Judge allows activist to pursue wrongful arrest case against Aurora detective in Elijah McClain protests

AURORA | A federal judge in Denver ruled last month that an Aurora area activist who led protests linked to the death of Elijah McClain can pursue her legal claims that an Aurora police detective wrongfully arrested and accused her of kidnapping police officers.

U.S. District Court Judge S. Kato Crews on Feb. 28  ruled against the City of Aurora and for activist Eliza Lucero. Crews said Lucero’s attorneys provided adequate evidence that an Aurora detective violated her civil rights in 2020 during an allegedly wrongful arrest based on inadequate and even falsified court testimony.

The case stems from protests surrounding the 2019 death of McClain at the hands of Aurora police and fire department medics after the young Black man was confronted by officers walking home at night after purchasing iced tea from a convenience store near his home.

McClain’s death drew international scorn for the Aurora Police Department. The death was a large driver in prompting the Colorado attorney general to impose a consent decree against the city in 2021, finding “patterns and practices” of excessive force and abuse, especially against people of color.

Lucero was an active leader in 2019 and 2020 during a variety of protests linked McClain’s death.

The Aurora Police case against her stemmed from a July 3, 2020 protest Lucero helped lead outside the police department’s District 1 police station in northwest Aurora.

The protest was one of several linked to McClain’s death across Aurora over several months, mostly during the height of the pandemic.

According to court filings, Lucero and other protest leaders created a peaceful demonstration surrounding the police station, with police officers inside. During previous court testimony, she and others told attendees not to block police station doors or create barricades.

Aurora police Detective Andrew Silberman later sought an arrest warrant in 2020 for Lucero, alleging that she had attempted to “kidnap” the 18 police officers inside the station by leading chants and obstructing entry and exit points.

Lawyers for Lucero contended in a 2023 lawsuit that the Silberman and police targeted Lucero and other activists for harassment in retribution for the unfavorable national media attention drawn on Aurora police because of the death of McClain.

An attorney argued that Silberman in particular omitted critical facts in an arrest warrant issued for Lucero, and that the detective later perjured himself, lying about testimony from a critical witness.

Attorneys argue that Silberman’s affidavit omitted the fact that officers inside the station were never imprisoned nor physically prevented from leaving the district, according to court records. Lucero and others testified that police station doors remained unlocked and unblocked throughout the protest, allowing any officer inside to exit. An investigation revealed that Aurora police officers were ordered to stay inside by the former police chief in order to avoid further confrontation.

In addition, Lucero’s legal team said previously that APD officers had access to a wide variety of both lethal and non-lethal weapons inside the police station, which could have been used if they had felt trapped or in danger. Lawyers for Lucero argue that those details, omitted by Silberman when seeking an arrest affidavit, would have undermined probable cause and that Silberman knowingly misled the court to secure her arrest.

She was jailed while waiting for a preliminary hearing on charges against her, saying that she was especially frightened because of the ongoing pandemic. Her attorneys allege that Silberman and prosecutors conspired to complicate her inevitable release from jail by choosing incarceration within the state system, not county jails.

As a 2020 preliminary hearing approached in Silberman’s case against Lucero, “he and the prosecutors sought to find a way to make their concocted charges stick,” attorneys said in court filings.

Lawyers alleged that Silberman and police attorneys conducted a “proffer interview with a person who had been at the July 3 protest, Trey Quinn.”

During the interview, hoping to glean damning evidence against Lucero, Quinn instead told police and attorneys that he never saw her do anything illegal during the protest, but he did admit he did not personally like her.

“Detective Silberman then made an unforgivable choice,” attorneys allege in court documents. “At the preliminary hearing four days later, he lied under oath, pretending that his interview with Mr. Quinn just four days earlier had not happened. Asked point blank about what interviews he had conducted, he perjured himself.”

Court records show that Silberman, when asked under oath if he had interviewed anyone other than offered in court discovery, said “no.”

Lawyers for Lucero said that had the alleged perjury been uncovered during the preliminary hearing, it would likely have ended the city’s case there, forcing her release from jail and ending the case against her. But as time ran out, the hearing was continued for several more days, forcing Lucero to remain in jail linked to what her attorneys say were provably falsified claims and charges.

Those allegations against the city were made in court last year, but the city has made numerous motions and appeals to end her case. Crews’ ruling on Feb. 28 moves the case forward.

Aurora police and Silberman “mobilized the full power of the state to have Ms. Lucero thrown in jail under horrific conditions and threatened with decades in prison for daring to demand truth and justice,” attorneys said in court filings. They “will now be held accountable for their egregious misconduct.”

Lucero’s attorneys are asking for unspecified actual and compensatory damages, as well as guarantees that Aurora police will agree to training to prevent further alleged harassment and wrongful arrests.

State police certification records show Silberman is still employed by Aurora police.

Aurora police officials were not immediately available to comment on whether the allegations in the lawsuit have been pursued through an APD internal affairs investigation, or what the conclusion of any internal investigations were.