Police officers in Aurora, Colorado, did not have a legal basis to stop, frisk and use a chokehold on Elijah McClain, a 23-year-old black man who died after being restrained by officers and paramedics in the Denver suburb in August 2019, an independent investigation has found.
According to a report published on Monday, “body worn camera audio, limited video and … interviews with the officers tell two contrasting stories. The officers’ statements on the scene and in subsequent recorded interviews suggest a violent and relentless struggle.”
The report added: “The limited video, and the audio from the body worn cameras, reveal Mr McClain surrounded by officers, all larger than he, crying out in pain, apologizing, explaining himself and pleading with the officers.”
McClain, a keen musician and athlete, was stopped on 24 August 2019, while walking home from a convenience store. He was not suspected of any crime. Police had been called about a person wearing a ski mask and waving his arms. McClain was listening to music. His family said he wore the mask because he had a blood condition that caused him to get cold easily.
Police said he refused to stop and fought back when confronted. Body-camera video showed McClain telling officers: “Let go of me. I am an introvert. Please respect the boundaries that I am speaking.”
But one officer attempted twice to put him in a specialized hold, pressing against his carotid artery and cutting off blood to the brain, a practice since banned in several places.
He was held down for 15 minutes, then given 500mg of ketamine, a sedative. He suffered cardiac arrest and was declared brain dead on 27 August. He died three days later.
The report released on Monday found that paramedics failed to properly examine McClain before injecting him with a dose based on a “grossly inaccurate” estimation of his weight.
Body camera footage showed officer Nathan Woodyard making first contact with McClain, telling him, “I have a right to stop you because you’re being suspicious.” Video showed Woodyear grabbing McClain within 10 seconds of exiting his patrol car.
In a presentation of the report, Jonathan Smith, the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs who led the investigation, said under case law, officers must have “reasonable, objective grounds” to justify an investigatory stop. Their reasoning – that he was acting suspicious by wearing a mask and waving his arms, and that he was in an area with a high crime rate – did not hold water, first in that it was not an area of high crime but also in that wearing a mask is not enough be linked to criminal activity.
When another officer asserted that McClain’s refusal to stop was consistent with someone who “either just committed a crime” or someone who is “concealing something whether it be a weapon or drugs”, Smith pointed out that McClain was free to go. “Declining to submit to a consensual stop cannot serve as the basis of reasonable suspicion,” the report states.
At any rate, Smith noted, “Any threat or perceived threat would have dissipated quickly once Mr McClain was taken to the ground by Woodyear.” Yet “officers continued to use pain compliance techniques”, Smith said. “These appeared to be in response to any form of movement on Mr McClain’s part.”
The report recommended the Aurora police department conduct several reviews, including of how officers are trained to decide if they have a legal reason to stop, frisk and arrest people, and urged 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.
The report was commissioned by local government last July, amid international protests over police brutality and racism sparked by the killing in Minneapolis of George Floyd, an African American man on whose neck an officer knelt for nearly nine minutes.
Smith, who led the investigation, was the former head of the US justice department division that investigates police departments during its inquiry into the police of Ferguson, Missouri, following the shooting of Michael Brown in 2014.
Other investigations are ongoing, including one using a grand jury. The US Department of Justice and FBI said last year they had been reviewing McClain’s case for a potential federal civil rights investigation since 2019.
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 officers involved.
A 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 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”.
One of three officers was fired for his reaction to a text message about the case. The other two are still with Aurora police.
Last year, the civil rights attorney Mari Newman told the Guardian McClain’s family wanted to see “criminal charges and ultimately prosecution of those who were involved in killing Elijah”.
The state attorney general, Phil Weiser, said: “Elijah McClain should be alive today. His life mattered and his death was tragic. The pain, frustration and anger that his family and many Coloradans are feeling from his death is understandable and justified.”
Newman said McClain was loved by “everybody who met him”. He has been widely and peacefully celebrated. One vigil featuring tributes from violin players was dispersed by police using pepper spray.
In October 2019 his mother, Sheneen McClain, told Sentinel Colorado her son had “wanted to change the world. And it’s crazy, because he ended up doing it anyway.”