Aurora to pursue appointment of independent monitor for police department

Julia Cardi, The Gazette (Colorado Springs, Colo.)
·9 min read

Feb. 23—Aurora's city manager and police chief said Tuesday they plan to pursue the appointment of an independent monitor for the city's police department with the help of the city council and mayor, a move intended to increase accountability and rebuild public trust after the death of Elijah McClain in police custody.

City Manager Jim Twombly made the announcement at a news conference in response to a report on McClain's death released Monday and prepared by an independent investigation panel.

The announcement comes on the heels of statements in the report and by members of the panel that their investigation of McClain's death and the police department's subsequent inquiry found systemic failures of accountability within the department.

The report detailed shortcomings in the police investigation, such as detectives asking leading questions when interviewing the officers involved that seemed designed to coax exonerating answers, a cursory review by the department Force Review Board, and the fact that the incident was not referred to Internal Affairs.

"You can put the process in place, but unless the process is done correctly and as it was designed to accomplish, then it won't be as effective as you would like to be," Roberto Villaseñor, a member of the investigation panel and the retired chief of the Tucson Police Department, said in a news conference Tuesday.

In announcing his intention to seek an independent monitor, Twombly commended Aurora Police Chief Vanessa Wilson for efforts to hold officers accountable for wrongdoing and for improving the department through policy and training. But he said "a system of accountability should not be dependent on who sits in the chief's chair."

"It needs to be put into place so that it functions and represents the community's desire for constitutional, unbiased and respectful policing that holds officers accountable."

Wilson said she did not have a timeline for setting up an independent monitor's office, but she supported Twombly's decision to pursue one.

"I feel that is the only way we are going to regain the trust of the community," she said, acknowledging the "extreme anger and grief" caused by McClain's death at the hands of three Aurora police officers.

The Aurora City Council ordered an independent investigation in July of the 23-year-old McClain's 2019 death after protests over the death of another Black man, George Floyd, in Minneapolis brought renewed publicity and protests.

The panel that conducted the investigation was chaired by Jonathan Smith, executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs. It also included Villaseñor and Dr. Melissa Costello, an emergency physician from Mobile, Ala.

Although investigators did not issue findings about whether police officers or paramedics violated department policies or broke any laws, the report found missteps at each stage of the encounter with McClain and the subsequent police investigation. Officers did not have sufficient cause to stop McClain or frisk him, and their characterizations of him during the encounter as violent, aggressive and showing incredible physical strength contrast with audio and video evidence from the officers' body-worn cameras, the investigation found.

The audio available after officers subdued McClain records his cries of pain and apologies, vomiting and sometimes incoherent sounds.

According to the report, the subsequent investigation of McClain's death by the department's Major Crime/Homicide Unit revealed "significant weaknesses" in the department's accountability systems.

The report found unit investigators did not ask basic questions about the justification for use of force against McClain that would have been necessary for a prosecutor to make a decision about whether the use of force was legal.

On the contrary, questions by police investigators often seemed designed to elicit answers containing specific, exonerating language found in court rulings, says the report. The incident also was not referred to the department's Internal Affairs investigators.

Smith said in Tuesday's news conference it's important that investigations of individual officers' conduct shouldn't lose sight of an incident's implications for training, policy guidance and supervision.

"They never interrogated the facts here for the purposes of understanding ... the policy changes that could have been applied in the future. One of the values of a functioning accountability system is it forces the agency to be a learning organization," he said.

The panel's report says that while national debates taking place about the role and fairness of policing in Aurora and nationally didn't inform the investigators' factual findings, "it is impossible to ignore the broader context in which the Panel is conducting this investigation."

"It is our humble hope that this Report will become a part of the broader discussion in Aurora regarding the role and conduct of police in the community, and how to achieve public safety through a partnership between all of the City's institutions and those who live in the City."

Activists, attorneys for McClain's family and some government leaders cited the role they believe the court of public opinion has played in spurring official actions on McClain's death.

"This panel wouldn't have had the fire that it has in this report were it not for the mobilization of the community," said Lillian House, an organizer for Denver branch of the Party for Socialism and Liberation, who was involved in organizing marches and protests to demand the firing of the officers involved in McClain's death.

