The surviving family members of a 38-year-old man who died while being hogtied by the Greensboro police are suing the city for wrongful death under federal civil rights law.

Marcus Smith, a 38-year-old man who suffered from bipolar disorder and schizophrenia, died during an encounter with police officers in downtown Greensboro late at night after the North Carolina Folk Festival in September 2018. Officers bound his legs and arms behind his back with a Ripp Hobble device after he attempted to kick out a police car window. The NC Office of the Chief Medical Examiner eventually ruled Smith’s death a homicide as a result of “sudden cardiopulmonary arrest due to prone restraint” as well as the presence of MDMA, cocaine and alcohol, and hypertensive and atherosclerotic cardiovascular disease.”

Smith (left) died after being hogtied by Greensboro police in September 2018.

The lawsuit filed today in US District Court for the Middle District of North Carolina charges that “defendants, acting jointly and in conspiracy and under the color of state law, deprived decedent of rights, privileges, and immunities secured by the Constitution and laws of the United States, including those secured by the Fourth and Fourteenth Amendments to the Constitution, by among other things, subjecting decedent to unreasonable and excessive force and/or directing, encouraging and implementing the use of unreasonable and excessive force, and/or failing to intervene on his behalf to stop the unreasonable and excessive force having the duty and opportunity to do so; and/or unreasonably failing to promptly attend to his severe medical needs.”

In addition to the city of Greensboro and Guilford County, the suit names police officers Justin Payne, Robert Duncan, Michael Montalvo, Alfred Lewis, Christopher Bradshaw, Lee Andrews, Douglas Strader and Jordan Bailey as defendants, along with Guilford County paramedic Ashley Abbott and EMT Dylan Alling.

The suit also alleges that the city violated Smith’s rights under the Americans with Disabilities Act by “fail[ing] and refus[ing] to reasonably accommodate [his] mental health disabilities and to modify their operations, services, accommodations and programs to reasonably accommodate Marcus’ disabilities.”

Mayor Nancy Vaughan, who is attending a conference in Philadelphia today, said she hadn’t had an opportunity to read the complaint and couldn’t comment specifically on the lawsuit. But she said the filing of the suit means the city will almost certainly shelve plans to hire an outside law firm to conduct an independent review of Smith’s death.

“I think on Tuesday there was a majority of council members that were willing to support a professional, independent review of the Marcus Smith investigation,” Vaughan said. “However, now that there’s been a lawsuit filed, I think we’re going to have to table that vote. Whenever there’s a lawsuit that’s been filed it ties our hands, and I think this is probably a strategic blunder on their part.”

The suit seeks “substantial compensatory damages” from the city and county, along with punitive damages from the individual defendants “because they acted in a malicious and/or willful and wanton manner.”

Smith’s family is represented by Graham Holt, a local lawyer, along with Flint Taylor, Ben Elson and Christian Snow of the People’s Law Office in Chicago. Taylor represented plaintiffs seeking redress in the 1969 murder of Black Panther Party leader Fred Hampton by the Chicago police, and was also part of the legal team that won a wrongful death civil suit against the city of Greensboro and members of the Ku Klux Klan in the aftermath of the 1979 Greensboro Massacre. Taylor appeared at Scuppernong Books in Greensboro last night to talk about his book The Torture Machine: Racism and Police Violence in Chicago.

Flint Taylor, one of the family’s attorneys, spoke at a press conference on Wednesday where the family announced they had filed the federal lawsuit. Taylor represented plaintiffs seeking redress in the 1969 murder of Black Panther Party leader Fred Hampton by the Chicago police, and was also part of the legal team that won a wrongful death civil suit against the city of Greensboro and members of the Ku Klux Klan in the aftermath of the 1979 Greensboro Massacre. (photo by Sayaka Matsuoka)

The lawsuit alleges that Greensboro police officers “caused Marcus’ death by brutally restraining him prone on the ground and hogtying him like an animal until he stopped breathing, and the Guilford County EMS paramedics, who were called to the scene, failed to intervene to protect Marcus from the use of unreasonable force and failed to promptly attend to his serious medical needs.”

Guilford County EMS could not immediately be reached for comment for this story.

The suit goes on to say that the officers’ use of force through hogtying Smith with the Ripp Hobble device “was unnecessary, unreasonable and excessive because Marcus was not engaged in any criminal conduct, was unarmed, made no threats to the police officer or others, presented no immediate danger to the officers, himself or others, was not actively resisting arrest, and was particularly vulnerable to the excessive force because of his delusional and agitated mental state.”

The suit also alleges that the police department attempted to cover up the cause of Smith’s death by misrepresenting the circumstances surrounding the incident.

“The same day Marcus was killed, the GPD issued a press release that contained misinformation, lies, and omissions, stating that Marcus collapsed while he was in police custody (he did not), that he was combative (he was not), that officers rendered aid (they did not), that he died at the hospital (he died face down in the street), and blatantly omitting that Marcus was taken to the ground by the police and forcibly restrained and hogtied,” the complaint says.

The suit quotes from the police department’s directives manual, which states that “at no time shall the wrists and ankles of an arrestee be linked together using the Ripp Hobble restraining device, unless the arrestee can be seated in an upright position, or on their side,” and also notes that police Chief Wayne Scott stated that the directive did not apply to Smith’s death because the incident occurred before he was transported. The suit also quotes a warning from the manufacturer of the device reading, “Never hog-tie a prisoner.”

Jake Keys, a spokesperson for the city, said that neither Chief Scott nor City Manager David Parrish would comment on the matter because it involves litigation against the city.

“Defendant city of Greensboro and its police department have a long history of racist police violence and misconduct and deliberate indifference,” the lawsuit alleges, “including, most recently, the targeting of African Americans for, among other things, driving while black and being downtown while black, and the accompanying use of force, violence, false charges, perjury, and coverup by superiors using the professional standards division, the chief of police, the city manager, the city attorney, and the city council to condone and ratify police misconduct, which causes Greensboro police officers, such as the officers in this case, to believe that they can abuse African-American citizens with impunity and with no fear of consequences.”

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