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Denver investigation faults overall police treatment of Elijah McClain

DENVER (AP) — The results of an investigation into the fatal arrest of Elijah McClain in suburban Denver released Monday criticizes how police handled the entire incident, faulting officers for their quick, aggressive treatment of the 23-year-old Black man and the department overall for having a weak accountability system that failed to press for the truth about what happened.

The findings of the investigation commissioned by the city of Aurora released on Monday found “two contrasting stories” of what happened to McClain in August 2019 after someone reported him as suspicious. One, based on officers’ statements to investigators, where police describe a violent, relentless struggle. And another based on body camera footage in which McClain can be heard crying out in pain, apologizing, explaining himself, and pleading with the officers as they restrained him and applied “pain compliance” techniques like wrist locks and sat or kneeled on him.

“Forgive me … you all are phenomenal, you are beautiful,” McClain said at one point, the report said.

Police also put McClain in a neckhold that stops the flood of blood to the brain, rendering him temporarily unconscious, and paramedics injected him with ketamine as a sedative. He suffered cardiac arrest and later was taken off life support.

The report also suggests that District Attorney Dave Young’s review of the case failed to assess the officer’s conduct and “did not reflect the rigor” of a police investigation “that one would expect” when assessing whether a crime was committed.

Young’s review of the case did not find sufficient evidence to press criminal charges in McClain’s death, according to a June 2020 statement by the District Attorney’s office.

The panel concluded that the district attorney didn’t consider Colorado’s statutory requirement that officer’s must have “reasonable suspicion” of a previous or impending crime in order to stop someone. According to the report, the district attorney relied on the notion that McClain was in a “high crime area” and that he was wearing a ski mask and a coat on a summer night.

“Although both factors in the District Attorney’s analysis have been considered by courts assessing the propriety of investigatory stops, neither the neighborhood nor the ski mask by themselves or together are sufficient to create reasonable suspicion without more,” the report states.

His family said McClain wore the mask because he had a blood condition that caused him to get cold easily.

His death drew renewed attention last year amid the national reckoning over police brutality and racial injustice and prompted several investigations, including a probe into possible criminal charges by the Colorado Attorney General’s Office.

In the Aurora investigation, the city asked outside investigators to look into the actions of police, firefighters and paramedics in McClain’s arrest but not to duplicate the attorney general’s criminal investigation. They were also asked to review policies and practices relevant to McClain’s arrest, like the use of force and the use of ketamine. The city banned the use of ketamine as it awaited the results of the investigation.

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The investigation found there was no attempt of physical contact, examination or questioning before paramedics administered 500 milligrams of ketamine to McClain. The report suggested a review of emergency medical services policies to make sure paramedics prioritize patient safety rather than act as an “arm” of the police department.

It also recommended the police department conduct several reviews, including of how its officers are trained to decide whether they have a legal reason to stop, frisk and arrest people, and urges the city to consider overhauling how it reviews incidents. It said department investigators who questioned the three officers who stopped and arrested McClain “failed to ask basic, critical questions” about their use of force needed by any prosecutor to determine if their use of force was legally justified.

“Instead, the questions frequently appeared designed to elicit specific exonerating ‘magic language’ found in court rulings,” it said.

Mari Newman, the attorney representing McClain’s father in a lawsuit against Aurora’s police and fire departments and the city, called the report a “strong and overwhelming condemnation” of what happened despite previous efforts to avoid holding anyone accountable for McClain’s death. She said the report backs up the lawsuit’s claims, including that police did not have a legal justification to stop and touch McClain and that paramedics did not try to help or examine McClain before giving him ketamine.

“That’s the thing about the truth — it’s consistent,” she said.

In January, Colorado Attorney General Phil Weiser announced he opened a grand jury investigation into McClain’s death as part of his investigation, saying it provided an “investigative tool” to compel testimony and require the production of documents. Weiser’s office is also conducting a civil rights investigation into Aurora police, its first one under a police reform law passed after George Floyd’s death in Minneapolis set off protests.

Last year, the U.S. Department of Justice and FBI also announced they had been reviewing McClain’s case for a potential federal civil rights investigation since 2019.

Aurora initially hired a former police officer to lead its investigation before city councilors objected and that contract was canceled in June. The city later chose Jonathan Smith, the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and former head of the U.S. Justice Department division that investigates police departments. He led that division during its probe of Ferguson, Missouri police following the 2014 shooting of Michael Brown.

An autopsy could not determine how McClain died which the local prosecutor said was a key reason he declined to charge any of the three police officers who arrested McClain. The lawsuit filed by McClain’s family alleges he died as a result of a dramatic increase of lactic acid in his blood caused by excessive force used by police over about 18 minutes combined with the ketamine suppressing his respiratory system. They claim that police continued to “torture” McClain even after he was restrained, treatment they say is a result of the department’s history of “unconstitutional racist brutality.”