Ari Armstrong, Aurora, Civil Liberties, Criminal Justice, Exclusives, Featured, Legal

Armstrong: The killing of Elijah McClain

Why did Elijah McClain’s death on August 24, 2019, at the hands of Aurora police largely get swept under the rug until the protests in the aftermath of the police killing of George Floyd prompted a fresh look at the case? The main reason is that no third party video recorded McClain’s death, as someone recorded Floyd’s death. So the limited video we have of McClain’s death came, delayed, from police body cameras. And then, I think, the fact that McClain was wearing a mask on a summer night and that, according to one of the officers, he attempted to grab one of the officer’s guns, made a lot of people think that police probably were in the right here.

But the officers were not in the right. They detained McClain for no good reason, they dramatically escalated their violence against McClain for no good reason, and they bear moral responsibility (whether or not they ever bear legal responsibility) for his death.

Here in America, police are not supposed to forcibly stop and interrogate people for no good reason. Sure, police can approach you and ask you to answer questions. But to forcibly stop someone, police need reasonable suspicion that the person has committed or is attempting to commit some crime. In McClain’s case, officers never had, nor did they ever attempt to articulate, any reasonable suspicion that McClain may have engaged in, or sought to engage in, any criminal activity.

According to a transcript provided by Aurora, the 911 caller never indicated that McClain had committed any crime. The caller explicitly said that no weapons were involved and that no one was in danger. Instead, the caller said that the person in question (McClain) was wearing a black mask, “he put his hands up,” and “he looks sketchy.” The caller said, “He might be a good person or a bad person”—which is true of every random person walking down the street. So, although the 911 call might have given officers reason to check out the person (McClain) and ask him to voluntarily answer questions, the call did not give officers any good reason to forcibly detain McClain.

If, counterfactually, the 911 caller had accused the person (McClain) of committing some crime, or had said that he was armed with a dangerous weapon—whether the caller was right or wrong, honest or dishonest—or if officers had some other report of a recent crime in the area with a suspect matching McClain’s description, then officers would have been well within their rights to detain McClain. But they had no such substantive information.

On released police video, we see someone (McClain) walking along the side of the street, wearing a black mask, carrying a full white grocery sack, and carrying something small in his right hand. An officer commands McClain to stop. McClain asserts he has a “right” to be there (I can’t make out the full audio) and points down the street. He does not do anything that would cause any reasonable person to fear that he was dangerous or that he was engaged in criminal activity. McClain does sound annoyed that police are hassling him for no good reason.

The approaching officer states, “I have a right to stop you because you are being suspicious,” then immediately grabs McClain’s arm, thereby detaining him. But declaring that someone is “being suspicious” is hardly articulating a reasonable suspicion that someone has committed or is planning to commit some crime. If an officers says, “I suspect you of committing crime X,” the officer damn well better be able to fill in the X. We’re not living in some Kafka novel here. At no point leading up to the detention did any officer actually articulate any reasonable suspicion that McClain had committed (or was about to commit) some crime—because the officers had no such reasonable suspicion.

It seems obvious that officers detained McClain largely because he was wearing a mask; that is the main way in which he was “being suspicious.” But wearing a mask is not a crime. Ironically, although wearing a mask was unusual last summer, this summer Aurora’s government actively encourages people to wear masks. (In some parts of Colorado, not wearing a mask can actually be a crime.) But even before the pandemic hit, some people wore face coverings for religious or medical reasons. So McClain’s mask did not create a reasonable suspicion of criminal activity.

Although officers had no way to know this at the time, McClain’s sister told ABC7 that McClain wore a mask because “he had anemia and would sometimes get cold.” She said that McClain was listening to music as he returned from a convenience store where he purchased drinks.

District Attorney Dave Young, who cleared the officers in question of criminal wrongdoing, reveals another reason that police detained McClain: they profiled him. As Young writes, “When the officers contacted Mr. McClain, he was walking down the street in an area known for criminal activity” while wearing a mask. So…police just assume people are guilty if they walk in the “wrong” part of town?

During the interaction, McClain pleads, “I’m going home. Leave me alone. Leave me alone.” At that point, lacking any reason to think McClain had committed any crime, the officers had one overriding moral and legal responsibility: leave McClain alone and let him go home.

We do not need to stretch our imaginations to know what would happen to anyone other than a police officer who physically detained someone for no good reason, as these officers detained McClain. Young almost certainly would prosecute the perpetrator for false imprisonment. The relevant Colorado statute explicitly exempts “a peace officer acting in good faith within the scope of his or her duties.” But these officers acted with nothing but bad faith toward McClain as they detained him, and they did not articulate a reasonable suspicion for the detention, so the “good faith” exemption does not apply here. Obviously Young holds police officers to dramatically different legal standards—much lower standards—than he holds everyone else to. We’re all equal under the law, but police officers are more equal than the rest of us.

