Juries convicted two paramedics and one police officer of criminally negligent homicide but acquitted two other cops.

Elijah McClain | Elijah McClain

On a Saturday night in August 2019, Elijah McClain, a 23-year-old massage therapist, was accosted by police officers while walking home from an Aurora, Colorado, convenience store where he had bought three cans of iced tea. The cops were responding to a “suspicious person” call. But McClain, who had committed no crime, did not understand why he was being detained, and his objections were met with swiftly escalating force, culminating in an injection of ketamine that left him unconscious. He never woke up.

That horrifying incident attracted national attention after George Floyd’s May 2020 death in the custody of Minneapolis police officers set off widespread protests against police brutality. There were notable parallels: In both cases, a black man complained that he could not breathe after he was tackled and pinned to the ground by white police officers. Both incidents featured police indifference to those complaints, a failure to render medical aid, the questionable use of “pain compliance” techniques, and the invocation of “excited delerium” as a justification for the use of force. And both resulted in criminal charges, which in McClain’s case have now been resolved by a mixture of verdicts that reflect a cascade of ultimately fatal mistakes.

Last Friday, a jury found Peter Cichuniec and Jeremy Cooper, the two paramedics who injected McClain with an overdose of ketamine, guilty of criminally negligent homicide, a felony punishable by one to three years in prison. Cichuniec, an Aurora Fire Rescue lieutenant who approved the injection, was also convicted of second-degree assault, a felony punishable by two to six years in prison. The paramedics’ trial was the third in connection with McClain’s death. In October, Aurora police officer Randy Roedema was convicted of criminally negligent homicide and third-degree assault, a misdemeanor punishable by up to 18 months in jail. Former Aurora police officer Jason Rosenblatt, who was tried together with Roedema, was acquitted of all charges. So was Nathan Woodyard, an officer who was tried separately in late October and early November.

After McClain’s death, local prosecutors declined to file charges. Criticism of that decision, which was amplified after Floyd was killed in similar circumstances, prompted Colorado Gov. Jared Polis to order a new investigation by Attorney General Phil Weiser. That probe led to a September 2021 indictment, which listed a total of 32 charges, including manslaughter, criminally negligent homicide, and assault. While the officers’ lawyers complained that the charges were the result of political pressure, the cursory nature of the first investigation suggests the real scandal was the initial determination that no charges were warranted.

When Woodyard approached McClain that night, he was responding to a 911 call from a teenager who thought McClain “look[ed] sketchy” because he was wearing a ski mask and making “all these kinds of signs” with his hands. The caller added that “he might be a good person or a bad person.” He said no one was in danger and he had not seen any weapons.

Woodyard ordered McClain to stop, but McClain was listening to music through earbuds and apparently did not hear the command. “Prosecutors said Woodyard grabbed McClain within eight seconds of getting out of his patrol car without introducing himself or explaining why he wanted to talk to McClain,” USA Today reported after the officer’s acquittal. “McClain, seemingly caught off guard, tried to keep walking. The encounter quickly escalated.”

At this point, an independent panel of investigators appointed by the Aurora City Council concluded in a February 2021 report, Woodyard did not have grounds to reasonably suspect that McClain was involved in criminal activity, which the Supreme Court has said the Fourth Amendment requires for an investigatory stop. McClain, who was holding his cellphone in one hand and a bag with the cans of iced tea in the other, “had no observable weapon and had not displayed violent or threatening behavior,” the panel noted. “No crime had been reported. The officers later said they stopped Mr. McClain because he was overdressed and wearing a mask, in an area one officer referred to as ‘high crime,’ and a caller had reported his unusual behavior.”

In addition to the ski mask, McClain was wearing sweat pants, a jacket, and a knit cap, which might have seemed strange on a summer night but is understandable in light of his anemia, a symptom of which is cold extremities. Aside from his clothing and the “unusual behavior” reported by the 911 caller, Woodyard had no reason to suspect that McClain was doing anything illegal. The decision to turn what could have been a consensual encounter into an investigatory stop “had ramifications for the rest of the encounter,” the panel’s report noted.

