An attorney for the family of Elijah McClain, a 23-year-old Black man who died last August after he was placed in a chokehold by police in Aurora, Colorado and injected with ketamine by paramedics, confirms that they will file a federal civil rights lawsuit to seek justice for his death.
“The Aurora officers and medics who murdered Elijah McClain are a danger to the community. We will be filing a federal civil rights case,” says Mari Newman, a lawyer for the McClain family. “It is up to the Colorado Attorney General to file criminal charges against those who stood idly by and failed to intervene to save him.”
Therapists who use ketamine for mental health treatments have also spoken out against the forced sedation of McClain with ketamine, which they say is an act of police brutality.
After months of protests, investigations of McClain’s death by city, state, and federal officials are moving forward after the local district attorney declined to file criminal charges against the officers involved.
Adams County District Attorney David Young told the Denver Post that the evidence in the McClain case did not support filing criminal charges against the officers. Young wrote in his report on the incident, that the pathologist who conducted the autopsy was unable to conclude that actions by the officers caused McClain’s death.
According to Young’s report, police approached McClain after receiving a 911 call describing “a suspicious black male wearing a ski mask,” who was “acting weird” by “waving his arms around.”
Aurora Police Officer Nathan Woodyard said in his police report, cited by Young, that he approached McClain and told him to stop for questioning. McClain, who was returning home from a convenience store, continued walking and said, “I have a right to go where I am going.” Woodard replied, “I have a right to stop you because you are being suspicious.”
In his report Young argued that the officers were justified in detaining McClain and may legally stop a person who they “reasonably suspect is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions.”
All the officers involved in the McClain case are white. The Aurora police have a history of racial profiling. According to the Colorado American Civil Liberties Union, the Aurora Police Department has been repeatedly sued for violating the rights of people of color.
In 2018, the City of Aurora paid $75,000 to two Black men who sued the city after they said they were mistreated by Aurora police based on their race. Both men, who were involved in separate incidents, were represented by the ACLU.
“These settlements add to a multi-year trend of taxpayers footing the bill, in case after case, as Aurora police officers are repeatedly sued for violating the constitutional rights of people of color,” Mark Silverstein, ACLU’s legal director in Colorado told the Denver Post in 2018. “How many lawsuits will it take? The Aurora Police Department needs to do some serious self-examination regarding how its officers respond to persons of color, and the city must establish an independent system of accountability.”
Young’s report on the McClain case states that Woodyard and another officer, Jason Rosenblatt, felt they had enough reasonable suspicion to each grab one of McClain’s arms and search him for weapons. As officers prepared to move McClain to the side of the road, one of the officers tells the others, “He just grabbed your gun, dude.”
The bodycam video does not show McClain reaching for the gun, but after the officer makes the claim, all the officers immediately become more aggressive.
Officer Woodard placed McClain in what Young’s report refers to as a “carotid control hold,” a control tactic in which an officer places his arm around the subject’s neck and restricts the flow of blood to the brain via the carotid arteries.
In a minute by minute breakdown of the incident by NBC News, officers Woodyard, Rosenblatt, and another officer, Randy Roedema, are seen responding to McClain’s alleged move towards the gun by forcibly restraining him.
“I can’t breathe, please stop,” McClain says as the officer holds him in a chokehold. On the body cam video released by the Aurora Police Department, McClain tells officers he is an introvert and asks, “Why are you attacking me?” McClain repeatedly tells officers that he is “different,” that he “doesn’t have a gun” because he “doesn’t do that stuff.”
According to Young’s report, McClain briefly went unconscious and when officers released the chokehold, they say he resisted their attempts to put him in handcuffs.
Officers summoned paramedics who injected McClain with 500 milligrams of ketamine to sedate him. On the way to the hospital in an ambulance, McClain went into cardiac arrest and was resuscitated. It was August 24, 2019. Three days later on August 27, McClain was declared brain dead, removed from life support, and died.
Since the incident, inconsistencies in police testimony, the wave of Black Lives Matters protests, and questions about the use of ketamine to sedate people during police encounters have pushed McClain’s death into the spotlight.
Three investigations into McClain’s death are presently in motion. One was approved by the Aurora City Council. Another was initiated by Colorado Governor Jared Polis, who appointed Colorado Attorney General Phil Weiser as a special prosecutor. The FBI is also investigating.
