@ Cynthia Adina Kirkwood
Colorado Cops Indicted; U.S. Policing Act Awaits OK
Updated: Sep 11, 2021
Elijah McClain was walking home when he was stopped by police, who face charges in his death.
Three police officers and two paramedics face criminal indictment in the death of a black man after a Colorado grand jury reached a different conclusion than earlier investigations, answering pleas for justice from thousands during protests, city council meetings and community forums, reported the Denver Post (September 1).
In the meantime, the George Floyd Justice in Policing Act awaits approval from the Senate, which it needs to become law. As approved by the House of Representatives in March, this bold act -- the first of its kind -- would ban chokeholds and no-knock search warrants. It also would tie federal funding for local and state law enforcement to officials banning those practices. Additionally, it would make it easier to prosecute police and create a national database of police misconduct, according to CNBC (May 24).
Senator Cory Booker (Democrat-New Jersey), one of the bill’s architects and negotiators, said last year at “the back-end, the bill fixes our federal laws so law enforcement officers are held accountable for egregious misconduct and police abuses are better tracked and reported. And on the front-end, the bill improves police practices and training to prevent these injustices from happening in the first place.”
Elijah McClain, a 23-year-old massage therapist, was stopped by police on August 24, 2019, in the City of Aurora, near Denver, when he was walking home alone from a store. He was put into a chokehold and injected with ketamine, reported BBC News (September 1).
The City of Aurora’s probe did not find any evidence to justify officers stopping him after an emergency 911 caller reported a man wearing a ski mask and waving his hands who seemed “sketchy”. His family said McClain wore the mask because he had anemia that caused him to get cold easily, according to The Associated Press (September 1).
“It’s been a two-year battle just to get to this point,” McClain’s mother, Sheneen McClain, told the Denver Post. “It’s huge to know they’re indicted. But I know it’s not over. We still have to go to trial.”
A grand jury charged all five officials with manslaughter and criminally negligent homicide, while some face additional charges, said Attorney General Phil Weiser to The Associated Press.
The Aurora Police Protective Association, a police union, said in a statement that the three officers did nothing wrong and that there is no evidence the officers caused McClain’s death, reported the Denver Post.
The Associated Press related the incident step by step:
Police body camera footage shows an officer getting out of his car, approaching McClain on the sidewalk and saying, “Stop right there. Stop. Stop. . . . I have a right to stop you because you’re being suspicious.”
In the video, the officer puts his hand on McClain’s shoulder, turns him around and says, “Stop tensing up.” As McClain verbally protests, the officer says, “Relax, or I’m going to have to change the situation.” As the other officers join in to restrain McClain, he asks them to let go and says, “You guys started to arrest me, and I was stopping my music to listen.”
At this point, all the police body cameras come off as the officers move McClain to the grass. However, there is audio of the police and McClain. An officer says that McClain grabbed one of his guns. McClain tries to explain himself amidst sobbing. He says that he cannot breathe and was just on his way home.
“I’m just different. I’m just different, that’s all,” says McClain, who was autistic. “That’s all I was doing. I’m so sorry. I have no gun. I don’t do that stuff. I don’t do any fighting. Why were you attacking me? I don’t do guns. I don’t even kill flies. I don’t eat meat. . . . I am a vegetarian.”
Eventually, an officer retrieves his camera, which shows McClain handcuffed, laying on his side and, periodically, vomiting as another officer leans on him. An officer, who arrives later, threatens to get his police dog to bite McClain.
Paramedics arrived and injected the 63.5-kilogram (140-pound) man with 500 milligrams of ketamine, which is more than 1.5 times the dose for his weight. Ketamine is a medication used for maintaining anesthesia.
The fire department is allowed to use the drug to sedate combative or aggressive people. However, there is a lack of training in its use, conflicting medical standards and nonexistent protocols that have resulted in hospitalizations and, even, deaths, when used during police encounters.
