With Two Court Wins, PSL Leaders Keep Fighting for Elijah McClain

Eliza Lucero, Lillian House and Joel Northam of the Party for Socialism and Liberation.
Eliza Lucero, Lillian House and Joel Northam of the Party for Socialism and Liberation. Evan Semón
The embattled leaders of the movement pushing for justice for Elijah McClain — Lillian House, Joel Northam, Eliza Lucero and Terrance Roberts — find themselves on higher ground after two recent court victories.

The four were arrested in September and charged with a myriad of felonies and misdemeanors in connection with protests last summer, including allegedly inciting riots, committing theft, blocking highways and attempting to kidnap Aurora Police Department officers; some of the charges carried the potential of decades in prison. But on April 5, newly elected 18th Judicial District DA John Kellner dropped all felony and most misdemeanor charges against the protest leaders in connection with incidents in Arapahoe County. That decision followed the March 25 dismissal of the most severe charges — attempted kidnapping of eighteen officers inside Aurora’s District 1 Precinct headquarters — on March 25 by Adams County Judge Leroy Kirby.

During a summer of historic demonstrations across the country calling for an end to police impunity, catalyzed by the death of George Floyd, the leaders of the Denver Chapter of the Party for Socialism and Liberation emerged as a passionate and disciplined front line — a tightly organized anti-war, anti-racist political group, wearing characteristic red shirts and carrying bull horns, demanding justice for Elijah McClain, the 23-year-old massage therapist who died as a result of his treatment during eighteen minutes in APD custody.

McClain, who was listening to music as he walked home from a convenience store on the evening of August 24, 2019, did not immediately stop walking when commanded to do so by officers, who were responding to a 911 report of a man in a mask moving his arms strangely; the caller said he didn’t seem dangerous. But within seconds of making contact with McClain, the officers had their hands on him, though he made no moves to evade them. “Stop,” McClain is heard saying on body-camera footage. “You guys started to address me. I was stopping my music to listen, now let go of me.”

Rather than let McClain go, the officers continued to restrain him from both sides.

McClain was startled. “I am an introvert. Please respect my boundaries,” the slight, 140-pound McClain can be heard saying. “I am just going home.”

By the third minute of the encounter, McClain was taken to the ground. Once frisked, he was subjected to a carotid hold, which cut off circulation to his brain. He vomited from the pressure on his neck and chest. “I can’t breathe…I have no gun…I don’t do any fighting…I have my ID right here…Why are you attacking me?” he asked. From the moment the officers encountered McClain to the moment he was placed in an ambulance — after being given a large dose of ketamine by paramedics — the officers used some kind of physical force against him.

In the ambulance, the young Black man described by friends and family members as “gentle” and “a pacifist” suffered a cardiac arrest; he died as a result of the encounter five days later.
Elijah McCLain died after his encounter with Aurora police. - MCCLAIN FAMILY PHOTO
Elijah McCLain died after his encounter with Aurora police.
McClain Family Photo
After an internal investigation by APD’s Major Crimes Unit found that the officers’ actions were aligned with department policy, then-17th Judicial District Attorney Dave Young exonerated the officers of wrongdoing in November 2019. While that officially closed the case, members of the Denver PSL chapter spent the following months calling for an independent investigation into McClain’s death, packing Aurora City Council meetings with dozens of community members, picketing APD headquarters, and flooding public hearings with comments demanding that the officers be held to account. Although newly elected mayor Mike Coffman promised to make the McClain case a priority, Aurora did not take action.

Then May 2020 exploded into June, and thousands of protesters poured into the streets of Denver and other cities around the country. The red shirts of PSL — Northam, House and Lucero —had been energized by the growing national movement for police accountability; they had the confidence born of a short but decisive history of nonviolent, unflinching direct actions.

They organized their first big action of the summer on June 27, before a violin vigil for McClain scheduled for that night on the great lawn of the Aurora Municipal Center, in front of APD headquarters. An estimated 5,000 people showed up for the march that afternoon, shutting down I-225 in both directions.

