The Perfectly Legal Hogtying Death of Marcus Smith

It was to be three days of dancing, music, and celebration. For Greensboro, the North Carolina Folk Festival was a sprawling event hosted at eight venues across the city’s downtown, with thousands spilling out of its tents to listen to hours of performances.

Marcus Smith, 38, was excited. Opening night featured Rhiannon Giddens, and he was looking forward to hearing the Grammy-winning folk musician perform. The event was slated to end around 10 that Friday night.

But shortly after midnight on September 8, 2018, a block from the festival’s stages, Smith wandered onto Church Street and asked a police officer to take him to a hospital.

“Please, help me, sir!” he said.

Smith suffered from a diagnosed mental illness that sometimes manifested as anxiety, paranoia, and delusions. Like many people with mental illnesses, he sometimes self-medicated with drugs.

Police video shows that Smith’s behavior at the time of the incident was erratic but not violent. As he paced in the middle of the street, restless and at times incoherent, Greensboro police officers attempted to calm him. Eventually, they convinced him to get into the back of a police car, and an officer closed the door.

But Smith started slapping on the window. Police opened the door, let Smith out—and decided to restrain him. There were now eight officers at the scene. Smith fell to the pavement—the cause is disputed—as officers moved him face down and cuffed him with his hands behind him. “I’m not resisting!” Smith shouted.

Using a device called a RIPP Hobble, police secured his ankles together, pulled his ankles and wrists toward each other and fastened them together behind him. “Please don’t do that!” Smith cried, as an officer forced his feet closer to the handcuffs.

Greensboro police call this “maximum restraint.” It’s commonly known as hog-tying.

Pleading “Please!” and “I’m not resisting,” Smith moaned, wheezed, groaned, and gasped for air as the officers forced his feet toward the small of his back at an angle that lifted his legs from the asphalt, placing all of Smith’s weight (and that of the officers leaning on him to push his feet toward his back) on his face and chest.

About a minute later, Smith stopped moving. His restraint secure, the officers stood up before noticing that he was unresponsive. They then rolled him onto his side and removed the restraint. Smith was taken to the hospital, where he was declared dead.

An empty sidewalk can be seen along North Church Street in downtown Greensboro, North Carolina on May 7, 2021, where Marcus Smith was restrained nearly three years prior // Photo by Logan Cyrus

The state medical examiner ruled his death a homicide. In this context, the term implies no legal culpability, but means that the primary cause of Smith’s death was his treatment by the police officers.

No officer was prosecuted or disciplined. One subsequently retired, one resigned, and one was fired for an unrelated incident of deadly force. The remaining five, all of whom have received merit raises, are still employed by the Greensboro Police Department. The city publicly released video of the incident from 10 police cameras after the medical examiner issued her report.

Smith’s family filed a federal civil-rights suit, which is now moving toward trial after mediation ended last October. Mayor Nancy Vaughan has expressed interest in settling the case, but the eight-member city council has been unable to reach an agreement with Smith’s family.

Protestors regularly gather in Greensboro to object to how Smith, who was Black, was treated, and to honor his memory. Greensboro police and Vaughan have defended the actions of the officers, all of whom are white, saying they were trying to help Smith.

Even though the medical examiner has declared Smith’s death a homicide, the case has received little attention outside of Greensboro. While the deaths of George Floyd in Minneapolis, Breonna Taylor in Louisville, and Andrew Brown Jr. in Elizabeth City have attracted extensive media coverage and fueled a national reassessment of policing, Smith’s death has barely caused a ripple in the public debate.

While Smith’s case echoes other cases in that its critics say police used unnecessary and deadly force, it also highlights a practice distinct from other high-profile cases: Smith was restrained with a technique that some police forces banned more than 20 years ago, but that remains legal in North Carolina and other places throughout the country.

In a tacit acknowledgement that hog-tying is dangerous, Greensboro banned that form of restraint shortly after Smith died. The city’s police officers had used it hundreds of times over several previous years—despite warnings from their own department and from the manufacturer of the restraining device.

