A report on the independent investigation into the death of 23-year-old Elijah McClain after an encounter with Aurora police officers elicited an echoing reaction: The findings were damning, and the report is only just the start of conversations that should be had about changes to policing in Aurora.
The 157-page document, released Monday morning, detailed a number of missteps on the part of police officers in the Aug. 24, 2019, incident: they did not have a reasonable suspicion of criminal activity and characterized McClain’s behavior in ways that conflicted with video and audio evidence of the encounter.
In addition, paramedics from Aurora Fire Rescue also did not examine or question McClain before they injected him with ketamine, the report found, and there was not a clear transition of care or command authority from police to fire.
The Aurora City Council ordered an external investigation of McClain's death in July, after protests over the death of another Black man, George Floyd, in Minneapolis brought more publicity, protests and national outrage to the city.
The panel that conducted the investigation was chaired by Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. It also included Dr. Melissa Costello, an emergency physician in Mobile, Alabama, and retired Chief Roberto Villaseñor of the Tucson Police Department, who now serves as a consultant for police reform.
During a presentation to Aurora City Council on Monday evening, Smith said case law is clear that use of force has to be justified by circumstances at the moment it is used.
"The evidence available does not provide a justification for the near-constant use of very painful force techniques," he said.
According to the report, the panel didn't have enough evidence to determine whether bias played a role in police and paramedics' interaction with McClain, but the report notes that research suggests factors, including increased perception of threat, perception of incredible strength, of higher pain tolerance and misperception of age and size can indicate bias.
"We urge that the City assess its efforts to ensure bias-free policing, implicit or otherwise," the report said.
Councilman Juan Marcano said in a statement to The Denver Gazette that he believes the report's summary is "fairly damning."
"While Chief (Vanessa) Wilson and council have taken steps to address some of the points highlighted in the summary, it's clear that there's more we need to do," he said, a sentiment echoed by attorney Qusair Mohamedbhai, representing McClain's mother, who told The Denver Gazette the recommendations are a "starting point."
"The recommendations are great, but it's certainly not the end of that discussion," he said.
A news conference is planned for Tuesday at 10:30 a.m. The Aurora Police Department and City Manager Jim Twombly have declined to provide comment until then.
A fateful 18 minutes
The report goes into great detail about the events of that August night. McClain had been walking home and listening to music when he was initially stopped by officer Nathan Woodyard, who was immediately joined by officers Jason Rosenblatt and Randy Roedema.
Woodyard placed his hands on McClain about 10 seconds after getting out of his patrol car, and 18 minutes after first encountering officers, McClain was being taken to a hospital, unconscious.
The fact that officers acted so quickly to take McClain into custody and failed to assess whether there was reasonable suspicion of criminal activity, as well as the unity of their actions, suggests potential shortcomings in training or supervision, the report said. It called for the Aurora Police Department to review its use of force and de-escalation policies and to review officer supervision and training.
"In addition, the Aurora de-escalation policy would be significantly strengthened if it included more specific explanation that de-escalation is required in every encounter where possible, and how verbal techniques, positional withdrawal, and the use of delay can help control situations to avoid the need to use force," the report said.
After McClain refused officers’ orders to stop, which the report said should have been a consensual encounter, they put McClain in a now-banned carotid hold — which applies simultaneous pressure to the sides of the neck intended to induce unconsciousness — and knelt on his body until he vomited and lost consciousness.
When Aurora Fire Rescue paramedics arrived, they diagnosed McClain with excited delirium and gave him 500 milligrams of the sedative ketamine, reports have found. When he was put in the ambulance, he was not breathing and did not have a pulse. He did not regain consciousness.
McClain was pronounced brain dead on Aug. 27 and taken off life support on Aug. 30.
The 17th Judicial District Attorney’s Office decided in November 2019 that it did not have enough evidence to prosecute the officers.
The civil rights law firm Rathod Mohamedbhai, which represents McClain's mother, Sheneen McClain, sent a statement Monday morning saying the report is not based on new, "revelatory" evidence and "makes clear what was already known.
"Yet, at every stage, Aurora has defended its officials for their blatantly unlawful actions and refused to discipline anyone involved in Elijah’s death," the statement said.
"The Report exposes that Aurora engaged in a sham investigation in order to exonerate its employees and hide their wrongdoing."
The statement called for the firing and criminal prosecution of Aurora officials who contributed to McClain's death. At this point, the only firings by Wilson have been of officers, including Rosenblatt, who had mocked McClain's death in a selfie.
"Elijah committed no crime on the day of his death, but those who are responsible for Elijah’s death certainly did," it read.
Mohamedbhai added that while the report's findings aren't cause for celebration, Sheneen McClain is relieved that "her son's legacy will be one of truth."
"That she has managed to crack a small smile about, and I'll take that any day," he said.
The independent investigation panel relied on body camera footage, video statements by the officers, their follow-up reports and handwritten notes from responders on the scene, audio of the 911 call, computer-aided dispatch records, police and fire department policies and training materials, patient care reports and the autopsy report for McClain. The officers and Aurora Fire responders declined the panel’s interview requests, the report said.
An officer must have reasonable suspicion of criminal activity to justify an investigatory stop, and the stop has to use the least intrusive means reasonably available to verify or alleviate the officer’s suspicion, the report said.
