Council tables inquiry into death of Marcus Deon Smith
The first agenda item at the April 16 Greensboro City Council meeting was “Discussion for an Independent Review of the Marcus Smith Incident.” The discussion consisted of District 1’s Sharon Hightower moving the proposal be tabled “due to pending litigation,” with at-large representative Michelle Kennedy seconding. The council then voted unanimously to table the independent review that Kennedy, Hightower and Mayor Pro Tem Yvonne Johnson had supported 15 days earlier.
At the April 1 meeting, Kennedy proposed the independent review after listening to speakers calling for the firing of Greensboro Police Chief Wayne Scott, whose officers fatally hogtied Marcus Deon Smith, a homeless African-American man who approached them during the NC Folk Festival and asked to be taken to the hospital.
On April 10, attorney Flint Taylor, co-founder of the People’s Law Office in Chicago and litigator of multiple landmark civil rights settlements involving African-Americans killed or tortured by police, announced the Smith family was filing a lawsuit against the City of Greensboro, Guilford County, seven GPD Officers, and two EMS paramedics, all named in the April 10 YES! Weekly article “Family sues over fatal hogtying by GPD,” which links to the Complaint.
At the April 16 meeting, Hightower explained this reversal by stating “I want people to know that I absolutely do support an independent review, but because of the timing of everything right now, we are unable to move forward.”
“I just want to follow up and echo what Sharon is saying,” Kennedy said. “This is something that we have, many of us, very strong feelings about, and this is not to say this is not going to happen, but it is delayed due to current litigation.”
The tabling was not a surprise to some in the audience, as it had been announced in a press release that morning. The lack of discussion, or opportunity for public comment, was.
Mayor Nancy Vaughan began the meeting by announcing, “We do allow for speakers to address the council on agenda items,” but cautioning them to “conduct themselves in a civil and respectful manner at all times.” She also stated that “any disruption of the meeting will not be tolerated.”
After the investigation was tabled with no opportunity for comments from the floor, some in the audience rose and chanted “fire Wayne Scott!” The mayor asked for them to sit down and be silent, then called for security.
“Why can’t we do a public comment about this?” shouted protestor Rachel Wieselquist as Vaughan called for her removal. Wieselquist and the other protestors left voluntarily when security arrived.
On Wednesday, I asked Vaughan why no public comments had been allowed. “‘The motion was to table the item,” she said, “and the motion to table is nondebatable, which means you vote on it right away, so there’s really no comment from the council and there are no speakers from the floor.”
She confirmed the review was tabled due to pending litigation.
“I think it’s common sense that, once the lawsuit is filed, you turn it over to the lawyers. I think that would probably be the same advice that the plaintiff’s lawyers would have given their clients. I do think that, as a council, we would have been willing to do a professional legal review of the way that the investigation was handled.”
I asked her about her statement the lawsuit was “a strategic blunder” by the Smith family (misremembering the quote, I said “strategic error”).
“I do think it was a strategic error. They could have waited until an investigation was complete. I think the majority of council was considering a professional review similar to Charlottesville, which could have been done reasonably quickly – most of the documents are already assembled, and unlike Charlottesville, there weren’t a whole lot of different players. But in the end, the timing just didn’t work.”
Lewis Pitts Jr., a retired Civil Rights lawyer who lives in Greensboro, was present with the Smith family and their legal team announced the lawsuit. In 1985, Pitts was co-counsel with Flint Taylor in a civil suit that found two Klansmen, three Nazis, two Greensboro police officers, and a police informant liable for the wrongful death of one person and injuries to two more in the 1979 Greensboro massacre.
I asked Pitts to comment on the latest developments in the Smith case.
“The same outrage from the community was manifesting at city council meetings three years ago,” he said on Thursday, “as is the same lack of transparency and abrogation of duty by the council.”
Pitts was referring to an Oct. 18, 2016, closed meeting in which the council debated examining information regarding former GPD officer’s Travis Cole’s use of excessive against Dejuan Yourse, an incident reported by the Washington Post. At the public meeting immediately following the private one, Sharon Hightower accused fellow council members of “trying to shut me down” and said that a vote had taken place at the closed session.
In the YouTube video “Greensboro City attorney misleads public,” posted by blogger Roch Smith, Jr., Vaughan asks former Greensboro City Attorney Tom Carruthers if the vote from the closed meeting can be made public. “I don’t consider what was taken a vote,” he says. “I consider it as a consensus of council. We don’t take votes in closed session.”
