A report that Colorado Attorney General Phil Weiser released this week concludes that the Aurora Police Department, which has attracted much attention in recent years due to horrifying incidents such as the 2019 death of Elijah McClain, "has a pattern and practice" of "racially biased policing," of "using excessive force," and of "failing to document stops as required by law." The investigative team that prepared the report, which included former prosecutors, public defenders, and police officers, also found that Aurora Fire "had a pattern and practice of using ketamine," a dissociative anesthetic that paramedics sometimes administer to people in police custody, "in violation of the law."
All of these factors either clearly or arguably played a role in the lethal August 2019 police encounter with McClain, a black 23-year-old massage therapist who, according to an independent panel appointed by the Aurora City Council, was stopped, arrested, tackled, and forcibly restrained without legal justification. This month Weiser announced that a statewide grand jury had approved 32 criminal charges, including manslaughter, criminally negligent homicide, and second-degree assault, against three officers and two paramedics who were involved in that incident. The indictment cites a forensic pathologist's conclusion that McClain died as a result of complications caused by his violent restraint and an overdose of ketamine.
McClain was walking home from a convenience store, where he had bought three cans of iced tea, when he was accosted by police responding to a 911 call in which a teenager described him as "sketchy." The fact that McClain was black does not prove that race was a factor in the incident, although it jibes with longstanding complaints from African-American residents that Aurora police tend to treat them differently than they treat white people. The 118-page report released by Weiser's office cites substantial statistical evidence that backs up that impression, showing that black people in Aurora, as in other cities, are disproportionately likely to interact with police, be arrested, and be subjected to the use of force. While racial bias is just one possible explanation for those disparities, the report's authors argue that race-neutral factors are unlikely to account for the large differences they found.
Marc Sears, president of the Aurora police union, says he is willing to work with Weiser, who wants the department to enter into a consent decree requiring reforms aimed at addressing the problems identified in the report. But Sears objects to the authors' description of his colleagues as "racially biased," saying "police officers don't care what color you are" and "you can do anything with statistics to kind of present what it is you want to present."
While the patterns described in the report are open to interpretation, they are at least consistent with the popular impression that the Aurora Police Department, which is overwhelmingly white, discriminates against black people. Aurora, which is located about 10 miles east of Denver, is Colorado's third-largest city, with about 386,000 residents, 16.5 percent of whom are black. Yet from January 2018 to February 2021, data cited in the report indicate, African Americans accounted for half of all police interactions, compared to 39 percent for non-Hispanic whites, who represent 44.4 percent of the population. Taking into account multiple encounters involving the same individual, 46 percent of Aurora's black population interacted with police during this period, compared to 24 percent of whites.
The pattern is similar when you look at arrests and the use of force. The number of unique arrests (involving different individuals) represented more than one-fifth of Aurora's black population, compared to less than a tenth of its white population. "When measured as a percentage of population," the report says, "for every unique use of force on a white subject, there were 2.5 times as many uses of force on a non-white subject and 5 times as many unique uses of force on a Black subject." Differences in the use of force persisted across levels of force and were apparent in misdemeanor as well as felony cases.
One possible explanation for these differences is that police focus their resources on high-crime, low-income areas that are disproportionately black. But the report says "geography cannot explain the racial and ethnic disparities observed in Aurora Police's use of force." It notes that "Aurora is divided into three police districts, each with different demographic and socio-economic characteristics." Yet "the statistically significant relationships between race and ethnicity and use of force—both as a percentage of interactions and a percentage of arrests—remained consistent for non-white individuals as a whole and Black individuals specifically across all three Aurora Police districts."
The investigators also considered whether the disparities varied with "the median household income of the zip code where the event occurred." They found that disparities were apparent in all four income quartiles. In the highest quartile, for example, "Aurora Police had 2,009 interactions with Black individuals, which equaled 13.2% of their population in zip codes corresponding to this income quartile," which is "over five times higher than the 2.5% interaction rate for white subjects in Income Quartile 4." For arrests and use of force, the investigators found "similar disparities across nearly all income quartiles, particularly with respect to Black individuals."
Another possible explanation for these disparities is that black people are more likely to commit crimes than white people. The report's authors raise this possibility but do not fully consider it.
"The idea that individuals of certain races or ethnicities have a greater propensity to commit crimes because of their race or ethnicity is unsupported by any reliable evidence and contrary to law," they say. "While it is true that observed arrest and conviction rates can and do differ among racial and ethnic groups, we recognize that these differences could arise for many reasons, including income level disparities, differential policing efforts, community willingness to report crime, or other factors."
That gloss seems evasive. Whatever the reasons for racial disparities in crime rates, their existence would help explain higher rates of interactions, arrests, and uses of force. Whether the differences are due to "income level disparities, differential policing efforts, community willingness to report crime, or other factors," they still could provide an explanation for racial disparities in law enforcement that do not involve racial bias.
One piece of evidence that cuts against alternative explanations is the likelihood that force will be used when an arrest occurs. During the three-year period considered in the report, police used force 3.6 percent of the time when they arrested black suspects, compared to 2 percent of the time when they arrested white suspects.
"Aurora Police used force against 1.5% of Black subjects who had at least one interaction with police from 2018 to 2021," the report says. "That is nearly double the corresponding figure for white subjects. Racial differences in arrest rates…cannot explain the use-of-force disparity, at least as to Black individuals." A race-neutral explanation for this disparity presumably would hinge on the idea that black arrestees are more likely than white arrestees to resist arrest or that they present more of a threat when they do, both of which are subjective judgments that could themselves be influenced by racial bias.
