J. DouGLas Hepenson bistnicr arronver PROSECUTORIAL DISTRICT 18 Pa ox 10789 Po Box 203 GREENEEORD, NC 2T40K0769 HIGH POINT NC 27261 use 7600 O'sie025710 Chief Wayne Scott Greensboro Police Department 100 East Police Plaza Greensboro, North Carolina, 27401 December 28, 2018 Re: Death of Marcus Smith, September 8, 2018 Police activity number 2018 0908 017; NCSBI case number 2018-02628 Chief Scott: ‘The District Attorney's Office has completed a thorough review of the investigation conducted by the North Carolina State Bureau of Investigation (NCSBI) concerning the incident that occurred on September 8, 2018, and involved primarily Greensboro Police Department (GPD) officers L.A. Andrews, RR, Duncan, A.G. Lewis, and J.C. Payne, An independent investigation by the NCSBI was requested by the GPD regarding the circumstances surrounding the death of an individual at Moses H. Cone Memorial Hospital shortly after an encounter involving GPD officers ‘The investigative materials provided and reviewed by this Office include, but are not limited to, the following: A series of interviews, both written and recorded, with all ofthe principal GPD officers, Emergency Medical Technicians (EMT), and firefighters that were either present or responded to the incident in question; police reports prepared in connection with processing, photographing, and collecting evidence at the scene of the incident in question; supplementary police reports éocume interviews with the decedent's family members and staff and residents at the location where the decedent temporarily resided; a series of medical documents, including EMS records for both this, incident and an earlier one involving the decedent, the local medical exeminer’s preliminary report, the autopsy report, and the accompanying toxicology report; a copy of the current GPD “use of force” policies in compliance with North Carolina General Statue (NCGS) 15A-401{d) coupled with the GPD policy for “transporting persons in custody”, specifically referencing the use of the "Ripp Hobble” restraint device while transporting persons in custody; the personnel files for each of the primary officers involved; and several hours of disk recordings, including all of the “body worn camera” (BWC} footage from the officers present at the scene, 911 radio dispatches, and witness interviews. Based on that information, the following findings were made Shortly after midnight on September 8, 2018, GPD officers working during the Folk Festival in the downtown area encountered who was later identified as Marcus Deon Smith in front of the Lincoln Financial Group building at the 100 block of North Church Street. It was immediately apparent to the officers that Mr. Smith was under the influence of an impairing substance, He was behaving erratically, running in and out of vehicular traffic, and repeatedly shouting “Help”, I want to go to the hospital’, “They're trying to kill me”, and "tm going to kill myself. Officers at the scene initially reacted by warning Mr. Smith to stay out of the traffic. They also tried to block offa section of the roadway with es — teeconstruction barrels to protect both Mr. Smith and any oncoming motorists. As additional officers were dispatched to their location, the on scene officers attempted to contain Mr. Smith In the immediate area by loosely encircling him rather than directly confronting him. They tried to communicate to him that they wanted to help get him to the hospital. Mr. Smith either ignored or was unable to comprehend their offers of assistance, continuing to run around, occasionally stumbling, falling, and getting up again. He was sweating profusely and appeared to be in a state of heightened mental distress. During this time, Emergency Medical Services (EMS) was dispatched to respond to assist with Mr. Smith. The officers in the meantime tried to encourage Mr. Smith to get into a police car so that they could transport him to the hospital. Any physical contact between Mr. Smithand the officers was minimal as they attempted to guide him to an open police car door. EMS arrived at or about the same time that Mr. Smith finally complied with an officer's request that he voluntarily get inside the police car. Officers then closed the passenger door. In the next moments, officers and first responders discussed arrangements for transporting Mr. Smith to the hospital while at the same time securing an order for an involuntary commitment from a local magistrate due to his severe condition, Shortly thereafter, Mr. Smith became disruptive again while in the police car. He had not been handcuffed or restrained in any way before getting in the backseat. He began shouting, thrusting his body against the passenger door, and repeatedly striking the passenger window with his hands. An EMT recognized Mr, Smith from a months earlier encounter