The brutal homicide of Elijah McClain is a perfect example of what recent historic state and local police reforms won’t fix.
Last week, Gov. Jared Polis signed into law the nation’s first state-led omnibus police reform package.
It was an astounding bi-partisan achievement. It wasn’t enough, though.
The measure was in response to a national tsunami of protests incited by a Minneapolis police officer murdering George Floyd as three other cops stood by. That tidal wave of anger at this latest racist outrage washed through the Aurora-Denver metroplex, too.
The new Colorado police reform bill goes a long way toward making police departments in Aurora and all over the state more accountable and more transparent. The new law works to change existing stay-out-of-jail-free clauses that automatically have allowed police to deflect criminal charges by allowing them to subjectively insist bad things just happen sometimes as the law is being enforced.
The protests and the legislating that built Senate Bill 217 also shined a new and powerful light on a local case of how a black man can die when things go wrong. The protests have drawn renewed attention to how it was that McClain was killed during an encounter with Aurora police and rescuers, without his killers being charged with anything, or even disciplined, at this point.
McClain was a young, black, slender massage therapist with a flair for being eccentric, but he was never dangerous. He was walking home one evening last August from a convenience store, carrying a couple cans of iced tea in a bag. He was wearing a runner’s mask, something he did regularly, his friends said. He was bothering no one. A motorist called 9-1-1 to say they thought it was weird.
Police rolled up on McClain, and the situation went south. McClain, doing nothing wrong, got tense. So did police. When McClain insisted officers just let him go, they didn’t. Insistence led to physical restraint, then wrestling, a carotid choke hold, screaming, begging, vomiting and more. One officer threatened to unleash an attack dog on McClain. Forcing him to faint with the carotid artery hold, a paramedic injected McClain with 500 mg of ketamine. McClain had heart failure and never recovered.
A coroner said McClain’s cause of death was essentially getting too worked up and his body overreacting to so much stress, or not.
A report from the Adams County district attorney’s office said none of the police or fire officials who killed McClain did anything “criminal.” Nor did investigators determine that cops and rescuers really did anything wrong. An investigation by Aurora police determined officers did nothing wrong.
And there’s the problem. Outside of the police department and the district attorney’s office, everyone can see that there was plenty of wrong here.
It wasn’t wrong for some good citizen to take the time to call the cops to say somebody’s wearing a face mask on a hot August night and what’s up with that.
But when the cops rolled up, they wouldn’t let an odd guy go without continually pressing to find out why. McClain was black and on Colfax at night. If he had been white near Southlands, would they have refused to let him go without a shakedown? Probably not. The incident would most likely have ended with eye rolls and shrugs.
But would police have jumped a white guy in the Southlands and squeezed the blood from his brain until he fainted, and then pumped him full of a tranquilizer?
Most likely not, especially if the white guy hadn’t gotten so nervous during the encounter. But white guys don’t really have to worry about any encounter with police making you dead. Black men can’t help but go there when the cops get involved that they’re possibly seconds away from dying.
I’d panic, too. And people in panic rarely act cool.
Aurora police and rescuers that night just did what they do. They “subdued” a guy who was acting odd and then freaked out, but they killed him. Prosecutors didn’t, and don’t, really look to see if cops broke any laws when these black killings happen, they look to see if they can win a case.
17th Judicial District Attorney Dave Young said he couldn’t make or win a case against any of the people who killed McClain. Barring something new, he won’t reopen the matter.
And that’s a problem SB 217 won’t fix. The answer here is to ensure that only grand juries, presented with the facts from prosecutors who have nothing to do with the accused police department, decide whether laws were broken and suspects should face indictments.
State legislators didn’t go there.
More importantly, even if these cops and rescuers didn’t break any laws by killing McClain, there were endless wrongs that went on that night.
The way the system works now, like in most Colorado cities, internal investigations by police determine if department policies were violated. Maybe these internal probes will make recommendations to administrators. Often, they just determine that incidents are an unfortunate mix of circumstances.
And that’s why nothing changes.
Police should investigate themselves for their own purposes, but that’s it. Only the public can reliably determine whether what the police did was wrong — and only through independent and transparent investigations that report solely to the public. These investigations cannot report to elected officials, who take money from police unions or are the targets of union political smears. They can’t report to police or local prosecutors, who have good reason to hide or spin investigation results. They can’t report to other city officials, who may feel pressured to control the investigation to protect the city’s image or checkbook. They can report only to the public — all of the public.
These investigations must consider and release all the evidence and all of the results, including names. That level of transparency would never come directly from police or district attorney offices.
It’s up to the community, through such a truly independent committee, to decide if holding down an innocent, frightened, young black man and forcing him to vomit, beg, cry and faint before injecting him with a tranquilizer is wrong for Aurora.
Senate Bill 217 didn’t do that. Currently, the city is about to impanel a task force to look at how far to go in creating independent oversight of the Aurora police department.
The details may be complicated, but the critical foundation sure isn’t. Independent means just that. This group, whatever it becomes, must have the power to get answers and pass those details and an opinion on to the public. Anything less is just more of the same.
Past Sentinel Colorado Coverage of Elijah McClain: