A request by the city of Greensboro to delay discovery in Marcus Smith’s wrongful death lawsuit aggravates still-fresh wounds during the George Floyd uprising.

Amid the spontaneous eruption of anger across the globe in response to the police killing of George Floyd in Minneapolis, the waves of protest in Greensboro have lifted up another name: Marcus Deon Smith.

Smith was anxiously pacing in the middle of Davie Street in downtown Greensboro as the North Carolina Folk Festival was winding down in September 2018 when he asked a group of Greensboro police officers for help. At first, he agreed to sit in a squad car while the police called EMS, but then he started trying to kick out the window, and they opened the door. In the scene that ensued, officers took Smith to the ground, handcuffed and hogtied him. As officers tightened the restraints connecting Smith’s wrists and ankles, police body camera video shows him groaning and gasping for air. With two paramedics watching alongside the eight police officers, Smith stopped breathing.

A state medical examiner ruled Smith’s death a homicide, identifying the cause of death as “sudden cardiopulmonary arrest due to prone restraint,” along with the use of ecstasy, cocaine and alcohol, and hypertensive and atherosclerotic cardiovascular disease.

The press release initially issued by the Greensboro Police Department made no mention of the restraints, saying only that Smith “became combative and collapsed.” The department cleared the officers of wrongdoing before the autopsy was completed, and Guilford County District Attorney Doug Henderson issued a decision to not criminally charge the officers five days before leaving office.

Following the release of police body-camera video by the city and the homicide finding by the NC Medical Examiner’s office, the police department discontinued the use of the Ripp-Hobble device as a restraint in a striking about-face from the police chief’s previous defense of it. Eight months after calls for Chief Wayne Scott’s firing, Scott announced his retirement.

The almost daily marches and protests that began at the end of May have breathed new life into the public calls for justice on Smith’s behalf. The first of 10 demands issued by Greensboro Rising — a coalition comprised of veterans of the national protest wave in response to the deaths of Michael Brown and Eric Garner in 2014 — is: “Make amends to the family of Marcus Smith.” But the wrongful death lawsuit filed by Smith’s family has continued to move through the federal court system at a predictably slow pace, unyielding to the calls for justice from the streets. Instead of moving to expedite the resolution of the case, the city has asked a federal judge to delay discovery as questions about potential heirs have surfaced.

On June 12, lawyers for the city and eight police officers, along with two paramedics employed by Guilford EMS, filed a motion, entitled, “Defendants’ Joint Motion to Temporarily Stay the Start of Discovery.” The motion requests that discovery in the run-up to a trial be put on hold until a separate state court proceeding can resolve the matter of whether Smith has heirs who would be entitled to any proceeds from a settlement.

City Attorney Charles Watts rankled Smith’s supporters when he told Mayor Nancy Vaughan during a June 16 meeting of city council: “There is no stay being requested — no stay whatsoever. A stay would stop all litigation processes.” Later, he repeated the statement, saying, “So, we’re not asking for a stay.”

The statement did not sit well with Smith’s supporters. Joined by Greensboro Rising, and Byron Gladden, a Guilford County School Board member, the Rev. Nelson Johnson publicly accused Watts of lying during a June 18 press conference outside Melvin Municipal Office Building.

Acknowledging in an interview with Triad City Beat that the motion does include the word stay, Watts nonetheless insisted that his categorical statement about “no stay being requested” is an accurate depiction of events. He said his use of the word stay means something different than the delay that is being requested in the motion. And he pointed to additional statements to city council as accurately reflecting the legal action taken by the city. Watt said during his remarks to city council that the two parties in the case have resolved all questions about litigation except for one.

“And that is the one question about when discovery would start,” Watts told city council. “One of the things that’s come to light is that parties that are plaintiffs to the matter may not be appropriate plaintiffs to the matter because it’s been a finding that there are children involved. These children need to be protected and represented in this matter. So, there’s a state court proceeding going on to determine the paternity. We asked that discovery not start until we know who the plaintiff is in the case.”

