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Elijah McClain, Michael Marshall, De'Von Bailey: A Tragic Introduction

Michael Marshall, De'Von Bailey and Elijah McClain all died at the hands of Colorado law enforcers.EXPAND
Michael Marshall, De'Von Bailey and Elijah McClain all died at the hands of Colorado law enforcers.
Courtesy of the Colorado Independent/City of Colorado Springs/McClain family photo

Protesters at the ongoing downtown Denver demonstrations over police violence frequently cite the death of George Floyd. But fewer invoke the names of three people of color who died at the hands of law enforcement officials in Colorado: Elijah McClain, De'Von Bailey and Michael Marshall.

On June 9, Denver School Board member and protest organizer Tay Anderson tweeted that during a meeting with Governor Jared Polis, "I asked him to reopen the investigations on the deaths of Elijah McClain, De'Von Bailey and Michael Marshall. The officers that killed these individuals should NOT be on the force."

While Polis didn't overtly echo Anderson's call during a subsequent news conference, he did emphasize that he'd previously requested an independent inquiry into the Bailey homicide.

Here are the basics about each of these three fatal incidents, including an update on where each case stands.


Elijah McClain

"On August 24, 2019 at 10:32 p.m. the Aurora Police Department received a 911 call where the caller described a 'suspicious person,'" begins an account issued by the APD shortly after Elijah McClain's passing. "The caller reported an adult male was walking on Billings Street near East Colfax Avenue, wearing a ski mask and flailing his arms at the caller. Officers arrived in the area and contacted a male still wearing a ski mask, later identified as Elijah McClain. The male began to resist the officer contact, a struggle then ensued, and he was taken into custody. Aurora Fire Rescue administered a standard medication to reduce Mr. McClain’s agitation. He was then transported to a local hospital where tragically he died days later."

This account is very different from the one offered by Mari Newman of Denver-based Killmer, Lane & Newman LLP, which represents McClain's family. Referencing the many lawsuits filed against Aurora for the police department's treatment of African-Americans, Newman told us last November: "Existing while black seems to be a crime in Aurora. But apparently, existing while black and acting a little differently than everybody else has somehow become a capital crime."

Indeed, McClain hadn't violated any law and was simply dancing to music and waving his arms when officers accosted him — and the damage done to him was horrific, Newman pointed out in the wake of an "inconclusive" autopsy report late last year. The document "shows injuries over, really, almost all of Elijah's body. His face was covered with abrasions, he had hemorrhaging in his neck, he had abrasions across his entire back, on his chest, on his shoulder, on his legs. So it's very clear that the officers used force that impacted his entire body."

In addition, she said, "Elijah had vomit in his lungs, which you expect considering what I saw in the video" — a collection of images from body cameras that supposedly became "dislodged" during the encounter, which lasted around fifteen minutes. "That asphyxiation was obviously caused by the police tackling him. That made him vomit, and then they pinned him down in his own vomit — and when he moved, one of the police officers said that if he did it again, he'd bring in the hounds to bite him."

Along the way, McClain was injected with ketamine, a powerful drug commonly used prior to and during anesthesia. He was also placed in a chokehold — the report refers to the tactic as "a carotid control hold" — for an extended period of time.

Here's the video and audio of McClain's death released by the Aurora Police Department (its contents, and those of two other videos below, may disturb some readers):

Update: No criminal charges have been pressed against any of the officers involved, but on June 9, the Aurora Police Department announced new reform measures, at least two of which appear to have been directly influenced by the McClain case: a ban on carotid holds and the ability of officers to decide against contacting an individual cited in dispatch reports if there's no evidence that individual "was, is, or seems to be about to engage in criminal activity." The City of Aurora also announced that a report from an independent investigator looking into McClain's death is due in July. But whatever that report's outcome, Newman says that a civil-rights lawsuit will be filed.

Further reading:

"Torture, Murder Claimed in Elijah McClain Aurora Police Death," October 2, 2019
"Attorney Rips "Undetermined" Autopsy in Elijah McClain Aurora Police Death," November 13, 2019
"Lawyer on Elijah MClain: It's a Capital Crime in Aurora to Be Black, Act Weird," November 25, 2019
"Aurora Follows Usual Playbook by Clearing Cops in Elijah McClain Death," February 7, 2020
"Aurora Case as Tragic as George Floyd's, Police Accountability Bill," June 3, 2020

Michael Marshall

According to a Denver District Attorney's Office decision letter explaining why criminal charges weren't pressed against deputies involved in this case, Michael Marshall, a local street preacher, was arrested for trespassing on November 7, 2015, after which he was placed in the Denver Detention Center's 4D pod, described as a "special management unit on the fourth floor."

Prior to his jailing, Marshall had reportedly refused to take medicine prescribed to fight the effects of schizophrenia, and he'd had six police contacts over a 48-hour period. During 911 calls, he's said to have been "rambling" and engaged in "ranting."

