Featured photo: At-large city councilmember Michelle Kennedy prior to reading the prepared statement during the June 1 city council work session. (screenshot)

The city of Greensboro will not be pursuing an independent investigation into the 2018 death of Marcus Deon Smith. That’s the revelation that came out during a June 1 city council meeting. In the weeks leading up to the meeting, at-large councilmember Michelle Kennedy made repeated calls for an independent investigation following her comments during the April 20 council meeting, in which she expressed regret for staying silent about the Smith case in the past. The case is currently being litigated in a federal civil suit between the city and the Smith family.

During the April meeting, Kennedy called for an independent investigation into “the reality of the events that occurred on that day” even though the city is “currently in litigation.” However, during the June 1 meeting, Kennedy made a public statement in which she acknowledged that she was the one who asked for the independent investigation but that the city had decided not to pursue one for now.

At-large city councilmember Michelle Kennedy

“So let me say first, that, yes, I am the person who asked us to have an independent investigation, both as it relates to the events connected to Marcus Smith, and a larger investigation around institutional culture and essentially an agency-wide conduct review of the Greensboro Police Department,” Kennedy said during the June meeting. “And so, on the advice of the city attorney, council met in closed session and received advice from an attorney who practices exclusively in the area of independent investigation. Council has decided not pursue any such investigation at this time.”

To that, Mayor Nancy Vaughan followed up by explaining that the statement was a result of a discussion that council had in closed session.

“That comment was really to close the loop on the discussion that we had,” Vaughan said.

Kennedy later confirmed to Triad City Beat that she was asked to read the statement, which was crafted by City Attorney Chuck Watts, because she was the one who made the initial motion.

In an interview on Wednesday, Kennedy also clarified that the decision wasn’t made because of a change of heart on her part. Instead, she said that there was not enough support amongst her colleagues to pursue an investigation.

“When it was clear that there was no support for an independent investigation into the death of Marcus Smith, I stepped back and then we broached the topic of a larger departmental-wide audit of our police department and then there was also no support for that either,” Kennedy said. “It was difficult. It was clear that it wasn’t going anywhere, and it was very difficult to me because of my concerns around transparency.”

The turn of events in the month and a half since Kennedy initially called for an independent investigation was disappointing, but not surprising, say those who have been advocating on behalf of Marcus Smith and his family.

“I never believed that this city council would authorize any such investigation,” said Lewis Pitts, a community activist who is close to the Smith family. “So that leaves now the federal civil rights lawsuit to be the only independent and trustworthy investigation into the matter.”

Lewis Pitts speaking at the press conference on May 13. (photo by Carolyn de Berry)

City attorney Watts said that there was no vote during the closed session but that it was “obvious that there was no support for any specific investigation….”

Watts argued that the civil suit in and of itself acts as a kind of independent investigation, and having a separate investigation would “send the wrong message about that process.”

“For the city to engage in an independent investigation would seem to convey the message that we don’t trust that process,” Watts said.

Watts also clarified that the outside attorney who advised council was Valecia McDowell of the Moore and Van Allen law group based out of Charlotte. According to the law firm’s website, McDowell specializes in “conduct risk management and internal investigations” and has taught as a guest instructor at the Duke University School of Law. McDowell could not be reached for comment for this piece.

What do city councilmembers have to say about this decision?

Going into the closed session, Kennedy said she assumed any discussion about the Smith case would have taken place during a public meeting.

“I would have liked this to have been a public conversation so that the community could have heard about our positions as it relates to this issue,” Kennedy said. “But that’s not what happened.”

While she says many of her colleagues do not support an independent investigation, Kennedy says she’ll continue to call for one but that it won’t happen without at least four other votes.

“My feelings on that have not and will not change,” Kennedy said about an independent investigation. “As to whether there will be one on the future, it takes five votes to move anything forward, so I have no insight into that.”

Councilmember Justin Outling, who is running for mayor this year, said that for him, the scope of any proposed independent investigation should be decided before it is authorized by council.

“I never understood what was floated out there and what it would entail,” said Outling, who is a practicing attorney. “I never understood that to be beyond the death of Marcus Smith. You have to have a sense of what is the scope on it.”

District 3 councilmember Justin Outling is running for mayor this year.

Watts echoed Outling’s assertion about a specific scope being necessary and stated that an independent investigation is off the table right now, but one could still happen in the future.

“We are in Never Neverland talking about things that may be in an investigation,” Watts said. “It doesn’t mean there isn’t interest in ever doing an investigation, but there was no consensus around a specific scope or an investigation.”

