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Independent team says investigation into Elijah McClain's death was 'flawed'

Elijah McClain
Posted at 9:05 AM, Feb 22, 2021
and last updated 2023-09-19 18:00:21-04

AURORA, Colo. — Independent investigators who were tasked with reviewing the death of Elijah McClain released the results of their review Monday morning, calling the investigation that followed the 23-year-old’s death “flawed.”

The investigators, who were commissioned by the Aurora City Council in July, presented their report to the Aurora City Council Monday evening for an hour and a half, but council members were unable to ask the team questions because they ran out of time before they had to begin their regular council meeting.

The team walked back through their report, findings and recommendations and hit on some of the specifics of the case, such as the administration of ketamine. Dr. Melissa Costello said that McClain was already declining in health by the time he was given the sedative and said a more accurate dosing would not have changed his overall outcome.

The investigative team also went back through some of their more controversial findings, including that the Aurora police investigative team asked leading questions of the officers involved in the incident – something the investigators said amounted to eliciting “specific exonerating 'magic language' found in court rulings.”

Independent team presents Elijah McClain investigation results to Aurora City Council

A virtual news conference is planned for 10:30-11 a.m. Tuesday with City Manager Twombly, Aurora Police Department Chief Wilson, and Aurora Fire Rescue Chief Fernando Gray.

Report details flawed investigation in wake of incident

The investigators' report found that the events following McClain's death were "flawed" and "failed to meaningfully develop a fulsome record."

Independent team say investigation into Elijah McClain's death was 'flawed'

The report continues, saying the facts trouble the panel, but "it was not our charge to assess whether misconduct occurred; rather, our task was simply to report what we could learn from the record and make policy recommendations.”

The report said the events that led to McClain’s death happened quickly, but neither the person who called 911 nor the responding officers identified a crime occurring. Police said he was acting suspiciously, was wearing a mask and was waving his arms in a high-crime area.

"Within seconds of exiting their cars, officers used force on Mr. McClain which they sustained over an extended time period, including two attempted carotid holds," the report reads. "EMS waited almost seven minutes after arriving to interact with Mr. McClain, and their first contact was to administer the sedative ketamine."

But that also came after officers immediately grabbed McClain when they responded to the call and used force to take him to the ground over one officer's statement that they believed McClain was going for one of their service weapons. Officers attempted one carotid hold, then successfully performed another while keeping weight and pressure on him while he complained that he could not breathe and eventually became unconscious.

Further, the officers at the scene failed to re-evaluate the threat that McClain allegedly posed as the encounter went on and "continued to use force justified by circumstances that had since been addressed," the investigators wrote in their report, which added that the speed at which they acted to arrest McClain with no basis that he was suspected of committing a crime "suggest a potential training or supervision weakness."

McClain, 23,died on Aug. 30, 2019, six days after hisoriginal encounter with police and paramedics. McClain had been walking home from a nearby convenience store when a passerby reported him to police as looking suspicious because he was wearing a face covering at the time. Within 10 seconds of police getting on scene, and eight seconds of one officer telling McClain to stop walking, an officer grabbed McClain by one arm, then another officer grabbed his other arm. The report says the first officer never asserted that he suspected any criminal behavior on McClain's behalf and did not give a reason to justify their stop.

After McClain was accosted by officers, he was accused of resisting arrest and put in a carotid hold, then eventually administered a heavy dose of the sedative ketamine by paramedics. He went on to suffer a heart attack and died six days later.

The report released Monday said officers "were still discussing maintaining pressure holds right up until Mr. McClain was injected with ketamine -- and even though he did not appear to be moving at that time."

Anautopsy report from the Adams County coroner found McClain’s cause of death to be “undetermined.” Recordspreviously obtained by Denver7 found that paramedics gave McClain 500 milligrams of ketamine – the maximum dose of the drug – which has led tomultiple reviews of the drug’s use by EMTs.

A review board determined that officers acted within department policy when they confronted McClain and used the force on him they did that day.

However, the panel found several failures in the APD's after-incident investigation.

First, interviews conducted by Major Crime Unit investigators didn't include basic and critical questions about the justification of the use of force. Second, the incident was never referred to Internal Affairs investigators, who would determine if the involved officers’ conduct complied with department policy. And third, the APD's Force Review Board review of the incident was "cursory and summary at best,” the report says.