On November 11, Marshall was allowed free time out of his cell, but when he "was observed behaving in a strange and erratic manner" and approaching another inmate aggressively, deputies intervened and took him to an area dubbed a "sally port," with a bench on one side of a long hallway.

It's at this point that the video of Marshall's final moments begins:

The video shows Marshall slumping to the floor of a Denver jail corridor after being pushed by a deputy in a way that was forceful but not overtly aggressive. The deputies responded by holding Marshall down (even though he didn't appear to be struggling) before transitioning into an unsuccessful attempt to revive him. An autopsy determined that, in all likelihood, he choked to death on his own vomit.

Update: The case dragged out for two years before Denver agreed in late 2017 to a very expensive settlement: $4.65 million. But law enforcement officials escaped with relatively little censure. Seven Denver Sheriff Department deputies faced possible discipline in the Marshall case, but only two received punishment: Deputy Bret Garegnani was given a sixteen-day suspension for failing to follow use-of-force policies and procedures by using inappropriate force, and Deputy Carlos Hernandez earned a ten-day suspension in relation to the same offense. In addition, Captain James Johnson received a ten-day suspension for failing to observe department policies and procedures.

Further reading:

"Michael Lee Marshall Jail Death: Denver Sued to Release Video of Homicide," January 21, 2016
"Michael Marshall Jail Death: Advocate on Official's Silence About Wrist Slaps," March 10, 2017
"Denver to Pay $4.65M, Change Policies Over Michael Marshall Jail Death," November 1, 2017
"Claim: If Trainer at Denver Jail Isn't Removed, 'More Inmates Will Likely Die,'" November 8, 2017
"Denver Gets Defensive Over Michael Marshall Jail Death Report," March 20, 2018


De'Von Bailey

On August 3, 2019, Colorado Springs Police Sergeant Alan Van't Land and officer Blake Evenson responded to a soon-to-be-disputed report of an attempted robbery on the 2400 block of East Fountain Boulevard. There they encountered De'Von Bailey and his nineteen-year-old cousin, Lawrence Stoker, who was later cleared of any wrongdoing. During the exchange, Bailey took off running, likely because he had a gun "deeply embedded within his basketball shorts," according to Darold Killmer, a partner with Mari Newman in Killmer, Lane & Newman LLP; both attorneys are working on behalf of the Bailey family.

Here's a video that compiles the body-camera footage of Van't Land and Evenson, preceded by 911 audio. The Van't Land material gets under way at around the ten-minute point, while Evenson's starts at about 12:30:

In the clip, Bailey can be seen reaching for his pocket at least twice during his interactions with Van't Land and Evenson. Early on in the Van't Land footage, he shifts his hand in that direction and begins trying to snake his fingers into the opening in the fabric, only to immediately move both hands away from his body and then raise them over his head after being ordered to do so. In the Evenson material, Bailey appears to be moving a hand toward the pocket again while sprinting away from the officers, only to quickly abandon the effort when it becomes clear that getting access to it is impossible.

The bottom line: Bailey never came close to grabbing the gun, much less aiming it at Van't Land and Evenson, as Killmer stressed in a recent interview.

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"They discovered he had a gun after they shot him and were searching him — and even they couldn't reach it. They had to cut it out," Killmer said. "So it was happenstance that he had a gun, and it doesn't justify using deadly force. The courts are clear on this. If he had brandished the gun or threatened someone with it or even said, 'I have a gun and I'm going to shoot you,' that might have given the officers justification to use deadly force. But as it was, this was two African-American men and one of them ran away — and in order to stop him from getting away, they shot him, which is unconstitutional under clear case law."

Update: In March, prosecutors announced that they wouldn't criminally charge Van't Land and Everson for their actions. This month, Killmer filed a civil-rights lawsuit on the Bailey family's behalf. "With somebody who didn't fit the profile of De'Von Bailey — a young black man — it's probable that police wouldn't have resorted to just pulling their guns and shooting him in the way they did," he explained. "Assumptions and stereotypes, even if they didn't consciously understand them, led them to immediately escalate to deadly force when he was running away from police. I think the cops immediately detected that they couldn't catch him, so to apprehend him, they shot him in the back three times, killing him. If it had been a person of another socioeconomic status — someone not African-American — it definitely would have turned out differently."

Further reading:

"Attorney: De’Von Bailey Police Shooting May Be First-Degree Murder," August 13, 2019
"How Cops May Get Away With De'Von Bailey Homicide," August 16, 2019
"COVID-19 Buries Big Development in De'Von Bailey Police Shooting," April 2, 2020
"Reaction to De'Von Bailey Grand Jury Letting Fatal-Police-Shooting Cops Skate," November 14, 2019
"George Floyd Echoes in Lawsuit Over Fatal Shooting of De'Von Bailey," June 5, 2020

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