The insertion into N.C. Senate Bill 168 of controversial language addressing the confidentiality of death investigation records was not done at the request of Forsyth County law-enforcement officials, according to the legislator responsible for its inclusion.
Rep. Josh Dobson, R-McDowell, and co-chairman of the House health committee, said Friday the language was added to SB168 on June 24 on behalf of the N.C. Department of Health and Human Services.
SB168 contained a provision that would make private “all information and records provided by a city, county or other public entity to the Office of the Chief Medical Examiner, or its agents, concerning a death investigation ...”
DHHS confirmed in a statement Friday it had made that request of Dobson in his role as committee co-chairman. The language was asked for by the state Office of the Chief Medical Examiner.
“It was a good-faith effort to work with DHHS,” Dobson said. “I can say 100% there was nothing malicious on my part and on the department’s part.
“HHS reached out to me and said ‘we need some things to make our department work better and some things that we need.’ Every bit of the language we dropped into (SB168) was at the request of HHS.
“There was no connection, I never had a phone call from anybody from Winston-Salem or Forsyth County, not from any law-enforcement department, or anyone else.”
They are pursuing answers and clarity from local and state law-enforcement officials into the circumstances of how John Elliott Neville died on Dec. 4, 2019, shortly after being held in custody at the Forsyth County Jail.
According to an autopsy report, Neville suffered a brain injury that came about after his heart stopped beating. He asphyxiated while being restrained with his arms behind his back and his legs folded up in a position often referred to as hog-tied.
No information about his death was released until June, after inquiries by the Winston-Salem Journal and other news organizations.
Neville’s death surfaced as a public controversy on June 26 when it became public that the N.C. State Bureau of Investigation had been exploring the circumstances around his death. That included reviewing body camera and jail surveillance footage.
After the SBI submitted its findings to Forsyth County District Attorney Jim O’Neill, five former county Sheriff’s Office detention officers and a nurse at the jail were charged July 8 with involuntary manslaughter in Neville’s death.
Among advocates and protesters’ demands is an answer as to whether the language inserted into SB168 was done by local legislators, or whether it was asked for by local law-enforcement officials.
Sheriff Bobby Kimbrough denied Thursday accusations that he covered up Neville’s death. He said the primary reason he didn’t say anything publicly about Neville’s death for seven months was because Neville’s family requested it.
“There’s no blood on our hands and we’re not trying to hide anything,” Kimbrough said.
Kimbrough was referencing a banner protesters held Wednesday as they marched to the sheriff’s office to demand answers from him and O’Neill. O’Neill is the Republican 2020 candidate for state attorney general.
Under state law, Kimbrough said, he could have handled the investigation without the SBI.
“If I was trying to cover up something, I would have done the investigation in-house,” Kimbrough said.
The Minsters’ Conference of Winston-Salem and Vicinity said Friday that an independent agency should conduct a full evaluation of current practices at the county jail. They called for adequate training for officers, an end to excessive use of force, and accountability and transparency for all law enforcement, including correctional officers.
Senate Bill 168 represented the latest of three DHHS attempts at getting the death investigation records language into law that date back to April 16, 2019.
The stated intent has been to “improve efficiency of medical examiner system.”
The same language was in two earlier bills: House Bill 807, which cleared the House by a 109-0 vote on May 3, 2019, but was not addressed in the Senate; and House Bill 1214, which was introduced by Dobson on May 26, 2020, but was not heard in committee during the session.
Both HB807 and HB1214 had bipartisan co-sponsorship, including from several Black Democratic legislators.
DHHS said in its statement the intention with the death investigation records language “was to clarify that confidential information and reports shared for the purpose of a death investigation retained the same protection while in Office of Chief Medical Examiner’s possession to help facilitate efficient access.”
“This did not change the fact that autopsy reports and the other records in medical examiner files remain available to the public.”
Dobson said that when he introduced the changes to SB168 during the House Health committee meeting, “there was not a word of concern expressed about” the death investigation records’ language.
A Journal review of the audio from the committee meeting showed SB168 was discussed for about 13 minutes, of which the death investigation records section was mentioned for less than a minute and no member asked a specific question about that language.
Rep. Pricey Harrison, D-Guilford, and a House Health committee member, said Friday that HB1214 and SB168 “were described as (providing) much needed appropriations and matching funding, critical for drawing down tens of millions in federal money for temporary assistance for needy families, low income heating and cooling assistance, and more.”
“The confidentiality provision added to the bill was identical to a bill passed nearly unanimously by the House in 2019.”
Late night passage
The method in how SB168 cleared the General Assembly has drawn scrutiny as well.
SB168 was subject to the gut-and-replace strategy during the House Health committee that began at 10 a.m. June 24.
The strategy typically is used near the prospective end of a legislative session, which in this case was adjourned at 3:20 a.m. June 26.
The gut-and-replace process requires a bill that had cleared one chamber. That bill’s legislation is then replaced with new legislation. That tactic is used primarily after the deadline for introducing legislation has passed.
Once it clears the chamber that made the change, the other chamber can accept the amending or reject it and request a conference committee to pursue a compromise.
Before SB168 reached the respective chamber floors, it was amended again June 25 to add block grant funding for certain DHHS initiatives.