The report cites another important piece of evidence in support of the argument that racial bias, conscious or not, plays a role in the disparities it describes. The investigators compared outcomes in three kinds of cases involving different levels of officer discretion: "suspicious occurrence," "disturbance/noise complaint," and "domestic dispute." If racial bias influences officer behavior, you would expect the evidence of disparities to be strongest in cases where police have the most discretion, which is what the data indicate.
While "officers must arrest a suspect if there is probable cause to believe domestic violence has occurred," they have much more leeway when responding to a "suspicious occurrence"—a description that fits the police encounter with McClain, although the officers in that case did not actually have a reasonable basis to suspect he was involved in criminal activity. Complaints about noise or some other disturbance fall somewhere between those extremes, since "there has been a report or observation of potential unlawful activity that impacts others, but officers still retain significant discretion over whether to make an arrest."
The investigators found "statistically significant evidence that Aurora Police
disproportionately used force against Black individuals, as compared to white individuals, in suspicious activity cases—both as a percentage of interactions (2.5 times more) and as a percentage of arrests (2 times more)." By contrast, they "did not find statistically significant evidence that the uses of force in domestic violence or noise disturbance/complaint cases were disproportionate across race or ethnicity."
Whatever you make of the dramatic racial disparities documented in this report, the evidence of excessive force is troubling without regard to the complexions of the people on the receiving end. In addition to reviewing the Aurora's annual use of force reports since 2016 and 2,800 individual reports on uses of force, the investigators observed officer behavior during 220 hours of ride-alongs in all three of the city's districts. They found that Aurora police "repeatedly engaged in unlawful and unconstitutional uses of force, regularly applying greater force than reasonably warranted by the situation."
These violations included incidents in which officers used force "to take people to the ground without first giving them adequate time to respond to officer commands, or generically recit[ed] 'stop resisting' when trying to control subjects, even though it appeared from other available evidence that the subject was not resisting." The investigators also "observed officers immediately escalating in circumstances
where the subject was in obvious mental health distress but not presenting an imminent risk of harm to themselves or others." In other cases, officers used force on "individuals who had not committed any crime and presented no danger but who simply refused to comply with orders."
On that last point, the report notes that Aurora's Disorderly Conduct Ordinance criminalizes failing to "obey a lawful order or command" by a police officer when that failure "causes or is likely to cause harm or a serious inconvenience." That law gives police broad discretion to arrest someone who is not actually involved in criminal activity—someone like McClain, for instance—simply because he declines to follow orders that never should have been issued in the first place. From 2015 through 2020, Aurora police invoked this provision to justify thousands of arrests, and in many cases the charges were subsequently dropped.
"Based on information available to us," the report says, "we conclude that Aurora Police has a pattern and practice of using objectively unreasonable force to arrest those who police claim have violated this ordinance." The authors describe several such cases, including one that resulted in a $285,000 settlement of a lawsuit brought by a man who did not exit his garage as fast as the cops thought he should have when they arrived at his house in response to a noise complaint. Other incidents involved a woman who fell asleep on a bench at the Municipal Court and a man who was "lying on the grass."
The report says the use of excessive force by Aurora police officers is due partly to "a culture [that] emphasizes justification for force, rather than whether force was lawful and appropriate." It says training focuses on the "maximum force permitted under law" rather than urging officers to use only as much force as is necessary in a specific situation.
The authors also note that the department has fostered a misunderstanding of what "de-escalation" entails. "Repeatedly in the Force Review Board meetings, members applauded de-escalation that occurred after officers had tased or tackled someone,
rather than focusing on whether the taser or tackle was necessary in the first instance," the report says. "De-escalation, properly understood, focuses on tactics that reduce the need for force in the first place, rather than decreasing the amount of force used after the fact." Even leaving aside all the other dubious decisions that the officers who tackled McClain made, a less confrontational, more peaceful approach to an innocent man who did not understand why police were manhandling him could have avoided a fatal outcome in that case.
The report also addresses the use of ketamine to subdue arrestees, another factor that figured in McClain's death. Based mainly on police suspicions that McClain was "on something," paramedics diagnosed him with "excited delirium"—a controversial concept that is not recognized by the American Medical Association or the American Psychiatric Association. They gave him the drug about two minutes after they arrived on the scene without conducting a physical examination or even asking him his weight. They overestimated his weight by 40 percent and gave him a dose that was 54 percent higher than he should have received, even assuming that an involuntary ketamine injection was appropriate to begin with.
Last June, the Colorado legislature passed a law that restricts the use of ketamine by paramedics to "a justifiable medical emergency," specifying that "excited delirium" does not count. The law, which took effect on July 6, also prohibits police from asking paramedics to administer ketamine, which is not to be used to "facilitate ease and convenience in law enforcement encounters."
The authors of this week's report examined paramedics' use of ketamine before that law took effect. From January 2019 through September 2020, Aurora paramedics injected ketamine 22 times in response to what they perceived as "excited delirium." In most of these cases, the investigators found, "paramedics failed to follow ketamine monitoring protocols or administered ketamine at doses above the maximum allowable dose." They note that "ketamine cannot be administered unless it is (1) used for bona fide medical needs, and (2) administered by or under the direction of a person licensed or legally authorized to do so." They add that "the unlawful administration of drugs constitutes second-degree assault."
As even Sears implicitly acknowledges, the Aurora Police Department has some serious problems. The report elaborates on the troubling pattern of law enforcement described by plaintiffs like Brittney Gilliam, a black woman who sued the department this year after police forced her, her daughter, her sister, and two of her nieces to lie on the pavement at gunpoint because they mistakenly thought her car was stolen. In the aftermath of that fiasco, police officers were dismayed by the anger it provoked from Gilliam and the bystanders who witnessed it. As the report shows, there are ample reasons to be angry at the way Aurora police treat the citizens they are supposed to be serving and protecting.