under similar circumstances and insisted that he be physically restrained for his and their safety before EMS transported him to the hospital. An officer partially opened the passenger window to try to speak with Mr. Smith and he reacted by pulling on the window, risking potential injury to himself and property damage. As the officers told him to stop, he repositioned himself in the backseat with his feet at the same passenger window. Fearing that he would attempt to kick out the window, an officer opened the rear door. Mr, Smith then exited the vehicle and fell toward the officers and onto the ground. Several officers then attempted to gain control of him. He continued to resist them by kicking and flailing about while in apparent distress due to his condition. Officers managed to secure his hands in cuffs behind his back while he remained prone on his stomach. As he continued to kick the officers used additional restraints in an effort to immobilize him so that he might be safely transported to the hospital. The officers were ‘able to secure his ankles and then link the wrist and ankle restraints with the "Ripp Hobble” device, Given Mr. Smith's level of resistance, the additional restraint was necessarily fastened while he remained secured by the officers in the same prone position. The extent of any physical contact applied on Mr. Smith by the several officers struggling with him on the ground was limited to thelr efforts to gain control of him. Mr. Smith was neither struck nor was any unreasonable pressure applied to his body. No chokeholds were administered and no conducted electrical weapons were deployed. Throughout the brief struggle Mr. Smith continued to make audible sounds, at first loudly, then more quietly. Immediately upon securing the additional restraints, Mr. Smith became unresponsive. The officers checked for a pulse while removing the restraints, GPD officers assisted EMS by placing Mr. Smith on a stretcher and then into the ambulance. CPR was initiated and attempts to resuscitate Mr. Smith continued in the ambulance during his transport to the hospital. Lifesaving efforts were made by hospital staff upon arrival, but Mr. Smith was pronounced deceased a short time later. It was noted that there were no visible signs of injury as a result of the incident on the body of Mr. Smith.The GPD policy regarding the use of the "Ripp Hobble” restraining device 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. 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, ‘An autopsy was performed at the North Carolina Chief Medical Examiner's Office in Chapel Hill. It was concluded that from the overall death investigation and postmortem examination that the cause of death was sudden cardiopulmonary arrest due in part to prone restraint, a combination of ilicit drugs and alcohol, and hypertensive and atherosclerotic cardiovascular disease. Because it was determined that “prone restraint” was a contributing factor, the death was classified as a homicide. Due, at least in part, to the interaction with the officers, the cause of death was not natural. Left for this Office’s determination is whether those actions by the officers provide a basis for a criminal homicide by committing a culpably negligent act. The unequivocal answer is that there is no evidence to substantiate a basis for criminal charges in this matter. When the officers initially encountered Mr. Smith, despite his erratic behavior, they demonstrated patience and restraint, insisting that they wanted to help him. They actively avoided a physical confrontation with him and repeatedly pleaded with him to get into a police car so they could get him to the hospital. By all accounts, the singular mission was to transport Mr. Smith to the hospital as soon and as safely as possible. When they finally coaxed him, unrestrained, into a patrol car, they were prepared to transport him to Moses Cone. When Mr. Smith became physically disruptive inside the car, the officers opened the door out of concern for damage to the police car and Mr. Smith potentially injuring himself. An EMT cautioned that he could not be safely transported without restraints, The officers acted reasonabiy in applying the necessary use of force to restrain Mr. Smith to avoid injury to himself or others. The additional restraints were a reasonably necessary measure to ensure safety during, transportation to the hospital for both Mr. Smith and those tasked with his custody and care {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. The overwhelming showing based on all of the investigative materials presented to this Office demonstrates that these officers meant to help and not hurt Mr. Smith. The loss ofthis life is tragic, but there is no evidence to substantiate a criminal act. This matter should be considered closed, Submitted by: