Protesters question DA’s decision in hog-tying death

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Eddie Brewer, Larry Morse and Hester Petty (l-r) protest the hog-tying death of Marcus Smith outside city hall. (photo by Jordan Green)

A weekly protest in support of Marcus Smith, a man who died last September after being hog-tied by Greensboro police officers, continued today as a handful of people picketed in front of Melvin Municipal Office Building.

Hester Petty, who organized the weekly “Mondays for Marcus” protests, said she wants to see police Chief Wayne Scott fired over the handling of the incident, and wants the department to prohibit the maximum restraint position in which a subject’s ankles and wrists are bound behind their back. Smith stopped breathing shortly after officer applied the restraint while he was face down on the ground.

Petty said she also wants the Guilford County District Attorney to charge three officers who were most closely involved in the incident with involuntary homicide.

Doug Henderson, who put in his last day as district attorney on Jan. 2, notified Chief Scott in a Dec. 28 letter that the officers were not criminally negligent in Smith’s death, which was ruled a homicide by the NC Office of the Chief Medical Examiner.

“As applied to these circumstances, criminal negligence means a carelessness or recklessness that shows a thoughtless disregard of consequences or a heedless indifference to the safety of another,” Henderson wrote. “The overwhelming showing based on all of the investigative materials presented to this office demonstrates that these officers mean to help and not hurt Mr. Smith. The loss of this life is tragic, but there is no evidence to substantiate a criminal act.”

Larry Morse, one of six people picketing the city building on Monday, questioned the former district attorney’s decision.

“It’s strange that the DA says officers are trying to help him,” Morse said. “While they were actually hog-tying him, they weren’t paying much attention to him — if he was breathing and what he was saying.”

Henderson’s letter referenced the department policy on the use of the “Ripp Hobble” restraining device. Without stating directly whether the officers violated the policy, Henderson noted that the policy “specifically describes the manner in which a person in custody should be positioned during the time of transportation (seated in an upright position or on their side) so as to avoid harming that person.” Henderson went on to say, “In this instance, Mr. Smith became unresponsive immediately after he was necessarily placed in the additional restraints and before he could be transported to the hospital in the manner described. Mr. Smith was at no time transported while in the ‘Ripp Hobble’ device.”

The departmental policy that covers the use of the Ripp Hobble device, GPD Directive 11.1.4, falls under a section entitled “Handling and Transporting Persons In Custody.” The directive states, “In addition to the wrists, the feet or the ankles of the arrestee may be secured to restrict the independent movement of the feet and legs. For this purpose, training is provided in the use of the Ripp Hobble restraining device. If further immobility is needed, the secured wrists and ankles may be linked together using flexicuffs or the hobble device. At no time shall the wrists and ankles of an arrestee may be linked together using flexicuffs or the hobble device.” The directive goes on to say, “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.”

Chief Scott previously told City Beat that the directive only applies to the transport of persons in custody, and doesn’t cover the circumstances of the Smith incident. He added that the department doesn’t have a specific directive that applies to applying the restraint.

Some local law enforcement agencies prohibit the maximum restraint position. The Winston-Salem Police Department “strictly prohibits” the maximum restraint position in its Use of Force policy, according to Police Attorney Lori Sykes. The department’s General Orders on Use of Force defines the maximum restraint position 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.”

The Guilford County Sheriff’s Office allows for the use of the hobble device to restrain a person’s feet and legs during transport, but the policy cautions that “this device is not to be used to bind a person’s arms behind them or hog-tie a person.” Officers typically secure a person in custody for transportation by catching the loose end of the strap in a closed backdoor of the vehicle.

Petty said the fact that the district attorney’s office notified the police that there were no issues of criminal liability at least a month prior to the completion of the SBI investigation undermines the credibility of the district attorney’s final determination. In early December, when the Office of the Chief Medical Examiner released its homicide finding, a representative of the district attorney’s office clarified that the earlier determination was “preliminary” and not “final.”

Petty said she wrote a letter to Avery Crump, the new district attorney saying that she is suspicious of Henderson’s determination, and she hopes Crump will revisit the decision.

A representative of the district attorney’s office could not be reached for comment at the time of publication.