A portrait of the late Elijah McClain. Killmer, Lane & Newman, LLP
Disgusting. Repulsive. Appalling. Sadistic. Torture. Cold-blooded murder.
These are just some of the terms used during an emotional press conference in front of the Aurora Municipal Center on Tuesday, October 1, to describe the August 24 death of Elijah McClain, an unarmed 23-year-old person of color, following a lethal encounter with the Aurora Police Department.
According to Mari Newman, an attorney with Denver-based Killmer, Lane & Newman, LLP, which is representing McClain's family (as well as that of nineteen-year-old De'Von Bailey, who was shot in the back and killed by Colorado Springs police officers on August 3), the prolonged abuse of McClain was captured by body-worn cameras — sort of. Newman reveals that the devices of all three officers who grappled with the young man supposedly came loose during their actions, with several capturing images of the ground rather than what was being done to him. However, the audio came through loud and clear, and among the phrases was one made famous by the late Eric Garner before he died at the hands of police: "I can't breathe!"
This footage has not yet been released, and in a post on the City of Aurora website, a release issued under the name of public-information officer Matthew Longshore outlined the department's rationale.
"We fully understand the need for transparency throughout this entire investigation and we can appreciate the seriousness of this matter," the announcement begins. "Last week, at the invitation of the Chief of Police, members of Mr. McClain’s family heard the 911 call and viewed body worn camera videos from this incident. We continue to offer our deepest condolences to Mr. McClain’s family and friends during this very difficult time."
From the beginning, Aurora Police Chief Nick Metz, who announced his retirement last week, "ordered an investigation at the level consistent with officer-involved shootings pursuant to Senate Bill 15-219 by having a multi-agency team comprised of members from the Denver Police Department, Aurora Police Department and the 17th Judicial District Attorney’s Office," the statement asserts. "That investigation continues."
The APD describes the incident like so: "On August 24, 2019 at 10:32 p.m. the Aurora Police Department received a 911 call where the called described a 'suspicious person.' The caller reported an adult male was walking on Billings Street near East Colfax Avenue, wearing a ski mask and flailing his arms at the caller. Officers arrived in the area and contacted a male still wearing a ski mask, later identified as Elijah McClain. The male began to resist the officer contact, a struggle then ensued, and he was taken into custody. Aurora Fire Rescue administered a standard medication to reduce Mr. McClain’s agitation. He was then transported to a local hospital where tragically he died days later."
LaWayne Mosley, far left, and Sheneen McClain, center, spoke on behalf of their son, Elijah McClain. / Michael Roberts
Longshore stresses that "the Adams County Coroner’s Office report is not yet completed and is a key component to providing much-needed information to this investigation. Once their report is finished, the Coroner’s Office will be the ones who release those results. It will be included in the case that is then presented to the 17th Judicial District Attorney’s Office for review. No further comment will be provided by the Aurora Police Department to protect the integrity of the investigation and review by the District Attorney’s office."
To put it mildly, the account offered at the press conference was far different.
After introducing McClain's parents, mother Sheneen McClain and father LaWayne Mosley, as well as members of the Greater Metro Denver Ministerial Alliance, to a gaggle of media members, Newman attempted to put "this horrible event" into context. She noted that the group had gathered "to stand up and mourn the killing of yet another unarmed black man. How many times do we need to stand up and do this thing? How many times? Now, we all like to think that if you just behave yourself, if you're a good person, if you don't misbehave, if you treat people with respect, you won't have this type of engagement with law enforcement. But what we know is, that's not true."
Elijah McClain "was a man who was never once arrested in his entire life," she continued. "He never had any engagement with law enforcement. He was a kind, loving person who made friends everywhere he went. He was a person who, immediately before this whole event, was in a convenience store making friends with strangers. You see the video from the surveillance in the convenience store with him joking around and making friends, because that's what he did, and that's who he was."
What happened, in Newman's view, was "an absolute atrocity. Aurora police came in response to a 911 call, and the 911 caller was clear on two extraordinarily important things — and these things should have changed the entire outcome of the event. Number one, Elijah McClain had no weapon, and that's what the 911 caller said. Number two, the 911 caller said he didn't think he was in danger and he didn't think anybody else was in danger."
So what prompted the call? McClain was "acting a little oddly, walking down the street listening to music and waving his arms a little bit in a ski mask. That's not a crime," Newman pointed out. "But these Aurora police officers immediately confronted Elijah. Now, they didn't get out of the car and say, 'Hey, man, what's up?' What they did is what Aurora police officers do time and time again. They saw a young person of color and they took that person of color and grabbed him immediately, hands on, aggressive, and slammed him against a wall."
Attorney Mari Newman spoke alongside Elijah McClain's family members and representatives of the Greater Metro Denver Ministerial Alliance, among others. / Michael Roberts
In response, she allowed, "Elijah, a peaceful person, said, 'Please respect my personal space.' That's what he said. But they didn't do that. They slammed him up against the wall, they tackled him to the ground, and they continued to terrorize and torture him for fifteen minutes. Now, fifteen minutes might not sound like a long time standing right here, but I can tell you, having watched the video of that fifteen minutes, that for the young man on the receiving end of that fifteen minutes, it was one heck of a long time. And what did they do during that fifteen minutes? They tortured him. And I don't use the word 'torture' lightly. I wouldn't say torture unless I mean it, and I do mean it."
