Law Enforcement

Elijah McClain Investigation Report: So Much Done Wrong

The late Elijah McClain.
McClain family photo
The late Elijah McClain.
The City of Aurora just released the report of a self-described "independent investigation team commissioned by Aurora City Council," which was charged with investigating the August 30, 2019, death of Elijah McClain, who lost his life six days after a controversial attack by Aurora Police Department officers.

The 157-page report, which will be discussed during a presentation before the council at 5 p.m. today, February 22, doesn't reach any conclusions regarding whether officers and emergency personnel deserve punishment for their actions during the August 24, 2019, incident. But authors Jonathan Smith, Dr. Melissa Costello and Roberto Villaseñor find significant flaws in virtually every aspect of the response and investigation into the tragedy, and recommend sweeping review and reform.

Aurora officers weren't criminally charged in connection with their encounter with McClain, a 23-year-old unarmed black man who died despite breaking no law. He was initially targeted by a 911 call for dancing to music while wearing a ski mask on his way home from a convenience store, where he'd picked up iced tea. Police stopped him and wound up forcibly restraining him.

Shortly after McClain's death, attorney Mari Newman of Denver-based Killmer, Lane & Newman, LLP, who represents his family, summarized what happened with this: "Elijah, a peaceful person, said, 'Please respect my personal space.' That's what he said. But they didn't do that. They slammed him up against the wall, they tackled him to the ground, and they continued to terrorize and torture him for fifteen minutes. Now, fifteen minutes might not sound like a long time standing right here, but I can tell you, having watched the video of that fifteen minutes, that for the young man on the receiving end of that fifteen minutes, it was one heck of a long time. And what did they do during that fifteen minutes? They tortured him. And I don't use the word 'torture' lightly. I wouldn't say torture unless I mean it, and I do mean it."

Emergency responders called to the scene injected McClain with ketamine, a heavy sedative; he suffered heart failure and was taken off life support in the hospital days later. The autopsy of McClain was inconclusive and has been roundly criticized for allegedly ignoring the obvious in the case, which rose to national attention in the wake of protests over the May 2020 murder of Minneapolis's George Floyd.

Aurora's post-event investigation "was flawed and failed to meaningfully develop a fulsome record," the report states. But while "these facts trouble" the authors, they say their mission was not to "assess whether misconduct occurred. Rather, our task was simply to report what we could learn from the record and make policy recommendations."

Those recommendations fall into three major categories: "Review policy, training and supervision regarding use of force and arrest practices," "Improve accountability systems, including more effective review by Major Crime and mandatory review by Internal Affairs," and "Clarify and strengthen the transition of an individual from suspect to patient when EMS is called."

Here are the report's recommendations. (Note that an investigatory stop is referred to as a "Terry stop.")

Review Training and Supervision of Officers.

The Panel recommends that the Aurora Police Department undertake a thorough review of its training and supervision of officers with respect to ascertaining reasonable suspicion and probable cause in conducting Terry stops, frisks, and arrests. The speed at which these officers acted to take Mr. McClain into custody, their apparent failure to assess whether there was reasonable suspicion that a crime had been committed, and the unity with which the three officers acted suggest several potential training or supervision weaknesses. The Panel also strongly recommends that every Terry stop and every frisk be thoroughly documented.

Use of Force/De-Escalation.

The Panel recommends that the Department undertake a thorough review of its use of force policy. The review should assess whether it reflects community values that force be minimized and avoided when possible, and should ensure that officers have adequate guidance on force avoidance strategies and the obligation to apply them.

In addition, the Aurora de-escalation policy would be significantly strengthened if it included more specific explanation that de-escalation is required in every encounter where possible, and how verbal techniques, positional withdrawal, and the use of delay can help control situations to avoid the need to use force.

Transition from Aurora Police Department to Aurora Fire.

We recommend implementation of a simple model or template and accompanying training for all agencies that handle patient information and care (e.g., Aurora Police, Aurora Fire, and Falck) on best practices for patient transitions. In particular, a template would have increased utility here to ensure that non-medical personnel provide all necessary information to EMS during the patient handoff.

Build Culture of Patient Advocacy.

The Panel recommends that the City conduct a careful review of the culture within Aurora Fire to ensure that it prioritizes the safety of the subject consistent with the safety of the officers and medical personnel. In particular, the City should undertake an analysis of EMS personnel attitudes and perceptions surrounding all aspects of patient safety during a call for service, including whether or not the EMS personnel feel empowered as advocates for patients.

