Aurora police followed departmental protocol after Elijah McClain died in their custody in August 2019. The chief promised transparency and called in the team of Denver and Aurora detectives normally used to investigate police shootings. The detectives conducted an investigation and turned it over to the district attorney.
“There were more than just the Aurora Police Department’s eyes on this investigation,” Aurora police Chief Vanessa Wilson said last week.
Yet the initial criminal investigation led by Aurora police detectives into how police officers treated McClain was deeply flawed and “stretched the record to exonerate the officers,” an external review of the case found.
The report’s findings, released last week, have prompted questions about whether the system used by Colorado law enforcement to investigate police shootings and other killings by officers effectively prevents bias and corruption.
Unlike many other agencies on the Front Range, Denver and Aurora police are able to investigate serious injuries and killings by their own officers. Their arrangement, which was used to investigate McClain’s death, is unusual in a state where statute mandates that investigations be completed by multijurisdictional teams.
Many jurisdictions interpreted the law to mean there should be little to no influence by the agency involved, and the lawmaker who pushed for the statute believes the arrangement between Aurora and Denver is not in the spirit of the law.
“There was only one McClain report, but we know that (the Aurora Police Department) has been involved in other serious, high-profile incidents,” said Nick Mitchell, former independent monitor who oversaw the Denver police and sheriff departments from 2012 until Jan. 4. “It begs the question of how well the accountability systems work.”
It’s unclear what ramifications the findings of the report will have inside the Aurora Police Department. Wilson wouldn’t say whether the detectives who conducted the investigation will be disciplined or whether there is a broader review of the previous fatal force and police shooting investigations they conducted.
She said she will work with the two district attorneys with jurisdiction in Aurora to ensure similar problems don’t happen in future fatal force investigations.
“Whether that means we step back and give the lead to another agency or have the district attorneys investigate themselves,” she said. “Lots more conversations have to happen.”
Outside the norm
Colorado legislators in 2015 passed a bill that required all police departments, sheriff’s offices and district attorneys to create multi-agency teams to investigate police shootings, both fatal and non-fatal.
“Further, including outside agencies in an investigation promotes and encourages a level of transparency and objectivity that provides increased credibility to the final outcome,” the signed act stated. “Finally, including outside agencies eliminates any biases, whether real or perceived, which in turn strengthens public confidence in the outcomes of such investigations.”
Colorado law enforcement agencies implemented that statute differently. Most jurisdictions created teams of investigators from several agencies and many large jurisdictions — like Boulder, Larimer, Weld, Jefferson and Adams counties — forbid officers from the agency being investigated to participate in the process, which goes beyond the requirements outlined in the statute.
The 18th Judicial District, which includes Arapahoe, Douglas, Lincoln and Elbert counties, does not allow the lead investigator to be from the agency under investigation and only allows staff from the agency involved to work on the investigation at all if there are not enough people from other employers.
But Denver and Aurora do not participate in a team of multiple agencies and instead work solely together, along with district attorney staff, to investigate police shootings. The lead investigator on the case can be from the agency involved in the shooting or use of force, as in the investigation into McClain’s death. Both Denver’s and Aurora’s protocols state homicide detectives from their own agencies will lead the criminal investigations into the conduct of their fellow officers.
That’s not the kind of arrangement envisioned by the prime sponsor of the 2015 bill.
“The spirit was to have an outside agency pretty much be the lead of the investigation,” said Sen. John Cooke, a Weld County Republican and former sheriff of the county.
The Denver Police Department denied a request from The Denver Post for an interview about the arrangement and instead issued an emailed statement saying that it is in compliance with the state law, which states the required multi-agency team “shall include at least one other police department or sheriff’s office.” The department’s statement also noted that investigations into killings by Denver police are also overseen by the city’s independent monitor.
Although McClain was not shot, Aurora’s then-Chief Nick Metz opted to call upon the Denver-Aurora team to investigate McClain’s in-custody death. But the lead investigator on the case was still an Aurora police detective, Matt Ingui.
The report singled out how Ingui asked questions of the three officers who stopped, tackled and choked McClain and said the detective used leading questions to elicit phrases that support an officers’ case for using force.
Ingui has led or participated in at least four other investigations into police use of force, including one fatal shooting by police. Documents released by the 17th and 18th judicial district attorneys’ offices show Ingui has interviewed at least six officers involved in four shootings, including one investigation where he was lead detective. Prosecutors did not charge any of the officers involved in the shootings.
George Brauchler, who was district attorney for the 18th Judicial District until January, said he never liked the arrangement between Denver and Aurora and that it’s time that Aurora join the judicial district’s larger officer shooting investigation team.
“It was just super awkward to have the Aurora Police Department present an officer-involved shooting investigation on their own officers,” he said.
Despite that, he’s not worried that investigations into police shootings presented to him were biased in the same way the McClain case was. There were too many people involved in each investigation for one person to be able to steer it in any one direction, he said.
Seventeenth Judicial District Attorney Brian Mason said he is looking forward to discussing the report’s findings with Wilson, but said he couldn’t comment beyond that because of the ongoing criminal investigation by the Colorado Attorney General’s Office.
Police policing police?
Cooke said that despite the “unfortunate” arrangement between Denver and Aurora that skirts the intent of his 2015 bill, he still believes police can be trusted to ethically investigate other police.
“I think people don’t give law enforcement enough credit,” he said.
Others are more skeptical.
“I think (the report) just shows the culture of blue protecting blue, but not really looking out for the best interest of the community,” said Rep. Leslie Herod, a Denver Democrat and one of the lead sponsors of a wide-ranging 2020 police accountability bill. “That’s why we need to have independent investigations, and not just in cases that go global.”
Mitchell said he had concerns in his time as Denver independent monitor about the arrangement between Denver and Aurora. The state’s system, as a whole, addresses concerns that officers might protect their coworkers within their agency but does not address concerns about law enforcement officers’ potential biases towards others in their own profession.
“I think the current system, while well intentioned, does not go far enough to establish the independence or the perception of independence that is needed,” Mitchell said.
Wilson, the Aurora police chief, in November created a new unit of officers in the department dedicated to investigating uses of force, but major crimes detectives would still be the lead criminal investigators on serious uses of force, department documents show.
True police accountability requires civilian participation and oversight not just in reviews of use of force, but also in hiring, promotion and firing decisions, said Rashawn Ray, a professor of sociology at the University of Maryland, College Park, who studies policing.
There also needs to be financial implications for departments and officers that do not require the use of taxpayer dollars, he said. For example, departments or officers could be required to hold insurance policies to pay lawsuit settlements for bad behavior, he said.
“There’s no one place doing the things I’m describing,” Ray said
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