The parents of Elijah McClain on Aug. 11 sued the City of Aurora and members of its police and fire departments for civil rights violations and the wrongful death of their son, who died a year ago after being forcefully restrained by police and injected with the sedative ketamine by paramedics.
The lawsuit alleges a use of excessive force in violation of McClain’s Fourth Amendment rights, equal protection violations and other 14th Amendment violations as well as wrongful death and negligence claims under state law. McClain’s parents are requesting declaratory and injunctive relief as well as economic losses and damages.
“We are seeking justice for Elijah McClain and, to be clear, it was a brutal and extended torture of an entirely innocent, peaceful young man,” said Killmer Lane & Newman partner Mari Newman, who is representing McClain’s family.
“But we’re also seeking to hold accountable a city that has been engaging in the same kind of unconstitutional conduct for decades and simply will not change its behavior,” she said. “And so now it will be up to a jury to determine what is it going to take to finally send a message to the city of Aurora and to other police departments across the nation that enough is enough.”
The lawsuit alleges racial bias was a motivating factor in law enforcement’s unconstitutional treatment of McClain, who was Black, and the city’s practice and policies of condoning and covering up excessive force and racially biased policing were the “moving force behind” and “proximate cause of” the violations against McClain.
“Aurora has a longstanding, widespread, and deliberately indifferent custom, habit, practice, and/or policy of condoning and ratifying use of excessive force, particularly against Black people,” states the complaint.
Newman and her colleagues spent months researching and drafting the 106-page complaint, which contains statistics and examples of the Aurora Police Department’s use of force against people of color. From 2013 to 2019, Aurora ranked eighth out of the 100 largest U.S. cities for police killings per capita, the lawsuit says, and the APD killed Black people at four times the rate it killed white people. The complaint also cites more than two dozen other examples of APD officers using excessive force against people of color over the past two decades.
“Even though Black people make up only 16% of the Aurora community, 47% of the uses of force are against Black people,” Newman said. “And that’s not because they’re in any way deserved. It’s because of the persistent racism of the police.”
On Aug. 24, 2019, police stopped 23-year-old McClain blocks from his Aurora home while he was walking home from a convenience store. A passing motorist had reported McClain for “unusual behavior” because he was wearing a face mask — a regular habit as he got cold easily — and was making arm motions.
Although McClain was not suspected of any crime, officers seized him and put him in a carotid hold, a type of chokehold the complaint refers to as a “notoriously dangerous technique.”
McClain was then tackled to the ground and, the complaint says, was close to passing out, if not fully unconscious. He was pinned down by officers twice his size and handcuffed, the lawsuit says, while he vomited and struggled to breathe.
After Aurora Fire Rescue personnel arrived at the scene, AFR paramedics “intentionally and recklessly reported false observations” to claim McClain suffered from excited delirium, according to the lawsuit, and AFR medic Jeremy Cooper injected him with 500 mg of ketamine — a dose far greater than recommended for a 140-pound man like McClain — to sedate him.
McClain suffered cardiac arrest while being transported from the scene and was pronounced brain dead and taken off life support days later. An autopsy released in November by the coroner’s office for Adams and Broomfield counties declared McClain’s cause of death “undetermined.”
But in the complaint, attorneys for the McClain family blame the “dangerous overdose of ketamine” combined with metabolic acidosis — in McClain’s case, a buildup of lactic acid in the blood — resulting from the APD’s use of excessive force.
“Elijah committed no crime, yet, like many interactions between Black people and the City of Aurora, his ended in tragedy,” states the lawsuit. “In a span of eighteen minutes, Defendants subjected Elijah to a procession of needless and brutal force techniques and unnecessary, recklessly administered medication, the combined effects of which he could not survive.”
The City of Aurora and APD declined to comment on the lawsuit.
The June killing of George Floyd by Minneapolis police has put the spotlight on McClain’s death, and the international attention has prompted the Colorado Department of Public Health and the Environment to reopen an investigation into AFR’s use of ketamine on McClain.
Also on Aug. 11, Colorado Attorney General Phil Weiser announced his office had opened an investigation into the APD to determine whether its “patterns and practices” might deprive people of their constitutional rights.
In June, Gov. Jared Polis issued an executive order appointing Weiser as special prosecutor to investigate McClain’s death and potentially file criminal charges against those responsible.
Although Newman said she has “no faith [the city’s investigations] will lead anywhere productive,” she welcomed Weiser’s investigations and said criminal prosecution “absolutely needs to happen.”
“While we can do what we can in the federal civil rights case,” Newman said, “it’s up to the State Attorney General to criminally charge and ensure that these officers are convicted, because they need to be held to the same standard as anybody else.”
—Jessica Folker