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Aurora officials say they will pursue independent monitor in wake of McClain report

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Posted at 2:58 PM, Feb 23, 2021
and last updated 2021-02-23 16:58:34-05

DENVER – Aurora’s city manager said Tuesday that he would be pursuing the establishment of an independent monitor to oversee transparency and accountability within the police department in the wake of the independent investigation into Elijah McClain’s death and subsequent report.

Aurora City Manager Jim Twombly, Police Chief Vanessa Wilson, and Aurora Fire Rescue Chief Fernando Gray held a news conference Tuesday morning to discuss the city’s next steps in considering the recommendations suggested by the independent investigators and their thoughts on the report.

Aurora officials say they will pursue independent monitor in wake of Elijah McClain report

Twombly said the investigation “resulted in a report that’s extremely thorough, clear, well-documented and well-written” and called the report “very disturbing.” He suggested that despite the steps the city and police department have taken over the past year, including a ban on carotid holds and no-knock warrants, an independent monitor would be the best solution moving forward to increase oversight over the department and regain the trust of residents.

“I believe Chief Wilson has made great strides in holding officers accountable and putting into effect policies and training to improve the department. However, a system of accountability should not be dependent on who sits in the chief’s chair,” Twombly said. “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. I believe an independent monitor can help us achieve that.”

Twombly said the report identified what was at the root of the case involving McClain’s death: “The failure of a system of accountability,” he said. He acknowledged the report’s findings that training of Major Crimes detectives, Internal Affairs, and use-of-force techniques and objectives were lacking.

He said an independent monitor would help the city achieve the community’s goal of having respectful, unbiased policing.

Chief Wilson off the bat acknowledged the grief felt by McClain’s family and the broader community and echoed what family and advocates said Monday.“The bottom line is Elijah McClain should still be here today,” she said. “Nothing I can say here today, or changes that I’ve made, or changes that I will continue to make, will bring him back. And for that, I’m extremely sorry.”

Wilson pledged that the department would continue to make changes recommended by the report released Monday as well as in reports expected from another independent investigation of the police department, and from outside investigations by the state and federal government.

Wilson said she agreed with Twombly’s pursuit of an independent monitor, saying she believes “that is the only way we will regain the trust of the community.”

While the officials did not give specifics as to exactly what an independent monitor for Aurora would do and said the position would be developed in future discussions, Denver’s Office of the Independent Monitor is generally tasked with overseeing the police and sheriff department’s actions, providing reports, making policy recommendations and working with the community to improve oversight of the departments.

Wilson said among the changes within the department already made was standing up a force investigation task force in November that is tasked with looking deeper into how and why officers used force in specific situations. She said that task force would work with the independent monitor once that office is established, as well as with the community police task force that is expected to make recommendations to city council in coming weeks.

As to other changes Wilson and Gray said they expected to implement based on recommendations from the independent team, Gray said he and Wilson would be partnering to be sure their respective departments have clear policies on when officers and paramedics transition to caring for a patient.

Wilson said she planned on working with the 17th and 18th Judicial District Attorney’s Offices to discuss how to move forward with the next critical incident investigation – whether the department lets another department investigate or has the district attorney’s offices themselves investigation.

“We have to sit down, roll up our sleeves, and be sure we’re doing everything possible to re-instIll the public’s trust,” she said.

Gray said he believed the city’s moratorium on the use of ketamine by paramedics would remain in place at least for the next 30 days and that the city’s council’s public safety committee would be working with the department on the next steps.

And Gray added that his department is continuing to review all patient care reports when restraints or sedation was used and said that there were new protocols already in place for how paramedics determine a person’s weight if that person or a family member cannot tell them. He said that several members on the scene would be required to give estimations to try to determine a person’s weight.

Wilson declined multiple times to discuss further possible penalties for the two officers who have not been disciplined for their encounter with McClain, saying that the state grand jury investigation and other investigations ongoing at the city, state, and federal levels barred her from discussing the case or the specific officers.

A spokesperson for the city said it remained undetermined when the city council will be able to ask questions of the independent investigators, as Monday night’s presentation ran into the regularly scheduled council meeting before they could ask questions.

But both Gray and Twombly said they felt the information they learned from the report, which was commissioned by the city council, made it well worth the cost.

“I definitely believe it was worth the cost to the city. As anybody who has reviewed the report can see, it’s extremely thorough, very well thought out,” Twombly said. “And I thought the team did an excellent job. We got an excellent team that we put together, and so, very much worth all the money that we put into it.”