Now a state task force, created by Gov. Roy Cooper to review policing after the death of Floyd, has recommended that hog-tying be banned. But it’s unclear whether the North Carolina General Assembly will do so, or if a ban may be included in police reform negotiations in Congress.

Dr. Trevonne Thompson, associate professor of emergency medicine and director of the medical toxicology fellowship program at the University of Illinois at Chicago, reviewed video of Smith’s death and was alarmed.

“Hobbling, sometimes called hog-tying, in which a person is held face-down on the ground with their hands and legs fastened together behind their back, is a very dangerous way to restrain someone,” Thompson said. “Seeing that was jarring, especially considering what we know about the danger of that kind of restraint.”

Marcus Smith’s family did not consider him to be homeless. His brother lives in High Point, and Smith sometimes stayed with him or with girlfriends. But he did not have a stable place to reside and as such was considered to be part of Greensboro’s homeless community.

At the Interactive Resource Center, a day campus for the homeless, Smith was described as friendly, cheerful, and helpful, a nonviolent man who sought to resolve conflict.

Michelle Kennedy, a member of the Greensboro City Council who is executive director of the center, saw Smith there every day. He enjoyed cutting other people’s hair, and Kennedy was helping him get his barber’s license.

“He was really talented at it,” Kennedy said. “He was a smart guy, and he was a funny guy. He wasn’t perfect, he would have told you that, but none of us are. He was working through some of the harder things in his life, to try to start moving in the right direction. He was a father, and proud of being a father.”

Smith had misdemeanor convictions for public intoxication, soliciting alms for money, misdemeanor larceny, carrying an open container, and resisting a public officer. When he died, there were no pending charges against him.

A sticker with the likeness of Marcus Smith is seen on a light pole along North Church Street in downtown Greensboro, North Carolina on May 7, 2021 // Photo by Logan Cyrus

Kennedy spoke with him the day before he died. “He was happy and excited that there was going to be free music downtown,” she said. She saw him from a distance at the festival, and they waved to one another.

On the night Smith died, he was never placed under arrest and did not threaten or verbally abuse police. Six of the eight officers named as his killers in the civil-rights lawsuit said in their depositions that he was not aggressive or assaultive, and offered no resistance until he was on the pavement and officers worked to restrain him.

The council’s stance has been that members could not discuss the Smith case while it was being sued. (For the same reason, the city declined to comment on any aspect of the Smith case for this article.) Kennedy recently broke ranks, however, and criticized how the police handled the case, as well as the city’s response afterward.

In 2019, the council declined to pursue an independent investigation while the family’s lawsuit is pending. Last month, Kennedy switched her position on that as well, and now believes the city should sponsor an independent investigation. On April 20, the council voted unanimously to reconsider an investigation, but has yet to hold or schedule a public discussion about it.

Kennedy told The Assembly that she believes the officers demonstrated bad judgment, even before they took Smith to the pavement and hog-tied him.

“If they’d just gone ahead and driven him to the hospital … he’d still be alive,” she said.

The day after Smith died, the City of Greensboro issued a press release stating that an unnamed man had “become combative” and “collapsed in police custody.” The body had not yet been identified, and the press release made no mention of the man being hog-tied.

“We put out a press release,” said Kennedy, “which I completely understand is not a police report, but it’s still information being provided to the public from the police department, and it was absolutely incorrect.”

She said she held then-police chief Wayne Scott accountable. “It’s really easy to understand why that smells and feels like a cover-up to someone in the community,” she said. “It starts from the very beginning looking like you’re trying to hide something.”

In a meeting with advocates three months after Smith’s death, Mayor Vaughan said she had concerns about the press release. “I want answers on why it was said that he was suicidal and dropped to the ground,” she said. “That obviously was a lie.”

Vaughan has since backtracked on those comments, repeatedly stating that she doesn’t believe the officers did anything wrong and that she doesn’t believe there was a cover-up. In her deposition, she stated that she didn’t consider it significant that the initial press releases failed to mention that Smith was hog-tied.

On Monday, September 10, a second press release included Marcus Smith’s name. It stated officers “worked with subject for several minutes in an effort to give him assistance,” but that, while officers were “attempting to transport him,” Smith “became combative and collapsed.” Again, there was no mention of his being hog-tied.

Scott defended the releases. In a deposition for the civil suit, Scott called the hog-tying restraint “a detail, but I did not see it as a significant one for the press release.” (The contents of Scott’s and other depositions in this article have not been publicly released nor previously reported.) Scott pointed to the SBI’s investigation of the case as justification for not disclosing that detail. “I didn’t want anything that I would release to interfere with that investigation,” he said.

The statement that Smith had “collapsed” was also questioned. An officer said he had “escorted” Smith to the ground. “I remember seeing Mr. Smith go to the ground,” Scott said. “I don’t know that I would define it as ‘escorting.’” Lawyers for the Smith family say Smith was forced to the ground.

In the deposition, Scott also said, “I believe the officers properly applied the RIPP Hobble,” adding that Smith had been “resistive and combative.”

In late November 2018, the Office of the State Medical Examiner ruled Smith’s death a homicide, citing “sudden cardiopulmonary arrest due to prone restraint.” The report listed drugs and alcohol in his system, as well as cardiovascular disease, as contributing causes.

A month later, outgoing Guilford County District Attorney Doug Henderson said that after reviewing evidence that included the SBI investigation, his office would not bring criminal charges against the officers involved in Smith’s death because the officers had not committed “a culpably negligent act.”

In a letter to the police chief, Henderson wrote that the officers had shown patience and attempted to help Smith before they restrained him. “There is no evidence to substantiate a basis for criminal charges in this matter,” Henderson wrote.

The Los Angeles Police Commission banned hog-tying in 1997. In North Carolina, the Guilford County Sheriff’s Office and police departments in Winston-Salem, Durham, Raleigh, and Fayetteville have also banned connecting ankle restraints to handcuffs, according to the deposition of a Greensboro police officer who investigated the matter.

Yet Greensboro police routinely used maximum restraint on suspects before Smith’s death, as Scott and several officers said in depositions.

“I personally have witnessed no violations, nor have I any knowledge of any injuries ever coming from the application of the RIPP Hobble in all our years” of using maximum restraint before the Smith case, Scott said in the deposition. “It’s always been an effective tool for us.”

G. Flint Taylor, a lawyer for Smith’s family, reviewed 2,000 pages of incident reports in the four years prior to Smith’s death and determined that Greensboro police hog-tied at least 275 people during that period, according to a court document. That’s an average of more than one per week.

Of those 275 people, 68 percent were Black and 17 percent were experiencing some type of mental-health crisis. The eight officers named in the civil rights lawsuit were involved in more than 50 of the prior incidents, Taylor said.

Taylor filed a motion for the department to release video from those 275 incidents. On April 28, Judge Joe Webster ordered Greensboro to produce video from the 50 most recent cases within 45 days.

The degree at which legs are restricted is a key factor in determining how dangerous hog-tying is as a restraint // Illustration by Joel Kimmel

The Greensboro Police Department’s own 24-page training slideshow, which was used from 2011 to 2019, cautioned about the dangers of hog-tying. One slide warned against “Positional Restraint Asphyxia” and said “a ‘hog-tied’ position is a major contributing factor in causing this effect. When transporting arrestees, always transport in an upright position or on their side with legs able to straighten more than 90 degrees.”

The list of “DANGEROUS POSITIONS” on one slide included: “Arrestee face down and ‘hog-tied’ (knee bend greater than 90º in transit).” Another slide said, “If agitated person suddenly stops struggling, be very concerned.”

The department’s manual, in a section about transporting suspects, said, “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.”

Instructions from the RIPP Hobble manufacturer, explicitly instructing against the manner in which Greensboro Police used it.

The RIPP Hobble device was designed to restrain feet, not to connect ankles to wrists. A device ordered in early 2019 came packaged with instructions to “NEVER Hog-Tie a Prisoner.” Company president Joelle DeVane said in an interview that packages have included warnings against using the product in that manner since 1994.

Police are not the only officials whose conduct in the Smith case has been criticized.