Specifically, Newman maintained that officers twice put McClain in a "carotid chokehold" of the sort alleged in the Garner matter and two local cases: the March 2016 death of Sammy Pickel at LoDo's Bar & Grill in Westminster and the passing of Kroger executive Randall Wright at Shotgun Willie's in Glendale this past May. She stressed that the hold is "a tactic that has been outlawed in departments across Colorado and the U.S., yet the Aurora Police Department used the chokehold on Elijah not one time, but two times. And they used other forms of force against him, even while he was restrained, even after his hands were cuffed behind his back. Even as he was laying on the ground, fully restrained, they continued to use force against him — so much force that he was laying on the ground vomiting. And he was begging, saying, 'I can't breathe! I'm a peaceful person. I'm a vegetarian! I don't even kill flies!'"
While this was occurring, she alleged, "a lot of officers were standing around, but not one of them stopped the madness. Not one of them said, 'What is happening here? Why is this continuing?' Not one of them said, 'It's time for us to figure out what's going on here. This young man has not done anything to justify this.'"
To the contrary, Newman contended, one officer reacted to McClain's heaving by telling him, "'If you move again, I'm calling in a dog to bite you.' Now, this is a young man who was already handcuffed, fully restrained and on the ground, vomiting, and the Aurora Police Department response was to threaten to bring in a dog to bite him. Now, if that's not terrorizing somebody, I don't know what is. That was absolutely uncalled for. There's absolutely no legitimate law-enforcement justification to continue to use force against somebody who's fully restrained.... I'm appalled. It was disgusting."
Newman cited two other elements of the recordings. At one point, she said, an officer tried to hand a fallen camera to an officer roughing up McClain, and the latter replied, "Move your camera, dude." In her view, the exchange demonstrates that "he didn't want his actions caught on camera. He was trying to hide under the cloak of secrecy and hoping that people will simply believe an officer's word over a man who will never be able to testify, because they killed him."
Additionally, Newman said, the medication referenced in the Aurora statement was 500 milligrams of ketamine. "We have learned that the City of Aurora has used this ketamine protocol since the beginning of 2019," Newman said, "and so have other law-enforcement agencies in Colorado. I'm told it's been used seven times. But I'm also told that it's a very dangerous protocol because it's a drug that has very different reactions with different people, and if it's given in high dosages, as it was in this case, it can be extraordinarily dangerous."
The coroner has not yet determined whether McClain had a negative reaction to the ketamine — but Newman divulges that he went into cardiac arrest on the way to the hospital.
Sheneen McClain spoke about her late son's kindness. / Michael Roberts
McClain's parents spoke briefly during the press conference, and their appearances showed the disparate ways people deal with grief. LaWayne Mosley seemed to speak through clenched teeth. But the few words he delivered were powerful. He said someone needed to be held accountable for what had been done to his son.
For her part, Sheneen McClain exemplified the warmth and goodwill ascribed to Elijah, even under such sorrowful circumstances. She said he had been a massage therapist who was in the midst of figuring out "what he actually wanted to do with his life. He was a happy young man, he was always energetic. He would walk around on his hands outside. I'd say, 'Get off the ground,' and he'd say, 'But I'm having fun.' He was just one of those free, loving spirits that just wanted to enjoy life. He didn't like aggression. He didn't like arguments. Even when we would have disagreements, it was peaceful. He'd say, 'Well, Mom, maybe we should talk about this later.' It wasn't something he tried to force. He wanted everybody to be happy in their own skin, because he wanted to be happy in his own skin. It's sad that good people like that aren't valued in this society."
In contrast to Sheneen McClain's soft-spoken reflections, the Reverend Reginald Holmes of the Ministerial Alliance positively thundered as he laid out stipulations on behalf of the family and the faith community as a whole. "The officers must be treated as the criminals they are," he intoned. "We, the members of the Greater Metro Denver Ministerial Alliance, demand the immediate firing of these officers. Jobs are lost by citizens in this community for far less than murder. We cannot and do not expect anyone who commits cold-blooded murder in the workplace to continue working on the job. We are demanding not just compensatory justice, but we are calling for prosecutorial justice for the McClain family. Justice is what the family deserves."
Earlier on Tuesday, Holmes recalled, a jury found Dallas police officer Amber Guyger guilty of murder after she took the life of an upstairs neighbor, Botham Jean, after supposedly mistaking his apartment for her own. "If it can be done in Dallas, then it can be done in Aurora," he said.
Along these lines, Newman advocated for an independent investigation at either the state or federal level and encouraged Governor Jared Polis, who had asked for a similar inquiry in the Bailey police shooting, to reach out to the McClain family. She exhibited no confidence in a probe by the Denver Police Department, which she characterized as having many of the same problems she sees in Aurora.
Describing the video of Elijah's final moments rather than simply sharing it was clearly frustrating to Newman, who repeatedly declared that Aurora has no justification for
withholding the footage.
"When you go and watch the video with the people who did the killing, they want you to believe they did exactly what they're supposed to do," she acknowledged. "They act like there was some kind of struggle. But there was no struggle. This was a one-sided confrontation of a young man who weighed 125, 130 pounds. This was a skinny guy, and he was being attacked, physically and brutally attacked, by three armed officers, one of whom was at least twice his size, and the other two were significantly bigger, too. So we're talking about hundreds and hundreds of pounds of weight on this one little, unarmed guy who's begging and saying he can't breathe."
In Aurora, she concluded, "that's business as usual."