Independent investigators released their review of the investigation following McClain's death on Monday morning. In it, the three investigators, who were commissioned by Aurora City Council in July, called the investigation "flawed," noting it "failed to meaningfully develop a fulsome record" of the circumstances around the 23-year-old's death.

The team further explained their findings before Aurora City Council later in the day Monday.

In both the report and the presentation, the independent panel explained their findings and recommendations. They explained some of their controversial findings, including how the Aurora police investigative team asked the involved officers leading questions — something the panel said amounted to eliciting “specific exonerating 'magic language' found in court rulings.”

The panel also found that neither the 911 caller nor the responding officers ever identified a crime occurring, but grabbed McClain almost immediately after leaving the police vehicle. The officers did not re-evaluate the threat that McClain allegedly posed and "continued to use force justified by circumstances that had since been addressed," the investigators wrote in their report. They also noted that the speed at which they acted to arrest McClain — without having any basis that he was suspected of committing a crime — "suggest a potential training or supervision weakness."

READ MORE: 'They can't keep hiding': Elijah McClain's parents say new report exonerates him, exposes Aurora

McClain died on Aug. 30, 2019, six days after this encounter with police and paramedics. He'd been walking home from a convenience store when a person called 911 to report him looking suspicious because he had a mask on. After McClain was accosted by officers, he was accused of resisting arrest and put in a carotid hold, then eventually administered a heavy dose of the sedative ketamine by paramedics. He went on to suffer a heart attack and died six days later.

An autopsy revealed that paramedics had given him 500 milligrams of ketamine, which is the maximum dose for the drug and intended for somebody who was about 190 pounds. McClain weighed about 140 pounds. Aurora Fire paramedics decided to sedate McClain with the ketamine "without conducting anything more than brief visual observation,” even though he hadn't moved or made any sounds for about one minute and didn't appear to be resisting, according to the report. The independent investigators did not receive the requested documents from Aurora Fire due to state law.

The panel also found discrepancies between what was caught on the body camera footage and the involved officers' interviews after the incident.

Statements from officers at the scene suggested McClain was "violent" and there was a "relentless struggle." Officers also described McClain's “superior strength.” But the audio and limited video from the body camera footage captured McClain crying out in pain, apologizing, explaining himself, pleading with officers, and vomiting. As officers waited for Aurora Fire to arrive, McClain continued moving, but the independent panel said they couldn't tell if he was trying to escape, throw up, or get into a position where he could breathe easier.

“His words were apologetic and confused, not angry or threatening," the report read. "He became increasingly plaintive and desperate as he struggled to breathe."

The panel released several recommendations to the city, its paramedics, and its police department.

This included:

  • Review policy, training, and supervision regarding use of force and arrest practices
  • More specific explanation in its policy about how de-escalation is required in every encounter when possible
  • Improve accountability systems, including a more effective review by the Major Crime Unit and mandatory review by Internal Affairs
  • Clarify and strengthen the transition of an individual from suspect to a patient when EMS is called
  • The city should conduct a review of culture within Aurora Fire to ensure it prioritizes the safety of subject consistent with the safety of officers and medical personnel
  • Review of Aurora Fire’s protocols, policies, and training related to patient sedation
  • Overhaul of the after-incident review process, including
    • Assess the training and supervision of Major Crime Unit detectives in connection to the investigation of potential criminal misconduct by police officers
    • Consider the important role of Internal Affairs in reviewing all officer-involved deaths
    • Reform the Force Review Board process to foster more critical and objective analysis of uses of force

It notes the changes Aurora police put in place last summer in the midst of the investigation into McClain's death, including the banning of carotid holds, but says "the extent to which those reforms can heal community trust still remains to be seen."

McClain's mother and father both said in interviews Monday that the report exonerated their son and exposed the city of Aurora for what they said they already believed was true about their son’s death.

"It made me cry," Sheneen McClain said. "I just burst out in tears, because it felt like such a relief to hear those words that exonerate my son. It meant they couldn't hide anymore from the truth. Everybody's eyes are on him right now, all around the world, and everything that they did to cover up their tracks is appalling. It's shameful for Colorado."

The 17th Judicial District Attorney’s Office said in a letter in November 2019 that they were not going to pursue charges against the officers or EMS personnel involved in McClain’s death. Earlier this month, the Aurora Civil Service Commission upheld the firings of three officers, including one who was involved in the initial encounter with McClain, who was involved in a scandal surrounding a photo they took and texted around to one another of officers mocking the carotid hold at the scene of McClain’s death. Another officer in the photo scandal resigned before he could be fired.

Multiple other investigations are underway at the state, local and federal levels.

This story was first published by Blair Miller and Stephanie Butzer at KMGH.