A year ago, outgoing 17th Judicial District Attorney Dave Young released the results of his investigation into the death of Elijah McClain following a torturous, brutal encounter with Aurora police officers and paramedics on August 25, 2019. He determined that there was no culpability among Aurora's first responders.
Since then, the case has become the focus of several more investigations — on the city, state and federal levels — and garnered national attention. But still not as much as it should, and likely will, with a Justice for Elijah protest slated for November 21 at the Colorado State Capitol.
In the meantime, Aurora has said it is making many changes to its law enforcement policies. But on October 23, in "McClain Attorney: Aurora PD Reform Plan Echoes Broken Promises," attorney Mari Newman of Denver-based Killmer, Lane & Newman LLP, who represents the late man's family, expressed doubts about Aurora's promises to improve its practices, citing assertions made in a scheduling document related to a wrongful death lawsuit in the case.
"They say they didn't use excessive force against Elijah," Newman pointed out. "They say they didn't deny him equal protection of the law that then caused his death, and they give a supposedly factual recitation of why they think everything they did was justified. They deny all the allegations in the complaint, they claim the defendants were justified in stopping Elijah and that they were justified in using a carotid hold on him, and they claim they're entitled to qualified immunity, which is basically a legal get-out-of-jail-free card."
Defendants in the case include Aurora Police Department officers Nathan Woodyard, Randy Roedema and Jason Rosenblatt, in addition to others who responded to the scene, including a paramedic and a doctor. According to a statement filed collectively on the defendants' behalf: "The death of Elijah McClain is a tragedy; however, this tragedy was not caused by any acts or omissions of the APD Defendants. APD Defendants deny that they used excessive force on Mr. McClain in violation of the Fourth Amendment, that they denied him equal protection of the law under the Fourteenth Amendment and that they caused his death by battery or neglect."
Another section of the statement notes: "Defendants Woodyard, Roedema and Rosenblatt were justified in the performance of the investigatory stop and based on observations by Defendant Roedema, of the carotid hold. A variety of APD Defendants, in their individual capacities, are entitled to the defense of qualified immunity based on various claims asserted in the Complaint and should be dismissed."
To Newman, these assertions undermine Aurora's pledges to improve. "On the one hand," she told us, "they say they're committed to a new way of operating and a new level of accountability. But they won't take accountability for the wrongs they've already committed."
On November 10, just over two weeks after Newman made these remarks, Polis announced that he had "amended an executive order he signed in July designating Attorney General Phil Weiser as the state's prosecutor, to investigate and potentially prosecute any crimes related to the death of Elijah McClain in Aurora, Colorado in August 2019. This amendment further defines the breadth and scope of the Attorney General’s authority to investigate and prosecute offenses arising from this matter."
This phrasing troubles the Denver branch of the Party for Socialism and Liberation — profiled in a recent Westword cover story — which has organized the November 21 demonstration. In its release about that event, the group maintains that the alterations "loosen the scope of the investigation, allowing investigating CO Attorney General Phil Weiser to investigate for 'offenses' — not just 'criminal activity' related to Elijah's death. This opens the possibility for Weiser to come back with watered-down charges against the killers, as occurred in the case of Breonna Taylor. Polis also took out the words that suggest someone caused the death of Elijah McClain."
The rally to highlight these issues is slated to begin at 1 p.m. on November 21 outside the Colorado State Capitol. According to PSL Denver: "Experience has shown us that the only thing that will force the system to deliver any semblance of justice for Elijah McClain is a movement of the people demanding it. We are holding a peaceful demonstration to communicate that the movement is still here and we are not going anywhere until we get justice for Elijah McClain!"
Click to read the scheduling order for Estate of Elijah McClain, et al., v. City of Aurora, et al., and the amended version of Governor Jared Polis's executive order.
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