Others speaking out against McClain’s death say his treatment by law enforcement and emergency medical personnel fit into the history of state-supported chemical experimentation on Black bodies.
One specific concern is that psychedelics already bear a stigma for many Black people. Mental health and medical professionals fear that the use of ketamine by police and paramedics as a form of control could make this perception worse.
Questions About McClain’s Death
The death of McClain after being stopped by police and the subsequent testimony of the officers involved, have left a pile of inconsistencies and questions about police policies for the investigations to sift.
Police stopped McClain after a 911caller reported a young man in a ski mask looking “sketchy,” but did not report seeing a weapon and did not suspect that McClain was committing a crime.
After deciding that McClain was not complying with their request to stop and be searched, officers grabbed him and pushed him against a wall. McClain appears to have panicked and began flailing. After an officer yelled that McClain had reached for one of the officer’s guns, officers pinned McClain to the ground and held him in a chokehold. But the officer whose gun McClain supposedly reached for says 46 minutes into the police body cam video, “I don’t remember feeling it.”
After McClain told officers he couldn’t breathe more cops arrived. Fourteen minutes into a different posting of the police body cam video, an officer threatens to sic a dog on him. “You keep messin’ around I’m going to get my dog out here and he’s going to dog bite you,” says the officer. Later, another cop offered a body cam that had fallen off back to the officer who lost it, but he refused to take it.
Paramedics injected McClain with 500 milligrams of ketamine, which is used by doctors as a medical anesthetic and as a sedative by paramedics.
Dr. Ebony Jade Hilton, an anesthesiologist at the University of Virginia told CBSN Denver that the dose McClain received is twice what she uses for medical sedation. “In this instance, I don’t see the necessity of using a potent agent at that high of a dose,” says Hilton.
Officers can be heard saying on the body cam video that McClain “was crazy strong” and “must be on something.” McClain weighed 140 pounds, and was not found to be on any drugs except cannabis. His mother says he was a shy introvert who played violin for animals at a shelter.
After McClain’s death, none of the officers involved faced criminal charges. But on October 20, three Aurora police officers, who were not involved in the incident, posed near a memorial for the young man, laughing and re-enacting the chokehold that police used against McClain. They texted the photo to Rosenblatt, one of the officers who stopped McClain, who texted back, “ha ha.”
The three Aurora Police officers who texted mocking selfies near McClain’s memorial, Erica Marrero, Kyle Dittrich and Jaron Jones, were all fired. Rosenblatt was also fired. Then Interim Chief of the Aurora Police Department, Vanessa Wilson, who dismissed the officers, apologized to McClain’s family at a news conference. “While the allegations of this internal affairs case are not criminal, it is a crime against humanity and decency,” said Wilson.
The Aurora Police Association, which represents the department’s officers, said in a statement that, “This investigation is a rush to judgement.”
ABC News reports that Wilson was voted in by the Aurora City Council as permanent Police Chief on August 3. This took place just hours after she apologized for another incident in which Aurora Police, investigating what they believed was a stolen car, made four Black girls ages 6-17 lie face down on the ground. At least two of the girls were handcuffed before police later discovered that they had targeted the wrong car.
Jonathan Smith, executive director for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, has been appointed by the Aurora City Council to lead a three-person team to conduct what the city’s resolution calls “a review of relevant policies, procedures and practices including, without limitation, those related to calls for service, police contact with individuals, use of force, calls for medical assistance, ketamine use, and administrative incident reviews.”
“When an incident like this happens, the community is in a lot of pain,” says Smith. “I don’t want to pre-judge, we have to see all the info, but it’s important for the city to move forward.”
Smith has worked for decades on police accountability, most notably as Chief of the Special Litigation Section of the Civil Rights Division at the Department of Justice. He oversaw the investigation of the Ferguson, Missouri Police after the killing of Michael Brown. Smith was selected by the Aurora City Council after former police detective, attorney Eric Daigle, was removed from the position by Aurora City Council members.
Aurora Councilwoman Allison Hiltz cited Daigle’s own website as showing bias toward the police. It read that his law firm defends, “municipalities, police chiefs, and individual officers from law enforcement liability claims.”
