Colorado Governor Jared Polis confirmed Thursday that he has instructed the state’s top prosecutor to open a new probe into the death of Elijah McClain, a 23-year-old Black man who died in police custody in Aurora last year. McClain’s case is one of several involving Black people dying at the hands of police that is finding renewed attention in the wake of George Floyd and Breonna Taylor‘s killings — deaths that have led to widespread protests and outrage.
Polis said he’s heard the outcry over the case and that public confidence in law enforcement is “incredibly important now more than ever.”
“Elijah McClain should be alive today, and we owe it to his family to take this step and elevate the pursuit of justice in his name to a statewide concern,” Polis said in a statement Thursday.
Polis also said he “signed an Executive Order designating Attorney General Phil Weiser to investigate and, if the facts support prosecution, criminally prosecute any individuals whose actions caused the death of Elijah McClain.”
Mari Newman, an attorney for the McClain family, says that the family is grateful for the attention the case is now getting, but notes that they were asking for justice months ago.
“Black men and women are killed by law enforcement in this country more often than any of us would like to ever admit and it shouldn’t require public outrage for people to get justice,” Newman tells TIME. “The family and I called for an independent investigation last fall and all we heard was crickets.”
Newman says McClain was “a joy for everybody who knew him” and that the family continues to carry horrifying grief.
On August 24th, 2019, McClain was walking home from a corner store while listening to music and wearing a ski mask. According to Newman, McClain was waving his hands and dancing as he walked.
He was stopped by three white officers after someone called police to report a “suspicious person,” according to a statement from the Aurora Police Department and body camera footage released by the department.
The caller told the 911 operator that he did not see McClain commit any crimes and that no one was in danger.
Officers arrived and approached McClain. In the body cam footage, officers are heard telling McClain stop. When one of the officers grabs McClain, he tells them to “let go of me” and “I am an introvert, please respect the boundaries that I am speaking.” The officer responds with “Relax, or I am going to have to change this situation.”
McClain then explains that he was trying to turn his music off so he could hear them. He is then brought to the ground by an officer.
After an officer put McClain in what the police report describes as a “carotid control hold,” a type of chokehold, McClain is heard struggling and says, “I can’t breathe. Please stop.” McClain then briefly loses consciousness.
Throughout the footage at the scene, officers are heard telling each other to take their cameras off. In one instance, as McClain was on the ground vomiting, an officer says “If you keep messing around, I’m going to bring my dog out,” adding that the dog will bite him.
“That’s utterly disgusting, that’s a lack of humanity. It’s devastating, sad to listen to,” Newman says.
When paramedics arrived at the scene, they gave McClain a ketamine shot to sedate him, according to police. On his way to the hospital, he had a heart attack and three days later he was declared brain dead. On August 30th, he was taken off life support.
The autopsy report did not list a cause of death, but according to Newman, the paramedics gave McClain an amount of ketamine that was for someone who would be 300 pounds. She says McClain was around 140 pounds.
“They shouldn’t have given any of it to him. He wasn’t out of control during the entire event,” Newman says.
The officers involved were placed on administrative leave while the police department did an internal investigation. In November 2019, District Attorney Dave Young declined to file charges against the officers, citing a lack of evidence. In a statement sent to TIME, Young calls the death “tragic and unnecessary,” but says that the evidence does not support charging the officers with homicide.
“The forensic evidence revealed that the cause of death was undetermined. Specifically, the pathologist who conducted the autopsy stated that he was unable to conclude that the actions of any law enforcement officer caused Mr. McClain’s death,” Young said. “While I may share the vast public opinion that Elijah McClain’s death could have been avoided, it is not my role to file criminal charges based on opinion, but rather, on the evidence revealed from the investigation and applicable Colorado law.”
The officers were reinstated after Young decided not to charge them.
In January of this year, Aurora City Manager Jim Twombly launched an external investigation after public pressure to determine if there were policies or practices within the police department and the fire department that needed to be changed in response to McClain’s death. However, the city recently removed the lead investigator after concerns about his ties to law enforcement.
On Wednesday, Twombly and Aurora Mayor Mike Coffman said they hired a new team of external investigators who “will thoroughly examine the actions of Aurora police, firefighters and paramedics in the Elijah McClain case.”
“It is imperative we quickly and urgently move forward with this investigation so we can provide answers to our community,” Coffman said in a statement sent to TIME.
Newman says incidents like this one are exactly why police departments need to be defunded.
“These are the kinds of issues that should be dealt with by community investment,” Newman says. “Police should never have approached Elijah McClain.”