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Investigation Report and Recommendations INVESTIGATION REPORT AND RECOMMENDATIONS CITY OF AURORA, COLORADO Pursuant to a City Council Resolution Approved July 20, 2020 February 22, 2021 MEMBERS OF THE INDEPENDENT REVIEW PANEL Jonathan Smith Dr. Melissa Costello Roberto Villaseñor TABLE OF CONTENTS Page I. REPORT SUMMARY.......................................................................................................1 The Decision to Stop Mr. McClain ......................................................................................2 The Decision to Frisk Mr. McClain .....................................................................................3 The Decision to Arrest Mr. McClain by Physically Restraining and Moving Him ............3 The Decision to Apply Force in Response to the Threat or Perceived Threat that Mr. McClain Reached for an Officer’s Gun ............................................................4 The Application of a Second Carotid Hold when Mr. McClain Was on the Ground ..........5 The Continuous Use of Pain Compliance and the Contrast Between the Officers’ Assertions and Mr. McClain’s Audible Statement ..................................................5 Aurora Fire’s Delay in Treating Mr. McClain and Lack of a Transition Plan ....................6 Aurora Fire’s Diagnosis of Excited Delirium and Administration of Ketamine .................7 The Aurora Police Department’s After-Incident Investigations ..........................................7 Key Recommendations ........................................................................................................8 II. INVESTIGATION SCOPE AND METHODOLOGY .................................................10 A. Scope of the Investigation ......................................................................................10 B. Other Investigations and Litigation .......................................................................11 C. Mechanics of the Investigation ..............................................................................12 1. The Panel ...................................................................................................12 2. Audio, Video, and Documentary Evidence ...............................................13 3. Interviews ...................................................................................................14 D. Independence of the Investigation .........................................................................15 III. EVENTS LEADING TO THE INVESTIGATION ......................................................15 IV. INVESTIGATION FACTUAL FINDINGS ..................................................................17 A. Events of August 24, 2019 .....................................................................................18 1. 911 Call ......................................................................................................18 2. Dispatching Aurora Police in Response to 911 Call ..................................20 3. Officers Arrive on Scene and Make Contact with Mr. McClain ...............21 4. Officers Move Mr. McClain onto the Grass and Bring Him to the Ground .......................................................................................................28 i 5. Officers Twice Apply Carotid Control Holds to Mr. McClain in Rapid Succession .......................................................................................33 6. Officers Handcuff Mr. McClain ................................................................38 7. Officers Restrain a Handcuffed Mr. McClain and Await Aurora Fire .............................................................................................................41 8. Mr. McClain Tells Officers He Cannot Breathe ........................................46 9. Aurora Fire Arrives on Scene ....................................................................47 10. Aurora Fire Administers Ketamine ............................................................56 11. Mr. McClain is Transferred to a Gurney and the Ambulance ...................58 12. Mr. McClain is Transported to the Hospital ..............................................61 B. The Aurora Police Department’s Investigation of Mr. McClain’s Death ..............63 1. Investigation by Major Crime/Homicide Unit ...........................................63 2. Major Crime/Homicide Unit’s Findings ....................................................66 3. Review by the Aurora Police Department Force Review Board ...............68 C. Aurora Fire’s Review .............................................................................................70 V. OBSERVATIONS AND RECOMMENDATIONS ......................................................70 A. The Police Encounter with Mr. McClain Occurred Against the Broader Context of National and Local Attention to Police Reform ..................................70 B. The Aurora Police Department’s Encounter with Elijah McClain ........................73 1. Force Is Justified if It Is Objectively Reasonable ......................................73 2. Terry Stop and Initial Use of Force Against Mr. McClain ........................74 3. The Decision to Frisk Mr. McClain ...........................................................84 4. Force Used to Move Mr. McClain from the Sidewalk ..............................87 5. Force in Response to Assertion that Mr. McClain Reached for an Officer’s Gun .............................................................................................91 6. Use of Force Once Mr. McClain Was on the Ground ...............................93 7. Use of Pain Compliance Techniques to Restrain Mr. McClain .................97 8. Recommendations ......................................................................................99 9. Use of the Carotid Hold ...........................................................................105 C. Medical Events Following the Arrival of Aurora Fire .........................................106 1. Delays in Clear Transition of Care for Mr. McClain from Aurora Police to Aurora Fire ................................................................................107 2. Lack of Clear Communication and Possible Information Loss Between Aurora Police and Aurora Fire ..................................................108 ii 3. Delays in Assessment by EMTs ..............................................................110 4. Failure to Obtain Appropriate Equipment ...............................................114 5. Inaccurate Estimation of Mr. McClain’s Weight .....................................116 6. Cognitive Errors in Medical Decision Making ........................................117 7. Updates to Aurora Fire Protocols ............................................................122 8. Areas of Commendation ..........................................................................126 9. Additional Recommendations/Future Directions ....................................127 D. Conduct of After-Incident Investigation ..............................................................129 VI. AREAS OF CONCERN ................................................................................................134 A. The City Should Assess the Role of Implicit or Unconscious Bias in Policing ................................................................................................................134 1. Research on Implicit Bias ........................................................................135 2. Research on Implicit Bias in Policing and Provision of Medical Care ..........................................................................................................138 B. Crisis Intervention and Encounters with Persons Perceived to be in Crisis ........142 C. Independence and Separate Authority of Medical Personnel ..............................149 D. EMS Use of Ketamine .........................................................................................151 VII. CONCLUSION ..............................................................................................................152 iii I. REPORT SUMMARY At 10:43 P.M. on August 24, 2019, twenty-three-year-old Elijah McClain was approached by Aurora Police officers and told to stop while he was walking home in northwest Aurora. He was wearing a ski mask, a jacket, and long pants. A passerby had called 911 and reported a “suspicious” person who appeared to be walking and waving his arms, but reported seeing no weapons and not being in any fear of harm. Three Aurora Police officers responded. At 11:01 P.M., eighteen minutes after he was first told to stop, Mr. McClain was lifted, unconscious, onto a gurney and then transported to the hospital. He never recovered. Mr. McClain was not armed during the encounter, nor had any suspected crime been reported when Aurora Police officers stopped him that evening. In July 2020, the City Council of the City of Aurora (the “City Council” and the “City,” respectively) commissioned this independent investigation into the actions that occurred before, during and shortly after those eighteen minutes that led to Mr. McClain’s death. Our conclusions are contained in this Investigation Report and Recommendations (the “Report”). We examined the 911 call that set the events of that evening in motion, the police response, the ensuing struggle, the application of two “carotid control holds” to Mr. McClain’s neck, his struggle to breathe, and the decision to administer a dose of the sedative ketamine to him after he was handcuffed and on
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