SB168 cleared the House by a 109-1 vote at 11:48 p.m. June 25 and the Senate by a 43-0 vote at 1:01 a.m.
“The confidentiality provision was not highlighted during the late-night discussion of and vote on SB168,” Harrison said.
“We were voting on a number of bills that were added to the calendar at the last minute with no time to adequately review the contents — a terrible way to do the people’s business.
“That session lasted until 3 a.m., and I am not sure many of us were at our sharpest,” Harrison said.
Dobson said that “if the press, a lobbyist, a legislator or anybody who was protesting would have come to me or DHHS and said ‘this is a problematic provision,’ we would have taken it out. I would have taken it out.”
Even though legislators felt throughout the process that the death investigation records language was non-controversial, Dobson said he understands the criticism about how SB168 cleared the legislature, “like we were trying to slip something through in the dead of night, which is just not true.”
The initial media reports about Neville’s death, combined with the early morning passage of SB168, spurred advocates into action, in part as comparisons were made to the death of George Floyd at the hands of Minneapolis police officers on May 25 that inspired nationwide protests against police brutality.
Daily protests related to Neville’s death took place in Winston-Salem.
There were daily protests in Raleigh, outside the Governor’s Mansion, that were inspired primarily by the passage of SB168, with Neville’s death the latest example of why there was concern about the death investigation records language.
Gov. Roy Cooper addressed the controversy about the passage of SB168 at his July 1 press conference.
Cooper said the bill contains “a concerning provision in there about public records. I am concerned about it. I think most people don’t want to have this provision, and I think we’ll figure out a way to fix it.”
Senate Majority leader John Bell, R-Wayne, told The News & Observer of Raleigh on June 30 that “after further conversations and discussions about (SB168’s) unintended consequences, I am confident this will be revisited and corrected once the legislature reconvenes.”
Indeed, on July 3, the House Rules and Operations committee placed Senate Bill 232 on the agenda, which would repeal the death investigation records language if Cooper signed SB168 into law.
The bill, which also extended allowing masks to be worn in public past Aug. 1, cleared the legislature on July 8 with Cooper signing it into law July 10.
Copper, however, chose on July 6 to veto SB168, saying the bill “could have the unintended consequence of limiting transparency in death investigations.”
“While I believe neither the Department of Health and Human Services which proposed it, nor the General Assembly which unanimously passed it had any ill intent, the concerns that have since been raised make it clear this provision should not become law.”
Harrison said the way the language was described to her by DHHS staff after the June 25 vote “was that items that were considered confidential before they transferred to the medical examiner (were to) remained confidential.”
“There was no added confidentiality, but there was immediate pushback from the public.”
Harrison said that “John Neville’s situation may have been part of the protester’s motivation.”
“But I think it was generally the context of George Floyd’s murder, the Black Lives Matter movement, fighting racism and police brutality, etc, and that this provision was perceived to limit public access to potential police misconduct.”
According to DHHS, the Office of the Chief Medical Examiner is charged with performing an impartial investigation on all deaths due to injury or violence, and those which are suspicious, unusual or unattended by a medical professional.
“To do so, the office relies upon information provided by a variety of individuals and agencies, including law enforcement, to determine the cause and manner of death,” DHHS said.
“Once finalized, the autopsy report, report of death investigation, and toxicology report, as well as any other unprotected material in the case file, are routinely provided to the public in response to public records requests.”
DHHS said that because the language contained in HB807 cleared the House without any opposition, “we chose to include it to our 2020 agency (funding) bill because we believed it to be a noncontroversial item.”
DHHS said that “because this provision has now raised concerns, we recognized it is in everyone’s best interest to take a step back from the process and reassess.”
“It was never intended to be a controversial provision.
“We are happy to meet with stakeholders to ensure protection of public access to records and transparency in the medical examiner system, while also allowing the medical examiner system to continue to perform a critical function to serve the people of this state.”
Dobson stressed that the death investigations record language “will not resurface in the 2020 session.
During the Friday news conference, Forsyth Democratic lawmakers Rep. Evelyn Terry and Sen. Paul Lowe called for transparency and accountability in the Neville case.
“The tragedy we’re here to speak about today is so easy to dismiss because we live in a society where rules are governed by implicit bias that is written into laws, statutes, policies and regulations called ‘the law,’” Terry said.
The Triad Abolition Project of Winston-Salem called for Cooper to veto SB168, saying “we believe SB168 not only obfuscates law enforcement involvement in the deaths of those they have in custody, but it also shields and protects law enforcement from being held accountable for deaths of civilians who are incarcerated, arrested and detained,” according to the petition.”
For example, the Advance Carolina advocacy group said it opposed SB168 because “it prevents the family members of people who die in the custody of law enforcement from getting access to their loved one’s medical records.”
“Put another way, this bill allows N.C. law enforcement and prison officials to avoid making public the cause of death for people who die while in the custody of state or local agencies.”
The group also opposed SB168 because “once jurisdiction of the investigation is given to the Chief Medical Examiner, the cause of death and other medical data will continue to be private and hidden from public access.”
“It is important that our elected officials prioritize transparency and exhaust options for public input, while placing the safety of Black and brown communities above their private interests.”