Aurora police officers were too quick in their decision-making when they stopped Elijah McClain in 2019 in an encounter that preceded his death, according to an independent review of the fatality.
And then investigators did a poor job of documenting the incident, the report solicited by the city says.
“The post-event investigation was flawed and failed to meaningfully develop a fulsome record,” says the 157-page report, released on Monday.
Aurora’s City Council solicited and paid for the independent review of the events that led to the death of 23-year-old McClain after an encounter with police officers and paramedics on Aug. 24, 2019. Police officers stopped McClain after they received a report from a 17-year-old in the area that McClain looked suspicious.
Though McClain had committed no crime, officers put McClain into a neck hold and then he was injected with ketamine, a powerful sedative. He suffered cardiac arrest and died in the hospital a few days later.
The independent review was conducted by a three-person panel led by Jonathan Smith of the Washington Lawyers Committee for Civil Rights and Urban Affairs. Roberto Villaseñor of 21CP Solutions and Dr. Melissa Costello also worked on the report.
“Upon review of the evidence available to the panel, Officer (Nathan) Woodyard’s decision to turn what may have been a consensual encounter with Mr. McClain into an investigatory stop — in fewer than 10 seconds — did not appear to be supported by any officer’s reasonable suspicion that Mr. McClain was engaged in criminal activity,” the report says. “This decision had ramifications for the rest of the encounter.”
The report says none of the facts surrounding the encounter would have led officers to establish probable cause that a crime had occurred. “Declining to submit to a consensual stop cannot serve as the basis of reasonable suspicion,” investigators wrote.
It’s also unclear whether officers had enough information to legally pat McClain down, as they did.
“The ‘reasonable suspicion’ that an individual is armed and dangerous, required to conduct a pat-down search, is an objective test that considers the facts and circumstances at the time,” the report says. “Based on the record available to the Panel, we were not able to identify sufficient evidence that Mr. McClain was armed and dangerous in order to justify a pat-down search.”
The panel also faulted paramedics for how fast they moved to sedate McClain. EMS staff estimated McClain weighed as much as 80 pounds more than he did, according to the report, which influenced the quantity of ketamine he was given.
“At minimum, Aurora Fire personnel should have attempted additional assessment prior to proceeding with sedation,” the report says. “In this case, slowing down the process could have avoided cognitive errors.”
The city of Aurora placed an ongoing moratorium on EMS using ketamine shortly after McClain’s death. But the panel did not conclude whether or not McClain was “experiencing a mental or behavioral crisis” that would warrant the use of ketamine at a lower, safer dose.
“As the review of the sedative is underway, we urge the city to avoid replacing ketamine with other medications that pose a greater risk to patients and to medical staff,” the report said.
The independent review was conducted using body-worn camera footage, videotaped statements of the officers who were on scene, officers’ follow-up reports and notes, 911 recordings, training materials, McClain’s health care records and a report from the Adams County Coroner’s Office.
“We also interviewed Aurora Police and Aurora Fire personnel,” the report says. “Our requests to interview the officers and fire personnel involved in the incident were declined.”
The panel made several recommendations, including that Aurora should:
- Review training and supervision of officers, especially when it comes to stopping people
- Review its use-of-force and de-escalation policies
- Implement transfer-of-care policies for when someone moves from police custody to medical response
- Build a culture of patient advocacy among first responders for people stopped by police
- Change how officer misconduct is investigated
“Interviews conducted by Major Crime investigators failed to ask basic, critical questions about the justification for the use of force necessary for any prosecutor to make a determination about whether the use of force was legally
justified,” the report says. “Instead, the questions frequently appeared designed to elicit specific exonerating ‘magic language’ found in court rulings.”
The panel said that an internal investigation was not immediately opened into the incident and that “the review by the Aurora Police Department’s Force Review Board was cursory and summary at best.”
Attorneys for Sheneen McClain, Elijah’s mother, released a lengthy statement in response to the report.
“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,” the statement said. “Aurora is responsible for Elijah’s tragic death by virtue of its employees’ unlawful and unconscionable actions.”
The statement said Sheneen McClain “is grateful that this independent investigation has laid bare the wrongdoing of Aurora employees who are responsible for the death of her son.”
After local prosecutors declined to charge any of the officers or first responders involved in the encounter before McClain’s death, Gov. Jared Polis asked the Colorado Attorney General’s Office to review the case for possible criminal prosecution.
McClain’s death drew international outrage following the police killing of George Floyd in Minneapolis over the summer. Tensions between police and communities of color have only grown sharper in Aurora, according to the report, despite efforts to ameliorate them; police officers receive just 30 minutes of training each year in de-escalation techniques. Other unarmed Black men have died at the hands of Aurora police in recent years, including Naeschylus Vinzant in 2015 and Jamaal Bonner in 2003.
“While legal, authorized force may well be contrary to public safety if it undermines the ability of the police department and other public institutions to partner with the community,” the report said. “It is not unusual for community members to express fear of calling the police for help because they are afraid of the violence police bring into their community. This is an ongoing issue around the country and poses a critical challenge for law enforcement agencies.”
The report noted that police and EMS officers all were white, with McClain as the only Black person involved in the interaction. The panel stopped short of calling this a bias-motivated incident, though it noted aspects of the interaction that align with frequent biases against people of color, including assuming they are more aggressive and of larger stature than they are.
“We urge Aurora to take a comprehensive look at the data that it collects on stops, arrests, and use of force by race to identify potential patterns of bias,” the report said.