Aurora Police did not have basis to stop, frisk or restrain Elijah McClain, investigation finds

The Aurora, Colorado, police officers involved in the fatal confrontation with Elijah McClain in August 2019 did not have a legal basis to stop him, frisk him or physically restrain him, according to an independent investigative report released Monday.

The report also questions the officers’ statements about McClain’s “superior strength,” criticizes emergency medical responders’ rash decision to inject him with the sedative drug ketamine and admonishes the police department for failing to seriously question the officers afterward.

“At the time of the (ketamine) injection, Mr. McClain had not moved or made any sounds for about one minute,” the report states. “In addition, EMS administered a ketamine dosage based on a grossly inaccurate and inflated estimate of Mr. McClain’s size.”

On the whole, the 157-page report provides a critical view of Aurora’s police and fire rescue teams for their roles in McClain’s death. The 23-year-old Black man died three days after he was put in a carotid hold by police and injected with ketamine.

The attorneys for his mother, Sheneen McClain, released a statement Monday praising the investigative report and slamming the police department’s “sham investigation.”

“Aurora is responsible for Elijah’s tragic death by virtue of its employees’ unlawful and unconscionable actions,” the attorneys said.

“Elijah believed in humanity and that humanity mattered,” Sheneen McClain said in the statement. “Inhumane humans are a problem and we must stop unjust laws.”

“This report confirms what we have been saying from the start,” McClain’s father, LaWayne Mosley, said in a statement. “The Aurora police and medics who murdered my son must be held accountable.”

Sheneen McClain cried when the report was released, she told CNN’s Omar Jimenez on Monday.

“It was overwhelming knowing my son was innocent the entire time and just waiting on the facts and proof of it,” McClain said. “My son’s name is cleared now, he’s no longer labeled a suspect. He is actually a victim.”

She admitted, through tears, that she’d watched the body camera footage over and over because she never got to say goodbye.

“I looked at everything that happened to him because it’s my responsibility,” she said. “Even in death, he’s still my son. His name, his legacy. All that matters.”

Police declined to comment further on the report. CNN has reached out to Aurora Fire Rescue for comment.

The Aurora city council funded the report in an attempt to get a third-party, independent examination of McClain’s case. The investigation was conducted by a panel made up of Jonathan Smith, executive director of the Washington Lawyer’s Committee for Civil Rights and Urban Affairs; Roberto Villaseñor, the former Tucson Police chief; and Dr. Melissa Costello, a practicing emergency medicine physician and EMS medical director based in Mobile, Alabama.

In investigating the case, the panel relied on the 911 call, officer body camera footage, reports and narratives of the incident and medical records. The panel also relied on seven filmed interviews with officers and first responders on scene that had been conducted by a Aurora Police Major Crime/Homicide Unit detective. However, these seven witnesses declined to be interviewed by the panel.

The investigative team is expected to present its findings to Aurora’s city council Monday afternoon. The city manager, police and fire chiefs and members of the investigative team then plan to hold a virtual news conference Tuesday morning.

McClain’s death days after his interactions with police brought renewed scrutiny of the use of carotid holds and the sedative ketamine during law enforcement stops. His case gained renewed attention during Black Lives Matter protests over the summer in the wake of the police killings of George Floyd and Breonna Taylor.

What happened that night

McClain, a massage therapist, musician and animal lover, was walking home from a convenience store with an iced tea when he was confronted by three Aurora Police officers who were responding to a call about a person wearing a ski mask. The caller described the person as “sketchy” but added he “might be a good person or a bad person.” A police news release said McClain “resisted contact” with officers before a struggle ensued.

The investigative report released Monday noted that an officer must have a “reasonable” suspicion of criminal activity to conduct a stop. The decision to stop McClain, however, “did not appear to be supported” by any officer’s reasonable suspicion that McClain was engaged in criminal activity.

Next, the three officers decided to frisk McClain for weapons, which is legally allowed only where there is a belief that safety is in danger, the report states. The panel was not able to identify sufficient evidence that he was armed and dangerous to justify a frisk.

“The Panel also notes that one officer’s explanation that Aurora officers are trained to ‘take action before it escalates’ does not meet the constitutional requirement of reasonable suspicion…,” the report says.

The officers further held his arms and tried to physically move him onto the grass, which again can only be legally done if there is probable cause that a crime occurred, the report states.

In officer body camera footage, McClain tells the officers, “I’m an introvert, please respect the boundaries that I am speaking.”

“Relax,” an officer says at one point, “or I’m going to have to change this situation.”

Before an officer wrestles him to the ground, McClain is heard telling the officers he was trying to stop his music so that he could listen to them.

At one point, one officer tells another, “He just grabbed your gun, dude.” One officer tells McClain that he will “bring my dog out and he’s going to bite you” if McClain keeps “messing around.” Video shows an officer wrestle McClain to the ground.

While on the ground, an officer attempted to apply a carotid hold, which restricts blood flow to the brain, to McClain for an undetermined amount of time, the report states. The hold is not clearly captured in the footage.

“The record therefore does not provide evidence of the officers’ perception of a threat that would justify (the officer’s) carotid hold, which caused Mr. McClain to either partially or fully lose consciousness,” the panel writes.

The report also notes the sharp contrast between officers’ comments about McClain’s strength and the audio and video of the incident.

“The officers’ statements on the scene and in subsequent recorded interviews suggest a violent and relentless struggle,” the report states. “The limited video, and the audio from the body worn cameras, reveal Mr. McClain surrounded by officers, all larger than he, crying out in pain, apologizing, explaining himself, and pleading with the officers.”

Paramedics with the Aurora Fire Rescue arrived at the scene but did not immediately render aid or examine McClain, the report says. Instead, paramedics determined McClain’s behavior was consistent with “excited delirium,” and so decided to administer ketamine in an attempt to sedate him.

The Aurora Fire lieutenant advised the paramedics to draw a dose of ketamine based on an estimate that McClain weighed about 190 pounds, the report states. He in fact weighed 140 pounds.

McClain was taken to a hospital but suffered a heart attack on the way, and he was declared brain dead three days later, the letter said.

‘Significant weaknesses’ in police accountability

Finally, the report was critical of the police’s investigation of those on scene. The investigator’s interviews failed to ask basic critical questions about the justification of the use of force, and the incident was never referred to Internal Affairs investigators.

“The Aurora Police Department’s Major Crime/Homicide Unit investigation of the death of Mr. McClain raised serious concerns for the Panel and revealed significant weaknesses in the Department’s accountability systems,” the report states.

The autopsy conducted by the county coroner did not determine the cause of death but noted “intense physical exertion and a narrow left coronary artery” were contributing factors.

The autopsy report noted McClain’s history of asthma and the carotid hold, though the autopsy did not determine whether it contributed to McClain’s death. The concentration of ketamine in his system was at a “therapeutic level,” the report said.

The McClain’s family attorney, Mari Newman, has called the autopsy “very strange.” She has said it “ignores the most obvious factor, which is a perfectly healthy young man is walking home from the drug store with a bottle of iced tea in a bag and he ends up dead.”

In November of 2019, District Attorney Dave Young declined to press charges against the officers involved, citing the autopsy. “I cannot take a case to the jury where I don’t know what the cause of death is on a homicide case,” he told CNN’s Chris Cuomo in June 2020.

But the Black Lives Matter protests this last year brought renewed attention to the case, and in June, Gov. Jared Polis appointed state Attorney General Phil Weiser to investigate as a special prosecutor. Weiser opened a grand jury investigation into McClain’s death last month.

Three Aurora Police officers were fired and one resigned in July after photos leaked of officers taking smiling selfies and reenacting the carotid hold at a memorial site for McClain.

The death also brought closer scrutiny of the sedative drug ketamine, which has been increasingly used for law enforcement purposes on people experiencing “excited delirium.” The Colorado Department of Public Health and Environment is reviewing its program that allows ketamine to be administered outside of hospital settings.