She said she believes wide-scale outrage at McClain's death and the handling of the ensuing investigation by the APD "is really the motive force here, is that the people have been making this an issue that has not gone away."

Wilson said the department has set up a force investigations unit to conduct in-depth probes of incidents. She said the unit has the ability to talk to officers, witnesses that may not have been interviewed when an incident happened and look for photo and video evidence from the time, such as from surrounding businesses. They present their findings to the APD's existing Force Review Board, she said.

"We felt it was important to have people that are specialized in the application of force and are subject matter experts within our agency to be asking those specific and hard questions and looking at all policies that may have been violated within that incident, not just the use of force," Wilson said.

Wilson last year fired three officers who mocked McClain's death in a selfie photograph taken at the site of a memorial set up where he died. They included Jason Rosenblatt, one of the officers involved in the altercation with McClain. He was not in the photo, but received it in a text message and responded, "Ha ha." Earlier this month Aurora's Civil Service Commission upheld the firings.

Report: Police did not have 'reasonable suspicion' sufficient to stop Elijah McClain

Wilson declined to comment on the possibility of discipline for the two officers still employed with the department, Nathan Woodyard and Randy Roedema, or the police detectives who led the investigation of McClain's death. She cited an active criminal investigation of the incident by a grand jury. Colorado Attorney General Phil Weiser announced the grand jury investigation in January.

She said the criminal investigation is also the reason the officers declined interviews with the panel of independent investigators, citing their Miranda rights.

Aurora Civil Service Commission upholds firing of former police officers for photo mocking Elijah McClain

McClain had been walking home and listening to music when he was initially stopped by Woodyard, who was immediately joined by officers Jason Rosenblatt and Randy Roedema, according to the report. Woodyard placed his hands on McClain about 10 seconds after getting out of his patrol car, according to the report. Eighteen minutes after first encountering officers, McClain was being taken to a hospital, unconscious.

After McClain refused officers' orders to stop, which the report said should have been a consensual encounter, they put McClain in a now-banned carotid hold — which applies simultaneous pressure to the sides of the neck intended to induce unconsciousness — and knelt on his body until he vomited and lost consciousness.

When Aurora Fire Rescue paramedics arrived, they diagnosed McClain with excited delirium — a syndrome characterized by increasing excitement and wild, agitated, and violent behavior — and gave him 500 milligrams of the sedative ketamine. When he was put in the ambulance, he was not breathing and did not have a pulse. He did not regain consciousness.

The report refers to the ketamine dosage as based on a "grossly inaccurate" overestimation of McClain's size — estimated at 190 pounds, about 50 pounds more than his actual weight.

McClain was pronounced brain dead on Aug. 27 and taken off life support on Aug. 30.

The 17th Judicial District Attorney's Office decided in November 2019 that it did not have enough evidence to prosecute the officers.

Costello made clear in a presentation to Aurora's City Council on Monday night that evidence can't definitively establish whether the use of ketamine had a role in McClain's death.

But the report found paramedics from Aurora Fire Rescue did not examine or question McClain before they made the decision to inject him with ketamine, and there was not a clear transition of care or command authority from the police officers to paramedics.

But she said the incident has implications for future patients and use of medications for which doses are based on weight, because paramedics in the field don't have the opportunity to weigh patients.

The report recommended exploring education and training for paramedics on making estimations of patients' weight.

During Tuesday's news conference, Costello said her particular expertise in emergency medicine doesn't put her in a position to question the autopsy report's finding of McClain's death as undetermined. But she said it is evident that there were significant changes in McClain's state between when officers applied the second carotid hold on him and when paramedics injected ketamine, such as vomiting and change in the sound of his breathing.

"My attempt was to bring to light that there is a lot of question in this case as to whether or not the ketamine played a role, and I think the pathologist's conclusion in that way was correct because based on what we have, we just don't know," Costello said.

Members of McClain's family have sued Aurora in federal court for his death. A magistrate has allowed that investigation to continue amid the grand jury investigation.

Court rejects request to pause McClain family's civil suit against Aurora, employees

Grand jury investigation opened into Elijah McClain's death