NC jails have known this position is deadly. So why was it used again?
If John Neville had been in a state prison as officers wrestled him to the floor of a cell and held him face down, they would have been required to get him off of his stomach after gaining control.
But Neville was in a jail run by one of North Carolina’s 100 locally elected sheriffs.
State-run prisons and psychiatric hospitals have written bans on the kind of restraint detention officers used on Neville at the Forsyth County jail as he became combative after regaining consciousness from what a nurse described as a seizure. They placed him on the floor, cuffed his hands behind his back and raised his legs to his wrists. When he no longer resisted, they left him on a cell mattress on his stomach.
An autopsy found that Neville, 56, of Greensboro, died last December of a cardiac arrest and a brain injury caused by a lack of oxygen. He told detention officers repeatedly that he couldn’t breathe, but they didn’t believe him. They and a jail nurse now each face a felony involuntary manslaughter charge.
For decades, criminal justice experts have warned against that type of “prone restraint” because it leads to positional asphyxia, in which the weight of someone’s body presses against their diaphragm and prevents them from breathing.
And yet despite a prior death in Forsyth’s jail involving prone restraint, the jail’s written policies did not require officers to avoid it. Nor do the state’s regulations for county jails.
“Face-down restraint, called prone restraint, is lethal and must be prohibited in all N.C. jails,” said Susan Pollitt, a senior attorney with Disability Rights North Carolina, which has played a leading role on jail safety issues.
In 1995, the National Law Enforcement Technology Center, which is under the U.S. Justice Department, issued a bulletin to law enforcement about positional asphyxia after a research study into unexplained in-custody deaths.
“To help ensure subject safety and minimize the risk of sudden in-custody death, officers should learn to recognize factors contributing to positional asphyxia. Where possible, avoid the use of maximally prone restraint techniques (e.g., hogtying),” the bulletin said.
Hogtying refers to when people are placed on their stomachs with hands and ankles bound together, and is one example of prone restraint, which basically means restraining someone on their stomach.
In 1992, three years before the bulletin, the Forsyth jail had a death attributed to prone restraint.
Sheila McKellar, 33, died two days after being bound, gagged and placed face down in a holding cell while awaiting arraignment on a disorderly conduct charge, the Greensboro News & Record reported. A medical examiner determined that McKellar died from positional asphyxia with crack cocaine ingestion a contributing factor. Her mother later sued Winston-Salem and several of its police officers.
The change in Forsyth’s policies
A judge ordered some, though not all, videos of what happened to Neville in the jail on Dec. 2 released after The News & Observer and other media outlets petitioned for their release.
The footage shows officers left Neville in the prone position while trying to remove his handcuffs. Neville begged to be rolled over as officers worked on the cuffs, first with keys and then with bolt cutters.
In the video, Neville told officers at least 30 times that he couldn’t breathe and called for help at least 35 times.
“You’re breathing because you’re talking, you’re yelling and you’re moving,” a deputy shouted at Neville. “You need to stop.”
On July 9, one day after charges were filed, the Forsyth County Sheriff’s Office made its first change in three years to the use-of-force policy.
Under the new policy, if officers try to subdue an inmate by placing him in prone position, they must immediately roll the inmate to his back or place him in a seated position as soon as restraining devices are secured.
The new policy also instructs officers to:
▪ Monitor a person’s color, breathing and level of consciousness. If a person claims to be in distress or loses consciousness, medical personnel must be called in immediately to evaluate the inmate.
▪ Intervene if a colleague uses force that is unnecessary. If an officer does intervene, that must immediately be reported to his supervisor who must pass the information up the chain of command.
▪ Follow the guidelines of medical personnel and put preservation of life over any other priority. The new policy gives medical personnel full autonomy over inmates in medical distress.
The new policy still allows officers to:
▪ Restrain an inmate during transport.
▪ Use physical restraints to gain control of an inmate who appears to be destructive or dangerous to himself or others.
▪ Use their own body weight on an inmate in prone restraint, but only if they use “extreme caution” and remove their body weight as soon the person is restrained and any potential weapons are secured.
The angle captured by the video shows deputies on top of Neville as if in a football pile-up.
It’s hard to tell if they’re actually using their body weight on Neville, but the autopsy reported that they did.
At one point a correctional officer’s knee is seen on top of Neville.
At another point in the video, an officer forcefully moves his leg toward Neville and though the vantage of the camera doesn’t capture where his knee lands, Neville begins screaming and shouting, “My leg! My leg!”
At another point in the video a deputy is heard shouting, “Sit on him,” as officers try to remove his handcuffs.
The autopsy report said that Neville died from both positional and compressional asphyxiation.
In prisons, schools and jails
The state prison system began requiring inmates in prone restraint be placed on their backs in 2003, said spokesman John Bull. He said officials there did not know if there was an incident that prompted the policy change. Corrections officers can have inmates on the floor, stomach-down as they gain control, but inmates then need to be flipped over.
In 2012, the state Department of Health and Human Services prohibited restraining patients face-down after one died. Pollitt said the death happened at the Murdoch Developmental Center in Butner.
Several school districts, including Chapel Hill and Johnston County, have also banned prone restraint on students.
This year, if state lawmakers do not intervene, new DHHS rules will take effect that require jails to have written policies on the use of restraint. But the rules do not dictate what policies jails must adopt. Two lawmakers — one a former sheriff; the other a former chief deputy — filed legislation in opposition to the rule changes at the request of the N.C. Sheriffs’ Association, but that bill did not get out of committee.
