The report also questions police officers ‘statements about McClain’s “superior strength”, criticizes the emergency responders’ hasty decision to inject him with the sedative ketamine and warns the police department for not seriously questioning police officers later.
“At the time of the injection (of ketamine), Mr. McClain did not move or make a sound for about a minute,” says the report. “In addition, EMS administered a ketamine dosage based on a grossly inaccurate and inflated estimate of Mr. McClain’s size.”
Her mother’s lawyers, Sheneen McClain, released a statement on Monday praising the investigative report and criticizing the police department’s “fraudulent investigation”.
“Aurora is responsible for Elijah’s tragic death due to the illegal and unscrupulous actions of her employees,” said the lawyers.
“Elijah believed in humanity and that humanity was important,” said Sheneen McClain in the statement. “Inhuman humans are a problem and we must stop unfair laws.”
“This report confirms what we have said since the beginning,” McClain’s father, LaWayne Mosley, said in a statement. “The Aurora police and the doctors who murdered my son must be held responsible.”
Sheneen McClain cried when the report was released, she told CNN’s Omar Jimenez on Monday.
“It was overwhelming to know that my son was innocent all the time and just wait for the facts and evidence of that,” said McClain. “My son’s name is clear now, he is no longer labeled a suspect. He is actually a victim.”
She admitted, through tears, that she had watched the footage of the body’s camera several times because she never managed to say goodbye.
“I looked at everything that happened to him because it is my responsibility,” she said. “Even in death, he is still my son. His name, his legacy. Everything that matters.”
The police declined to comment further on the report. CNN contacted Aurora Fire Rescue for comment.
Aurora city council financed the report in an attempt to obtain an independent, third-party review of McClain’s case. The investigation was conducted by a panel formed by Jonathan Smith, executive director of the Washington Lawyer’s Committee on Civil Rights and Urban Affairs; Roberto Villaseñor, the former Tucson Police Chief; and Dr. Melissa Costello, a physician in emergency medicine and medical director of EMS based in Mobile, Alabama.
In investigating the case, the panel relied on the 911 call, images from the policeman’s camera, reports and narratives of the incident and medical records. The panel also relied on seven videotaped interviews with police and first responders at the scene, conducted by a detective from the Aurora Police Serious Crimes / Homicide Unit. However, these seven witnesses refused to be interviewed by the panel.
The investigation team is due to present its findings to the Aurora city council on Monday afternoon. The city manager, the police and fire chiefs and members of the investigation team plan to hold a virtual press conference on Tuesday morning.
What happened that night
The investigative report released on Monday noted that a police officer must have a “reasonable” suspicion of criminal activity to make a stop. The decision to detain McClain, however, “did not appear to be supported” by any reasonable suspicion by any officer that McClain was involved in criminal activities.
The three policemen then decided to search McClain for weapons, which is legally permitted only when there is a belief that security is in danger, the report says. The panel was unable to identify sufficient evidence that he was armed and was dangerous to warrant a search.
“The Panel also notes that an official’s explanation that Aurora officers are trained to ‘act before it increases’ does not meet the constitutional requirement of reasonable suspicion …” says the report.
The police still held his arms and tried to move him physically to the grass, which again can only be done legally if there is a probable cause for a crime to occur, the report said.
In the footage from the policeman’s camera, McClain tells the officers, “I’m an introvert, please respect the limits I’m talking about.”
“Relax,” says an officer at one point, “or I’m going to have to change that.”
Before an officer throws him down, McClain is heard telling police that he was trying to stop the music so he could hear them.
At one point, a policeman says to another, “He just took his gun, man.” A police officer tells McClain that he “will bring my dog and he will bite you” if McClain continues to “play”. The video shows an officer fighting McClain to the ground.
While on the ground, an officer tried to apply a carotid retention, which restricts blood flow to the brain, for McClain for an indefinite period of time, the report said. Retention is not clearly captured in the footage.
“The record, therefore, does not provide evidence of the officers’ perception of a threat that would justify (the officer) carotid retention, which caused Mr. McClain to partially or totally lose consciousness,” writes the panel.
The report also notes the sharp contrast between police comments about McClain’s strength and the audio and video of the incident.
“Statements by police officers at the scene and in subsequent recorded interviews suggest a violent and relentless struggle,” says the report. “The limited video and audio from the cameras used on the body reveal Mr. McClain surrounded by police officers, all of them bigger than him, screaming in pain, apologizing, explaining himself and begging the police.”
The Aurora Fire lieutenant advised paramedics to consume a dose of ketamine based on an estimate that McClain weighed about 190 pounds, the report said. He actually weighed 60 pounds.
McClain was taken to a hospital, but suffered a heart attack on the way and was declared brain dead three days later, the letter said.
‘Significant weaknesses’ in police responsibility
Finally, the report criticized the police investigation of those present. The investigator’s interviews failed to ask basic critical questions about the justification for the use of force, and the incident was never referred to the Internal Affairs investigators.
“The Aurora Police Department’s Major Crime / Homicide Unit investigation into Mr. McClain’s death raised serious concerns for the Panel and revealed significant weaknesses in the Department’s accountability systems,” the report states.
The autopsy conducted by the county coroner did not determine the cause of death, but noted that “intense physical effort and a narrow left coronary artery” were contributing factors.
The autopsy report looked at McClain’s history of asthma and carotid containment, although the autopsy did not determine whether it contributed to McClain’s death. The concentration of ketamine in his system was at a “therapeutic level,” the report said.
The McClain family lawyer, Mari Newman, called the autopsy “very strange”. She said it “ignores the most obvious factor, which is that a perfectly healthy young man comes home from the pharmacy with a bottle of iced tea in a bag and ends up dead.”
CNN’s Dakin Andone, Artemis Moshtaghian and Leslie Perrot contributed to this report.