Paramedics had been called by police to the scene. Video shows that more than three minutes passed between when a Guilford County EMT saw that Smith was unresponsive and when resuscitative measures were started inside the ambulance.

Shortly afterward, Smith was pronounced dead at Moses Cone Hospital.

Dr. Thompson, the associate professor of emergency medicine, was disturbed by the delay.

“Proper procedure would have been to start CPR immediately, but that does not happen until several minutes after [Smith] becomes completely unresponsive,” Thompson said. “It’s hard to see on that video whether he stops breathing, but to me, it looked like he did. In a case like that, that’s the moment to jump into action and start CPR immediately.”

Jim Albright, Guilford County’s director of emergency services, said he could not comment on the case in detail.

“A court order as well as medical confidentiality greatly limit our ability to go into the facts of the case,” he wrote. “Mr. Smith’s death was a tragedy and we sympathize with those who mourn his loss.”

After the world saw Derek Chauvin push the last breath out of George Floyd, many law enforcement departments made quick changes to use-of-force policies.

In North Carolina, Gov. Cooper tapped law enforcement officers, victims’-rights advocates, supporters of criminal justice reform, judges, prosecutors, and public defenders shortly after Floyd’s death to be a part of his Task Force for Racial Equity in Criminal Justice.

Over the next seven months, task-force members solicited feedback from an array of people to develop recommendations to reduce discriminatory practices and increase accountability throughout the law enforcement and criminal justice system.

Banning the use of hog-ties is one of the recommendations in the task force’s December report. Its inclusion came months after body-camera footage from Forsyth County Jail detention officers ignited public outrage.

John Elliott Neville, a 56-year-old Greensboro man, died in December 2019 after detention officers restrained him with his chest to the floor, his hands cuffed behind his back, and his feet pushed up near his buttocks.

The Forsyth County sheriff did not publicly acknowledge the incident until summer 2020, and later released body-camera footage from the five detention officers, who were charged with involuntary manslaughter. A nurse was also charged.

“I can’t breathe,” Neville can be heard telling the detention officers over and over in the footage.

Mujtaba Mohammed, a state senator from Mecklenburg County and a public defender, was a member of the Governor’s task force. He and Democratic colleagues have introduced at least nine bills in an attempt to anchor some of the task force’s recommendations in North Carolina statutes.

The Equity in Justice Act of 2021 (Senate Bill 656) is one of the bills that Mohammed introduced with two other Democrats.

The proposed legislation lays out that “strangleholds, chokeholds, lateral vascular neck restraints, carotid restraints, or any other tactics that restrict oxygen or blood flow to the head or neck shall be considered the use of deadly force.”

“We might not specifically have the word ‘hog-tie’ in it,” Mohammed said. “But I think we cover it.”

Mohammed and others would like to see a change in the policing mindset that might lead to fewer deaths. “We need to shift to a guardian mentality from a warrior mentality,” he said.

As a Democrat in a Senate chamber in which Republicans have a 28 to 22 majority, Mohammed is not optimistic that his bill will be approved this session. Under legislative rules, a bill must be approved by one chamber by May 13 to be kept alive for the rest of the session.

Senate Bill 300, which was co-sponsored by three Republicans, proposes some law enforcement reforms and appears to have broad support. It does not ban hog-tying.

One of the sponsors, Sen. Danny Britt of Robeson County, said in a telephone interview that legislators shouldn’t dictate to police which restraints are appropriate. Sometimes law enforcement use restraints to protect themselves, he added, or to protect the person being restrained or others around them from injury.

“Are we going to say you can’t grab somebody by the fingers, but you can by the wrists?” he said.

The bill sponsored by Britt and his colleagues would require any officer who sees another officer using excessive force to intervene and report the action to a supervisor. The House unanimously approved a bill last week that also would require that intervention and reporting.

If the legislature does not prevent hog-tying, however, there could still be changes at the federal level.

Rep. Karen Bass, a Democrat from California, introduced the George Floyd Justice in Policing Act of 2021, which passed the House of Representatives in March and awaits a vote by the Senate. Bass, Sen. Tim Scott, R-S.C., and Sen. Cory Booker, D-N.J., are trying to find compromise legislation that can pass both chambers.

