JUSTICE FOR ELIJAH MCCLAIN: THE STORY SO FAR

JUSTICE FOR The story so far

ELIJAH MCCLAIN

by Keegan Williams

The summer of 2020 has been one for the books, engulfed in record-high temperatures and equally heated conversations around the ongoing coronavirus pandemic, political strife, and the election, riding the wave of continued nationwide, protests against police brutality and a resurgence in the Black Lives Matter movement.

Making a dent in the month of August, we steadily approached the one-year anniversary of Elijah McClain’s death, which happened right here in Colorado. Elijah was a 23-year-old, unarmed, Black man who was apprehended by Aurora police August 24, 2019 after a passerby noticed him wearing a mask (which he wore outside due to his anemia and to help him stay warm), flailing his arms, and listening to music. On the 911 call, the caller indicated he didn’t appear dangerous. When officers stopped him, Elijah told them, “I have a right to go where I am going.” An officer touched him; Elijah told him that he was going home and urged the officer to respect his boundaries. A struggle ensued, with Elijah thrown to the ground, an officer applying a “carotid control hold” around Elijah’s neck as he urged them to stop and that he was unarmed. To sedate him, medics injected Elijah with ketamine, too much for his body size. He suffered two heart attacks on the way to the hospital and was pronounced brain dead three days later. Elijah McClain died August 30 after being removed from life support, and none of the officers or medics at the scene have been charged. It wasn’t until November that police body camera footage was released, though it is difficult to indicate what protocol was followed by officers, as their body cameras all allegedly fell off during the arrest. An officer can be heard in the footage stating Elijah had done nothing illegal prior to the arrest, and Elijah repeatedly asks officers to stop, pleads that his house is nearby, that he has an ID and is unarmed. This is before he vomits, apologizes to the officers, and tells them he cannot breathe correctly. A camera is briefly picked up and pointed at Elijah, then dropped into the grass once more. Around the 15:34-mark, a police officer can be heard saying, “Leave your camera there” as another officer goes to retrieve it. The autopsy report was released the same month, which notes a combination of factors could have killed Elijah, that he had chronic asthma, and that his physical exertion likely contributed to his death, though indicated it was “unclear if the officers’ actions contributed as well.”

Following the release of the autopsy report, Mari Newman, the lawyer representing the McClain family, rebutes, “Whatever the report says, it’s clear that if the police had not attacked Elijah McClain, he would be alive today. They immediately went hands-on and tackled him. And, of course, the fact that all three of their body cameras fell off is something that we should all be pretty suspicious about. It makes it awfully easy for them to say whatever they want, but what we know is that they attacked him for no reason whatsoever.” Details around Elijah’s case caught nationwide attention this past June following the death of George Floyd, another unarmed, Black man, at the hands of Minneapolis police in late May. Following weeks of Black Lives Matter and police brutality protests in Denver and worldwide, Colorado had the momentum to pass the Law Enforcement Accountability and Integrity Act, which Rep. Leslie Herod had started working on in late-2019 after Elijah’s death. Among other police reform measures, the bill makes it a duty for officers to intervene if another sworn employee is inappropriately applying force, explicitly outlaws the carotid hold that was used against Elijah, creates a public database to prevent the rehiring of bad officers, and removes qualified immunity for prosecution of law enforcement found to have acted unlawfully. “Many people are saying they’re going to quit because it’s too much, which I’m fine with, because they’re obviously bad officers,” Herod says. “What we can’t do is bring their babies back.” Herod continues, “I could write a law tomorrow saying wearing green pants is illegal, but if you wore green pants on Tuesday, I can’t throw you in jail for that, you know? You didn’t actually break the law when you were doing it. Now, I don’t contend that these officers haven’t broken the law, but what I do know is that we’re operating under pre-217 [Law Enforcement Accountability and Integrity Act] language, which gives the officers a lot more flexibility and ability to murder, and I think that needs to be

