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Aurora police violate laws, use excessive force and racially biased practices, according to state report

Colorado Department of Law seeks consent decree with city, independent monitor
aurora police officers swat gear elijah mcclain
Posted at 11:41 AM, Sep 15, 2021
and last updated 2021-09-16 08:14:15-04

DENVER – The Aurora Police Department uses excessive force and racially biased police practices and violates state and federal laws as part of its patterns and practices, according to a 14-month investigation by the Colorado Department of Law whose results were released on Wednesday by Colorado Attorney General Phil Weiser.

The Department of Law is recommending the city enter into a consent decree to change its policies, training, record keeping and hiring practices and will require the city to pay an independent monitor to update its progress to courts and the public on how it is implementing changes. Weiser said at a news conference if the city does not cooperate, his office will seek a court order to implement the consent decree.

The Department of Law and city of Aurora will have 60 days to come to an agreement on the consent decree.

“This is going to involve a back and forth, not just with the city, but with experts and with community member,” Weiser said Wednesday regarding the next steps in the process. “We recognize the significance in this document. So, we haven't done this by ourselves, the law calls for it to be a collaborative process and that's the way we're developing.”

Click here to read the full report.

Weiser said Aurora police showed a “consistent pattern of illegal behavior” at “many levels of the department.” According to his office, the department “does not create and oversee appropriate expectations for responsible behavior, which leads to the use of excessive force and the violation of the civil rights of its residents.”

Colorado AG Weiser on findings of investigation into Aurora police, fire

“We want Aurora to succeed in these improvements and strongly believe that an agreement provides the best way to do so,” Weiser said in a statement. “Over the coming weeks, we look forward to working with Aurora and other stakeholders to create a consent decree that ensures these requirements are implemented promptly.”

The report found police officers used force against people of color 2 ½ times more often than white people based on population and that almost half of people who had forced used against them by officers were Black, even though only 15% of Aurora residents are Black.

It also found people of color were arrested 1.3 times more often than white people based on population, and Black people were more than twice as likely to be arrested as white people.

Weiser said that APD officers have regularly applied greater force than is reasonably warranted in situations, including taking people to the ground without giving them time to respond to officers and telling people to stop resisting when they were not in fact resisting officers.

He said Aurora officers had a “misplaced understanding” of de-escalation and focused more on calming down officers after using force rather than avoiding unnecessary escalation in the first place.

“We observed officers immediately escalating situations and circumstances in which the subject was in obvious mental health distress but did not present a risk to themselves or others,” Weiser said.

“These actions are unacceptable,” the attorney general said. “They hurt the people that law enforcement is entrusted to protect, and they destroyed community trust.”

How Senate Bill 217 factored into investigation

Weiser announced in August 2020 that his office had been conducting the patterns and practices investigation into Aurora’s police and fire departments and instances in which officers might have deprived people of their constitutional rights.

The investigation was made possible after lawmakers passed, and Gov. Jared Polis, signed SB20-217, the sweeping police reform bill that was authored in the wake of the deaths of George Floyd and Elijah McClain. The investigation was the first state patterns and practices probe, Weiser said.

“The pattern or practice authority, as it’s known, is a tool the federal government has had for some time, but Colorado became a national leader by providing our department with the ability to engage in such investigations on a state level,” Weiser said Wednesday.

Rep. Leslie Herod, Mari Newman discuss results of Aurora patterns and practices report

Rep. Leslie Herod, D-Denver, was one of the prime sponsors of the law and said Wednesday the patterns and practices investigation portion of the law “is doing exactly what it’s supposed to be doing.” She said it was the first of its kind in the nation and has “affirmed what citizens of Aurora and many other folks already knew – that the Aurora Police Department has operated in a way that is racist and is particularly racist against Black people.”

She said that the culture within the city of Aurora public safety departments “is dangerous for all citizens” and called for the city to work with the police department and with Colorado “to make immediate changes and rectify the past,” adding that she hoped people who have been victimized by Aurora officers in the past feel vindicated by the report.

“Racial discrimination in the community is real and the state will support and protect against that moving forward,” Herod said.

Mari Newman, who represents Lawayne Mosley, McClain’s father, reiterated that the law did what it was intended to do and said she was not surprised by what the report uncovered. She has sued the Aurora Police Department over excessive force and civil rights violations in the past.

“We hope this is just the beginning of what this law can do,” she said. “We hope other departments won’t wait for an investigation but will step back and say, ‘How do we change our practices?’ This can serve as a model across the country.”

Report finds racial bias within police department, misuse of ketamine

The report released Monday said Aurora has also not updated practices it is required to update under that law, including documenting police interactions with members of the public.

It also finds that the Aurora Civil Service Commission, which has been heavily criticized in recent reporting by Denver7 Investigates because it hires officers without input from the police department itself, “overturns disciplinary actions in high-profile cases in a way that undermines the chief’s authority,” according to the attorney general’s office.

“Some of these changes are directly related to practices that violate the law,” Weiser said. “Other changes focus on culture, leadership and structural reforms that address and will prevent illegal conduct.”