That night, parents brought children to see the musicians who had come from across the country to play and light candles in memory of McClain; by now, his story was known around the world. In response, over 100 APD members and other police officers from across the metro area showed up in full riot gear. In the orange haze of the late June evening as the sun went down, officers deployed batons and pepper spray to remove hundreds of mourners. Then they continued to stand in their own vigil at the edge of the grass, keeping protesters from returning, refusing to answer their questions of “Why?”
Police outside the Aurora Municipal Center on June 27. - MICHAEL EMERY HECKER
Police outside the Aurora Municipal Center on June 27.
Michael Emery Hecker
A week later, at around 7 p.m. on the evening of July 3, PSL leaders marched with some 600 protesters to the APD’s District 1 headquarters, where the three officers who’d stopped McClain almost a year earlier were stationed. For the next seven hours they occupied the space around the building, declaring they would not leave until the officers involved were fired. Video of Northam’s speech show him leading an attentive crowd around the space, pausing to urge protesters not to engage with police and not to give police any reason to arrest them.

About 100 protesters remained at 11 p.m., when House stood in the bed of a black pickup holding a cell phone and a microphone as Northam did his best to block the wind. Aurora Police Chief Vanessa Wilson had requested a call with House, who placed Wilson on speakerphone.

Wilson said she was concerned that calls for service in District 1 were “stacking up,” and told House that she wanted squad cars to be able to leave the station to respond.

“That sounds like a real crisis,” House replied. “But we have a primary crisis, and it’s that these killer cops are still on your force.”

The crowd erupted in applause.

House suggested that Wilson could call on other precincts to help serve those calls, as they had the week before during the violin vigil. She reassured Wilson that the protesters did not want violence. “We are not going in and we aren’t going out,” House said.

Ultimately, the protesters left. The officers were not fired.

In September, the PSL leaders were arrested and charged with an assortment of crimes in connection with the protests.
Eliza Lucero, Lillian House and Joel Northam continued the fight after their arrest. - NOAH KAPLAN
Eliza Lucero, Lillian House and Joel Northam continued the fight after their arrest.
Noah Kaplan
At the end of March, House, Northam and Lucero were in an Adams County courtroom, where Judge Kirby was presiding over a preliminary hearing on the charge of attempted first-degree kidnapping — a charge that carries the potential for 24 years in prison. At the start, Kirby described the hearing as “a screening device to determine whether there’s probable cause to believe that the defendant committed the crimes charged” prior to taking the case to trial; the judge reminded those present that during the hearing, the court must draw all “reasonable inferences in favor of the prosecution” and if “testimony is conflicting, the Court must draw the inference in favor of the prosecution.”

DA Tim Twining called lead APD investigator Andrew Silberman, who’d authored the arrest affidavits for Northam, House and Lucero, to the stand, taking him through stills from surveillance footage and images captured by police body cameras and cell phones on July 3. All told, Twining introduced over seventy exhibits, starting with an aerial view of the precinct with red indicators marking where barricades and roadblocks had been created that evening as well as building entrances and exits.

House and Northam are seen leading large groups around the precinct during the early evening and giving speeches. After dark, piles of debris, fencing and construction items from the vicinity are placed in the middle of several streets, and a circular picnic table is put against a precinct entrance, though Silberman did not provide evidence as to when most of these events occurred. Twining also showed images of vandalism to a police cruiser, and a piece of cord tied to the parking gate where the fleet of forty Aurora police vehicles were stored.

Silberman testified that a confidential informant had reported hearing House say that she was going to find some rope. One clear image showed an unidentified protester tying off a door at 1:30 a.m.

The images also revealed a small number of demonstrators equipped with shields, tactical vests and open-carry firearms. But none appeared to be PSL members.

During cross-examination, the defense questioned both the timeline of events and the thoroughness of Silberman’s investigation. Attorney Adam Frank pointed out a text message sent to Wilson at 12:51 a.m. by Aurora City Council member Juan Marcano, who had attended the protest. “I am being told PSL is trying to march folks out,” Marcano said. “Some random idiots put up the barricades and destroyed the squad car.”

Wilson’s response: “Okay, thank you.”

