Protest Watch

Elijah McClain Update: Polis Asks AG to Investigate Police-Related Death

A portrait of the late Elijah McClain.
A portrait of the late Elijah McClain. McClain family photo
The facts surrounding the August 24, 2019, death of 23-year-old Elijah McClain after Aurora police officers accosted the unarmed black man — not because he'd committed a crime (he hadn't), but over a 911 call from someone who saw McClain dancing while wearing a ski mask — are undeniably shocking. Nonetheless, the case was slow to gain national attention, in part because of the absence of clear video, owing to body cameras of multiple officers involved becoming dislodged during the encounter — a supposed coincidence that attorney Mari Newman, who represents the McClain family and is currently preparing a civil-rights lawsuit about the incident, finds impossible to accept.

Authorities in Aurora were much more willing to suspend disbelief. In February, 17 Judicial District Attorney Dave Young announced that no criminal charges would be sought against the cops in the case.

But the ongoing George Floyd protests have brought new attention to this heartbreaking event, as witnessed by both a recent New York Times article and a petition titled "Justice for Elijah McClain" that to date has collected more than 2.6 million signatures — an increase of approximately 800,000 in just the past 48 hours. And these factors appear to have prompted action from Governor Jared Polis, who spelled out his planned actions in a pair of June 24 tweets.

"Public confidence in our law enforcement process is incredibly important now more than ever. A fair and objective process free from real or perceived bias for investigating officer-involved killings is critical," Polis wrote in the first message. The second added: "I am hearing from many Coloradans who have expressed concerns with the investigation of Elijah McClain’s death. As a result, I have instructed my legal [counsel] to examine what the state can do and we are assessing next steps."

This isn't the first time that Colorado's governor has weighed in on a controversial police-related death. On August 22, two days before McClain died, Polis issued a statement advocating for an independent investigation into the fatal shooting of another young black man, nineteen-year-old Colorado Springs resident De'Von Bailey, who was killed on August 3. Colorado Springs officials were decidedly cool toward the suggestion, but U.S. Attorney Jason Dunn agreed to look into the matter. In late March, Dunn declined to press criminal charges against police officers in the Bailey homicide — now the subject of a lawsuit filed earlier this month.

Today, of course, the dynamic regarding allegations of racist policing is very different, thanks in part to coverage by the likes of CNN, which broadcast a piece about Polis's McClain pronouncements this morning, June 25. (Good Morning America spotlighted the story this morning, too.) As a result, there is increased pressure on Aurora, which had previously done its best to try to make the McClain story go away. The city is currently in the process of choosing a new independent investigator to look into the case after dismissing a previous hire.

Manwhile, Polis has wasted no time. At 2:30 p.m. on June 25, he announced that he had signed an executive order appointing Colorado Attorney General Phil Weiser to "investigate, and if the facts support prosecution, criminally prosecute any individuals whose actions caused the death of Elijah McClain."

Here's the release from his office:
Governor Jared Polis signed an Executive Order designating Phil Weiser, Attorney General of Colorado, as the State’s prosecutor, to investigate and, if the facts support prosecution, criminally prosecute any individuals whose actions caused the death of Elijah McClain.

“I was moved by speaking with Elijah’s mother and her description of her son as a responsible and curious child who became a vegetarian to be healthier, and who could inspire the darkest soul. His friends describe him as a gentle peacemaker who worked as a massage therapist and enjoyed playing the violin. Elijah McClain should be alive today, and we owe it to his family to take this step and elevate the pursuit of justice in his name to a statewide concern.

“Now more than ever, we must do everything within our power to foster public trust and confidence in law enforcement and the criminal justice system. That’s why I have appointed a special prosecutor to investigate this case, and it’s why earlier this month we took a step in the right direction by signing sweeping bipartisan police reform legislation into law that has now established significant new accountability for officer-involved killings.

“As a father, my heart breaks for the McClain family. All Coloradans should be safe walking home from the convenience store, or just being in their own neighborhoods listening to headphones. Unfortunately, I know that is not how many people — especially young people of color — feel in our state today, because I’ve heard it from them directly. We need to do a better job, and at a bare minimum they deserve a thorough review of the case,” said Governor Polis.
As for DA Young, he just released a statement defending his decision not to criminally charge the officers involved in McClain's death:

Statement from District Attorney Dave Young Regarding the Elijah McClain Case

The tragic death of Elijah McClain has focused attention on the role of the district attorney, particularly in the 17th Judicial District. Media outlets have published widespread communication that I have “cleared the officers involved in Elijah McClain’s death of any wrongdoing.” This statement is not only incorrect, it does not adequately convey the role of the district attorney or the decision I was called upon to make. Consequently, given the degree of public interest with this investigation, it is important for me to explain the process, along with my authority and decisions with respect to the case involving the death of Mr. McClain.

I begin with my role as District Attorney of the 17th Judicial District. I am one of 22 district attorneys in the State of Colorado. The 17th Judicial District is comprised of Adams and Broomfield Counties. Generally speaking, the role of the district attorney is to review investigations of criminal activity brought by law enforcement agencies within the jurisdiction. That review is limited to a determination of whether the evidence supports the filing of a criminal charge under Colorado law. The standard of proof for filing a criminal case is whether there is sufficient evidence to prove any violation of law beyond a reasonable doubt. This review process is the same for any individual suspected of crime, whether a civilian or a law enforcement officer.

The incident with Mr. McClain occurred during the evening hours of August 24, 2019. The Aurora Police Department immediately commenced a criminal investigation that was presented to my office on October 21, 2019. The Coroner’s Office made the forensic investigation available to my office on November 8, 2019. On November 22, 2019, I issued a letter to Aurora Police Chief Metz detailing the evidence and my conclusions with respect to Colorado law. The Aurora Police Department released that letter to the public and it is posted on our office website.

Elijah McClain’s death was both tragic and unnecessary. Nevertheless, as set forth in the letter, my role in reviewing the evidence is limited to an assessment of whether criminal charges should be filed against any person involved in the death of Elijah McClain. The forensic evidence revealed that the cause of death was undetermined. Specifically, the pathologist who conducted the autopsy stated that he was unable to conclude that the actions of any law enforcement officer caused Mr. McClain’s death. In order to prove any form of homicide in the State of Colorado it is mandatory that the prosecution prove that the accused caused the death of the victim. For those reasons, it is my opinion that the evidence does not support the filing of homicide.

Furthermore, although I may not agree with the officers’ actions in this incident, in order to prove a crime, the evidence must demonstrate beyond a reasonable doubt that the force used was not justified. In this context, the legal question of “justification” is based on whether the involved officers held a reasonable belief that the use of force was necessary. Based on the evidence and the law applicable at the time of Mr. McClain’s death, the prosecution cannot disprove the officers’ reasonable belief in the necessity to use force. Based on the facts and evidence of this investigation I cannot prove beyond a reasonable doubt that the officers involved in this incident were not justified in their actions based on what they knew at the time of this incident.

Ultimately, while I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion, but rather, on the evidence revealed from the investigation and applicable Colorado law.
It's too soon to tell if Polis's executive order will belatedly result in the sort of justice for Elijah McClain for which millions of people across the country are now calling. But there's no doubt that the nation is watching.

This post has been updated to include information about Governor Polis's executive order, as well as a statement by District Attorney Dave Young.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts