ONE YEAR AFTER: Death of Elijah McClain changes everything

On July 31, the Instagram account @justiceforelijahmcclain posted a video call to action.

The next day, the calendar would flip to August 2020, and activists were preparing to invigorate a campaign for Elijah McClain, the 23-year-old massage therapist and Black man who died several days after a violent encounter with Aurora police and first responders one year ago next week.

But in a marker of the movement’s ascendancy, the activist delivering the message wasn’t from Aurora — or even Colorado.

It was Janelle Monáe, a celebrity singer and actress, originally from Kansas City.

“It’s been a year without Elijah, and a year without justice for Elijah,” Monáe said.

She’s now one of countless new activists calling out Gov. Jared Polis, Mayor Mike Coffman, local district attorneys, fire officials and police officers for failing to charge and win convictions against Aurora cops Nathan Woodyard, Randy Roedema, and Jason Rosenblatt, who originally stopped and restrained McClain the night of Aug. 24, 2019.

PERRY: 1 year after Aurora police murdered Elijah McClain, everything has changed

The demand was originally uttered by a tiny cohort of outraged Aurorans. Now, Americans across the country continue to add their voices to the ever-growing choir.

But for those here and on the ground, the sense that justice has not been found one year after McClain’s death is still haunting.

“Are we really making an actual change based on what we’re seeing? … Has anybody been arrested? Has anybody been charged?,” pondered Candice Bailey, a co-founder of the Frontline Party for Revolutionary Action and a mainstay at gatherings held in memory of McClain since last fall. “Or have we been hoodwinked and have we been bamboozled and has the past year been a waste of f***ing energy?”

The Investigations

While criminal charges against the first responders who detained McClain remain an intangible specter, explorations of such accusations have continued to mushroom in size and scope in recent months.

There are now some half a dozen investigations into either the Aurora police department or first responders’ specific interaction with McClain. They stem from the local division of the FBI and the Department of Justice, the state attorney general’s office, the state health department and a still-growing carousel of consultants from across the country.

So far, investigators have been tight-lipped about timelines and details of the smattering of new inquiries. Terse announcements proclaiming their existence are issued, and firewalls are quickly erected.

Protests in question to mark 1 year of tumult after death of Elijah McClain

What has been highlighted, however, is the extraordinary nature of several such probes.

The Department of Justice, for example, revealed in late June that the agency has been looking at APD’s handling of McClain’s death since last year. Officials indicated that the growing cacophony surrounding the Aurora man’s death led to the disclosure of the investigation’s existence.

“The standard practice of the Department of Justice is to not discuss the existence or progress of ongoing investigations,” a spokesman wrote in a news release issued June 30. “However, there are specific cases in which doing so is warranted if such information is in the best interest of the public and public safety. Recent attention on the death of Elijah McClain warrants such disclosure.”

Gov. Jared Polis also underscored the unusual circumstances that prompted him to tab Attorney General Phil Weiser as a special prosecutor to examine the possibility of levying criminal charges against the officers and paramedics involved in detaining McClain.

“The State rarely steps in to investigate, and potentially prosecute, an incident over the individual decisions of district attorneys,” Polis’ June 25 executive order elevating Weiser reads. “This, however, is the truly exceptional case where widely reported facts are not addressed in any current investigation.”

The Adams County District Attorney who originally examined the case, Dave Young, 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.

Weiser’s new probe is the examination that could, in theory, go against Young’s original decision and result in state criminal charges filed against officers and paramedics. Weiser could invoke the state grand jury to look at the case, which could in turn result in the issuance of subpoenas, compel official testimony, and lead to an indictment.

The federal examination could also produce criminal charges against those involved in detaining McClain, although the legal threshold to levy such counts against law enforcement on the federal level is high.

“It is a crime under federal law to willfully violate someone’s rights as a legal officer under color of law,” said Ian Farrell, an associate professor at the University of Denver Sturm College of Law. “The challenge there is whether the investigators and then ultimately a jury would find either, at an investigations level, probable cause or for the jury, beyond a reasonable doubt that the officers willfully violated Mr. McClain’s rights … Those are very, very serious charges, but they’re quite hard to prove.”

But either state or federal authorities could also enter into a consent decree with the city’s police force, requiring a litany of changes and increased oversight. Such federal agreements have been made with several major police forces following contentious deaths in recent years, including the local department in Ferguson, Missouri in 2016, Newark, New Jersey in 2016 and Baltimore, Maryland in 2017.

Aurora officials have indicated that they’re steeling for such a decree from Weiser’s office following his newly announced patterns and practices investigation of Aurora police. The Democratic attorney general was able to launch the new investigation thanks to new powers his office was granted in the state’s hulking criminal justice reform bill passed by the state legislature earlier this year.

Given the novelty of Weiser’s investigation, Aurora City Spokeswoman Kim Stuart said city staffers are still trying to determine what such a decree at the state level would mean for the department.

“We recognize it’s a possibility,” she said of the decree.

Theoretically, an edict from the state could come in tandem or in addition to another decree from the federal government, according to Farrell.

“I don’t think it’s legally impossible to have a situation where, if there is no coordination, the Aurora Police Department is under supervision from both the state and the federal government,” he said. “But there would have to be a direct contradiction, like a situation where the state government is saying, ‘you have to do X,’ and the federal government is saying, ‘no, we’re saying you’re not allowed to do X.’ In an ideal world, you would have some coordination between the state and federal government in terms of creating some supervisory scheme.”

A spokesman for the Attorney General’s Office declined to comment on the pending investigation.

Any new decree could mean even more work for 21CP Solutions, the Chicago-based consulting firm the city recently recruited to conduct yet another sweeping review of Aurora’s police force of nearly 750 sworn officers. The group has overseen the implementation of several consent decrees in recent years; though the firm’s current work with the city will be limited to examining a bevy of the police department’s practices and protocols.

On top of the overarching look from 21CP, city management has also tabbed Washington D.C.-based civil rights attorney Jonathan Smith and at least two other consultants to look specifically at the McClain case. Smith, the former head of the special litigation section of the Department of Justice’s Civil Rights Division, helped produce the investigatory report into Ferguson in 2015. His group, now rounded out by an Alabama doctor and a former Arizona Police Chief, will specifically review all investigatory materials related to McClain’s death, as well as fire and police department training and protocols. Smith is expected to release a public report of his findings in the coming months, though the entire process was delayed after city management torpedoed the original investigator tasked with evaluating the city response to the McClain case, a former Connecticut state trooper, after council members complained of potential conflicts of interest.

And if that weren’t enough, the state health department has launched yet another complaint investigation into the use of ketamine on McClain after new information reportedly came to light following a series of complaints in June, a spokesman confirmed earlier this summer. Local fire officials said that the paramedic who administered ketamine in the area of McClain’s right deltoid followed department protocol, even though he reportedly overestimated McClain’s weight by nearly 80 pounds, according to Young’s report.

It’s unclear what the upshot of the ketamine probe could be, though calls to reevaluate ketamine use in the state have proliferated in the past year.

Looking for Change

As the largely veiled investigations trudge forward, the one-year anniversary of McClain’s death is an emotional marker rife with reflection about how the violin-playing vegetarian changed Aurora and may still yet re-make the city.

McClain’s mother, Sheneen, told the Sentinel in 2019 that his death had already changed the world. Through their attorney, the McClain family declined to comment for this story as part of a general policy of not speaking to reporters until the three cops are convicted on murder charges.

“I think that they’re very frustrated that the killers haven’t been criminally charged and held to the same standard that any other citizen would be,” said attorney Mari Newman. “And you can’t blame them.”

Earlier this month, Newman formally filed a federal civil rights lawsuit on behalf of McClain’s estate and his parents seeking unspecified damages.

Sheneen wrote Aug. 14 on McClain’s GoFundMe page, which has gathered almost $2.5 million, that “(t)here is nothing new to say, or add or showcase, only after a conviction, then Elijah’s family will have something to say.”

The wave of donations is one more marker that Elijah McClain’s name is now a familiar one across the U.S. But the young man’s life and violent death were largely unknown outside of Aurora until May, when Denver-based protests against police brutality spurred by the death of Minneapolis man George Floyd rocked the State Capitol building.

Before then, a dedicated group of small activists gathered at APD buildings. They began calling for justice at city government town halls and city council meetings.

April Young, a former colleague of McClain’s, remembers those early days of activism. She said only herself and a handful of people were paying attention and disrupting usually tepid meetings.

“I literally just felt like I was screaming into a glass cup and no one could hear me,” she said.

For months, it seemed that demonstrators’ only tangible progress was a new police community task force designed to recommend changing the local law enforcement agency from the ground up. After being waylaid by the coronavirus, the group is now meeting regularly and a gaggle of stalwart Aurora activists are a part of the body.

Then, Sheneen arrived at the Denver protests in May and told the story of her son. His story spread on social media and through the protests. His name became a chant alongside “Black Lives Matter” in Colorado and beyond.

For some of Elijah McClain’s friends and colleagues the experience of seeing their friend’s death elevated with national interest has been powerful.

“Seeing Eli’s story finally blow up has been intense, but for me and for some of his other coworkers I’ve spoken with, it’s also helped lift the weight a little bit,” said Emerald Bixy, who worked with McClain at a Massage Envy and knew him well.

“It’s meaningful to see gazillions of people finally sharing in the grief and rage and passion that’s warranted by Eli’s amazing life and his awful death,” she said. “With how hard the new waves of grief have been for us, I can’t imagine how much worse still this emotional chaos has been for his closer friends and family, so I really hope they’re feeling some consolation as well.”

But the lack of resolution plagues McClain’s family and friends.

“How much has really changed, you know?” Young said of the year.

She invoked the infamous case of Emmet Till, a Mississippi teenager lynched in 1955. Till’s death would help spur the Civil Rights Movement and historic reforms across the U.S., but his killers were never convicted.

“Even Emmet Till was such a monumental moment, and you would think in those 65 years they would be prosecuted, and so much change. And really, nothing has changed,” Young said.

Pastor Thomas Mayes of Living Water Christian Center echoed that feeling.

Mayes, 67,  recalled growing up in the metro area and facing police brutality as a Black man. When he first earned his driver’s license nearly 16 years old, his father said he’d take his car keys away if he was driving around Aurora because the police there had a reputation for corruption and racism.

After decades of struggle and strife and reforms, Mayes said metro area parents are telling their kids the same things now because of McClain’s death and other firestorms.

“I know Aurora,” he said. “Aurora has always been a place (where) people of color have to struggle.”

Young and Brittney Buckley, another early activist for McClain, don’t have much hope that the slew of investigations will hold the police officers and APD accountable.

“I think most of us marching regularly have no confidence that justice will be delivered the correct, legal way,” Buckley said.

Buckley, a member of Democratic Socialists for America and a regular participant in protest marches organized in part by the Party for Socialism and Liberation, said she’s still surprised at the turnout in protest marches. In recent months, thousands of people have taken to Aurora streets and occupied Interstate 225 to make their demands.

“It seems that this city has finally come together and realized that one of our own members was brutally murdered for no apparent reason,” she said.

She said she’ll keep marching, despite inter-organizational conflicts now threading the protest movements chanting McClain’s name.

Last week, Sheneen canceled what was expected to be a gargantuan march planned for Aug. 23, marking the one year anniversary of his death. Buckley said that another, unsanctioned event will continue, run by organizers from outside of the community.

At this point, some community leaders and activists are also wondering what protest can achieve — if anything.

Mayes said the real change now will likely come from within government processes and procedures, but he encouraged protests to continue. For example, as a member of the city’s newly-minted community police task force, he’s interested in overhauling the civil service commission.

That body has overturned suspensions and firings of APD officers. In one 2018 case, the commission overturned former Chief Nick Metz’s decision to fire Lieutenant Chuck DeShazer for using a racial slur. He remains on the force.

By focusing on policy and serious reforms, Mayes says McClain’s death will ultimately bring change to APD and the city’s fabric. But he said that change hasn’t come yet.

For now, Americans still have their eyes and ears trained on Aurora.

Within hours, thousands of people “liked” an Aug. 18 Instagram post from the @justiceforelijahmcclain account summing up the last year: “One year, five investigations, one lawsuit, NO JUSTICE.”

Elijah McClain death timeline

10:32 p.m. Aug. 24, 2019

• Aurora dispatchers receive a call from a man identified as Juan “describing a suspicious black male wearing a ski mask, ‘acting weird,’” according to the 17th Judicial District Attorney’s Office.

10:43 p.m. Aug. 24, 2019

– Three Aurora officers detain Elijah McClain, 23, in the 1900 block of Billings St. 

10:44 p.m. Aug. 24, 2019

-Officers apply a carotid control hold to McClain’s neck, causing him to briefly lose consciousness. 

10:59 p.m. Aug. 24, 2019

-McClain is injected with ketamine.

11:02 p.m. Aug. 24, 2019

-Loaded onto stretcher and put into ambulance, where he suffered a heart attack moments later.

3 a.m. Aug. 25, 2019

-McClain suffers second heart attack in four hours

3:51 p.m. Aug. 27, 2019

-McClain is pronounced brain dead

Aug. 28, 2019

-Aurora Fire Rescue officials say in a preliminary review that paramedics provided appropriate treatment to McClain.

Aug. 30, 2019

-McClain is taken off life support

10 a.m. Sept. 3, 2019 

-Autopsy is conducted 

Sept. 27

-Police Chief Nick Metz announces he will retire at the end of the year.

Oct. 1, 2019

– McClain’s family members and attorney gather in front of Aurora city hall  and condemn officers’ actions. 

Oct. 21, 2019

-Aurora police present District Attorney Dave Young with evidence for a criminal culpability review.

Oct. 25, 2019

– Aurora police hold press conference on three violent encounters between officers and residents, including the detention of McClain. No new details are released. 

Nov. 4, 2019

-Protesters temporarily halt Aurora City Council meeting after refusing to leave the chamber.

Nov. 8, 2019

-Coroner’s report is publicly released. McClain’s cause of death is listed as “undetermined.”

Elijah McClain Coroner Report

Nov. 22, 2019

-Adams County District Attorney Dave Young issues letter outlining his decision not pursue criminal charges against any of the first responders involved in detaining McClain

Elijah McClain DA police review

Nov. 23, 2019

-Demonstrators again gather in front of city hall to protest Young’s decision.

Dec. 10, 2019

– City Councilperson Nicole Johnston hosts the first of several town hall meetings to discuss the shape of a possible police oversight entity in the city.

Jan. 1, 2020

– Vanessa Wilson assumes role as interim police chief. 

Jan. 28

– The city’s force review board says officers acted appropriately and in line with their training when they stopped McClain. 

Feb. 6.

-City Manager Jim Twombly announces an internal audit of Aurora Police Department protocols surrounding bodywork cameras.  

Feb. 10

-City council members vote 7-3 to create a new task force spun out of Johnston’s meetings. 

Feb. 12

-City management inks contract with Eric Daigle, a Connecticut attorney and former state trooper, to review handling of McClain case.

May 25

-George Floyd dies after a Minneapolis Police Officer kneels on his neck for nearly nine minutes.

June 2

– State lawmakers introduce sweeping police reform bill at the state Capitol.

June 2

-New Change.org petition goes live. The platform gains more than 5 million signatures in two months.

June 7

– Young’s office begins to receive wave of calls and emails related to McClain’s death. The office receives more than 10,000 emails in two weeks. Officials had received two emails related to McClain’s death in the previous six months.

June 9 

– Three Aurora City Council members send co-signed letter to Twombly asking for new, independent investigation into McClain’s death.

June 9 

– Interim Chief Wilson introduces a directive banning carotid control holds — the maneuver used on McClain. 

June 10 

-Twombly cancels contract with Daigle following protest from council members over his ties to law enforcement. 

June 15

-Aurora city council members appoint 13 members to a nascent community police task force. 

June 19

– Gov. Jared Polis signs Senate Bill 217, the state’s grand police reform measure. 

June 20

-The New York Times publishes a story on the renewed interest into McClain’s death. 

June 24

– The Colorado Department of Public Health And Environment begins receiving numerous complaints that provide new information regarding the ketamine dose McClain was given. The state health department opens a new complaint investigation. 

June 25

-Young issues letter clarifying that he does not plan to investigate McClain’s case further. 

June 25

-Polis tabs Attorney General as special prosecutor to reinvestigate McClain’s death. 

June 26

– An attorney representing McClain’s parents and estate tells the Associated Press she and the McClain family are conducting their own independent investigation into McClain’s death.

June 27

-Thousands gather at Aurora city hall to protest McClain’s death. Aurora police are widely criticized for using pepper spray on attendees during a violin vigil portion of the event. 

June 30 

-The Department of Justice and the local branch of the FBI announce they’ve been investigating the circumstances of McClain’s death since last year.

June 30 

-Aurora City Council holds a special meeting to receive a briefing on police response to recent protest. 

July 3

-Wilson fires three officers — including one who personally helped detain McClain — for their involvement in disseminating a photo mocking the hold used to render McClain unconscious. A fourth officer involved in the texted image resigned.

July 3 and July 4

-More than 1,000 people “occupy” a north Aurora police station for nearly 12 hours, demanding that the remaining two officers involved in detaining McClain are also fired.

July 8

-Two of the officers fired for posing for the photo near where McClain was detained, Erica Marrero and Kyle Dittrich, appeal their terminations with the city body that oversees police hiring and firing.

July 9

-A third officer, Jason Rosenblatt, who received and responded “ha ha” when he was texted the photos appeals his recent firing.

July 16

-Aurora council members unveil a resolution naming Jonathan Smith as the lead investigator of the city’s forthcoming investigation into McClain’s death.

July 23

-Attorneys representing several local leaders file a class action lawsuit against the city of Aurora and dozens of law enforcement officials, claiming Aurora police and area sheriff’s deputies violated residents’ constitutional rights at the chaotic protest and violin vigil held for McClain June 27.

July 25

-Demonstrators again protest McClain’s death in front of Aurora city hall before streaming onto Interstate 225. The driver of a Jeep eventually drives into the crowd, and a man later fires a handgun during the event, injuring two people. Protesters wielding wooden boards and fireworks cause significant damage to the municipal courthouse. 

Aug. 11

-An attorney representing McClain’s parents and estate files a federal civil rights lawsuit seeking unspecified damages against the city and several local law enforcement officials. 

Aug. 11

-City management announces officials have called on 21CP Solutions, a Chicago-based consulting group, to conduct a sweeping review of Aurora police department practices and protocols. 

Aug. 11

-Weiser reveals that his office has been investigating patterns and practices of possible constitutional rights violations within the Aurora Police Department for several weeks.

Aug. 13

-Police send 116 letters to businesses along East Colfax Avenue, warning them to prepare for a large gathering slated to take place nearby on Aug. 23.

Aug. 14

-McClain’s family members cancel the planned car protest scheduled to be held at Aurora Sports Park Aug. 23. More than 13,000 had expressed interest in attending the event via Facebook.