Silberman admitted that he had not interviewed Marcano. In fact, except for the confidential informant he’d talked with weeks after the protest, Silberman said that he hadn’t interviewed any people present at the protest. And he didn’t provide enough information about the informant for Kirby, who later noted, “The law is really clear that if a police officer is receiving information from an anonymous source, they must corroborate it, even in cases of probable cause.”

Officer Matthew Alcorta, a member of the emergency response team who’d been dispatched to the precinct around 7 p.m., testified that when he arrived and asked to enter the building, protesters parted without issue.
Police made no other attempts to leave or enter the building, the defense pointed out. And at 2:30 a.m., when the first formal dispersal orders were issued, the PSL leaders left the scene. Officers dealt with a smaller crowd of agitated demonstrators until around 4 a.m.

And Silberman testified that at the end of the night, of the six doors in and out of the precinct, there was only one that officers struggled to open.

In Kirby’s decision, he noted that the officers had “retained their freedom of movement during the protest.”

After almost two days of testimony, the judge was ready to rule.
Protesters in Aurora on June 27. - MICHAEL EMERY HECKER
Protesters in Aurora on June 27.
Michael Emery Hecker
None of the exhibits shown by Twining had demonstrated that PSL members contributed to building barricades, or tying off doors, or committing or encouraging other acts of violence or intimidation, the judge noted. “Evidence was presented that other protesters not identified as members of this organization tried to block the doors, ropes and other items; none of these people were identified as belonging to their Party of Socialism and Liberation,” Kirby said. “These defendants cannot be held responsible for all the acts of the people present.”

The demand that House had made of Wilson did not qualify as imprisoning officers. Nor did other events of the night satisfy the standards for kidnapping. The prosecution had failed to offer any evidence that Northam, House or Lucero had participated in any attempted imprisonment of the eighteen officers sequestered inside the station, or that they committed any single act of violence, or that the speech at the protest that day constituted steps toward that crime. Had he been the judge asked to sign the arrest affidavit, “the Court would not have found probable cause,” Kirby added.

“The officers had access to their weapons, an armory...numerous patrol vehicles,” Kirby noted in his decision.
“The officers could go out to the rather large outdoor fenced area. However, they were ordered not to go outside. Officers sequestered themselves inside the police station by order of their commanding officers, and not due to the force or intimidation of protesters.”

Kirby continued: “This choice makes it impossible for this to be a substantial step toward imprisonment. Imprisonment, the Court finds, is against someone’s will. The Court cannot find that based upon the evidence presented, these officers were confined against their will.”

The judge dismissed the attempted kidnapping charges against all three.

After the judge’s ruling, House addressed a press conference called by the National Committee for Justice in Denver, a growing coalition of lawyers, activists and community members who see the charges levied against protest leaders as a blatant attempt to stop the movement calling for police accountability in Aurora. The case against them was brought “not because we had committed any crime, but because we had dared to stand up to the Aurora police department,” House said. “And we were effective.”

“These charges are retaliatory, and they are unjustified,” added Northam. “But it is the power of the people that can move mountains. That was true when the pressure of the protests forced the City of Aurora to open an independent investigation into the murder of Elijah McClain by APD, and it is true now as we are facing this brazen political persecution.”
click to enlarge Protesters in Aurora on June 27. - MICHAEL EMERY HECKER
Protesters in Aurora on June 27.
Michael Emery Hecker
After the July 3 protest, the PSL leaders had continued to organize well-attended demonstrations, drawing national attention to a police department already embroiled in growing controversies related to excessive use of force. On July 20, a rattled Aurora City Council finally commissioned an independent investigation into the incident. Governor Jared Polis soon followed suit, opening up a state investigation into APD conduct connected to McClain’s death. Meanwhile, the feds revealed that they, too, were looking into the case.