In addition, the panel found that the audio, video and post-incident interviews told different stories. Statements from officers at the scene suggested McClain was "violent" and there was a "relentless struggle." Officers also described McClain's “incredible strength,” “crazy strength” and “superior strength.” But the audio and limited video from the body camera footage captured McClain crying out in pain, apologizing, explaining himself, pleading with officers and vomiting. As officers waited for Aurora Fire to arrive, McClain continued moving, but the independent panel said they couldn't tell if he was trying to escape, throw up, or get more comfortable to breathe easier.

“His words were apologetic and confused, not angry or threatening," the report read. "He became increasingly plaintive and desperate as he struggled to breathe."

Aurora Fire decided to sedate McClain with the ketamine "without conducting anything more than brief visual observation,” even though he hadn't moved or made any sounds for about one minute and didn't appear to be resisting, according to the report.

In total, 18 minutes had passed between when officers first opened their vehicle doors to approach McClain to when ketamine was administered. An officer began restraining him within 10 seconds of leaving the car, the report found.

Independent team say investigation into Elijah McClain's death was 'flawed'

Recommendations issued

In addition to these findings, the independent panel also made several recommendations to the city.

This included:

  • Review policy, training and supervision regarding use of force and arrest practices
  • More specific explanation in its policy about how de-escalation is required in every encounter when possible
  • Improve accountability systems, including a more effective review by the Major Crime Unit and mandatory review by Internal Affairs
  • Clarify and strengthen the transition of an individual from suspect to patient when EMS is called
  • City should conduct review of culture within Aurora Fire to ensure it prioritizes safety of subject consistent with safety of officers and medical personnel
  • Review of Aurora Fire’s protocols, policies, and training related to patient sedation
  • Overhaul of the after-incident review process, including
    • Assess the training and supervision of Major Crime Unit detectives in connection to the investigation of potential criminal misconduct by police officers
    • Consider the important role of Internal Affairs in reviewing all officer-involved deaths
    • Reform the Force Review Board process to foster more critical and objective analysis of uses of force

“The recommendations are intended to lessen the chance of another tragedy like this one from happening again," the report reads.

It notes the changes Aurora police put in place last summer in the midst of the investigation into McClain's death, including the banning of carotid holds, but says "the extent to which those reforms can heal community trust still remains to be seen."

The panel also said the city should revisit its “policies, practices, training and culture regarding implicit bias” in order to reform its current crisis intervention system, maintain the independence of EMS and to consider options other than ketamine.

The report said responders decided to give McClain 500 milligrams of ketamine based on his weight, estimating he was about 190 pounds and that he was experiencing "excited delirium." However, the report found, McClain weighed only 140 pounds and bodycam footage "does not reflect any effort by Aurora Fire to test or confirm" the diagnosis of excited delirium.

The investigators were also unable to receive documents from Aurora Fire they had requested in regards to the department's investigation due to state law, the report stated.

While McClain's autopsy found no evidence that ketamine caused his death, the independent investigation recommended Aurora "explore education and training on accurate weight estimation, including the role implicit bias may play in such a task."

21CP Solutions, a global firm of experts in civil rights and public safety, has started a comprehensive review of the Aurora Police Department’s practices and will present its findings to the public and city council this spring. City Manager Jim Twombly and Chief of Police Vanessa Wilson requested this review.

The 17th Judicial District Attorney’s Office said in a letter in November 2019 that they were not going to pursue charges against the officers or EMS personnel involved in McClain’s death.

“Although extensive, the scope and character of the intrusion by law enforcement officers in effecting Mr. McClain’s detention was not itself a criminal act,” the letter reads. “There is no evidence that any of the officers sought to cause injury or death to Mr. McClain. Rather, evidence suggests that they exercised a degree of force they believed necessary to detain him and investigate into his possible criminal activity.”

But Monday's report said that not only did APD's Major Crime investigation fail to look far beyond the officers' statements, but the district attorney's office's review "failed to assess the conduct of the officers." The report also dinged the district attorney's office for its investigation, saying that "it is critical that a prosecutor conduct and include a thorough and accurate assessment in any report he or she issues" and that "the conclusory nature of the district attorney's findings on [the issue of the Major Crime Division interview with the officers] similarly left open important questions."