The report found just 1.1% of Black applicants to the APD were offered a job compared to 4.2% of white applicants – which the attorney general’s office called “racial winnowing” that “can be observed at every step of the process, suggesting bias in Aurora’s recruitment and hiring process.”

McClain died after he was detained by Aurora police on Aug. 24, 2019. The 23-year-old unarmed Black man was put in a carotid hold and paramedics injected him with ketamine after incorrectly estimating his weight.

He went into cardiac arrest before dying a few days later.

The results of the investigation released Wednesday found Aurora Fire paramedics administered ketamine 22 times for so-called “excited delirium” between January 2019 and June 2020, but that they failed to follow proper monitoring protocols and administered it at levels above the maximum dose in more than half those incidents.

Aurora has suspended the use of ketamine and does not plan on reinstating its use, officials have said.

Reaction from Aurora officials

In statements issued Wednesday afternoon, Aurora City Manager Jim Twombly, Police Chief Vanessa Wilson and Fire Chief Fernando Gray said they appreciated the work from the attorney general’s office and would be reviewing the report and considering the parameters of the consent decree.

Click here to read their full statements.

“I am still digesting the details of the Attorney General’s report, and it is painful to hear. It would be premature for me to comment on any specific findings at this time; however, the findings appear to align with the findings and recommendations presented from independent reviews the city commissioned more than a year ago, prior to the Attorney General’s review, and presented over the past several months – from Jonathan Smith and his team, 21CP Solutions and the Community Police Task Force,” Twombly said, in part. “Each recommendation and finding is valuable in helping us strengthen the ‘New Way’ of policing – and serving our community – that we are already implementing.

“In the coming weeks, we will work with the Attorney General’s Office to determine how to implement necessary and sustainable changes. The final consent decree will serve as another resource in our path forward,” Wilson said. “Today is incredibly difficult for not only the Aurora community but this agency. We acknowledge there are changes to be made. We will not broad brush this agency or discount the professionalism and integrity that individual officers bring to our community every day.”

“Aurora Fire Rescue committed to fully cooperating with the Attorney General’s Office during their review. This included providing access to our individual firefighters, crews and any and all EMS report data that was requested,” Gray said. “The primary issue identified by the Attorney General for our department was related to the use of ketamine. Although this medication was removed from our system more than a year ago and we have no plans to reintroduce this medication into our system, we find value in the report.”

Aurora Mayor Mike Coffman, like other city officials, pointed to the reforms already underway within the police and fire departments.

“Today the Attorney General released the findings of his team's investigation into Aurora Police and Fire. Most of the findings are not new and our Chiefs of Police and Fire Rescue have been working hard for over a year to address many of them,” Coffman said in a statement posted to Facebook. “I'm confident that the issues raised in the Attorney General's report, along with the other outside investigations commissioned by our city, will be corrected and that we will achieve an outcome that respects the rights of everyone who lives and works in our diverse community.”

Aurora City Councilman Juan Marcano said he believes the Aurora community is “done with performative changes.”

“This is the moment, with our community’s involvement, to really reimagine public safety. And again, it goes beyond policing in Aurora,” he said. “And if we fail to act then I expect them to hold us accountable at this coming election and the next one until they actually get the council and the city they deserve.”

McClain’s death led to the passage of HB21-1251 ("Appropriate Use Of Chemical Restraints On A Person") by Colorado lawmakers, which severely restricts when and how ketamine and other chemical restraints can be used by paramedics ahead of bringing a person to a hospital.

"I can't understate the impact of Elijah McClain's death has had on Colorado and Coloradans," Herod said Wednesday. "Had it not been for his murder and the fight of his mother, I don't think we would necessarily be here in the same place today."

She said the protests in Colorado that led to the investigations into McClain's death spurred what has come in the year-plus since.

"It's important to say to the protesters that what you suffered is real, is unjust, and should not happen in Aurora, Colorado or in this country," she said. "Your sacrifice was not in vain and has led us here today. for everyone who stood up for Elijah and other survivors, we're making changes."

The attorney general’s office had said little about the patterns and practices investigation since it was announced on the same day that McClain’s family filed a federal civil rights lawsuit against the city of Aurora and the officers and paramedics involved in the 23-year-old’s death in August 2019. That lawsuit is still pending, according to court records.

The attorney general’s office said investigators with the Department of Law talked with current and former officers and AFD members and went on more than 200 hours of ridealongs. Investigators also attended meetings and reviewed use-of-force reports, according to Weiser’s office.

Weiser said the city of Aurora and the chiefs of its police and fire departments “cooperated fully” with the investigation and gave investigators “complete access” to the agencies.

Sheneen McClain says she's hopeful change will continue in son's legacy

On Sept. 1, Weiser announced a grand jury had returned a 32-count indictment against the three officers and two paramedics involved in McClain’s death, including manslaughter and criminal negligent homicide charges. Sheneen McClain said she was overwhelmed and cried when she learned about the indictment and thanked Weiser and his team.