In February, the council-commissioned investigation released a damning, 159-page report confirming what activists had charged: There appeared to be gross misconduct on the part of officers, paramedics and investigators. The investigators found that the officers had no legal basis for stopping McClain that night: “It is important to note that neither the officers nor the caller identified a crime that Mr. McClain had committed, was committing, or was about to commit,” the report notes. Although this was a necessary requirement for detainment, the officers had their hands on McClain within ten seconds of arriving on the scene. They also found that the escalating use of force was not justified, as any perceived threat to officer’s safety was neutralized once McClain was frisked and on the ground. Still, many of the pain-compliance techniques continued long after, including the carotid chokehold that left McClain unconscious.

The independent report also found that the internal investigation into the incident by APD’s Major Crimes Unit went against specific guidelines from Internal Affairs that call for an outer-agency probe when an individual dies in police custody. APD Investigator Detective Matt Ingui’s inquiry into the matter seemed designed to “stretch the record in an apparent attempt to exonerate the officers,” the commission determined.

The results of the other investigations are still pending.

But the felony charges in Arapahoe County are not.

Several of those felonies were riot charges connected to a July 25 protest when the PSL hosted a demonstration at the Aurora Municipal Center, after which protesters again marched onto I-225. The decision to drop the charges came months after a January arrest affidavit was filed for twenty-year-old Jordan Joseph White; he was arrested in February and charged with inciting a riot, engaging in a riot, and first-degree arson, for allegedly breaching windows and attempting to start a fire at the Aurora Municipal Courthouse after the protest organized by the PSL that afternoon. At the conclusion of the march, PSL leaders formally ended the event, and they, along with the majority of protesters, left the scene.

According to White’s arrest affidavit authored by APD detective David Gallegos, “at 8:34 pm, a large group of organized protesters are documented leaving the area of the Aurora Police Department.” Ten minutes later, Gallegos states, a small group “begin to break out windows and start fire to the Aurora Municipal Courthouse.”
The report relies heavily on another unnamed APD confidential informant, who spoke to investigators the night of the incident as well as on September 2, when the informant provide photos and video of the events of July 25.
Although PSL leaders did not appear in those images, two weeks later they were arrested for engaging in a riot and inciting a riot.

On April 5, District Attorney Kellner dropped the charges against the PSL leaders that were connected to the July 25 charges. “These changes were requested after careful review of the investigation and the available evidence,” reads a statement released by the DA’s office. “Prosecutors must reasonably believe that charges are supported by probable cause, admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interest of justice.”

“We are very encouraged by John Kellner taking a close look at this case and making this step forward, “says Amelia Power, House’s attorney. “However, we are still concerned that this case started as a political prosecution under the prior administration, and we will continue to defend the constitutional rights of our clients.”

In Arapahoe County, House and Northam both still face charges of misdemeanor highway obstruction, petty theft and tampering in connection to the June 27 protest in which they led thousands onto I-225, and another highway-obstruction charge for the July 25 protest. Northam is facing two additional counts of harassment, petty theft and tampering in connection with the June 27 protest.

Although the attempted-kidnapping charges were dropped, House, Northam and Lucero still face multiple felony charges in Adams County related to the protest at District 1 headquarters. The most severe are felony attempting to influence a public servant, and inciting a riot with injury, both lodged against House. “Lillian and I are committed to fighting these charges all the way through jury trial if necessary,” says Power.

The three will be arraigned in Adams County in May. Says Northam, “We have won a victory, but we haven’t won the victory.”

That will come when they’ve won real justice for Elijah McClain.

At 2 p.m. on Saturday, April 17, the PSL will host another rally at the Colorado Capitol, to speak for twenty-year-old Daunte Wright, shot and killed during a traffic stop in Minneapolis last Sunday. "What's needed now more than anything is a sustained mass movement of the people," Northam says."This requires organization; something that the police are trying to suppress here."

"The steps we've seen towards accountability in George Floyd's and Elijah McClain's cases were hard-won by the people," adds House. "Every further step towards justice will be hard-fought as well. This is why defending our protest rights is so critical." Learn more on Facebook.
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Noah Kaplan is a creative nonfiction writer and educator in Denver. He is also the co-founder and artistic director of Stain'd Arts. Find him at [email protected] or on Instagram @kno_kaps.
Contact: Noah Kaplan