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Elijah McClain had committed no crime when he was pummeled by Aurora police officers.
Elijah McClain had committed no crime when he was pummeled by Aurora police officers.
Family photo

Lawyer on Elijah MClain: It's a Capital Crime in Aurora to Be Black, Act Weird

Earlier this month, in a bald-faced attempt to bury controversial news, Aurora released an "undetermined" autopsy report in the police-related death of Elijah McClain, 23, on a Friday afternoon. Then, after prosecutors decided not to criminally charge the cops whose assault on McClain immediately preceded his cardiac arrest and death, authorities upped the ante, inviting select media outlets to a press conference on Friday night, November 22. And it wasn't just any Friday. It was the Friday before Thanksgiving week, a period during which even news of the outrageous variety tends to be placed on the back burner in favor of food, family and anticipation of a day off.

Among those given no advance warning about the event was attorney Mari Newman of Killmer, Lane & Newman LLP, who represents McClain's family. She heard about it from press reps, after which she was left to inform his mother and father, neither of whom was evidently important enough by Aurora's standards to deserve a heads-up.

Likewise, Newman wasn't sent the decision letter from 17th Judicial District DA Dave Young explaining the reasons why he had determined that the officers' actions were legal. She had to track down a copy on her own. When she did, she was aghast at the rationale used to justify what she sees as the wholly unnecessary killing of McClain, a 23-year-old massage therapist who'd come to the cops' attention because he was walking down Billings Street near East Colfax Avenue wearing a ski mask and waving his arms while listening to music late on August 24.

Referencing the many lawsuits filed against Aurora for the police department's treatment of African-Americans, Newman says, "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."

On Saturday, November 23, Newman, McClain's parents, members of the Aurora and Denver faith communities and other concerned citizens rallied at the Aurora Municipal Center to express their horror at the latest development. Newman acknowledges that "Aurora's failure to take any accountability for its misconduct and the way the DA helped them do so was totally expected. But when it was turn for Elijah's mom, Sheneen, to speak, she broke down. She was unable to talk about it until she regained her composure. She cries every single day. As a mom, I can't even begin to imagine the pain she's feeling. This is every mother's worst nightmare."

Plenty of reporters covered this event. But given that news consumption on Saturdays is even lower than on Fridays, the family's response received considerably less attention than did the original press conference — a success by the standards of late-week bad-news dumps. As Newman sees it, "This is how a police department acts when it knows it's done something wrong."

To counter this impression, Aurora has put on a great show of transparency. The decision letter was bundled with the autopsy, the 911 call transcript, excerpts from the Aurora police manual and more in a package accessible below, and the press conference was streamed online. See it here.

In addition, officials put out more than three hours of video related to the death — though most of the footage of the interaction with McClain is visually useless, since the body cameras worn by the main officers involved became dislodged during a scuffle that lasted in the range of fifteen minutes.

"That's something missing from the DA's letter — the fact that all three of the hands-on officers were able to shed their body cameras," Newman says. "And we know it's not an accident. At one point, when one of the cameras was picked up, you can hear on the video somebody say, 'Move the camera, dude.' The DA's letter never mentioned that, even though that in and of itself is illegal tampering with evidence. On that evidence alone, the officer should have been charged."

Likewise, she goes on, "the letter relies on an erroneous legal standard to try to create a false impression that there was legal justification to stop and frisk Elijah in the first place. The DA analyzes the officers' conduct using a 'reasonable suspicion' standard, even though the 911 caller was clear that he was not reporting criminal activity. Elijah had no weapon, and no one was in danger. Police had no reasonable suspicion that Elijah had committed any crime, so there was no legal justification to either stop or search him."

Continue to watch the video. Warning: Its content may disturb some readers.

Also absent from the DA's letter, Newman points out, "is any reference at all to the officer who threatened to bring in a dog to attack Elijah as he was laying on the ground, fully handcuffed and vomiting, because he wasn't being still enough. But that was the only thing Aurora's chief of police" — Nick Metz — "was willing to admit was wrong at all. He characterized it as 'unprofessional.'"

To Newman, this term falls well short of appropriateness. "That's not unprofessional. That's an overwhelming statement of a sadistic personality — of a person who's got so little regard for another human being that he shouldn't just get a write-up for being unprofessional. That should be a terminable offense. An officer who would say something like that shouldn't be in a position to serve and protect anyone."

Metz said McClain's family deserved an apology for the remark, but in Newman's opinion, "saying you owe the family an apology is a lot different than actually apologizing."

The recent string of events has only reinforced the family's intention to sue the City of Aurora over McClain's death, Newman maintains. "I don't have a timeline yet, but we continue to investigate the case. And now that at least some of the video has been publicly released, we'll have an opportunity to review it without being watched by members of the Aurora Police Department and the city attorney's office. After that, we'll start drafting a federal civil-rights lawsuit."

Meanwhile, legislative efforts to create a state office to investigate police shootings in an independent manner continue. Newman is hopeful a bill will be ready for introduction during the next session of the General Assembly, set to get under way in early 2020.

Click to access the Elijah McClain decision letter and documents.

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