“I’ve seen police departments around the country,” Smith said, “I can bring something to the table.” He points out the Aurora investigation is looking at policy violations, and what best practices can be put in place. The FBI and Colorado Attorney General have the authority to prosecute the officers and are working together on the investigation. “In my experience,” says Smith, “they will be co-operating.”
The FBI and the Colorado Attorney General issued a joint statement on their investigations. “The FBI – Denver Division and the U.S. Attorney’s Office for the District of Colorado began reviewing the facts for a potential federal civil rights investigation in 2019,” reads the statement. “In addition, the Department of Justice’s Civil Rights Division has been notified and has been involved in this review. The matter is ongoing, and we are in the process of gathering additional evidence from the Aurora Police Department and other parties.”
Ketamine on Trial
“This case is yet another horrific example of racism, police brutality, and the abuse of power,” says Dr. Raquel Bennett founder of the KRIYA Institute, a ketamine research organization. “Mr. McClain was detained for no apparent reason and for no apparent crime, except for being Black.”
Bennett, who also organizes KRIYA conferences for therapists who use ketamine in their treatments, says the context in which ketamine was used to sedate McClain is counter to accepted protocol.
“The use of a ketamine dart (ketamine injection for sedation) by emergency personnel is a useful tool when the subject is acutely at risk for injuring themselves or emergency responders,” says Bennett. “Clearly these criteria do not apply to Mr. McClain, so the use of ketamine in that situation was unwarranted and unjustifiable. He was already in handcuffs at the time that the ketamine was administered.”
Bennett is a prominent voice in the ketamine therapy community. She is joined by a group of fellow mental health and medical professionals who say they are outraged by McClain’s “unwarranted physical detainment” by police and forced injection with ketamine by paramedics. The group has issued A Professional Statement on the Use of Ketamine in Law Enforcement to state their concerns.
The statement acknowledges that ketamine is a relatively safe drug approved by the FDA for surgical anesthesia and in lower doses, for sedation during medical procedures in emergency rooms. It notes that ketamine is also used in even lower doses for the treatment of depression and anxiety. Synthesized in 1962, ketamine has been used for a wide range of medical practices, from a battlefield anesthetic to use as a sedative by emergency medical services.
But the signers of the statement point out that since McClain only weighed 64 kg, the 500mg of ketamine that he received was 50% higher than the Aurora EMS Agitated/Combative Patient Protocol for “Excited Delirium Syndrome.” They condemn McClain’s death and “this unnecessary use of ketamine as a chemical restraint against the will of the patient.” They also observe that McClain did not display signs of “Excited Delirium Syndrome” cited as justification for sedation with ketamine.
The statement on the use of ketamine also reaffirms that chemical restraints should “always be used as a choice of last resort, used by trained medical personnel, without undue influence from law enforcement, when the risk of injury or death from the agitated behavior clearly outweighs the inherent risk of the chemical restraint.” The authors add that, “Chemical restraint is a practice with a history of inconsistent and racist application.”
Among the signers of the statement are psychiatric nurse and professor Andrew Penn, psychiatric pharmacist and professor Kelan Thomas, psychologist Jessica Katzman, and Nautilus Sanctuary President Alexander Belser.
“It set off alarms in the community,” says Dr. Carl Spitzer, an emergency physician with thirty years of professional experience who also signed the statement. Spitzer currently specializes in ketamine enhanced psychotherapy. “We use ketamine in a healing context – for many it’s even considered sacramental – and to see it perverted into a form of racial control is tremendously distressing.”
Spitzer’s views reflect growing concern about the use of ketamine by first responders. According to a recent report by KUNC, more than a hundred agencies in Colorado are approved by the state to use ketamine on people who show signs of “excited delirium.” The KUNC investigation found that Colorado paramedics and EMTs used ketamine 902 times in the last two and half years – and 180 times in the first half of this year.
According to KUNC, emergency doctors from around the US signed a letter last month defending the use of ketamine to rapidly sedate people in law enforcement incidents like the one involving McClain. The letter states that the priority in such circumstances must be to “safeguard the patients, while also reducing the risk of violence directed against EMS and public safety workers”.
KUNC reports that twenty-five Colorado doctors, including Eric Hill who oversees Aurora Fire Rescue’s ketamine program, signed a separate letter in support of the national letter.
