AURORA, Colo. (KDVR) — The City of Aurora’s 157-page investigative review of the police and fire departments’ actions prior to Elijah McClain’s death found insufficient evidence for police to have stopped and patted-down McClain prior to engaging in a physical altercation with him. The report also revealed concerns about the lack of time medics spent evaluating McClain’s medical needs prior to sedating him with ketamine.

“The independent investigation that was commissioned and paid for by Aurora makes clear what was already known: Elijah should never have been stopped by the police, never have been arrested, never have been subjected to extreme force by the police and should never have been forcibly injected with ketamine by Aurora Fire Rescue paramedics,” a statement from Rathod Mohamedbhai LLC, the firm representing Elijah McClain’s mother, Sheneen McClain said. “Aurora is responsible for Elijah’s tragic death by virtue of its employees’ unlawful and unconscionable actions.”

The report was produced over a period of six months by three independent consultants: Jonathan Smith, Dr. Melissa Costello, and Roberto Villasenor. It included recommendations for improved training and supervision of police officers, a thorough review of the police department’s use of force policy and de-escalation tactics. It also included a review of the fire department’s protocols and trainings related patient sedation, and a review of the Aurora Fire culture to “ensure that it prioritizes the safety of the subject consistent with the safety of the officers and medical personnel.”

The report also found “significant weaknesses” and “serious concerns” with the Aurora Police Department’s accountability system and the manner in which it handled the initial investigation into McClain’s death.

“The post-event investigation was flawed and failed to meaningfully develop a fulsome record,” the report found. “These facts trouble the Panel. However it was not our charge to assess whether misconduct occurred; rather, our task was simply to report what we could learn from the record and make policy recommendations.”

“The report is a scathing indictment of the City of Aurora, from top to bottom,” Mari Newman, a civil rights attorney filed a related federal lawsuit against the City of Aurora last year said. “The report confirms what we have known all along: Aurora Police and Medics violated Elijah McClain’s civil rights, and Aurora did everything in its power to sweep his murder under the rug. It is impossible for Aurora to continue to deny responsibility for murdering this innocent young Black man. The City of Aurora and its police and medics who murdered Elijah McClain must be held accountable.”

The initial encounter

The report found Officer Nathan Woodyard’s initial “investigatory stop” of McClain after 911 dispatchers received a report that McClain seemed “sketchy” for wearing a face mask in August 2019, did “not appear to be supported by any officer’s reasonable suspicion that Mr. McClain was engaged in criminal activity. This decision had ramifications for the rest of the encounter,” the report found.

According to the panel of experts, “to justify an investigatory stop (known as a Terry stop), an officer must have ‘reasonable, objective grounds’ and an ‘articulable’ or ‘reasonable suspicion of criminal activity,’ and the stop must rely on the ‘least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.’”

The report continued to find that the three officers’ decision to “frisk” McClain was not supported by “sufficient evidence” to do so. According to the consultants, “The ‘reasonable suspicion’ that an individual is armed and dangerous, required to conduct a pat-down search, is an objective test that considers the facts and circumstances at the time. Based on the record available to the Panel, we were not able to identify sufficient evidence that Mr. McClain was armed and dangerous in order to justify a pat-down search .”

The carotid hold

The report found an officer’s initial attempted use of the carotid hold – which deprives oxygen from someone’s brain and is now banned by the Aurora Police Department – “likely ended the threat of Mr. McClain reaching for and obtaining an officers’ gun,” but the consultants determined “if Mr. McClain was no longer presenting a threat of harm to the officers, there would have been no justification” for the second officer to apply a carotid hold.

The report explained that due to all three officers’ body worn cameras becoming dislodged, there was no camera record showing all of the events that transpired.

“An officer’s authority to use force depends on whether the officer reasonably perceived he was in danger at the precise moment that force was used, and must be calibrated to the amount of resistance from the subject. Once he was lying on the ground, Mr. McClain’s ability to reach an officer’s gun or other weapons was limited by the fact that Officer Woodyard was on the ground behind him, with his gun and pepper spray pinned beneath him. If Mr. McClain was no longer presenting a threat of harm to the officers, there would have been no justification for Officer Woodyard to apply a carotid hold. The video footage at this moment does not clearly show what was happening,” the report said.

“The record…does not provide evidence of the officers’ perception of a threat that would justify Officer (Nathan) Woodyard’s carotid hold, which caused Mr. McClain to either partially or fully lose consciousness,” the report said.

Crisis intervention

Consultants found several areas of concern related to their investigation that they said should be addressed by the City of Aurora, including implicit bias, the administration of ketamine (urging the City to “avoid replacing ketamine with other medications that that (sic) pose a greater risk to patients and to medical staff”), how police and medical personnel interact with each other, and crisis intervention.

Officer Randy Roedema, the consultants said, was a “crisis intervention trained officer” but was “not in control of the scene from the outset, and initially played a more secondary role when the other officers went hands on with Mr. McClain, which is in tension with Aurora policy,” the report found. “The Panel would expect that a patrol officer with some crisis training, a crisis-intervention trained officer, or a mental health worker would have spent greater time observing Mr. McClain, engaging him from a safe distance, or even walking parallel to him in the street and using active listening strategies to engage Mr. McClain and learn whether he was in crisis or a threat to himself or others.  But no non-force option was meaningfully utilized before the officers began physically restraining Mr. McClain,” the consultants said, urging the City to review its crisis response program and training.

Medics and ketamine

The consultants expressed concern over the lack of time medics spent medically evaluating McClain prior to sedating him with the drug, ketamine.

According to the report, they “stood back and did not render aid to Mr. McClain for several minutes, until a paramedic administered ketamine. During this period, Mr. McClain could be heard moaning, gagging, responding to the officers’ statements, exclaiming in pain, and struggling to breathe.  Emergency personnel were also informed that police had applied a carotid control hold. Despite his apparent distress and the fact that a carotid control hold had been applied, the body worn camera footage does not reflect any attempt by Aurora Fire to examine or question Mr. McClain before the administration of ketamine,” the report found. 

“Further, prior to the injection of ketamine, there was no physical contact by any of the Aurora Fire or EMS personnel captured in the footage or reported during post-incident interviews. While trained medical personnel can learn a great deal from simple observation, more is required for effective clinical decision making, including talking to and touching the patient and measuring vital signs.  Other simple diagnostic procedures also could have been employed. Instead, Aurora Fire appears to have decided to sedate Mr. McClain without conducting anything more than brief visual observation,” the report said.

The consultants said medics administered a dose of ketamine to McClain based on a “grossly inaccurate and inflated estimate of Mr. McClain’s size. Higher doses can carry a higher risk of sedation complications, for which this team was not clearly prepared.”

The consultants did indicate that ketamine is “currently a clinically appropriate medication for sedation of the agitated patient in the field,” with a “high margin of safety ‘even when administered in settings lacking basic mechanical monitoring, often by non-anesthesiologists.’”

However, they recommended reducing the dose that is given to patients if Aurora Fire Rescue is permitted to continue using the drug.

The city imposed a ketamine moratorium in September while this investigation was ongoing.

It will last until at least 30 days from today.