The Angelina County Sheriff’s Office released a “Use of Force Review” by the Texas Department of Public Safety that looked into the arrest of Mark Anthony Smith.
Deputies Brandon Rainwater, Rodney Nash and Tyler Due arrested Smith on April 4, 2020. A video of that arrest shows three deputies arresting Smith. The arrest became violent and viewers can see as deputies repeatedly hit Smith in the head with the butts of their guns, as well as kick and hit him.
The reviewer believes Smith restrained the complainant and exposed her to substantial risk by blocking her vehicle with his vehicle and producing a firearm which he “reportedly aimed at the complainant while she sat in her vehicle.”
Smith was charged on four felony charges of assault on a peace officer, resisting arrest/search/transport, unlawful restraint and disarming or attempting to disarm a police officer. However, he was issued a “no-bill” by a grand jury, Sheriff Greg Sanches said.
The report identifies factors necessary to understand the situation from the viewpoint of the reviewer, who is unidentified except for by Sanches, who said the review came from the DPS.
Sanches said the situation also was reviewed by the Texas Rangers, the district attorney's office and the county attorney's office.
“The video shows what appears to be a clumsy and ill-executed approach and take down of Mr. Smith by (deputy) Rainwater and the others,” the reviewer said. “It is likely that the skills acquired during training and reinforced by practice that was not specific to the situation at hand, did not equally transfer to the environmental factors and specified threatening resistance presented by the suspect.”
The reviewer said that statements and reports, as well as audio and video footage, suggested that several factors existed that would convince a reasonable officer that Smith wanted to gain control of Rainwater’s rifle and could be armed with another weapon. Additionally, the reviewer said that discrepancies between the reports and footage were likely related to human error, not an intention to deceive.
The review opens with what is labeled the “Relevant Information,” which said the deputies had just begun their tour of duty and were attending shift changes when the call was broadcast. They were dispatched to the 4000 block of FM 842 “in reference to a possible disturbance in progress where Dawn Cummings … stated her boyfriend Mark Smith … would not let her leave and had blocked her car with his truck.”
They were told that Smith was at different points pushing Cummings’ car with his truck, banging on her window, and that he was in possession of a rifle and trying to shoot Cummings’ car.
The deputies told the reviewer that they’d been advised of Smith having the gun, going back in the house and pointing the gun at Cummings.
They also said that in at least one prior incident, Smith did not cooperate. Sanches said that the county has responded to this residence more than 40 times. However, a county records search shows only eight instances. Sanches said there is documentation of more instances and The Lufkin Daily News will conduct a Freedom of Information request for information on the additional instances in an attempt to seek clarity.
The deputies said they’d had interactions with Smith that led to them to believe he was in possession of multiple firearms. Capt. Alton Lenderman told The Lufkin Daily News in an interview that Smith owns a gun store.
The review said that it is a “commonly taught tactic for officers to respond with patrol rifles to barricaded persons, hostage situations and domestic abuse involving known firearms.”
Rainwater, Nash and Due approached Smith, who had his hands in the air. Deputies can be heard telling Smith who they are and issuing verbal commands in the audio from the video. They told him to show his hands and get on the ground multiple times and he did not comply.
“Based on the information received from dispatch which indicated that Mr. Smith had been armed and aiming a rifle at a vehicle occupied by the complainant, in addition to the history of uncooperativeness and the current refusal to comply with lawful instructions, it is reasonable that the deputies perceived that they were being confronted with (at a minimum) threatening resistance,” the review said, citing a case titled Joiner & Basile (2007).
When Smith lowered his hands, Rainwater shoved Smith with his left hand while holding his patrol rifle with his right hand. Rainwater began taking a ready position but quickly grasped Smith’s right shirt sleeve with his left hand.
Deputies ordered Smith to the ground and, according to the affidavit and narratives from deputies as well as Nash’s dash cam audio, Smith told deputies, “I’m not getting on the (expletive) ground.”
The reviewer said Rainwater attempted a “leg sweep take-down” which was only partially effective. Both Rainwater and Smith fell while Rainwater still held the pistol grip of his patrol rifle in his right hand and his hand on Smith’s shirt sleeve. Nash said that Smith said, “You’re coming to the ground with me.”
Smith grasped Rainwater’s right arm, which held the rifle, and the muzzle was pushed to the ground and the patrol rifle disappeared behind and underneath Smith, according to the reviewer. It becomes difficult to see the rifle but the reviewer said he saw Rainwater struggle to gain control while Smith was focused toward Rainwater’s right hand and in the vicinity of where the muzzle end of Rainwater’s rifle would have been.