Eddie Caldwell, the executive vice president and general counsel to the association, said it does not oppose many of the proposed rules, including the requirement for written use of restraint policies. He said legislative staff told the association it had to first file a bill opposing all of the rules before dealing with the ones it doesn’t support.
He said he didn’t know if any sheriff’s offices had written policies against hogtying inmates or leaving them handcuffed on their stomachs.
The News & Observer contacted sheriff’s officials in the Triangle. The Durham County sheriff’s office has a written policy on prone restraint. It says: “Except in extreme circumstances, no individual will be restrained so that his/her legs and hands will be pulled up behind his back or in such a manner that it will be necessary for the individual to be transported in the prone position. Supervisory approval will be necessary before such transport will be allowed.”
Representatives of the sheriff’s offices in Wake, Orange and Johnston counties said they do not have written policies prohibiting prone restraint, but they are trained not to use it.
“The WCSO is clear to cadets that only the techniques taught in the academy, are agency approved. The said technique in the Forsyth incident, if true, is not taught in this agency,” said Eric Curry, a Wake sheriff’s spokesman.
Capt. Mike Carson, Johnston County’s jail administrator, said detention officers have been told not to leave inmates face down in handcuffs. He said when inmates need to be restrained, the floor is an important tool to help officers gain control, and that means inmates are likely to be held down on their stomachs.
But once they are restrained, “they are stood up and put on their butts or their feet,” he said.
Alicia Stemper, a spokeswoman for the Orange County Sheriff’s Office, said the jail follows North Carolina Justice Academy training that requires inmates handcuffed in a prone position not be left on their stomachs.
“As soon as compliance is achieved, the person stands up and is escorted to wherever they need to be,” she said.
A problem beyond a position
The problems with Neville’s death go beyond the position detention officers placed him in, Pollitt said. Neville was in a medical emergency when officers and a nurse arrived, but the video showed efforts to restrain him took precedence over his medical needs.
She said the video of Neville’s final hours in the jail showed a nurse hadn’t taken his blood pressure before detention officers surrounded him and put him in a lethal position.
“He said he couldn’t breathe and begged for help but he didn’t get medical assistance until he was left prone for 12 minutes and could no longer breathe or talk,” Pollitt said.
As the N&O has previously reported, last year a record 46 inmates died after becoming ill or infirm in North Carolina’s jails. More than 40% of those deaths involved a lack of supervision, DHHS records show. Those deaths include two inmates who were killed by other inmates, law enforcement officials say.
The last several years have seen an upward trend in deaths and suicides. But so far state lawmakers have done little to beef up laws and regulations to help keep inmates safe.
Neville’s death may signal a change.
Political pressures
State Rep. Donny Lambeth, a Winston-Salem Republican and a former hospital administrator, has said he wants to revisit the jail regulations to close a loophole that allows jails not to report deaths involving inmates who become ill or infirm behind bars but are released from custody before they die. A Forsyth County assistant attorney cited that law in Neville’s case.
Kathy Manning, a Democrat running for North Carolina’s 6th Congressional District that encompasses a majority of Forsyth County, called for ”a ban on the use of hogtying by law enforcement officers.”
Manning’s statement cited the deaths of Neville and Marcus Deon Smith.
Smith had alcohol, Ecstasy and cocaine in his system, according to his autopsy report, as he ran in and out of Church Street in downtown Greensboro and threatened to kill himself. Inside a police car he began screaming and hitting the windows, so police took him back out and placed him in prone position on the ground. Police used a device to hogtie Smith.
The medical examiner ruled his death was a homicide from being placed in prone restraint. No one was charged.
House Speaker Tim Moore, who is also Cleveland County’s attorney, said when he speaks with deputies or officers their goal when they restrain someone is to get them under control if they’re fighting and make sure the person doesn’t hurt himself.
Moore said he had seen the videos but did not know all the facts of the case. He said the fact that those charged acknowledged that Neville was having a medical emergency shows there needs to be more training to prevent something like this from happening again.
“We can have all the policies on the books but it comes down to enforcement of those policies and letting the criminal justice system work through its process if someone is found negligent,” Moore said.
His county paid $303,000 in 2018 to settle a jail death from three years earlier, according to the attorney who represented the inmate’s family. In that case, an inmate who was in extreme pain from what ultimately turned out to be renal failure hadn’t been properly checked on by detention officers, a DHHS investigation found.
Last year, DHHS cited the jail again, after deputies said they found an inmate was killed by another in a holding cell as they awaited arraignment. The DHHS investigator reported that the cell had a badly cracked window that detention officers couldn’t see into, and they passed by without checking on the inmates.
Kerwin Pittman, a member of the N.C. Taskforce for Racial Equity in Criminal Justice formed by Gov. Roy Cooper to recommend changes to policies, told the N&O that he was disheartened by what he read and heard about Neville’s death.
“There is no reason Neville should have been pleading for his life and he can’t breathe,” Pittman said. “Most importantly, there is no reason his plea should have fallen on deaf ears.”
Pittman said Neville’s case is not an isolated incident.
“There are many untold stories like Neville’s where individuals are brutalized, but not die, yet their stories go untold,” Pittman said. “It is time for the state of N.C. to hold these correctional officers and medical staff accountable, when brutalization occurs to people and they get no assistance.”