said. Colorado has one of the highest numbers of excessive use-of-force cases in the country. Our laws are way too weak, and it’s time to change that.” Fresh off the heels of the Law Enforcement Accountability and Integrity Act’s passing, police in Colorado made headlines in early July for a different reason: three Aurora police officers were fired after photos resurfaced from October 2019 depicting officers at Elijah McClain’s memorial playfully recreating a chokehold. One of the three officers was fired for his response to the photo being shared, and a fourth officer resigned before punishment could be handed down. "While the allegations of this internal affairs case are not criminal, it is a crime against humanity and decency. To even think about doing such a thing is beyond comprehension. It shows a lack of morals, values, integrity, and judgment. I can no longer trust to allow them to wear this badge,” APD Chief Vanessa Wilson says at a July 3 news conference. The McClain family called it a ‘new low’ and issued a statement after the photos came to light. “This is a department where officers tackled an innocent, young, Black man for no reason, inflicted outrageous force—including two carotid chokeholds— for 15 minutes as he pled for his life, joked when he vomited, and threatened to sic a dog on him for not lying still enough as he was dying.” One of the three officers fired over the photos was Jason Rosenblatt, also one of the officers who restrained McClain before he died. He received the pictures and replied “ha ha,” according to Wilson. He wasn’t terminated for his role in McClain’s death but on July 3, after the pictures were investigated. On July 22, it was first reported that Rosenblatt filed a lawsuit against the City of Aurora and Chief Wilson, claiming that he was wrongfully denied his request to take his firing to the city’s Independent Review Board. On the July 3 conference, Wilson said it was within her right to deny the review board request and terminate the officers. This wasn’t the only time eyes were fixed steadily on Aurora Police and their response to the public outrage around Elijah’s death. A now-viral video depicts the familiar, cell-phonerecorded scene of peaceful protestors interrupted by a heavy, militarized police presence, namely a violin vigil (honoring Elijah as a violinist) on June 27 with a quick pan over to Aurora police entering, armed and marching, toward the crowd which begins to disperse as they descend into the park. APD Chief Wilson defended the tactics of the officers, some of whom resorted to using pepper spray and batons on protestors subject to a dispersal order adjacent to Aurora police headquarters. She says that police were targeting this small group of agitators when the officers cracked down on the protest, and the intent was to protect those attending the violin vigil. “We were attacked with rocks, and we had to defend our officers. My officers aren’t sacrificial lambs,” Wilson says during the following virtual city council meeting. She also says they were concerned that protestors would attempt to break into police headquarters to destroy case evidence.

Photo by Justine Johnson

Aurora Councilman Juan Marcano was at the violin vigil and said, “I don’t think any of us felt unsafe until the riot police showed up.” On July 23, Aurora community leaders and protestors from the June 27 demonstration filed a class-action lawsuit against APD and its interim chief, saying their response the demonstration was unconstitutional.

Aurora City Manager Jim Twombly had agreed upon an independent investigation of Elijah’s death, though the contract was ultimately terminated, as the investigator had a long career in law enforcement, and Aurora City Council deemed the investigation would be inherently biased. Working on a state level with a local case, Gov. Jared Polis has limited ability to assist directly, though he announced in early June he was appointing Colorado Attorney General Phil Weiser to investigate the case and file charges, should his investigation support prosecution. “All Coloradans should be safe walking home from the convenience store or just being in their own neighborhoods listening to headphones. Unfortunately, I know that is not how many people—especially young people of color—feel in our state today because I’ve heard it from them directly. We need to do a better job, and at a bare minimum, they deserve a thorough review of the case,” Polis says in a statement.

On July 20, Aurora City Council unanimously passed a resolution calling for a three-member team with expertise in law enforcement accountability, civil rights, EMT procedures, and use-of-force to carry forward an independent, unbiased investigation. The investigation will be led by Jonathan Smith of the Washington Lawyers Committee for Civil Rights and Urban Affairs, Washington D.C., a nonprofit law firm that addresses racial and economic inequality within criminal justice. It is a complementary investigation alongside Weiser’s investigation prompted by Polis, focusing more on policy and procedure over criminality. At time of publication, the other members of the team have not yet been decided on, though Aurora Communications Director Kim Stuart said the investigation will commence “relatively quickly” and will give the city a clear path on next steps to take on the case upon completion. Of course, recognizing progress is important, but as we inch into August, we approach a full year since his death without justice for Elijah McClain, and see still the tireless fighting around the country for so many other Black lives cut short at the hands of police with little or no accountability and actionable, systemic change. Take a drive down Broadway, squint a bit, and you’ll see the barely visible “Black Lives Matter” message painted across the pavement a couple months back. Denver joined dozens of American cities in donning murals that pay tribute to Black lives lost, some cities even changing street names to “Black Lives Matter,” though these acts leave many questioning what our leadership can do that’s actionable in this country for progress beyond these gestures that don’t enforce long-term change against systemic racism and police violence. The work must continue, though it doesn’t come without its trials.

