‘South Charlotte type.’ Ex-CMPD captain accused of race, class bias in a mom’s arrest
A jury will decide whether a former Charlotte-Mecklenburg police captain — now a Virginia police chief — acted with malice when he ordered a mother arrested on child abuse charges after she briefly left her kids in her car to get directions to a birthday party.
In an opinion released Tuesday, the N.C. Court of Appeals ruled that a trial judge erred in 2019 by granting government immunity to then-Capt. Gerald Smith and dismissing a lawsuit filed by the woman and her husband against the officer and the city of Charlotte.
Smith, by then a CMPD deputy chief, became police chief in Richmond, Va., in July.
The lawsuit accuses him of overruling his officers, angrily ordering the mother’s arrest based on little or no proof of a crime, then giving false statements during the follow-up police investigation. In one particularly troubling claim, the mother’s attorney alleges that Smith may have pressured a witness to support his version of events, court documents show.
In his interview with a police investigator reviewing the woman’s arrest, Smith’s comments about her were “laced with class- and race-based animosity,” according to a Court of Appeals filing by the family’s attorney, Luke Largess.
The three-judge panel, which included John Arrowood of Charlotte, said it intervened in the case — despite a series of procedural errors by Largess that otherwise would have undermined the appeal — because the lawsuit raises “wide-reaching issues of justice and liberty.”
“Specifically, the lawsuit alleges serious misconduct and abuse of power by the government in violation of both the U.S. Constitution and our state’s common law,” Appeals Court Judge Richard Dietz wrote.
While acknowledging that there are conflicting arguments of whether Smith acted with malice, Deitz said the appeals court “cannot choose between that competing evidence — a jury must do that.”
The case arose from an incident in a Mecklenburg County park in 2014. Yet it addresses an issue still resonating across the country in the wake of the George Floyd protests: Namely, are police given too much protection by the courts?
‘South Charlotte type’
The complaint alleges that Smith, a veteran CMPD command staff member before his hiring in Richmond, acted with “anger and hostility” toward the mother that stemmed from his personal biases. The woman is white. Smith is Black.
During the internal affairs interview, Smith described the mother as one of those “South Charlotte type of people ... who believed the law doesn’t apply to me.”
He said the woman’s “position of entitlement” had intimidated the other officers at the scene and had forced him to intervene. As a result, “I’m being picked out as the big, angry black guy.”
Tuesday’s ruling struck down a 2019 order by Superior Court Judge Daniel Kuehnert of Morganton granting Smith immunity for his actions.
While acknowledging that there are conflicting accounts of what happened at the park, the appeals court found that the family had raised sufficient evidence of wrongdoing by Smith for the case to proceed.
Charlotte attorney Lori Keeton who is representing Smith declined to comment about the case. Daniel Peterson, a former CMPD attorney now in private practice and defending the city against the lawsuit, said Wednesday he cannot comment on a pending case.
A Tuesday phone call and email to the Richmond Police Department were not returned.
However, court documents indicate that the defense team sharply disagrees with certain factual allegations in the case, including how long the mother was away from her children, the temperature inside the car by the time she returned, and Smith’s temperament at the scene.
The birthday party
In 2014, the mother — identified in the lawsuit only as Jane Doe — got lost driving her children to a September birthday party at the stables on Latta Plantation. According to court records, she pulled into a parking lot, left the car, and asked a nearby park employee for directions. The employee later estimated that it took the mother no more than a minute to reach him, get directions and jog back to her car.
Two CMPD officers, Aaron Deroba and David Gathings, who were patrolling the park at the time, witnessed the events, court documents show. Neither chose to intervene. According to documents, both officers are white.
As the mother jogged back to her car, Smith drove into the parking lot and noticed the unattended children, who according to court documents were 1 and 3 at the time and strapped in car seats. He signaled the other officers to join him. According to court documents, one of the officers admitted not noticing the children in the car. The other said he had seen one.
According to the lawsuit, the captain “was visibly angry and confronted Doe about leaving her children unattended in a car with the windows rolled up.”
According to a court documents, Smith said later that the outside temperature was 88 degrees at the time.
The mother responded that she had been away from the children only for a short time. She then opened her door to show that the interior of the car, which she turned off before she left to get directions, was still cool.
“No, it’s not,” Smith replied, according to the appeals court opinion. (In a subsequent deposition for the case, Smith said the car’s interior already was warmer than the outside air temperature.)
The police captain then told the woman he was charging her with misdemeanor child abuse, despite the other officers’ contention that the mother had not left her children alone for a dangerous amount of time.
“That doesn’t matter,” Smith replied, according to the opinion, which repeated allegations from the lawsuit that Smith “bullied” his officers throughout the encounter. He ordered Gathings to make an arrest.
Later, in CMPD’s internal review of the incident, Deroba and Gathings both said the mother had done nothing wrong, telling investigators that Smith had “overreacted and wasn’t being objective or listening to what we observed,” according to the opinion.
Deroba added: “It didn’t seem like Captain Smith wanted to listen to anything I had to say.”
In his comments during the internal affairs investigation, Smith claimed that he never yelled at the mother and that the two officers on the scene “had collaborated to create a story about him.” He said the mother ran back to her car only after she saw him watching her.
In the family’s filing to the appeals court, Largess accuses Smith of making false statements to defend his actions. Proof of the officer’s “undisputed dishonesty” includes “evidence from which a jury could conclude he asked (a witness) to lie for him,” according to Largess’ appeals court brief.
In December 2014, the Mecklenburg County District Attorney’s Office threw out the charges against the woman. Court documents indicate the prosecutor never talked with Smith before dropping the case.
Smith later received a CMPD reprimand “for making an arrest that Smith knew, or should have known, was not in accordance with the law or department procedure,” documents indicate.
In 2017, the mother and her husband sued Smith and the City of Charlotte, alleging negligence, loss of consortium, false imprisonment, malicious prosecution along with civil rights violations.
In January 2019, Kuehnert dismissed all but the civil rights claims on immunity grounds, finding that “there was insufficient evidence” that Smith had acted with malice.
Under N.C. law, an officer is protected from liability if he “lawfully exercises the judgment and discretion” of his office “and acts without malice or corruption.”
The appeals court, however, ruled that the family’s lawsuit raised sufficient evidence that Smith failed to meet that threshold.
“Their evidence (although admittedly disputed) shows that there was no probable cause for Captain Smith to charge Jane Doe with child abuse; that Captain Smith knew there was no probable cause to do so; that (his) decision to charge Doe was driven by anger and hostility toward her, not by evidence of a crime; and that this anger and hostility stemmed at least in part from racial or socioeconomic biases,” Dietz wrote.
Whether Smith’s comments about the woman indicated “malicious intent” remains, according to the judge, one more question for the jury to answer.
Editor’s note: This article was published Aug. 19 and updated Aug. 20 to include that Smith’s lawyers declined to comment but that court documents show his defense team denies allegations made in the case.
This story was originally published August 19, 2020 at 11:53 AM.