The text of the House bill does not include the word “hog-tie,” but like the state proposal introduced by Mohammed, it bans chokeholds and carotid holds and “the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce intake of air of an individual.”

A fact sheet put out by Bass’ office notes that the George Floyd Act requires that officers only use deadly force as a last resort. It also changes the threshold for when force should be used (when “necessary,” instead of when “reasonable”) to prevent serious injury or bodily harm.

A month after Marcus Smith went limp and breathless on Church Street, his family learned how he had died. The Smith family came to Greensboro from South Carolina to view the body-cam footage with attorney Graham Holt, who watched the video with George Smith, Marcus’ father.

“I was going to watch it with Graham, but God told me not to,” said Mary Smith, Marcus’ mother, in a recent phone interview. “Then my husband George said he would, and doing that almost killed him.”

George Smith can’t speak about the video without getting emotional and stopping after a few words.

Mary Smith (right) her husband George Smith (left) with their daughter Kim Smith (center) pose with a portrait of their son, Marcus Smith near their home in Greenville, South Carolina on May 8, 2021 // Photo by Logan Cyrus

“My dad took the hardest hit,” his daughter, Kim Smith, said in an interview. “He had to have stomach surgery. He had to have a Pacemaker put in. Up until my brother’s passing, he’d been working 12-hour shifts, but he couldn’t work at all [after seeing the video].”

Mary Smith said that nobody in her family had any inkling what the video would show. “They told us he died at the hospital,” she said. “From the bruises on his face in the morgue photo, I thought maybe they’d beaten him. Now I know it was worse than that.”

She said the city’s response had compounded her grief. “The City of Greensboro lied to me and my family,” she said. “Wayne Scott lied when he said Marcus stumbled and fell, and the whole city stood behind that lie.”

Two years ago, Mary Smith launched a legal fight against the police department and the city she believed had covered up their actions. Her effort is led by Taylor, a star in the civil-rights litigation field.

Taylor and the People’s Law Office of Chicago, which he co-founded, obtained a historic $1.85 million settlement in 1982 against the Chicago Police Department for the death of Black Panther Party Chairman Fred Hampton, who was killed during a 1969 police raid while he lay sleeping under the influence of a drugged drink given to him by an FBI informant.

With that decision, Taylor helped change the narrative of Hampton’s death from being killed in a shoot-out with Chicago police to being assassinated by them in his sleep. Hampton’s story is featured in the recently released movie, Judas and the Black Messiah.

In 1985, Taylor was co-lead trial counsel in a case that found two Klansmen, three Nazis, two Greensboro police officers, and a police informant liable for the wrongful death of one person and the injury of two others in 1979, during what’s now known as the Greensboro Massacre.

Now back in the Triad, Taylor is seeking payment to the Smith family, as well as systemic change in Greensboro and a true reckoning of what happened to Marcus Smith. The suit is against the City of Greensboro, eight police officers, and two paramedics.

“Greensboro’s mayor, city council, and police chief have in no way apologized, accepted any responsibility, or recognized any wrongdoing,” Taylor wrote in an email. “That contrast with the George Floyd case is both remarkable and alarming.”

Kennedy, the council member, said the city had offered the Smiths $3 million to settle. Taylor said no offer “even remotely close to that number” was made and that the council was given bad information.

Rhiannon Giddens, the Greensboro native onstage the night of Smith’s death, performs an old Black hymnal and protest song in her latest album.

“On my way to justice, I shall not be moved,” she sings. “Like a tree planted by the water, I shall not be moved.”

That pledge appears to ring true for the Smith family. As the third anniversary of Marcus Smith’s death approaches this fall and litigation continues in earnest, there’s no sign of anyone backing down.

Correction: A previous version of this article said one of the officers involved in the Smith case was involved in more than 50 prior hog-tying incidents, according to attorney G. Flint Taylor. The article has been corrected to say eight of the officers named in the civil rights suit were involved in more than 50 of the prior incidents, Taylor said.