On Friday, lawyers for the family of Marcus Deon Smith, the African-American man fatally hogtied last September by eight Greensboro police officers, filed new briefs in the federal civil rights lawsuit over Smith’s death. These were in response to three motions to dismiss filed by defense attorneys in June.

Friday’s responses were signed by Flint Taylor, Ben Elson and Christian Snow, from People’s Law Office of Chicago, and Greensboro attorney Graham Holt. As previously reported, Taylor was co-lead counsel in the 1985 civil suit that found two Klansmen, three Nazis, two GPD officers, and a police informant liable for wrongful death in the 1979 Greensboro Massacre.

The presiding judge in the Smith lawsuit is Loretta C. Biggs, an Obama District Court-nominee, who in 2015, became the first African-American woman appointed to the federal bench in North Carolina.

The defense motions filed on June 13 included claims that Marcus Smith’s civil right was not violated when officers used what Greensboro Police Chief Wayne Scott has repeatedly described as a “RIPP Hobble” to restrain Smith.

In that incident, which occurred Sept. 8 of last year in downtown Greensboro during the North Carolina Folk Festival, the officers held Smith face-down on the pavement, bending his legs and raising his feet towards the small of his back at a greater than 90 degree angle so that his ankles could be attached to his handcuffs. It was the use of this restraint that caused the state medical examiner to declare Smith’s death a homicide.

The June motion to dismiss the charges against GPD officers Michael Montalvo, Justin Payne, Christopher Bradshaw, Jordan Bailey, Robert Duncan, Alfred Lewis Douglas Strader and Lee Andrew alleged that the restraint was not excessive and stated that such a device has never been declared unconstitutional. The one filed on behalf of Guilford County EMTs Ashley Abbott and Dylan Outing alleged the paramedics responded appropriately under intense pressure.

In Friday’s filings, the attorneys representing the Smith family asked the court to deny the motions to dismiss.

The Smith attorneys challenged the claim that the police response was not excessive by citing multiple precedents, in which, allegedly similar actions were found to violate the fourth amendment’s prohibition on unreasonable seizure, drawing parallels between those cases and their claims that “Marcus did not pose an immediate threat of harm to himself or others” and “the force used was both unnecessary and excessive under the constitution.”

They also challenged the defense’s citation of the qualified immunity doctrine, which shields government officials from being sued for discretionary actions performed within their official capacity, by citing established precedents in which such actions violated “clearly established” federal law or constitutional rights

Arguing against the defense claim that no court has explicitly established hogtying as unconstitutional, the brief cited multiple precedents involving similarly dangerous forms of restraint used against unarmed and unresisting subjects, and stated that “this Court should find that it was clearly established that Marcus had a constitutional right to be free from officers exerting extreme and unnecessary pressure on his torso while he was prone on the ground and handcuffed.”

The response stated that “the outrageousness, in 2018, of brutally hogtying a defenseless Black man, who was neither resisting nor otherwise under lawful arrest, in contravention of GPD regulations and the manufacturer’s prohibition, further establishes that the Defendants had noticed that their conduct was clearly unconstitutional as was previously established in similar circumstances by the Supreme Court in Hope v. Pelzer.”

Hope v. Pelzer was a United States Supreme Court case in which the Court ruled that the defense of qualified immunity did not apply to a lawsuit challenging the Alabama Department of Corrections’ use of the “hitching post” to which inmates were handcuffed for extended periods of time. Comparing both the hogtying of Marcus Smith and the Alabama “hitching post” to “antebellum brutality,” the Smith team’s response quoted the 2003 ruling:

“The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment.”

Among the many points argued by the Smith legal team’s response to the city of Greensboro’s Motion To Dismiss is the precedent of Monell v. Department of Social Services, which ruled that a local government can be sued as a “person” under Section 1983 of Title 42 of the United States Code if such claims are be based on the implementation of a policy or custom. In the legal team’s response to Guilford County’s MTD, they argued that the paramedics could have intervened when they observed officers restraining Smith in a potentially fatal manner.

As the three responses ranged from 22 to 32 pages of length, it is impossible to adequately summarize them here. The full response can be read at the following links:

Response to Greensboro police officers’ Motion to Dismiss.

Response to the City of Greensboro’s Motion to Dismiss.

Response to Guilford County paramedics’ Motion to Dismiss

On Aug. 8 at 6:30 p.m., Shiloh Baptist Church in Greensboro will host a public meeting at which the Smith family, legal team and supporters will discuss this case and their contention that it must move forward.

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