Protests planned after Polis’ tweak to Elijah McClain edict; activists worry of ‘watered down charges’

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AURORA | Protests are planned at the state Capitol Saturday, a week after Gov. Jared Polis quietly tweaked the scope of a state investigation into the death of Elijah McClain.

While legal experts told the Sentinel the changes probably allow state Attorney General Phil Weiser to pursue a slew of lesser charges against Aurora cops and first responders, activists are still demanding the officers be charged with murder. 

In June Polis tabbed Weiser to launch an investigation into the death of McClain, the 23-year-old massage therapist who was stopped in north Aurora the evening of Aug. 24, 2019. He was placed in a now-banned control hold that briefly made him faint, injected with an increasingly controversial sedative and went into cardiac arrest a short time later.

He was taken off of life support at a local hospital six days later.

Among the bevy of ongoing investigations into McClain’s death, Weiser’s probe is one of few carrying activists’ hopes of murder charges against Aurora cops. 

Activists with the Denver-based Party for Socialism and Liberation plan to protest Saturday at the state Capitol building. They’re arguing that Polis weakened Weiser’s ability to prosecute Aurora cops for murder when he modified an executive order last week outlining the scope of Weiser’s investigation, which has been ongoing for months. 

What did Polis change? 

Originally, Polis ordered Weiser to find whether law enforcement officers or others should be prosecuted for crimes “that caused the death of Elijah McClain.”

Now, Polis is directing Weiser to simply investigate any person for “offenses arising from” the Aug. 2019 “encounter” with McClain. 

Last week, after officials announced the change in an email to press, the Attorney General’s Office declined to specify exactly what prompted the new verbiage. Asked about the change, a spokesperson for the governor deferred to Lawrence Pacheco, a spokesman for the attorney general.

That’s left activists and Aurorans to make their own interpretations of the new legalese. 

“This opens the possibility for Weiser to come back with watered down charges against the killers, just like we saw in Breonna Taylor’s case,” the Party for Socialism and Liberation said in a Facebook post, referencing the Kentucky woman shot while sleeping at home this year in a botched drug raid. 

Of the three officers involved in Taylor’s death, a grand jury indicted one officer on reckless endangerment charges, spurring nationwide protests. 

What does this mean? 

Benjamin Levin, an associate professor of law at the University of Colorado at Boulder, said that Polis’ changes possibly give the attorney general a better chance of successfully prosecuting the cops and first responders on more charges.

“I definitely don’t read it as contracting the scope of the investigation,” he said. 

He said Weiser can now pursue criminal charges against not only Aurora cops but also possibly Aurora Fire Rescue paramedics who administered a powerful dose of ketamine to subdue McClain. Weiser can still tab a state grand jury to weigh evidence and possibly indict people for McClain’s death. 

But investigators won’t necessarily have to prove that any individuals caused McClain’s death — which is a “tricky thing to prove,” according to Levin.  Along with murder charges against police officers — a key demand of Sheneen McClain, Elijah’s mother — investigators might also look at violations of Constitutional rights, evidence tampering, department policies or perjury, for example. 

“While I completely understand folk’s skepticism and mistrust when it comes to investigating police — given the history of under-enforcement even in cases of clear criminality and excessive force — I think you could just as easily argue that the change in language is positive rather than negative,” said Ian Farrell, associate professor of law at the University of Denver. 

He also said that investigators can still pursue charges for serious offenses along with the new possibility of lesser charges. 

Mari Newman, a lawyer with civil rights law firm Kilmer, Lane and Newman who is representing the McClain family, said it’s “impossible” to know the full meaning of Polis’ tweak. 

But she said that any lesser charges should come in addition to “holding the officers and medics criminally accountable for murder.” 

Activists are signaling that “the community is watching,” Newman said. She expects protests would break out in the Denver metroplex if the attorney general’s probe only results in minor charges. 

What other investigations are still open into McClain’s death?

Adams County District Attorney Dave Young, who originally examined the case, said he didn’t have the evidence to convince jurors that first responders had acted inappropriately beyond a reasonable doubt. He has repeatedly defended that decision in recent months as his office has been inundated with tens of thousands of calls and emails asking him to give the case another look. 

Other probes are still open, though. 

The Department of Justice revealed in late June that the agency had been looking at APD’s handling of McClain’s death since last year. The state health department is scrutinizing paramedics for administering an excessive dose of ketamine to McClain. And Aurora officials have green-lighted looks at department protocols and a specific investigation into McClain’s death.