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Polis order again clarifies scope of state prosecutor's investigation into Elijah McClain's death

Order clarifies that criminal offenses can be investigated, officers can be prosecuted
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Posted at 7:10 PM, Dec 02, 2020
and last updated 2020-12-03 13:53:56-05

DENVER – Colorado Gov. Jared Polis issued another executive order Wednesday that again amends the scope of Attorney General Phil Weiser’s investigation into the actions surrounding Elijah McClain’s death after an amendment last month caused some people to think Weiser would not be able to prosecute law enforcement officers.

Under the original scope of the investigation, which was ordered in June, Weiser, who was appointed as state prosecutor, could investigate “any potential criminal activity by law enforcement officers or any other individuals that caused the death of Elijah McClain in Aurora Colorado in August 2019.

Polis’ Nov. 10 amended executive order changed the scope of the investigation to say Weiser could investigate “offenses arising from the August 24, 2019 encounter with Elijah McClain and/or his subsequent death, and, if deemed necessary, prosecute any persons for such offenses.”

Some took the change – including the removal of the words “law enforcement officers” – to mean that Weiser would no longer be able to criminally prosecute any potential criminal offenses he finds during his investigation.

The governor’s office said Wednesday that those interpretations were incorrect.

“While those changes broadened the scope of the Attorney General’s authority to prosecute wrongdoing, they were taken by some in the wrong way and were hurtful to others, which was far from the intent,” the governor’s office said in an email announcing the newly-amended investigation order.

The latest order designating Weiser as the state prosecutor in the case, Polis says Weiser has been directed to “take all necessary actions to investigate, on behalf of the State of Colorado, offenses, including criminal offenses, arising from the August 24, 2019 encounter with Elijah McClain and/or his subsequent deaths, and, if deemed necessary, prosecute any persons, including law enforcement or any other individual, for such offenses.” [emphasis added to notate changes]

“The intent is and always has been to allow the Attorney General to conduct a complete and impartial investigation of this matter,” said Jacki Cooper Melmed, the chief legal counsel to Gov. Polis, in a statement Wednesday evening.

Weiser’s investigation is one of five that are ongoing at the local, state and federal levels. Those include a top-down review of the Aurora Police Department by the state attorney general, an independent investigation by Chicago-based 21CP Solutions to conduct a comprehensive review of the police department, and a review in the Colorado U.S. Attorney’s Office alongside the Department of Justice’s Civil Rights Division.

McClain’s family has also filed a federal wrongful death lawsuit against the city of Aurora and the officers and paramedics involved in his August 2019 death, which the city and some of the other defendants moved on Monday to dismiss, arguing there is no underlying constitutional violation and the complaint fails to adequately allege facts to support municipal liability.