Nick Metz, who was the chief of Aurora police at the time of the McClain incident, retired at the end of 2019 and was replaced on an interim, then permanent, basis by Vanessa Wilson, whopledged transparency and to hold officers accountable in the wake of the McClain incident and others for which the department was put under intense public scrutiny.

Earlier this month, the Aurora Civil Service Commission upheld the firings of three officers, including one who was involved in the initial encounter with McClain, who were involved ina scandal surrounding a photo they took and texted around to one another of officers mocking the carotid hold at the scene of McClain’s death. Another officer in the photo scandalresigned before he could be fired.

There are multiple other investigations underway at the state, local and federal levels, including a top-down review of the Aurora Police Department by the state attorney general, an independent investigation by Chicago-based 21CP Solutions to conduct a comprehensive review of the police department, and a review in the Colorado U.S. Attorney’s Office alongside the Department of Justice’s Civil Rights Division.

City council asked for an independent investigation after expressing concern that a previous investigator who was hired by the city did not meet their "standards of neutrality."

The new team, which was led Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, was asked to do the following:

  • Investigate the actions of APD in response to the 911 call, on scene, and during the subsequent criminal investigation and internal force review
  • Investigate the actions of Aurora Fire Rescue on scene and its administration of ketamine
  • Create a timeline of the events
  • Review all facts from the beginning to the end of APD’s and AFR’s contact with McClain
  • Review all relevant policies, procedures, and practices related to calls for service, police contact with individuals, use of force, calls for medical assistance, ketamine use, and administrative incident reviews
  • Create a written report that includes recommendations for the city to address the situation that occurred, and recommendations based on best practices that should guide the city in the future

The panel looked at various pieces of evidence and records. They requested interviews with the seven people that APD had interviewed after the incident, but they all declined, so the panel's information from them comes only from their original interviews with APD.

The panel was able to interview Aurora Police Chief Wilson, Deputy Chief of Police Darin Parker, three representatives of the Aurora Police Department Training Academy, a representative from Aurora Police’s Crisis Response Team, AFD Chief Fernando Gray, and the dispatcher who took the 911 call that night from Public Safety Communications (PSC), plus five other representatives from PSC.

Reaction from McClain family, attorneys, city officials

The mother and father of Elijah McClain both said in interviews Monday that the report exonerated their son and exposed the city of Aurora for what they said they already believed was true about their son’s death.

"It made me cry," Sheneen McClain told Denver7. "I just burst out in tears, because it felt like such a relief to hear those words that exonerate my son. It meant they couldn't hide anymore from the truth. Everybody's eyes are on him right now, all around the world, and everything that they did to cover up their tracks is appalling. It's shameful for Colorado."

'They can't keep hiding': Elijah McClain's parents say new report exonerates him, exposes Aurora

LaWayne Mosley, Elijah McClain's father, said he was happy "that somebody else sees that they've got a problem in Aurora."

“They’ve got a bunch of problems in Aurora, and they can’t keep hiding," Mosley said. "We see them now.”

Sheneen McClain said the report released Monday "totally" mattered to her and her family.

"It matters that he can no longer be labeled a suspect," Sheneen McClain said. "It proves that he does have good character, and it proves that the police were totally out of line."

The law offices of Rathod Mohamedbhai LLC, a Denver-based law firm that represents McClain’s mother issued a statement on her behalf Monday saying she “is relieved that the truth surrounding the death of her son is finally coming to light.”

“The independent investigation that was commissioned and paid for by Aurora makes clear what was already known: Elijah should never have been stopped by the police, never have been arrested, never have been subjected to extreme force by the police and should never have been forcibly injected with ketamine by Aurora Fire Rescue paramedics. Aurora is responsible for Elijah’s tragic death by virtue of its employees’ unlawful and unconscionable actions,” the statement said.

“We applaud the independent review panel’s objective, studious, and comprehensive investigation into the events of August 24, 2019. At every step of the way – from their initial stop of Elijah through the involuntary injection of an extremely dangerous drug for no medical reason – Aurora officials indisputably violated Mr. McClain’s constitutional rights,” the attorneys added.