Watts insists that he did not lie about the motion, although he conceded that he could have chosen his words better.

“I would suggest to you that I used the word stay without all the adjectives that are around the word stay in our motion,” he said. “That’s why the word complete could have made it more clear. Whether there was some effort to deceive… the further description makes it clear that there was no effort to deceive, so it wasn’t a lie.”

On the matter of potential heirs, a paternity claim surfaced four months after Smith’s family filed the wrongful death lawsuit against the police officers and paramedics in federal court. In August 2019, a woman named Kendra Scurry faxed a letter to Guilford County Clerk of Superior Court Lisa Johnson-Tonkins declaring that her son was fathered by Smith.

“His dad never signed the birth certificate,” Scurry wrote. “He and I neither one knew the importance of doing so.” She added that Smith “always claimed” her son “and spoke of him to anyone who would listen.”

Two other potential heirs are mentioned in a Petition for Declaratory Ruling filed in state court by Mary Smith on May 24. The filing says Smith’s family “has been informed that there may be two other children who might claim to be heirs of the decedent,” naming two minor females who live in Greensboro and Raleigh.

The petition seeks a declaratory ruling from a state judge as to whether the three named individuals are heirs to Smith’s estate, arguing, “If the question of heirs remains unresolved, unnecessary delays in the administration of Smith’s estate will ensue and prevent proper administration of the estate to those legally entitled to any proceeds from the estate.”

Watts said in an interview that the defendants will be at a disadvantage until they know who the actual plaintiffs are.

“There’s a complete misrepresentation by Watts primarily that heirship somehow has an impact on the proceedings, whether there should be discovery or there should be discussion about resolution of the case,” Flint Taylor, one of the lawyers representing the Smith family, told Triad City Beat. “Because the proceedings are that if there is money in the case either through settlement, Watts was saying something like, ‘We don’t know who to pay the money out to until the heirs are determined.’ That’s ridiculous. The money would be held in a trust until the heirs are determined.”

The motion filed in federal court on behalf of the Smith family argues that there are “many documents to be disgorged from the defendants and other agencies,” none of which, he said, was “in any way impacted by who Marcus Smith’s heirs turn out to be.”

“Mary Smith both as administrator and mother, wants, and is entitled to a swift and fair resolution of her case,” the motion states. “A further delay in the case will unfairly and unnecessarily re-traumatize Mary Smith, who will no doubt legitimately conclude that it is yet another attempt by the city of Greensboro to obstruct her pursuit of justice for her son and his estate.

“Similarly, the Greensboro community, which has also been traumatized by the homicide of Marcus Smith, is entitled to a swift and transparent resolution of this case so that it can heal the public harm,” the motion continues. “Hence, a completely unnecessary indefinite stay is highly prejudicial to the plaintiff, her case, and the Greensboro community at large, while serving no other purpose than to unfairly delay plaintiff’s pursuit of justice.”

The May 25 death of George Floyd galvanized a global movement, and also reopened the trauma of Marcus Smith’s death in Greensboro for community members who have been pressing for transparency, atonement and redress for almost two years. And before Marcus Smith, there were other collective traumas, like the forcible arrest of Jose Charles, a 15-year-old boy, during the Fun Fourth Festival at Center City Park in 2016 that resulted in his hospitalization.

“When we talk about building trust, we’re talking about the council asking its residents to handle these issues, while at the same time employing a city attorney that willfully lies to them and to the people about filing motions to delay trials in the midst of a climate when we are hurting, not only from George Floyd, but we’re still hurting from Jose Charles,” said Irving Allen, an organizer with Greensboro Rising and a former member of the city’s police complaint review committee, during a press conference last week. “We’re still hurting from Marcus Deon Smith. We’re still hurting from so many past cases that have happened in our community. And in order to build trust we need action.”

UPDATE, July 2: US Magistrate Judge Joe L. Webster has entered an order denying the motion by the city of Greensboro and Guilford County to delay discovery and ordering the parties to commence discovery immediately.

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