But in the minutes and audio recording from that closed session, which the Greensboro News and Record hired a lawyer to obtain, the council can be heard taking two formal votes on the subject, each with a seconded motion, and each council member voting.
“So, the city attorney categorically lied,” Pitts said on Thursday. “I filed a complaint against him before the Bar, which did nothing, but he categorically lied.”
Pitts then said that “in the audio from the 2016 closed meeting, the city council is clearly more interested in protecting the image of its police department than in finding out the truth, which is relevant because they’re doing the same thing now.”
In the 2016 audio, Hightower asks to be allowed to view information on the Cole case. At-large Representative Marikay Abuzuaiter expresses concerns about what this might do to the public image of the police department. At-large Representative Mike Barber (who would lose his seat to Kennedy in 2017) cites “potential pending litigation in this matter” and advises “that we make no further public statement.”
“I don’t have a reason to question what [the police department has told me and presented to me,” says District 2’s Justin Outling, explaining why he feels no need to investigate further.
“There’s possible litigation on this one which could really put us in a tight spot,” Abuzuaiter says.
“I believe our job is to do what’s best for the city of Greensboro,” Barber says. “We have to take into our hearts what we’re doing to our police department. We’re killing them. Every two weeks we have the parade of characters that come up and beat the crap out of our city, and some of us oppose it, and some participate in it. We’re hurting our city. We’re doing a poor job of marketing it.”
Barber is no longer on the council, but Pitts claimed this attitude remains.
“When this city council gets credible evidence the police are engaging in wrongdoing, rather than pursue it, they put their heads in the sand. Their sworn moral and legal obligation is to the best interests of the community, not to protect themselves from civil liability.”
He also suggested that the tabling of the independent review was a punitive action against the Smith family.
“They’re saying, well, if they’re going to file a lawsuit, we just won’t hold the investigation. That’s slapping the family on the hand because they had the audacity to sue.”
After speaking to Pitts, I asked Vaughan if tabling the investigation was a punitive measure. “No, we said we’ll take it up again after the lawsuit. I do think it was just legal advice. Certainly, any lawsuit would be the ultimate investigation.”
On that one point, Pitts and Vaughan might agree. Pitts stated that, while the city council has both the legal and moral authority to investigate the matter, he doubted their willingness to do so. “This is the pattern and practice referenced in paragraph 63 of the Complaint, which causes Greensboro police officers to believe they can abuse African-American citizens with impunity.”
Pitts said that he believed the lawsuit would bring to light the Greensboro Police Department’s history with the African-American community.
Vaughan said she did not believe the tabled review would have addressed that history. “I think there are people who thought there would be a wider-ranging investigation, looking at GPD over the years, but I don’t think that was ever under consideration.”
“She is such a politician,” said Kim Suber, sister to the deceased Smith, when I asked her for a reaction to the mayor’s statement that the lawsuit was “a strategic blunder” on the part of the Smith family. “The mayor plays yo-yo with the emotions of the people of Greensboro. But we are not from Greensboro, and could tell she had no intention of an investigation.”
Protestor Rachel Wieselquist expressed a similar sentiment. “Nancy Vaughan called the lawsuit a ‘strategic blunder.’ To me, it seems that the strategic blunder was City Council and the City Manager waiting six months to even suggest conducting an independent investigation. They waited as long as they could to make the first stride towards justice and now have the gall to insinuate that it’s the family’s fault that they won’t.”
Smith’s mother Mary Smith also said she didn’t trust the city council, due to “the way they ignored it until they couldn’t anymore.” She said she only learned how her son actually died weeks after his funeral. “We buried Marcus with the lies of Chief Wayne Scott, and that’s a hurt that can’t be healed.”
I asked Vaughan about her opening remarks at last Tuesday’s meeting, specifically her statement “We expect that all speakers will conduct themselves in a civil and respectful manner at all times.”
Did this, I wondered, mean the council intends to require “civility” from members of the public who speak at the podium, as well as those in the audience? Some speakers from the podium have described the council in harsh and occasionally profane terms.
“I think that says more about the speaker than it does about the council meeting. It’s more when people go over the time, and people speak out from the audience. So, I think that’s more of an issue. We can still ask for civility.”
Seeking clarification, I asked again if “civility” would be required from future speakers at the podium.
“As I said, I think that says more about the speaker. And it’s a work in process. You may see it change a little bit at the next meeting. I do think there’s a possibility we may go to three minutes [rather than the currently allotted five] in the future at the town hall meetings.”