To that, Kennedy responded by saying that she doesn’t understand just how much more specific she could get.

“How much more specific do you need to be when you’re talking about you want an independent investigation into a specific incident?” said Kennedy. “I don’t see how you could be any more clear.”

Outling also argued that it doesn’t make sense to have an independent investigation into Smith’s death because he believes the facts surrounding the incident are “out there.” Again, Watts echoed Outling’s stance.

“The idea of an investigation of the events that resulted in what happened with Mr. Smith was not something that anyone supported,” Watts said. “Not because we don’t want to reach the truth about that, but because there is already a process going on about that.”

Outling said that if people are concerned about the wider culture and the practices of the Greensboro Police Department, then that should be handled by the city’s criminal justice advisory committee or by the police community review board. Rather than hiring a third party, Outling said that the city should enact new use of force standards such as the 8 Can’t Wait initiative that gained popularity after the death of George Floyd last year.

One of the main policies that the initiative calls for is a ban on chokeholds or strangleholds. Police Chief Brian James announced policy changes within the police department in June 2020 so that officers will now be required to intervene if colleagues use “excessive force.” The use of a RIPP Hobble or tying a person’s hands to their feet, which was the method that led to Smith’s death, was prohibited in November 2020.

Instead of an independent investigation, Outling argued that standards such as these should be changed because at the time of Smith’s death, he doesn’t think the officers violated any policies.

“I don’t see a violation of policy and I don’t see a violation of the law,” Outling said about the officers’ conduct.

Kennedy, however, responded by saying that the criminal justice advisory committee doesn’t have the authority to investigate certain matters, which is why she also advocated for an independent investigation into the police department’s culture.

“They don’t have the full ability to do a full investigation like this and basically any recommendations they’ve made, this council has not acted on,” Kennedy said.

Mayor Pro Tem Yvonne Johnson

Mayor Pro Tem Yvonne Johnson, who seconded Kennedy’s initial motion to have an independent investigation, said that her biggest priority in this case is for the city to settle with the Smith family.

“What I’d like is for us to just settle this case,” Johnson said. “I am all for settling with the Smith family at a rate that is reasonable and satisfactory to the family. I think this has gone on a long time and I really would like to see some closure.”

Kennedy said she wishes that the conversations around the independent investigation had been open to the public.

“I was welcoming about having this conversation in open session,” she said. “I think it’s interesting that people now want to make claims that our community would have had the ability to watch. If there is a conversation to be had, let’s have this conversation openly so the people who elected us can watch…. Twice in open session — right after he died, and again most recently — we had unanimous votes to discuss an independent investigation and both times, in closed session, they died — that’s problematic.”

Councilmembers Goldie Wells and Nancy Hoffmann, both reached by phone on Monday, declined to comment on the city’s recent decision to not pursue an independent investigation. Mayor Nancy Vaughan and councilperson Tammi Thurm could not be reached for comment.

Why activists and the Smith team are in favor of an independent investigation

Pitts, who has been following the case closely for the last two years, says that an independent investigation would benefit the community by making the facts of the case more transparent.

“Immediately after Marcus’s death, a coverup began and a false narrative was designed to mislead and deceive the public and the family of Marcus Smith,” Pitts said.

One of the main things that activists point to as a “coverup” is the fact that in the initial press release about Smith’s death, no mention of him being hogtied was made.

Flint Taylor, the lead attorney for the Smith family, argued that while much information has come out during the discovery process of the lawsuit, the city is fighting to keep important information out of the public light.

Flint Taylor addresses the city’s brief at a press conference on May 13. (photo by Carolyn de Berry)

One of the main things Taylor argues that the city is fighting them on is the production of body-worn camera footage in which police officers used the RIPP Hobble in incidents prior to Smith’s death. According to documents filed in court, the Smith team asked the city to produce the footage but the city asked for a stay, meaning a delay. However, in late April, a federal judge ruled in favor of the Smith team and ordered the city to produce 50 videos from incidents that “most closely precede the death of Mr. Smith.” But on May 28, the city renewed their motion to stay. On June 3, the case was referred to a judge who may side with the Smith team and order the city to produce the footage by a set date, or side with the city.

Citing this legal back and forth, Taylor said an independent investigation would prohibit the city from keeping footage like this secret.

“An independent investigation does not attempt to fight against the production of 50 body-worn camera footage from prior instances of hogtying by the city which is happening right now,” Taylor said. “If our case were an independent investigation, they would be welcoming transparency and welcoming the production of the footage. They would be welcoming the release of testimony of all of the city officials…. They wouldn’t be asking the courts to suppress all of that evidence.”

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