They said that Aurora “defended its officials for their blatantly unlawful actions and refused to discipline anyone involved in Elijah’s death” despite the report released Monday being based on documents and evidence already in the city’s possession.

The attorneys said that Sheneen McClain is “grateful” for the investigation and continues to call for the officers and paramedics involved in her son’s death to be fired and prosecuted.

“Elijah’s family recognizes that Elijah is but one person on an ever-growing list of unarmed victims of police-related killings,” the attorneys said in their statement. “The problem of police abuse continues to plague minority communities throughout the country. This case is a textbook example of law enforcement’s disparate and racist treatment of Black men. Aurora’s continued failure to acknowledge the wrongdoing of its employees only exacerbates the problem.”

Mari Newman, the attorney who represents McClain’s father and co-counsel for Elijah McClain’s estate, LaWayne Mosely, issued a statement Monday afternoon that called the report “a scathing indictment of the City of Aurora, from top to bottom.”

“The report confirms what we have known all along: Aurora Police and Medics violated Elijah McClain’s civil rights, and Aurora did everything in its power to sweep his murder under the rug. It is impossible for Aurora to continue to deny responsibility for murdering this innocent young Black man. The City of Aurora and its police and medics who murdered Elijah McClain must be held accountable,” Newman said in a statement. “…The investigation report is replete with the details of individual and organizational failures of the Aurora Police Department that ultimately caused Mr. McClain’s wholly unnecessary and brutal death.”

Mosley said in an interview he would keep pressing for accountability.

"I love him and I miss him. Wish he was here. His brothers and sisters miss him. His aunty, grandma -- everybody misses him and we wish he was still here. But I'm still here, and I'm not going nowhere until the end of this case," Mosley said. "Because I don't want anybody to go through this again, ever. Just period. It takes everything to keep cool and calm, so I don't want anybody to have to go through this."

Aurora City Manager Twombly said he felt it was important for the public to see the findings of the investigation at the same time the city did.

“We welcomed how comprehensive and thorough the investigators were over the last six months,” he said. “We are currently reviewing their report and look forward to hearing additional context during their presentation before we comment further. City management will work with the Mayor and City Council in coming days and weeks to assure the appropriate next steps are taken.”

Curtis Gardner, a councilman at large for the Aurora City Council, said in an interview early Monday afternoon that it appeared the city did not follow their policies and procedures and that he was disappointed.

“The Major Crimes review, it looks like that we should have done that differently – that we ask questions to get a certain result, and that’s disappointing to me,” Gardner said.

As to the review of the use of ketamine in Aurora, which has been paused while this investigation was ongoing, Gardner said it remained to be seen what would happen next with that moratorium after the report’s release.

“I think, from a review of the report, the determination by the independent investigation was that the dosage that was used based on McClain’s weight was too much. And that’s really why I wanted to have this review done – I want to make sure our firefighters have the best tools to do their job,” Gardner said.

He said it was too soon to decide whether it was too early to keep the moratorium in place and said he hoped to discuss that matter further at Monday evening’s council meeting.

Fellow councilmember Alison Coombs said the findings corroborates many of the concerns from the community. She said the message from the police union was that those concerns weren't valid.

"It's really insulting to the intelligence of the public, and our leaders, to treat us as though the truth was not going to come to light on these matters," Coombs said.

She said it's important to look at the sources for de-escalation instead of drugging citizens for appearing uncooperative.

Omar Montgomery, president of the Aurora NAACP, said the group strongly supports the recommendations from the independent review. He said many people that the African American community has been crying wolf from the time a police officer stops an individual, to when they walk in the courtrooom, to when they sit in front of a judge.

"Well, this validates those feelings" Montgomery said. "It is not crying wolf. Look, what it is, is people saying these are my authentic experiences with the public safety community in Aurora. Now that you had an outside entity come in and justify these feelings, it is in the ballpark of the city of Aurora, Aurora Police Department, our emergency response teams, and as well as our courts that figure out what do we do to bring true criminal justice reform."

Rep. Jason Crow, the Democrat who represents Aurora, issued a statement Monday saying the investigation results “make it clear that the police should not have stopped, frisked, or used a chokehold” on McClain.

“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,” Crow added. “Together, we will continue this movement and do the necessary work to create a more just society.”

Denver7's Jennifer Kovaleski and Gary Brode contributed to this report.