If I am right that the officers in question unlawfully detained McClain, then every use of force against McClain from that point on constitutes assault—resulting in manslaughter—and should be morally and legally evaluated as such. And anything that McClain did or might have done to defend himself or attempt to extract himself from the situation, however imprudent, should be morally and legally evaluated as lawful self-defense. Those are the standards we would invoke if anyone other than a police officer had detained McClain for no good reason.

It is in that light that we should evaluate the claim that McClain attempted to grab one of the officer’s guns. Unfortunately, we have no good evidence either way. At one point of the video, we hear McClain say, “I intend to take my power back,” and then we see him struggle with officers. At that point, we hear an officer say, “He just grabbed your gun, dude.”

It is plausible that McClain indeed intentionally reached for an officer’s gun. If he did, that was profoundly stupid. As a practical matter, never do that! Even if officers are in the wrong, getting in a gunfight with a police officer will go badly. Still, if you agree with me that the officers detained McClain unlawfully, then we should judge McClain’s actions as a highly imprudent effort at self-defense.

Another possibility is that the officer thought McClain went for a gun but was honestly mistaken. Another possibility is that the officer lied about McClain going for a gun as a pretext to escalate violence against McClain. Unfortunately, we cannot reasonably dismiss that possibility out of hand, given that the officers detained McClain on the flimsiest of pretexts—thereby revealing their bad moral character—and given that the culture of the Aurora PD was thoroughly corrupt. After all, this is the department where three officers, as a funny joke to “cheer up a friend,” reenacted, at the site of McClain’s death, the choke hold that officers had previously delivered to McClain. (After intense public pressure, one officer resigned and three others were fired.) This is the department where officers covered for a cop found passed out drunk in a patrol car. This is the department where an officer pointed his gun at a doctor’s head for daring to drive onto his own property.

Even if you think that the detention was lawful and that McClain reached for an officer’s gun, you can still be extremely skeptical that the officers needed to escalate their use of force so dramatically, placing McClain in a choke hold and, later, working with medics to forcibly drug McClain with ketamine. This brutal treatment caused McClain to suffer a heart attack on the way to the hospital and to suffer brain death; he was taken off of life support on August 30.

During the incident, officers claimed that McClain had drug-induced “crazy strength” and that he weighed over 200 pounds. In fact, McClain had marijuana in his system and weighed 140 pounds. Each of the three officers easily outmatched McClain physically.

Notably, as Young’s report makes clear, the officer whose gun McClain allegedly grabbed did not even notice this at the time. One officer claimed that McClain went for the gun of another officer, but, according to Young’s report, that other officer “didn’t know whose gun was being referenced.” I find it extremely hard to believe that McClain made a serious effort to grab the gun of one of the officers, given that that officer didn’t even notice this. At any rate, even if McClain did try to grab the gun of an officer, he did not succeed or come remotely close. At no point did McClain pose a serious threat to the officers’ safety.

The Attorney General is taking a second look at the case, and the feds are investigating it as well. I’ll be very interested to see if, like Young, those parties let the officers in question get away first with detaining McClain, and then with escalating their violence to lethal levels, for no good reason. I’ll also be interested to see, if the officers never are criminally prosecuted, if the Aurora PD keeps them on the force.

So why am I writing about McClain’s death, nearly a year after it happened and in the middle of ongoing investigations? I think it’s important to speak out against injustices, especially those perpetrated by powerful government agents. And I do think that both the detention and the brutal killing of McClain were profoundly unjust.

I also think that it’s important that conservatives, libertarians, and free-market advocates take seriously rights violations even when—especially when!—they harm people with whom they are less likely to socialize and form alliances. I mean, maybe McClain attended an Ayn Rand book club or something, but I doubt it. We should be sensitive to government abuses and not only of our friends and allies.

To put the point bluntly, if you were more outraged by bureaucrats shutting down Lauren Boebert’s restaurant than you were by police killing Elijah McClain, I question your priorities. Are we seriously going to leave it to the socialists—who often rationalize the mass-murder of scores of millions of people under Communist regimes—to defend the rights of people like Elijah McClain? If we do, then we deserve nothing but scorn and ridicule. (Of course many people other than socialists also condemn the police treatment of McClain.)

Elijah McClain was wonderfully eccentric. He was, as Grant Stringer writes, a vegetarian who literally would not hurt a fly. He should still be playing his violin for shelter cats. Police were wrong to detain him and wrong to kill him. And he deserves, as an absolute minimum, for all of us to say so. His life mattered.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.

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