A man died in custody while hogtied by Greensboro police

The actions of four officers who hogtied a man who died in custody raise questions about whether they followed GPD directives in their use of the controversial restraint.

The Greensboro Police Department announced the conclusion of an internal investigation finding that four officers did not violate any policies in their handling of an incident in which a 38-year-old man experiencing a mental health crisis died in custody after asking for help on Sept 8.

The announcement that the officers had been cleared of wrongdoing and returned to regular duty came hours after a Nov. 14 press conference that drew an overflow crowd at the Beloved Community Center in which Marcus Smith’s sister, Kay Suber, said on behalf of the family that the officers’ “actions appear to have caused him to pass away.”

George Smith, the man’s father, and Graham Holt, a lawyer who is representing the family, viewed the police body-camera footage of the incident and have reported that the officers’ hogtied Marcus Smith, a detail not previously disclosed by the police department. “By ‘hogtying’ Marcus,” Suber said, “these officers made it impossible for him to continue breathing.”

While the police department maintains that the officers complied with the directives, Holt’s account of the incident in light of the departmental directive on the use of restraints calls into question whether the officers did, in fact, follow directives, with three specific areas in which the officers’ actions, as reported by Holt, appear to be at variance with the directive.

Holt told Mayor Nancy Vaughan and members of city council in a letter delivered on Nov. 12 that “while multiple officers held him down, one officer cuffed Marcus’ hands behind his back. Another officer then grabbed Marcus’ ankles and pushed 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 hands at the small of his back.”

The controversial restraint technique described by Holt is colloquially known as “hogtying.” Under the heading “Additional Restraint,” the GPD directives describe “alternative” techniques that may be used when “a higher level of restraint than handcuffing” is necessary. “In addition to the wrists, the feet or ankles of the arrestee may be secured to restrict the independent movement of the feet and legs,” the directives say, adding that the department provides training in the use of device known as the “RIPP HOBBLE.”

“If immobility is needed,” the directive continues. “the secured wrists and ankles may be linked together using flexicuffs or the hobble device.”

Holt wrote in his letter that the officers used “a strap of some kind” and bound Smith’s feet behind his back.

“He was still face down,” Holt wrote. “The officers tightened the strap so tight that Marcus’ shoulders and his knees were suspended above the ground.”

The directives give explicit guidance on how a person should be positioned after being hogtied and warn against bending the person’s body too severely.

“At no time shall the wrists and ankles of the arrestee be linked together using the RIPP HOBBLE device, unless the arrestee can be seated in an upright position, or on their side,” the directives read. “If this is done, 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 reported: “Marcus’ breathing quickly became strained and under a minute later he stopped breathing. 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 hogtie was the problem, one of the officers exclaimed, ‘Untie him now!’”

The directives also require individuals restrained by hogtying to be closely monitored.

“It is the responsibility of the arresting officer to ensure that 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,” the directives read.

Asked about the apparent variance between the officers’ reported actions and the directive, Ronald Glenn, the public information officer for the department, told Triad City Beat: “Mr. Holt’s description is Mr. Holt’s description. We conducted a thorough investigation, and based on the investigation, the officers followed all GPD directives and have been placed back on duty.”

The city said in a press release on Nov. 14 that the Guilford County District Attorney’s office has cleared the officers of wrongdoing, but an assistant district attorney speaking on behalf of the office gave a statement to City Beat that appears to contradict the city.

The city’s Nov. 14 press release references a letter from the district attorney’s office “indicating, based on information collected by the State Bureau of Investigations (SBI), pending its final report, there was no criminal liability with the police actions concerning this incident. The district attorney’s office states the officers acted at all times within the scope of their duties and with justification under all applicable laws.”

Scott Williams, the SBI Agent in Charge for the Northern Piedmont region, told City Beat the agency has completed interviews, but the investigation is still incomplete pending release of an autopsy and toxicology report.

Assistant District Attorney Veronica Edmisten told City Beat on Tuesday: “My understanding is that our office provided a letter to the police department indicating we had no objection to the officers going back to work. It’s still a pending investigation, so we can’t discuss it further.” Edmisten specifically declined to address whether the district attorney has made any determination on criminal liability on the part of the officers.

Glenn said the police department’s internal review of the incident to determine whether officers followed directives correctly was conducted independent of the SBI investigation, and did not influence the department’s timeline for clearing the officers of wrongdoing.

Mayor Vaughan took a cautious stance on the officers’ involvement with Smith prior to his death.

“I’m not going to comment on something Graham described,” she said. “I don’t know that his descriptions are accurate.”

Vaughan said she encourages Smith’s family to file a complaint under the revamped police community review board, a subcommittee of the newly formed Greensboro Criminal Justice Advisory Commission. Under changes approved by city council in August, the police community review board reports directly to the city manager’s office instead operating under the auspices of the Human Relations Commission.