Woodyard was joined by Roedema and Rosenblatt, who were dispatched as backup for the “suspicious person” report. Woodyard decided to frisk McClain, a step that is legally justified only if police reasonably suspect the subject is armed. Yet the 911 caller had not reported any weapons (a point that was noted in the police dispatcher’s message), McClain was plainly holding nothing but his phone and the bag from the convenience store, and Woodyard himself later said he “felt safe making an approach” because McClain “didn’t have any weapons.”

McClain, whose walk home had been forcibly interrupted for no good reason, was understandably dismayed. He repeatedly asked the cops to leave him alone and let him continue on his way. “I have a right to walk to where I’m going,” he told Woodyard. “I have a right to stop you because you’re being suspicious,” Woodyard replied as he grabbed McClain’s arm.

Less than a minute into the encounter, the officers decided they should move McClain to a grassy area in case they needed to “take him down.” At this point, the independent panel noted, Woodyard’s unjustified investigatory stop became an arrest, which is constitutionally permissible only when police have probable cause to believe someone has committed a crime. That is a higher standard than reasonable suspicion, a test the cops had already failed to meet.

While the cops were trying, without any legal justification, to force McClain onto the grassy area, Roedema told Rosenblatt, “He grabbed your gun, dude.” According to Woodyard, that exclamation “changed the situation.” Once he heard Roedema’s warning, Woodyard said, he decided to “take [McClain] down to the ground as hard as I could.” While tackling McClain, Woodyard twice attempted a “carotid control hold,” which aims to induce unconsciousness by applying pressure on both sides of the neck to cut off blood flow to the brain. The second, more successful attempt happened when McClain was restrained on the ground.

After McClain came to, he repeatedly vomited. He was handcuffed and still wearing his ski mask at this point, and an autopsy found that he had aspirated some of the vomit. That, along with the downward pressure the officers were exerting, helps explain why he complained that he was having trouble breathing.

At his trial, Woodyard said he used the carotid control in self-defense. “I intend to take my power back,” McClain had said. Woodyard said that remark, combined with Roedema’s warning about Rosenblatt’s gun, made him fear for his life. But as the prosecutors noted, Rosenblatt later said he had not felt anyone touch his gun, and body camera footage showed no such movement by McClain.

McClain was five feet, seven inches tall and weighed about 140 pounds. Yet the officers claimed he exhibited “crazy,” “incredible,” “superhuman” strength, which they attributed to “excited delerium” caused by “whatever he’s on.” Toxicological tests found that marijuana was the only psychoactive substance that McClain had consumed. In any case, “excited delerium” is a scientifically dubious concept that is not recognized by the American Medical Association, the American Psychiatric Association, or the World Health Organization. The label serves mainly to justify what would otherwise seem like excessive force.

Forensic pathologist Roger A. Mitchell Jr., who testified during Roedema and Rosenblatt’s trial, made it clear that he does not view “excited delerium” as a valid diagnosis. But even if it were, he said, McClain’s behavior was not consistent with the way the condition is usually described. “He’s communicating with law enforcement,” Mitchell said. “He’s clear on what’s going on with him. He’s pleading his case.” Mitchell also noted that McClain’s exclamations showed he was responding to the pain inflicted by the officers. “If we believe this notion of excited delirium,” he said, “one of the things with excited delirium is that you’re impervious to pain.”

Cichuniec and Cooper, who arrived 11 minutes after Woodyard first approached McClain, nevertheless agreed with the cops’ diagnosis. According to the indictment, they reached that conclusion “after receiving some information from officers and observing Mr. McClain for about one minute.” Neither paramedic “ascertained Mr. McClain’s vital signs,” the indictment notes. “Nor did either of them talk to or physically touch Mr. McClain before diagnosing him with excited delirium.”

The appropriate treatment, they decided, was an injection of ketamine. No one at the scene questioned that decision. “Yep, sounds good,” Rosenblatt said when Cooper announced that he planned to inject McClain with ketamine. “Perfect, dude, perfect,” Roedema agreed.

Piling error upon error, Cooper administered 500 milligrams of ketamine. The correct dose for a 143-pound man would have been 325 milligrams, so McClain was given about 50 percent more than he should have received. Cooper never asked McClain his weight, instead guessing that it was about 200 pounds. Even if that estimate had been correct, the dosage still would have been about 50 milligrams too high.