The report found none of the reasons given by the officers or reported by the caller — McClain acting “suspicious,” wearing a mask and waving his arms, and being in an area with a high crime rate — met those standards.
“Upon review of the evidence available to the Panel, Officer Woodyard’s decision to turn what may have been a consensual encounter with Mr. McClain into an investigatory stop — in fewer than ten seconds — did not appear to be supported by any officer’s reasonable suspicion that Mr. McClain was engaged in criminal activity,” states the report. “This decision had ramifications for the rest of the encounter.”
The panel also found the officers did not have sufficient evidence that McClain was armed and dangerous to justify frisking him.
Woodyard made conflicting statements about whether he believed McClain was armed, the investigation found, with the report including statements that he “felt safe making an approach, he didn’t have any weapons or anything I could see in his hand” and that he “didn’t want to stop this guy by myself, because pretty suspicious area tied with his actions, and I didn’t want to contact somebody who I thought had weapons by myself.”
The Aurora Police Department’s Major Crime/Homicide Unit did not ask Woodyard to explain how the factors led to his conclusion that McClain might be armed or the contradiction in his statements.
The report reiterates that the 911 dispatcher communicated to the officers that the original caller reported they were not aware of McClain having any weapons.
After the officers subdued McClain, they described his behavior as “violent” and “fighting” and repeatedly referenced his “incredible strength.”
However, according to the report, audio of the incident — by this time the officers’ body cameras had stopped recording or had fallen off their uniforms — records cries of pain, apologizing, vomiting and sometimes incoherent sounds by McClain.
“His words were apologetic and confused, not angry or threatening. He became increasingly plaintive and desperate as he struggled to breathe,” says the report.
Democratic Rep. Jason Crow, whose district includes Aurora, said in a statement the "results of Aurora’s independent investigation make it clear that the police should not have stopped, frisked, or used a chokehold."
“As we wait for the results of additional investigations, we must all work to reform the broken system that has allowed racial injustice, police brutality, and widespread inequality to go unchecked for far too long," the statement said.
The investigation of McClain’s death by Major Crime “revealed significant weaknesses” in the police department's accountability systems, the report said, finding unit investigators did not ask basic questions about the justification for use of force against McClain “necessary” for any prosecutor to make a decision about whether the use of force was legal.
Questions often seemed designed to elicit answers containing specific, exonerating language found in court rulings, says the report. The incident was not referred to the department's Internal Affairs investigators.
“Major Crime’s report was presented to the District Attorney for Colorado’s 17th Judicial District and relied on by the Force Review Board, but it failed to present a neutral, objective version of the facts and seemingly ignored contrary evidence,” states the report.
The report found current police policies that require the chief of police to approve opening an inquiry and prevent Internal Affairs from initiating its own investigations put the chief in a difficult, potentially compromising position, and limited the independence of Internal Affairs.
Use of ketamine
The 500-milligram dose of ketamine given to McClain was based on the determination by paramedic Jeremy Cooper that McClain’s behavior had signs of “excited delirium,” a syndrome characterized by increasing excitement and wild, agitated, and violent behavior.
Paramedics accepted the officers’ belief that McClain had excited delirium without doing their own meaningful observations or examination of McClain, the report said. By the time paramedics injected McClain with the dose of ketamine, he had not moved or made sounds for about a minute.
While Aurora Fire policies at the time allowed the use of ketamine on someone with excited delirium if there were concerns about the safety of the person or other people, “during the time that Aurora Fire was on the scene, Mr. McClain’s behavior in the presence of EMS should have raised questions for EMS personnel as to whether excited delirium was the appropriate diagnosis,” says the report.
The report also refers to the ketamine dosage as based on a “grossly inaccurate” overestimation of McClain’s size — estimated at 190 pounds, about 50 pounds more than his actual weight.
“Higher doses can carry a higher risk of sedation complications, for which this team was not clearly prepared,” says the report.
Costello said during Monday evening's presentation that evidence doesn't clearly show ketamine had a role in McClain's death or that he would have lived had he been given a more accurate dose — his clinical status was declining before paramedics administered it, she said. But she said the incident has implications for future patients and use of medications for which doses are based on weight, because paramedics in the field don't have the opportunity to weigh patients.
The report suggests exploring education and training for accurate weight estimation. Costello added that evidence shows the weight of young Black men is often overestimated in medical care.
"Even just having that piece of information in the back of their minds will allow paramedics and EMTs to make a mental adjustment of an estimate that they're making to prevent that inherent overestimation that can occur in this population of patients," she said. "Being educated on that is enough to help offset that one place where the role of implicit bias rears its head in the medical environment."
The report recommends a review of Aurora Fire's policies and training around sedation to make sure paramedics do a thorough assessment of a patient before sedating them, including cardiac and respiratory monitoring and development of a consistent process for verbally double-checking a diagnosis, the person's estimated weight, equipment inventory and a post-sedation monitoring plan.
In January, Attorney General Phil Weiser announced he would open a criminal investigation by a grand jury into McClain’s death.
Members of McClain's family have also sued Aurora for his death. A federal court has allowed that investigation to continue amid the grand jury investigation.
Hannah Metzger also contributed to this report.