Vaughan indicated council will probably wait for the process to play out through the police community review board before going to court to seek permission to review the video, as Smith’s family and other community supporters have called on them to do.

“There’s a very good chance we’ll watch this video,” Vaughan said. “We will probably wait to get the report from the SBI. It will certainly help facilitate things if they file a complaint.”

Marcus Hyde of the Homeless Union of Greensboro said he and other community members view the police community review board as a dodge to allow council members to shirk responsibility for providing oversight over the police.

“At this point we’re going to put pressure on the city to not force this to go through a two-year or however long process through the PCRB because effectively all that is, is — at this point the way it’s structured, all the police review board and GCJAC are is vacuums to suck energy,” Hyde said. “They are very constrained by the city manager’s office.”

Hyde said there will be a community meeting at Shiloh Baptist Church on Dec. 3 at 6:30 p.m. to explain to the public why community leaders believe the police community review board is a sham process to hamstring the quest for transparency and prevent Smith’s family and the community from obtaining justice.

At least a handful of deaths from hogtying have resulted in lawsuits and large monetary settlements, according to various news accounts.

Troy Goode, 30, was hogtied by Southaven, Miss. police after leaving a Widespread Panic concert in 2015, according to a report by WMC 5 Action News. His lawyer said he was transported by ambulance face down in violation of Mississippi EMS rules and regulations.

Oral Brown died in 2001 in Fort Lauderdale, Fla. when Broward County sheriff’s deputies “restrained him with handcuffs, then hogtied him, face-down, to an ambulance stretcher,” the South Florida Times reported. Witnesses dispute the police account, according to the article, saying Brown was also beaten and placed in a chokehold without justification.

And Dwayne Nelson, 41, died in 1998 in Los Angeles County. The Los Angeles Times reported that a jury awarded Nelson’s family $1.3 million after ruling that sheriff’s deputies were negligent and “failed to put Nelson on his side, effectively preventing him from breathing.”

Black Dog Tactical, a Phoenix-based company that sells hobble straps to law enforcement agencies, cautions in a training video about the occurrence of a medical condition known as excited delirium. Some of the behaviors seem to match Smith’s comportment on the night of his death. Holt said the video shows Smith walking in and out of slow-moving traffic, asking for help, voluntarily getting into a police car and then slamming his hand against the window and leaning back and kicking it in an effort to get out.

“He may remove his clothing,” the narrator in the training video says in describing someone experiencing excited delirium. “He may be aggressive towards objects and glass. He may violently resist you, struggle with you when you’re trying to detain him, talk with him, anything. He may have self-inflicted injuries, incoherent screaming or yelling, sudden loss of consciousness, talking incoherently. He may be sweating profusely. Prior to contact you may notice he has hyperactivity. He may have hallucinations. He may not feel pain or have no pain whatsoever.”

As the Greensboro police officer did, the narrator in the training video advises officers who encounter a person with those symptoms to immediately contact EMS. Under its FAQ section, the company cites an article about excited delirium posted on the National Institutes of Health website.

The article acknowledges that hobbling or hogtying — also known as “the prone maximal restraint position” — is controversial. The authors write, “Supporters of the positional asphyxia hypothesis postulate that an anoxic death results from a combination of increased oxygen demand with a failure to maintain a patient airway and/or inhibition of the chest wall and diaphragmatic movement. This explanation has been further supported by coroners’ reports of ‘positional asphyxia’ as the cause of death in multiple fatal EXD cases.”

But the authors conclude, citing two independent studies, that “factors other than body positioning appear to be more important determinants of sudden, unexpected death,” while not ruling out maximum restraint as a contributing factor. “Nonetheless,” the authors write, “respiratory muscle fatigue resulting from exertion and struggle against restraints (exertion vs. positional asphyxia) cannot be excluded nor can potentially fatal pre-existing problems with central cardiac output, oxygen saturation, or oxygen use.”

Some police departments are exploring alternatives to hogtying.

The San Diego Times-Union reported in January 2017 that a product called the Wrap was becoming increasingly popular with San Diego County, Calif. law enforcement agencies. The device is described as a “stiff nylon blanket… wrapped around a person’s legs and strapped in place to keep him or her from kicking.” The story quotes Lt. Scott Wall as saying the Wrap “is safer for the officers and for people who are combative.”

Mayor Vaughan said she hopes Smith’s family will file a complaint, not only because it’s likely to prod city council to look at the video, but also because it will bring the matter to the attention of the new Greensboro Criminal Justice Advisory Commission.

“They will look at trends and complaints,” Vaughan said. “This is a perfect case for them to study when it comes to restraints and what better restraints can be used in dealing with people who are having either mental or drug-related issues. I don’t know what kind of issues he was having because I haven’t seen the final report.”

This story was updated at 1:43 p.m. to incorporate a statement from the Guilford County District Attorney’s office.