Within five minutes, he stopped breathing, according to a federal lawsuit from McClain’s family. He died six days later after being declared brain dead and taken off life support.
The Denver Post reported that warrants for all five men were issued on September 1. All five turned themselves into the Glendale Police Department, where they were booked and released on a $10,000 bond.
The two officers and two paramedics, who still work for the City of Aurora, were suspended without pay, pending the outcome of the criminal charges, Aurora City Manager Jim Twombly said in a statement.
One officer had been fired in July 2020 after it was discovered that he had responded “ha ha” in a text to a photograph of smiling colleagues reenacting a chokehold at the spot where McClain had been detained.
McClain’s death has had a lasting impact.
This year, a Colorado law restricting ketamine use by paramedics was passed. Last year, the state legislature passed a police reform bill that banned chokeholds, required body cameras, and changed departments’ response to alleged misconduct and victims’ redress of wrongful police violence.
Passage of the George Floyd Justice in Policing Act would make similar measures applicable to all 50 states.
One of the most controversial measures is the scrapping, for local and state police, of a type of protection for U.S. government employees called “qualified immunity”, which shields officers from civil lawsuits, according to CNBC.
The Conversation, an independent media network, examined the legal construct’s history:
“Qualified immunity stems from the Civil Rights Act of 1871, which allowed an officer to be sued for official acts only if the officer knew, or should have known, that the action would violate a person’s constitutional rights, or if the officer intended to deprive someone of their constitutional rights. This liability depended on the officer’s state of mind, which is notoriously hard to prove in court.
“In 1967, the U.S. Supreme Court changed that focus. The change came about in a ruling that an officer could not be sued for false arrest in the arrest of a person who was later found not to be guilty of a crime. The court did not look at the officer’s state of mind. Instead, the court compared the officer’s actions with those that would be taken by a reasonable public official in the same circumstances. If the officer’s actions were reasonable, then immunity was granted.
“Over time, this immunity has been expanded by the courts. It now extends to cover other misdeeds, such as infringement of a suspect’s civil rights during the exercise of a police officer’s authority, whether those misdeeds were intentional or not.
“The current standard, created by the Supreme Court in 1982, protects officers from being sued in civil court unless their actions are objectively ruled a violation of the law.
“An aggrieved citizen with a civil rights complaint can no longer argue that an officer’s conduct was motivated by wrongful intent, malice or even prejudice. What matters is not what the officer did but how it compares with what a reasonable officer might have done.”
So, today, police officers’ qualified immunity borders on absolute immunity as very few civil claims make it past the officers’ legal shield.
“Over many decades and, with increasing intensity in recent years, news reports and citizen complaints have identified police officers harming civilians, particularly Black Americans, seemingly with impunity. Officers know the law will shield them from personal liability, and they also know that it is rare for officers to face criminal charges – much less be convicted.”
According to CNBC, Tim Scott of South Carolina, the only Black Republican senator and the first Black southern senator in 132 years, and Senate Minority Leader Mitch McConnell have argued that removing the liability shield would undermine public safety and make recruitment difficult.
Scott has floated the prospect of making departments, rather than individual police, liable in civil cases.
Proponents of the George Floyd Justice in Policing Act say that the bill does not go far enough, as qualified immunity still would apply to federal law enforcement personnel, such as customs and border protection officials, the Drug Enforcement Agency and the Federal Bureau of Investigation.
“With support from President Joe Biden, the bill is likely to be the focus of pressure for it to progress in the coming days and weeks, and is certain to become law if it does pass in the Senate,” reported Sky News (April 21).
Qualified immunity is a federal law construct. However, some states already are moving to do away with this protection of police officers, according to The Conversation.
In June 2020, Colorado did so following the police murder of George Floyd, a black man, in May 2020, and the resulting protests.
In August 2020, Connecticut took a similar step. In March 2021, the New York City Council did the same for its police department. In April 2020, New Mexico joined the others.