“The likelihood that Mr. Smith’s right hand was in contact with the rifle is corroborated by what (deputy) Rainwater writes in his probable cause affidavit, "Smith held onto Deputy Rainwater’s rifle with his right hand and grabbed Deputy Rainwater’s jacket with his left,” the reviewer said.
The reviewer believed it to be reasonable for the deputies to think Smith was confronting them with deadly resistance.
In his report, Nash said, “After realizing that Smith was not letting go of (deputy) Rainwater’s rifle who was struggling to secure the weapon, I used the butt end of my duty issued patrol rifle to administer approximately five strikes to the upper portion of Smith’s body.”
Despite Smith being struck in the head by a rifle once per second five times, the reviewer said he was fixated on the area where Rainwater’s rifle was. When his body was lifted, the reviewer said he could see Rainwater pull the rifle from Smith’s hands.
He said that between 17:41:17 and 17:41:18 in the footage, Smith has two hands on Rainwater’s rifle while Nash delivers another strike. The fifth strike connects as the rifle is being recovered by Rainwater.
Rainwater tackled Smith as soon as the gun was removed and took a position atop Smith’s back, and then Nash began to help Rainwater restrain Smith, the reviewer states. They were able to secure his left arm.
The reviewer said that Rainwater said in his affidavit that Smith’s right hand was under his body, but the video showed that Smith’s hand was near his right ear.
The deputies can be heard telling Smith to give them his hand and Smith says, “(Expletive) y’all.”
The video shows Rainwater's “empty hand” striking Smith’s torso and Due delivering a strike to Smith’s arm and face. The reviewer said there were no strikes after Smith was handcuffed.
Due said that while striking Smith’s face, Smith bit him, causing pain and drawing blood.
“Not yet having the opportunity to search Mr. Smith’s person for additional weapons, all being mitigated to some degree by having Mr. Smith restrained in handcuffs, it is reasonable that the deputies could have perceived that they had successfully deescalated the situation from deadly resistance back to threatening resistance,” the reviewer said.
Rainwater can then be seen securing Smith with his right knee on Smith’s right thigh/buttock area while Smith is lying prone and still with his hands cuffed behind his back.
The other two deputies show signs of disengaging.
As Rainwater looks as though he will relinquish control by removing his knee, Due delivers a knee strike to Smith’s arm.
Due backs up and watches as Rainwater stays on Smith. Rainwater then called for medical assistance because Smith had a gash in his head. Smith remained under Rainwater’s control for 28 seconds.
After Rainwater got off Smith, Smith began moving and lifting his shoulders from the ground.
Due immediately re-established control by planting his right knee on Smith’s back “with what appears to be significant force” and his left knee on Smith’s buttock area “with less force" and Nash places his left foot on Smith’s shoulder, the reviewer states.
Rainwater asked Smith why Smith grabbed his gun repeatedly, but Smith’s answers are slurred and mumbled.
Smith was treated by EMS 22 minutes after the last strike.
Dr. Monte O’Neal diagnosed Smith with a scalp lacerations, rib fracture, contusion of thorax, contusion of the head and alcohol intoxication.
“The strikes delivered to Mr. Smith’s head by (deputy) Nash (using the butt of his rifle) would likely be determined to be deadly force, in that the repeated strikes to Mr. Smith’s head using the butt of a rifle were likely to cause serious bodily injury or even death,” the reviewer said.
This was in response to what the deputies believed to be a potentially deadly situation for the officers because they believed they could reasonably expect Smith to have a gun on him and be able to use it.
“As for the timing of the fifth strike to Mr. Smith by (deputy) Nash, it appears on video that the rifle had not yet been recovered when (deputy) Nash committed to delivering that final strike,” the reviewer said.
He said that it takes time to start and stop actions and that Nash would have been unable to stop the delivery of the fifth strike.
“What is evident is that there were no subsequent strikes delivered by (deputy) Nash to Mr. Smith that were likely to cause serious injury or death once (deputy) Nash observed that the rifle had been recovered,” the review said.
The reviewer said that the empty-handed strikes were tactics used to distract and gain control of the subjects who are exhibiting threatening and potentially deadly resistance. The knee strike is another such method.
“The singular, controlled knee strike to Mr. Smith’s extremity coincided with the moment that it appears that (deputy) Rainwater was relinquishing ground control of a just recently restrained, violently resisting subject who had only (a) moment earlier, bitten a deputy during handcuffing,” the reviewer said.
The reviewer said this response was vital in order to respond to a threatening stimulus and that hesitation can be deadly to officers. The reviewer also said Smith moving after Rainwater was relinquishing control was seen by the deputies as an indicator of threatening resistance.