defined in the Winston-Salem Police Department’s General Orders on Use of Force as “placing a subject with hands secured behind their back, legs secured together, and their legs and hands connected together behind the subject’s back with the subject’s legs flexed at the knees. Subject is laying on their side or face-down.”

In response to an inquiry about what tools are available to Winston-Salem police officers as an alternative to hog-tying, Lt. Brian Dobey referred to a use-of-force continuum chart included in the General Orders document. The chart allows several different “incapacitating” applications for “assaultive behavior,” including personal weapon strikes to the head and neck; baton strikes to major muscle mass; conducted electrical weapons, also known as Tasing; pepper spray; and a “less lethal” projectile firing weapon.

The Guilford County Sheriff’s Office policy allows for the use of a hobble device to restrain a person’s feet and legs during transport, but cautions that “this device is not be used to bind a person’s arms behind them or to ‘hog-tie’ a person. Sheriff’s Attorney James Secor explained that rather than looping the loose end of the hobble strap through a detainee’s handcuffs, officers will typically trap the loose end in a closed rear vehicle door to secure it. Secor said he and another attorney created a training video on positional asphyxiation that they presented to deputies and detention officers during an annual in-service training.

Secor added that nothing he said “should be interpreted as a comment on how Marcus Smith was restrained by GPD.”

The entry for “restraining devices” in the Forsyth County Sheriff’s Office’s Standard Operating Policy on Transport of Detainees and Arrestees states that “restraining devices or techniques that have been proven to contribute to serious injury or death, e.g. ‘positional asphyxiation’ during transport, shall be prohibited.”

The Forsyth County Sheriff’s Office policy references a standard developed by the Commission on Accreditation for Law Enforcement Agencies, or CALEA. The standard states: “It is necessary for officers to know when and how detainees are to be restrained and when, where and how particular restraining devices are to be employed, including special and prohibited methods. Agencies should be aware that some techniques have been found to contribute to serious physical injury or death, e.g. ‘positional asphyxia’ and should be prohibited.”

CALEA Executive Director Craig Hartley, formerly an assistant chief with the Greensboro Police Department, said the standard is only an advisory and is not binding. The Greensboro Police Department earned the highest level of accreditation offered by CALEA in 2017. The city said in a January 2018 press release that “to qualify for the award of excellence, the department had to have at least 90 percent compliance with standards that are not mandatory.”

Graham Holt and Marcus Smith’s family have contended since they held a press conference in mid-November that the officers’ use of the hog-tying technique caused Smith’s death.

“I’m hoping they discovered enough in the autopsy to incorporate that into the report because that is what killed him,” Holt said. “I watched him stop breathing after they hog-tied him. No matter what the toxicology report says, he was breathing just fine until they hog-tied him.”