The attorneys representing the City of Greensboro and eight police officers who have been sued by Mary and George Smith the parents of Marcus Deon Smith who died Sept. 8, 2018 after being in police custody, filed a motion Thursday, June 13 to dismiss the case for failure to state a claim that entitles them to relief.
The attorneys Alan Duncan and Stephen Russell of Mullins Duncan Harrell and Russell, attached the officer worn body camera video recordings of all the officers involved in the incident as an exhibit. The legal brief relies heavily on the documentation in the videos. It states, “The underlying factual allegations, when stripped of rhetoric and conclusory statements, nonetheless show that this tragedy does not lead to liability for the GPD officers. This conclusion is supported by the officers’ body-worn camera footage, which the Court can consider at this time.”
The brief states, “For approximately nine minutes, the officers offered assistance and sought to calm Smith recognizing that he needed medical attention.”
It notes that Smith was running in and out of traffic, “toward and in front of civilian and police vehicles. The police closed the road to civilian traffic and continued to use verbal instead of physical efforts to ameliorate the situation.”
It is also noted that during this time Smith said that he was high, that people were trying to kill him and “At least four times, Smith said that he was going to kill himself.”
The brief states that there is no constitutional right not to be restrained by a hobble device and notes that the hobble device used was not a RIPP hobble. An exhibit including in the pleading is the portion of the Greensboro Police Department Directive Manual on how a hobble device should be used.
It has been stated by speakers at City Council meetings numerous times that police used a RIPP hobble and using a RIPP hobble was prohibited by police directives. With a hobble device a person’s hands are handcuffed behind their back and their ankles strapped together a strap is then used to secure the handcuffs to the strap around the ankles.
The brief states that restraining Smith to transport him to the hospital and immediately removing the restraints when Smith stopped breathing was “objectively reasonable.”
The brief notes that the autopsy states the cause of death “was sudden cardiopulmonary arrest due to the prone restraint, n-ethylpentylone [MDMA or ecstasy], cocaine and alcohol use; and hypertensive and atherosclerotic cardiovascular disease.”
The wrongful death claim should be dismissed according to the brief because of “contributory negligence” in that Smith used alcohol and drugs which was one of the causes of his death.
Guilford County and the two Guilford County Emergency Medical Service paramedics who transported Smith to Cone Hospital where he died, are also named in the suit and earlier this week Guilford County filed a motion for dismissal.
The Greensboro City Council met in closed session for about an hour with their attorneys on Wednesday, June 12 to discuss the lawsuit before the motion for dismissal was filed.