On July 25, a peaceful demonstration to demand justice for Elijah McClain gradually moved to I-225, blocking off both directions, and the evening took a stark turn, as a blue-green Jeep plowed through the crowd around 7 p.m. Video of the incident shoes protestors quickly bolting to either side of the street to avoid being hit. Shots were fired by a protestor that injured two others, and a third protestor had to jump from a barrier to avoid being hit, sustaining injuries and falling at least 20 feet. The Jeep was taken into police custody, and APD is in contact with the driver and passenger. There is an ongoing investigation, though no arrests have been made.

The three organizers of the event, the Party for Socialism and Liberation - Denver, Frontline Party for Revolutionary Action, and Aurora Copwatch, released a statement the next day, criticizing Aurora police for their treatment of the driver and passenger of the Jeep versus that of Elijah. “We will continue to stand against the racist and violent Aurora Police Department which harasses and murders Black people with impunity, attacks protestors at will, and aids and abets white supremacist vigilantes that would like to kill those who protest their department. This fight is also a matter of life and death for our community.” It’s been quite the summer, and clearly, the fight is only just beginning. As Coloradans, there is a special pain in our proximity to Elijah and communities directly affected by his death. The country treads forward, foundationally built on systemic racism, genocide, and slavery that brings us to the year 2020, afflicted

by political turmoil during an election year, battling at once COVID-19 and the additional, ongoing pandemic killing so many Black Americans. Sometimes, the weight of our collective reality feels too heavy to bear, but as we buck up and continue the trek forward, how can we hone in our focus in the fight for Elijah and so many others? “I think the best thing to do is focus people’s efforts on who can make a difference. There’s not much the governor can do right now, not much I can do but use my voice too, but there’s a lot that the city council, the city attorney, and the mayor can do, and I think that’s where we really need to focus things—and the DA,” Herod says. While sharing on social media and keeping these conversations going is important, Herod adamantly says it’s important to keep using our voices and holding those in power accountable, but doing it in a strategic and intentional way that matches which leaders have pull in which places. “If we put pressure on the Mayor of Aurora, the DA, and the folks at city council, we can actually do justice by this family, but we can also use this as momentum to make sure that we’re doing justice by a lot of the families that have been impacted—it’s not just the one.” The McClain family has several demands to attain Justice for Elijah:

A truly independent investigation of his death which pertains to the Aurora city manager, mayor, city attorney, and city council

A criminal prosecution of the officers and paramedics involved which pertains to the Adams County District Attorney Dave Young Firing the officers involved in Elijah’s death which pertains to the Aurora chief of police Change in police practices and a civil remedy in the form of no less than a $35 million settlement, which Elijah’s mother, Sheneen, plans to use to start the McClain Foundation

“Democrat, Republican, doesn’t matter. We are not prosecuting these bad officers, and people need to start talking about how important the DA race is. Like, those are the kind of things that we need to be doing right now, and any platform that we have, we need to really have a longer conversation about what’s going on—that’s what we need to do,” Herod adds. To donate to the Elijah McClain Foundation through the GoFundMe started by Elijah’s mother Sheneen McClain: gofundme.com/f/elijah-mcclain To sign the petition to demand Justice for Elijah McClain: change.org/p/adams-county-district-attorney-justice-forelijah-mcclain-48a81830-f891-4b04-ba28-c2625b916b96 For more resources, visit the Justice for Elijah McClain LinkTree: linktr.ee/justiceforelijahmcclain This is an ongoing story. Keep with OUT FRONT for more updates.

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