Training to Complete EMS Assessment.

We recommend a thorough review of Aurora Fire’s protocols, policies, and trainings related to patient sedation to ensure that a complete pre-sedation assessment by paramedics is completed. This assessment should include cardiac and respiratory monitoring whenever feasible, and require that a consistent process be developed and used to ensure a verbalized pre-sedation double check for diagnosis/protocol, estimated weight, equipment inventory, and a plan for expedited post-sedation monitoring.

After-Incident Review.

The Panel urges the City to consider overhaul of the post-incident review process to ensure that inadequacies are identified and addressed in policy, training, and supervision. In particular:

• The Panel strongly urges the City to assess the training and supervision of Major Crime detectives as it relates to the investigation of potential criminal misconduct by police officers. Remaining objective and independent while investigating a fellow officer presents unique challenges. Both detectives and supervisors need special training to ensure that any investigation is both fair and complete.
• The Panel believes this case should have been referred to Internal Affairs for review, and strongly urges the City to consider the important role of Internal Affairs in reviewing all officer-involved deaths. While Major Crimes' role is to determine whether a crime was committed, the role of Internal Affairs is to protect the integrity of the agency by ensuring compliance with policy. The current policy requiring that the Chief open Internal Affairs investigations places the Chief in a difficult position and limits the likelihood of review by the Department for compliance with policy.
• The Panel urges the City to reform the Force Review Board process to foster more critical and objective analysis of uses of force. The Force Review Board’s failure to examine this incident in detail and to look at each use of force against Mr. McClain, separately and with care, is a lost opportunity. The Force Review Board should be a critical part of a continuous assessment and learning process, and every incident should be interrogated for what it can teach the Department to avoid negative outcomes in the future.

The Panel also addressed four areas of concern that we identified during the investigation. These are:

Implicit Bias.

The national debate concerning the role of law enforcement in communities of color includes a robust discussion of implicit or unconscious bias. In looking at this single incident, the Panel has insufficient information to determine what role, if any, bias played in Aurora Police officers’ and EMS personnel’s encounter with Mr. McClain. However, research indicates that factors such as increased perception of threat, perception of extraordinary strength, perception of higher pain tolerance, and misperception of age and size can be indicators of bias. We urge that the City assess its efforts to ensure bias-free policing, implicit or otherwise.

Crisis Intervention.

The Panel does not conclude whether or not Mr. McClain was experiencing a mental health or behavioral health crisis. However, in the course of our review, we identified deficiencies in the City’s response capacity for those types of calls. We urge the City of Aurora to review its crisis response programs and training and increase mental health resources. The conduct of these officers and the failure to afford Officer Roedema the opportunity to apply his crisis intervention training suggest a departmental culture in need of reform surrounding interactions with persons with disabilities, mental health disorders, or in behavioral crisis. It is our recommendation that the Aurora Police Department incorporate evidence-based best practices into their training programs on dealing with suspicious individuals who are not involved in criminal activity or presenting an immediate threat to themselves or others. This is in line with the changes that the Aurora Police Department has already made in its policies on dealing with suspicious person calls.

Independence and Separate Authority of Medical Personnel.

The Panel makes no findings as to the nature of the relationship between Aurora Police and Fire in this particular incident. However, in the Panel’s experience, frequent co-response of both the police and EMS, similarity in uniform colors and designs, and the inevitable collegiality between departments that respond together routinely, may inadvertently indicate that EMS is an “arm” of the police department rather than an independent and wholly separate agency. We recommend that Aurora Police and Fire leadership review and provide additional guidance to field personnel and communication staff on the proper use of law enforcement support for EMS and vice versa.

Administration of Ketamine.

Since this incident, the City has placed a moratorium on the use of ketamine by emergency medical staff and there is an active debate among public officials on the use of ketamine in law enforcement settings. As the review of the sedative is underway, we urge the City to avoid replacing ketamine with other medications that pose a greater risk to patients and to medical staff.

Westword reached out to attorney Newman on February 21 to learn if she'd seen the report. She responded that the City of Aurora "ignored my request for an advance copy as a humanitarian measure for the grieving family, and I was told that the family may listen to the city council meeting along with the rest of the public."

This morning, we sent the report to Newman, who filed a lawsuit against Aurora on behalf of McClain's family in August 2020; we'll share her response.

The Aurora City Council presentation can be viewed on Aurora TV at 5 p.m. on February 22. In the meantime, click to read the Elijah McClain investigation report and recommendations.