Mary and George Smith speak at a press conference about their son, Marcus’ death. (file photo)

A federal judge has ruled that a civil rights lawsuit filed by the family of a man who died a result of being hog-tied by Greensboro police officers may go forward.

The March 25 order by US District Court Judge Loretta C. Biggs denies a motion by Greensboro police officers and paramedics employed by Guilford County EMS to dismiss claims. The judge also rejected a motion by the city of Greensboro for dismissal, while granting a motion for dismissal by Guilford County.

Greensboro police officers found Marcus Smith — a 38-year-old man who suffered from bipolar disorder and schizophrenia — pacing back and forth in a state of distress on North Church Street in downtown Greensboro on the final day of the North Carolina Folk Festival, in the early-morning hours of Sept. 8, 2018. Smith asked officers to take him to the hospital. For a brief period, Smith sat in the back of a squad car while waiting for an ambulance, but then became agitated and tried to break out of the car.

With two paramedics observing, Smith emerged from the car and officers forced him to the ground, handcuffing him and applying a restraint known as a RIPP Hobble to his ankles, which was then looped through the handcuffs and tightened. Police body-camera video released by the Greensboro Police Department showed Smith crying out, moaning in pain, and gasping for air before becoming unresponsive. The state Office of the Medical Examiner classified Smith’s death as a homicide, while listing his causes of death as “sudden cardiopulmonary arrest due to prone restraint; N-ethylpentalone [bath salts], cocaine, and alcohol use; and hypertensive and atherosclerotic cardiovascular disease.”

The lawsuit filed by George and Mary Smith, alleges that the defendants violated their son’s Constitutional rights under the Fourth and Fourteenth amendments by subjecting him to excessive force, and failing to attend to his serious medical needs, along with wrongful death and other alleged breaches.

Judge Biggs indicated in her ruling that the excessive-force claim against eight Greensboro police officers — Justin Payne, Robert Duncan, Michael Montalvo, Alfred Lewis, Christopher Bradshaw, Lee Andrews, Douglas Strader and Jordan Bailey — will revolve around whether the use of the RIPP Hobble device “was so disproportionate to the needs of the moment that it amounted to a Fourth Amendment violation.”

Biggs ruled that the plaintiffs’ claims of excessive force are at least plausible, noting that the Smiths maintain that the manner in which their son “was restrained — holding him prone on the ground, ‘bending his knees… until his feet were touching his handcuffed hands in the small of his back,’ while ‘tightening the [hobble] so tight’ that he asphyxiated — was excessive.

“Viewing the allegations in the light most favorable to plaintiffs, the court agrees,” Biggs wrote. “As alleged, the officers easily forced Smith to the ground, handcuffed him, bound his ankles, and affixed his hands to his feet using the hobble. Rather than stop there, however, the officers ‘continued to violently push [Smith]’s feet toward his back,’ as he ‘wheez[ed], moan[ed], groan[ed], [and] gasp[ed] for air.’ It is plausible that this behavior was unreasonable; even if some use of restraint was warranted under the circumstances, there was no need to ratchet up the tension on the hobble, once Smith — who was not actively resisting in the first place — had been clearly subdued. Thus, even under an analysis more appropriately tailored to the medical-emergency context, plaintiffs have plausibly alleged that the officers violated Smith’s right to be free from excessive force.”

Judge Biggs also allowed another of the plaintiffs’ claims — that the city of Greensboro demonstrated deliberate indifference through a failure to properly train officers on the use of the RIPP Hobble device to go forward.

The “plaintiffs have alleged, with appropriate specificity certain deficiencies in the way Greensboro trains officers to use hobble restraints,” she wrote. “For example, the complaint alleges that Greensboro failed to train its officers ‘as to whether, under what circumstances and/or how to use hogtie restraint devices to bind a subject’s arms and legs together behind his back’; ‘in the dangers of use of hogtie restraint devices, especially for people… whose physical and mental state make them particularly vulnerable to the lethal effects of hogtie restraint devices’; and ‘in the proper way to contain, treat and secure people like [Smith] who… may be in an irrational and/or delusional and/or agitated state because of a mental health crisis.’ These allegations properly describe ‘the nature of the training’ which plaintiffs claim is inadequate.”

In the aftermath of Smith’s death, the Greensboro Police Department adopted a new policy discontinuing the use of the RIPP Hobble device, and is now using a Velcro wrap as an alternate restraint device. Assistant City Manager Nathaniel Davis told city council members during a Feb. 4 work meeting that former Chief Wayne Scott asked the Greensboro Criminal Justice Advisory Committee to review the policy.

“Essentially, they reviewed that policy and rendered a recommendation that GPD has changed their policy and fully re-implemented a new restraint policy… a new Velcro restraint,” Davis said. “And all of the previously utilized RIPP Hobbles were removed from service at GPD.”

While allowing the “failure to properly train” claim to go forward, Judge Biggs rejected a claim by the plaintiffs that Smith’s death is part of “a long history of racist police violence and misconduct” by the city and the police department. “Even if true, the complaint fails to draw a connection between those allegations and a widespread practice of using restraints in an excessive or gratuitous way,” Biggs wrote. “Because allegations that ‘past generalized bad police behavior led to future generalized bad police behavior’ are too ‘nebulous’ to satisfy the ‘rigorous standards of culpability and ‘causation required by [federal civil rights code], the court cannot conclude that plaintiffs have plausibly alleged liability under a custom-or-practice theory.”

Biggs also dismissed a claim that the city violated the Americans with Disabilities Act through the officers’ treatment of Smith. The judge said it is unclear “whether the officers should have perceived a need for special accommodation aside from the usual, lawful treatment afforded to any agitated, intoxicated, or distressed person requiring medical attention,” and that the complaint lacks “any facts that Smith asked for an accommodation” other than to be taken to the hospital “or that the need to treat him differently than a nondisabled person was plain.”

The judge also declined to dismiss charges against Ashley Abbott and Dylan Alling, two paramedics employed by Guilford County EMS. Abbott and Alling had argued that “they were under no affirmative duty to provide [Smith] with medical care because he was in the officers’ custody, not theirs,” Biggs noted.

“The court is not moved by this reasoning,” Biggs wrote. “According to the complaint, the paramedics were the sole government medical team dispatched to aid Smith. There may be some instances in which the jurisdictional differences between Guilford County and the city of Greensboro matter with respect to the duty to intervene. However, in this case, where it appears that the officers themselves called upon the paramedics to render medical care, any distinction between the two governmental employers becomes less meaningful.

Biggs also ruled that the plaintiffs’ claim that the paramedics “exhibited deliberate indifference towards Smith’s serious medical needs in violation of the Fourteenth Amendment” may go forward.

“Though it is a close question, the court concludes that plaintiffs have plausibly alleged deliberate indifference on the part of the paramedics,” Biggs wrote. “According to the complaint, both paramedics stood near Smith as he gasped for air. Even after they ‘knew [Smith] was unconscious, unresponsive and not breathing,’ the paramedics waited more than two minutes before trying to resuscitate him. Any medical professional in the paramedics’ position should have appreciated the urgency of the situation; with Smith not breathing, time was of the essence.

“However, as Smith lay there, the paramedics sat idly by,” Biggs continued. “Viewed in the light most favorable to plaintiffs, these facts plausibly support the allegation that the paramedics disregarded a substantial risk of danger to Smith by delaying their resuscitative efforts far more than two minutes after learning that he was unconscious and not breathing.”

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