At the paramedics’ trial, Colorado Public Radio reported, “Cooper and Cichuniec said they didn’t hear a police supervisor on the scene, Sgt. Dale Leonard, tell them a few details about what happened, including that McClain had received two carotid holds, which cut blood flow off to his brain, and that he had been vomiting repeatedly ever since.” That information was relevant because ketamine can suppress respiration, which is especially problematic for someone whose breathing is already compromised.

Prosecutors argued that the paramedics failed to properly monitor McClain. “After McClain was given a large dose of ketamine by paramedics,” Colorado Public Radio noted, “body worn camera footage shows that they didn’t immediately tend to him, check his airway or otherwise look at his vital signs.” Pulmonologist David Beuther testified that closer attention could have saved McClain’s life. If a patient is “a little too sleepy” and “starting to slip into deep sedation,” he said, you can reposition his head or use “a little plastic tube” to aid breathing.

By the time McClain was lifted onto a gurney, he was unconscious and snoring, which can indicate an overdose. In the ambulance, paramedics found that McClain had no pulse and was not breathing. They revived him with CPR and epinephrine, but he never regained consciousness.

The original autopsy report listed both the cause and manner of death as unknown. Stephen Cina, the pathologist who wrote the report, later revised it in light of information discovered by Weiser’s investigation. The amended report describes the cause of death as “complications of ketamine administration following forcible restraint” but still lists the manner of death as “undetermined.” Mitchell testified that he agreed with Cina about the cause of death but thought it was clear that the manner was homicide.

That characterization, which does not necessarily imply criminal liability, seems hard to deny, since it is clear that McClain would not have died if the cops and paramedics had left him alone. The question of how to allocate the legal responsibility for his death is more complicated, given all the things that went wrong that night. The cops argued that the paramedics were mainly to blame. “Elijah McClain would not have died but for the ketamine,” one of Roedema’s lawyers told the jury. Cooper and Cichuniec argued that the cops were mainly to blame, since they controlled the scene, provided the information on which the paramedics relied, and caused the vomiting that may have contributed to McClain’s death.

Why was Rosenblatt acquitted? He had less experience than the other officers, and his lawyer, Harvey Steinberg, argued that Rosenblatt was just following orders. Roedema, by contrast, was the senior officer on the scene, and his treatment of McClain was more aggressive than Rosenblatt’s.

The indictment notes that Roedema used a “bar hammer lock,” a “physical defensive tactic whereby a subject’s arm is held back behind their back to gain control of the subject.” Roedema “stated that he ‘cranked pretty hard’ on Mr. McClain’s shoulder and heard it pop three times.” Steinberg suggested that Rosenblatt was less violent and therefore less culpable: “Rosenblatt didn’t jerk his arm. It was Roedema. Rosenblatt didn’t have his knee in his back. It was Roedema.” It was also Roedema who claimed, probably inaccurately, that McClain was trying to grab Rosenblatt’s gun, which everyone agreed was a major factor in escalating the violence.

Woodyard’s acquittal is harder to understand. He set the tone for the whole encounter by initiating the use of force, and he not only used a carotid hold but did so twice, which was contrary to department policy. But Woodyard faced a different jury than Roedema did, and this one may have been more inclined to credit the claim that the cops were acting in self-defense.

Woodyard, who had been a police officer for about two years at the time, “tearfully told jurors he was weeping to his supervisor on the scene because he was fearful that he was going to die and needed to step away,” Colorado Public Radio reported. The officer’s lawyer, Andrew Ho, portrayed him as a bystander. “Nathan Woodyard entrusted Elijah McClain to the care and custody of his fellow officers and entrusted Elijah McClain to medically trained professionals,” Ho said. “Nathan Woodyard did not kill Elijah. He’s not responsible for what other people did or did not do.”

Was anyone responsible? “Just because there’s a tragedy does not mean there’s criminality,” one of Roedema’s lawyers said during closing arguments. But prosecutor Duane Lyons emphasized that the officers had not followed their training. “They were told what to do,” he said. “It didn’t have to be this way…They were given instructions, they had opportunities, and they failed to choose to de-escalate violence when they needed to.” He also faulted them for failing to check on McClain’s breathing. “This is not just a tragedy,” he said. “This is a crime.”

The post Who Killed Elijah McClain? Mixed Verdicts Reflect a Cascade of Ultimately Fatal Mistakes. appeared first on Reason.com.

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