Elijah McClain’s death two years ago inspired a wave of new laws from the Colorado legislature and Gov. Jared Polis aimed at preventing something similar from ever happening again.
From new rules on how and when the powerful sedative ketamine can be administered in situations involving law enforcement to a ban on neck holds, Colorado lawmakers took steps in 2020 and 2021 that proponents of police reform hope will prevent unnecessary deaths and bolster accountability for law enforcement across the state.
“While I wish I could say that the bills that we passed here will stop this from ever happening again, I don’t know if I can go that far,” Rep. Leslie Herod, a Denver Democrat who championed many of the recent marquee criminal justice bills in the Colorado Capitol, said Wednesday. “But what I do know is that people will be held to account, and hopefully officers will step up and make sure that their fellow officer doesn’t act out of line and take someone’s life.”
And yet, she said, “there is still more work to be done.”
Three Aurora police officers and two paramedics were charged Wednesday in McClain’s death, accused of manslaughter and criminally negligent homicide as part of a 32-count indictment returned by Colorado’s statewide grand jury. While none of the charges stem from the recently passed legislation, the bills criminalize or outlaw much of what happened when police stopped the unarmed 23-year-old on Aug. 24, 2019, as he was walking home from a convenience store.
Here are six key changes made by lawmakers to avoid a repeat of the encounter that preceded McClain’s death:
First responders must weigh or estimate a person’s weight before administering ketamine
Under House Bill 1251 passed by the legislature and signed into law by Polis this year, first responders must weigh someone or estimate their weight before giving them the powerful sedative ketamine.
First responders who use the drug must also be trained in advanced airway support techniques and have equipment to monitor the person’s vital signs.
The legislation also bans law enforcement from trying to influence emergency medical responders to administer ketamine and requires that officers report colleagues who try to pressure paramedics to give the sedative.
According to the indictment unveiled Wednesday in McClain’s death, a paramedic estimated that McClain weighed about 200 pounds and gave him a 500 mg dose of ketamine.
“McClain actually weighed 143 pounds, and as such his weight-based ketamine dose should have been closer to 325 mg,” the indictment says. “The paramedics did not ask McClain how much he weighed and overestimated his weight by 57 pounds and administered a dosage that was appropriate for a patient who weighed 77 pounds more than Mr. McClain.”
Shortly after McClain was loaded into an ambulance, paramedics saw he had no pulse, was not breathing and showed signs of ketamine overdose. They performed CPR and intubated McClain, who eventually regained a pulse, but never regained consciousness.
Officers cannot use carotid and choke holds
Senate Bill 217, which was passed by Colorado lawmakers in 2020, bars police from using chokeholds and carotid holds in which pressure is applied to someone’s neck to cut off blood flow to their head.
After one of the officers unsuccessfully placed McClain in a carotid hold, another officer applied it again, rendering him unconscious, the indictment says. The third officer also held McClain in a bar hammer lock, in which a person’s arm is held behind their back in an attempt to gain control over them. The officer said he heard McClain’s arm pop three times, according to the indictment.
All three officers had been trained that carotid holds posed dangers and should never be used more than once, according to the indictment.
The rules around using deadly force have been changed
Police officers in Colorado must face an imminent threat before they use deadly force under changes to the law made through Senate Bill 217.
Before passage of the bill, officers could use deadly force if they reasonably suspected that someone was a threat to themselves, others, officers or the public.
Under the new law, which proponents hope will remove some of the subjectivity from law enforcement’s decision-making process, officers are also prohibited from using deadly physical force to arrest someone who is suspected only of a minor or nonviolent crime.
McClain had committed no crime and was stopped simply because someone reported a suspicious person in the area.
Under Senate Bill 217, law enforcement must also try to use nonviolent tactics before resorting to using deadly force and must identify themselves and give a clear warning that they may use deadly force “with a sufficient time for the warning to be observed,” the new law states.
Officers are exempt from the warning requirement if adhering would put themselves or others at risk of death or injury.
The law also changes the standards for Colorado’s so-called “fleeing felon law,” or when officers may use deadly force to stop a person they suspect has used a weapon in a crime or is armed. Law enforcement will be allowed to use deadly force against a fleeing suspect only if they pose an imminent threat using the weapon during their escape.
Officers must intervene if a colleague is acting inappropriately
Law enforcement officers, also under Senate Bill 217, must now intervene if a fellow officer uses inappropriate force against a member of the public. Violating the provision can result in criminal penalties.
In McClain’s case, there were three officers who used force against the 23-year-old. None of them tried to intervene as McClain pleaded for help and said he couldn’t breathe.
Meanwhile, Senate Bill 217 says peace officers who stand by while a colleague uses excessive force can have their certification revoked. The new law states that Colorado’s Peace Officer and Standards Training board shall not “under any circumstances,” reinstate that peace officer’s certification unless the officer is proved not guilty in court.
Another measure of the law includes a better tracking system to identify officers who are fired from police departments and sheriff’s offices to prevent them from bouncing from agency to agency.
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Officers can be sued in their individual capacities and liable to fines
Under Senate Bill 217, officers may be sued in their individual capacities and be liable for up to $25,000 worth of damages.
Police reform advocates hope this will bring more accountability for officers, who right now can be shielded by their departments from financial consequences if they act inappropriately or abuse their power while on the job.
McClain’s family is suing the city of Aurora, but not the individual officers allegedly involved in Elijah’s death as the new provision wasn’t in effect at the time of his encounter.
The Colorado Attorney General’s Office also has power under the new bill to investigate and take legal action against law enforcement agencies in the state that are suspected of abusing civil rights.
The Aurora Police Department is being investigated by Weiser’s office under the new policy.
Law enforcement agencies must have protocols in place to investigate all use-of-force deaths
Before the passage of House Bill 1250 this year, law enforcement agencies only had to have investigatory protocols — including plans for a multi-agency probe — in place for use-of-force deaths involving their officers and the discharge of a firearm.
Now, agencies must be prepared to investigate all deaths stemming from the use of force of their officers.
In McClain’s case, no gun was used by the officers who stopped McClain, though the Aurora Police Department investigated the case as if one of its officers had shot someone.