Sheneen McClain said in an interview Wednesday she was disappointed it took the murder of her son to highlight the problems in Aurora.

“I feel hurt. The police never should have been allowed to get away with the murder of my son for two years,” she said. “…I feel like there’s so much wrong in Aurora, Colorado, they don’t even know how to help themselves.”

She said she is hopeful that no more people will have to die at the hands of police and “that there’s going to be a lot of change in Colorado for Elijah’s legacy.”

McClain says she believes ketamine should be banned for use by paramedics, something Rep. Joe Neguse, D-Colo., is working on in Washington. “It shouldn’t be in the hands of anyone outside of the hospital,” she said.

McClain added that she believes the city needs to enter the consent decree and follow recommendations from the state that are made.

“I really believe that they need to follow the pattern and practice, and they shouldn’t come up against it at all,” she said. “They should do everything they can to make sure that nobody else loses their life because of racially motivated incidents like this. And I believe Mike Coffman needs to reach out or stop saying my son’s name. … I grew up here; I was born here; and I’m really disappointed in all the laws that have been allowing inhumane humans to run amok in our streets.”

"Phil Weiser confirmed what the rest of us in the civil rights community know — that Aurora has had a longstanding practice of police violence and bias police," said McClain's attorney, Qusair Mohamedbhai.

What's led to results of investigation

The patterns and practices investigation is one of at least five at the local, state and federal levels conducted in the wake of McClain’s death either into that incident or into Aurora public service departments.

A team of independent investigators in February released the results of their review of the investigation following McClain’s death, which they found was “flawed” and “failed to meaningfully develop a fulsome record”

The investigators were tasked not with assessing misconduct during the investigation but rather to report back on recommendations that could be learned from it.

Earlier this month, another independent investigation that analyzed the policies and practices within the police department, which was conducted by 21CP Solutions, who was tapped by the city, found a small share of officers were responsible for 40% of officer misconduct cases and that there was too much red tape for discipline of officers to be effective.

In June 2020, the U.S. Attorney’s Office for the District of Colorado, the U.S. Department of Justice’s Civil rights Division, and the Federal Bureau of Investigation’s Denver Division confirmed they were looking at the McClain case for possible civil rights violations that may have occurred. No results of that investigation have been announced thus far.

“This report we're issuing is interdisciplinary in the finest sense, bringing together professionals from different backgrounds including law enforcement, prosecutors, former Deputy Assistant Attorney General at the United States Department of Justice to Civil Rights Division, a former United States Attorney who also worked as a trial attorney in the US DOJ Civil Rights Division, and many more,” Weiser said at Wednesday’s news conference.

“This project, in short, exemplifies one of our department's core values, which is to be better together, bringing people together to work on important issues. On behalf of the people of Colorado, I'm proud of how well this team worked together in a creative and collaborative fashion, both across our department, and with outside experts.”

More reaction to report

Herod said she believed the report and subsequent action on the consent decree "will result in change for Colorado."

"These findings demonstrate the need for those policy changes," she said, "but there is still so much work left to do to keep our communities safe in Colorado."

The Aurora legislative delegation — Sens. Rhonda Fields and Janet Buckner, and Reps. Dominique Jackson, Naquetta Ricks, Iman Jodeh, Mike Weissman and Dafna Michaelson Jenet — issued a joint statement Wednesday lauding the report and the law passed last year.

“Today’s report is a glaring picture of how the Aurora Police Department operates, and gives us a full understanding of the gaps that must be filled in order to protect vulnerable families from racist, violent and inhumane practices within the Department,” they said. “…We will no longer tolerate bad actors going unchecked and this report, though disturbing, serves as a path toward dismantling systemic racism and bias within an institution that has lost the trust of our communities.”

“Today’s findings laid bare what many in our community know too well: that people of color are often treated differently by law enforcement and subject to abuse. I commend the Colorado Attorney General’s office for conducting a thorough investigation,” said Rep. Jason Crow, the Democrat who represents the district that includes Aurora. “…It’s now time for the City of Aurora and law enforcement leaders to engage with the Attorney General and start the process of correcting the issues identified in this investigation.”

Ian Farrell, with the University of Denver Sturm College of Law, said some of the items contained in the report surprised him.

“I wasn’t surprised by the racial disparity. I was disappointed, obviously, about that case, but that’s not a surprise, I think, for two reasons. One, we’ve seen enough news about the Aurora Police Department to suspect that that was the case. And two, quite frankly, I would expect just about every police department in the country, if they looked at them this way, they would find that they have racial disparities. It is very much ingrained in the system.”

“The thing that surprised me was some of the details about police training. For example, they didn’t have a written policy, or they don’t have a written policy on when it’s legal to stop someone. That’s about as basic as it gets for a police officer being able to do their job because if they stop someone illegally, everything else that comes after that is also a problem,” Farrell added. “They didn’t seem to understand what the word escalation means. The report says that they thought escalation means calming down, the officer calming down after they’ve used force, as opposed to de-escalating the tension of the situation before they use force.”

Denver7's Jennifer Kovaleski and Jon Ewing contributed to this report.