On December 2, Governor Jared Polis released the second revision of his executive order calling for a state investigation into the death of Elijah McClain. But activists are impatient for more than words. “We are not settling for symbolism,” says Lillian House, a prominent organizer with the Denver chapter of the Party for Socialism and Liberation who is facing serious felony charges over demonstrations this summer demanding justice for Elijah McClain.
McClain, a 23-year-old massage therapist, was on his way home from an Aurora convenience store on August 24, 2019, when he was approached by members of the Aurora Police Department and, despite not being suspected of any crime, was subdued by officers using a now-banned carotid chokehold, then injected by paramedics with a large dose of ketamine, a controversial sedative. After the eighteen-minute encounter, McClain suffered cardiac arrest; he was pronounced dead five days later.
In November 2019, outgoing 17th Judicial District Attorney Dave Young declined to charge any officers or paramedics with wrongdoing in McClain's case.
But in the wake of protests over the death of George Floyd at the hands of Minneapolis police, activists renewed their calls for justice for McClain, and the Aurora case drew national attention. Governor Polis issued an executive order on June 25 delegating Colorado Attorney General Phil Weiser to “investigate and, if necessary, prosecute any potential criminal activity by law enforcement officers or any other individuals that caused the death of Elijah McClain in Aurora.”
Federal agencies revealed that they, too, are investigating the case, and Aurora authorized another investigation into its police department, after an initial attempt was derailed over potential conflicts.
On November 10, Polis revised his executive order, removing what protest leaders called “key language,” most notably the phrase “criminal activity.” That action inspired another demonstration on November 21, led by PSL members including House, Joel Northam and Eliza Lucero, who are also facing felony charges. Hundreds of protesters marched through downtown Denver before stopping outside of Weiser’s office, where they expressed their concerns that diluted language could lead to diluted charges.
Ten days later, Polis issued a revision of the revised executive order; according to his office, the current version “incorporates language from the original Executive Order and maintains the expansion of prosecutorial authority given to the Attorney General.”
The November changes were made to broaden the scope of the attorney general’s authority, but “they were taken by some in the wrong way and were hurtful to others,” the statement notes.
“The intent is and always has been to allow the Attorney General to conduct a complete and impartial investigation of this matter,” explains Jacki Cooper Melmed, chief legal counsel to the governor.
“People in the streets do move people in power,” House says regarding this new version of the order, then adds: “At this point, it is nothing more than a symbolic gesture."
Before the one-year anniversary of McClain's death, on behalf of his family, attorney Mari Newman had filed a 106-page civil rights lawsuit in federal court against the City of Aurora and over a dozen police officers and medics, claiming that their actions that night in August 2019 deprived McClain of his constitutional rights.
On November 30, the City of Aurora filed a motion to dismiss the lawsuit — one of five such motions filed on behalf of the defendants; this one contends that the McClain family's case does not have sufficient factual evidence to support the municipality’s liability for the death. According to Newman, these motions clearly are designed to “use the legal process to wear out grieving families with limited resources.”
They remind her of another case she worked on, the death of Marvin Booker, "killed in the custody of Denver sheriffs in 2009." The City of Denver filed baseless motions to dismiss and for qualified immunity in that case, too, she notes: “The court, of course, found that they should not be granted, but in the meantime, it delayed the case so profoundly that Marvin Booker's elderly father actually died during the course of the litigation.” The city eventually paid out millions in the case.
“Justice delayed is justice denied,” Newman repeats. “This is a perfect example of it. Marvin Booker's father never got to see justice for his son, and that’s what Aurora police and medics are trying to do now.”
While no officers were fired in connection with their actions on August 25, 2019, three officers were terminated — and one resigned — when text exchanges revealed them re-enacting and mocking the encounter.
In October 2019, officers Erica Marrero, Kyle Dittrich and Jaron Jones took a photograph at a memorial to McClain near the site where he had been detained, smiling and re-enacting a chokehold. Jason Rosenblatt, who was one of the officers involved in the August 24 encounter, was sent a copy of the photo and responded with a texted “haha.” After the photos surfaced in July, Jones resigned; then-interim (and now permanent) Aurora Police Chief Vanessa Wilson fired Marrero, Dittrich and Rosenblatt, who are all fighting to get their jobs back.
A December 9 hearing had been scheduled with the Aurora Civil Service Commission to hear Rosenblatt’s appeal, but it was moved to January 21 after the PSL organized a campaign to flood Aurora with public comments. Meanwhile, a new change.org petition — one of several related to Elijah McClain — opposing the reinstatement of all three fired officers has received close to 60,000 signatures.
“These are supposed to be those that ‘serve and protect’ the most diverse community in Colorado,” says Darlene Jones, an Aurora resident who started the change.org petition. “That was a son, a brother, a friend, and a light in our community. Many of us are still grieving.”
PSL has scheduled a socially distanced car protest for Rosenblatt's rescheduled hearing date, as well as a “call-in” to the Aurora Civil Service Commission meeting at 1 p.m. on December 8. Starting December 14, the commission is slated to hear appeals from former APD officers Marrero and Dittrich.
“The city is hoping that people will become distracted and that people will forget,” says Newman. “Aurora fails to give the public adequate credit. People are paying attention, and they aren’t going away.”
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