Dr. Kevin Mcvaney, the medical director for Denver’s Emergency Medical Response System, who also signed the Colorado letter, told KUNC that “Excited delirium or agitated delirium is a condition where, due to a mental health problem, drug ingestion, some other physiologic and metabolic things, can make you just lose control and you’re resisting, and you don’t follow the normal stimulus that would make you stop resisting,” McVaney said. “So you essentially can exercise yourself to death.”
In an editorial published in the Washington Post, three doctors who specialize in neurology argue that “excited delirium syndrome” is “pseudoscience” and not a valid diagnosis recognized by the American Medical Association or the American Psychiatric Association.
“The syndrome is disproportionately diagnosed among young black men, highlighting the racist undertones of the reported clinical symptoms: having “superhuman strength” and being “impervious to pain,” write the authors. “It winds up being a convenient scapegoat cause of death after a violent confrontation. Or it becomes a justification for police aggression that may be unwarranted. There is reason to believe that it increases the risk of police encounters turning fatal.”
According to Newman, the attorney for McClain’s family, ketamine is now being used as a weapon by agents of the state using a racial lens that transforms innocent Black people into threats.
“I think ketamine has been weaponized particularly against people of color,” Newman told Angelina Chapman of The Cut. “The right to bodily integrity is a fundamental one which has to be respected.”
According to Chapman, several lawyers told The Cut that they have noticed a disturbing trend of “police officers and paramedics using the drug as another tool to terrorize Black people. In dozens of recorded cases, officers have instructed paramedics to inject civilians with ketamine, using safety as a justification. In reality, though, the sedative is often being abused just like guns and tasers.”
Experimenting on a Stereotype
“Black people were once given anti-psychotic drugs as a chemical straight-jacket,” says Dr. Carl Hart, professor of neuroscience and psychology at Columbia University. “That’s what they called it. Ketamine is an anesthesia. The only reason to use it in the field is if you need surgery and get to the hospital in time. Don’t sedate people. If it’s necessary, give them valium or xanax.”
Injecting McClain with an excessively strong sedative because he was mistakenly seen as a threat is part of a long history. When asked about implicit bias that is a residue of that history, Hart says, “I don’t use that term. It’s a white liberal term. It’s not implicit. It’s straight up racial discrimination.”
One of the legacies of white supremacy is the viewing of Black people as primitive. A long standing and deadly stereotype is the Brute caricature in which Black men were imagined to be “innately savage, destructive, and criminal.” A 2019 scholarly article Apes and Anticitizens: Siminanization and U.S. National Identity Discourse unearthed the continuing effect of this dehumanization.
The consequence of this lingering image on police who work in minority neighborhoods could lead to deadly consequences. A cop might be more inclined to see a panicked, flailing young Black man as reaching for his gun.
The racist view of Black people as animals has led to medical experimentation on their bodies, without consent. One example is the four decade long Tuskegee Experiment that left Black men scarred by syphilis after researchers gave them placebos or ineffective treatments instead of penicillin which would have cured them. The history of this research can be found on the Center for Disease Control website. This legacy of abuse has left Black America with a suspicion of the state use of chemicals.
McClain’s forced sedation by ketamine may channel that fear and attach it to a medication that has been shown to have powerful therapeutic qualities..
“Imagine seeing it as a tool to control Black bodies,” Spitzer says. “And then tell me that I’m going to go into an office and the same medicine is going to heal me? It can add to the suspicion of psychedelics in communities of color.”
As investigations and protests against McClain’s death continue, his family and their supporters are seeking lasting changes that can protect others. The Colorado Department of Public Health told CPR News that it has launched an investigation after receiving “numerous” complaints about the administration of ketamine for which state figures show 150 incidents of complications.
McClain’s mother, Sheneen McClain, pressed state legislators to change policing tactics and ban the use of chokeholds. She supported the successful passage in June of Colorado Senate Bill 217 which requires all officers to use bodycams, publicly release footage within 45 days, and bans the use of chokeholds and carotid control holds.
The Colorado Senate bill also limits when police are allowed to shoot at a person running away from them. The City of Aurora recently moved to ban the use of carotid control holds by police.
More than 4.9 million people have signed an online petition demanding that the officers involved in McClain’s death be held accountable. Protests continue in Aurora, throughout Colorado and in other parts of the world seeking justice for Elijah McClain.