[Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] [Music] do [Music] do so we should all just get along with each [Music] other is really nice question for march the second tuesday march the 2nd 2021 of the aurora city council is now called to order with the clerk please call the roll mayor kaufman here councilman coombs president council member gardner councilmember gruber here councilmember hiltz here councilmember johnston councilmember lawson she's having uh internet difficulty she said she's getting back on okay i'll come back to her um council member marcano president okay there's a quorum very well uh we are here tonight uh for the purpose of uh being able to ask questions uh to the the three members uh the the panel uh who conducted the independent investigation into the the tragic incident of august 29th 2021 that ultimately resulted in the death of elijah mclean with us tonight is jonathan smith dr melissa costello and roberto villa senor i called this special session because there was not enough time during our study session during the study session of february 22nd when the panel of doing the outside investigation these three members discussed their presented their findings uh to the aurora city council so i called uh this special study session of the aurora city council in order to give myself and our council members an opportunity to ask questions and have a dialogue with these these outside investigators that did the investigation of the incident of august 29th so the the way this the procedure will run tonight is that i suspect that we will have at least two rounds and in each round i will allocate five minutes to each member and in during those five minutes they can certainly ask questions have a discussion an open dialogue uh with the um uh the three um panelists uh with us tonight uh and i wanna wanna remind the our council members is that that once i say your time is expired your time is expired and there's no time to wrap up you will have an opportunity there will be an opportunity for a second round and and there may be an opportunity for a third round although that time will probably be reduced uh below five minutes we will have a hard stop uh at eight o'clock uh with that uh i would like to recognize the council member angela lawson uh for five minutes mayor not sure if she's she's on yet there well very well i will go uh come back to uh councilman lawson and i will recognize council member gruber for five minutes thank you mayor and thank you team i very much appreciate the work that you've done i especially appreciate the recommendations the death of elijah mcclain is a tragedy and and we need to ensure nothing like that ever happens again so with that um you have my thanks i do have some concerns though about the approach to the uh to the investigation my understanding was is that the city manager had hired an investigator prior to you and counseled on the public council members on the public safety commission decided that they did not want to use that investigator and they interviewed or they they sought for another group and specifically the civil rights attorney to to process this case so mr smith just the first question in addition to speaking to council members during the interview process did you discuss this case with council members during the course of the investigation i did not know okay thank you so much my primary concern is that we've had a number of facts identified to us and the question in my mind is whether or not those facts were first applied to the civil rights view in other words if you assume this is a civil rights case you're going to manipulate or you're not manipulating strong words you're going to assess those facts against the civil rights uh scenario whereas if you look at the facts themselves then you may not do that so some of the facts i wanted to bring out and just cover real quickly uh you know the first one was that the naacp had awarded uh the city a uh freedom award the police department of freedom award for the work that they had done with the uh with the naacp and communities of color second thing the area you know residents of the metro area understand that the colfax corridor is the highest crime area within the metro denver region the area that elijah mclean was in was a safer area but it was still within the colfax corridor the store that he had gone to had been robbed many times the woman who ran it had also been hurt in the robberies so that provides a little more background in addition to that we have had a case in aurora where a man on pcp went next door and bit off the year of a child so we had had several cases with pcp and crystal meth where people had hallucinated so having said that as a background this case starts with a 9-1-1 call saying that a man was walking down the street with a mass pulled totally over his face he had eyeballs he was wearing a jacket and he was waving his arms in an unusual manner the 911 call said there was no threat there was nothing there but um and then based on that the police came my contention or i would like to explore this a little bit more is that our training to the police officers the city of aurora's training to the police officers is is that when you see uh or when you receive a 9-1-1 call you must confront the person of the 9-1-1 call that has since changed but that was a requirement so having said that the police approached the nine approached mr mclean and when they approached him and now i'm going to read from the district attorney's report on the incident he said that the um let's see let me go back to the to the right area um he said that the the officers approached mr mclean and they said that we understand or we received a 9-1-1 call you're being suspicious uh we have the right to stop you and then based on the analysis of the district attorney um there was a uh let me jump again to another to another location uh the district attorney had found that the legal pres question presented to the office of the district attorney is whether the prosecution can provide be beyond a reasonable doubt that the officer's action were criminal and not justified under colorado law under colorado law enforcement officers reasonable suspicion of criminal activity warrants a minimal detention of a person for the purposes of investigating into a person's actions under the code uh and again colorado you know you had mentioned the terry versus ohio i think colorado is stone versus colorado as the president but it says a peace officer may stop a person that he reasonably suspects his committee and has committed or is about to commit a crime and may require him to give his name and address and identification if available when a police officer has stopped a person for questioning first went to the section and recently suspects the person uh uh the personal safety requires it he may conduct a pat down search of the weapons and then the the um the district attorney concludes whether reasonable suspicion for criminal activity exists is based on the totality of facts known to the officer in addition the officer's training and experience must be considered based on the circumstances present here the office the officers had reasonable basis to not only stop and question mr mclean but also pat him down for weapons to ensure uh safe contact with him so uh mr smith was this was the district attorney's review considered in your analysis we looked at the district attorney's letter yes so you is you would like me to respond or is that the only way let me let me go on because we didn't have much time so i just wanted to point out the the district attorney's findings now again when i believe that there were many many mistakes made i believe that the procedures that our police officers are trained in uh were it were incorrect and i think that the key thing that happened that um that we that the police officers didn't understand is when elijah mcclain said uh i'm an introvert you must respect my boundaries from what i understand there's nothing in our police training or nothing in our policies where the police are trying to accept something like that that was that in other words if a person suspects that they have a mental uh um something something different than the average person the police were not trained in that so the police ignored that and and but they followed policy that they did you know because your time has expired all right thank you councilmember lawson thank you mayor sorry for going on late um first of all i just want to say this report brings a lot of emotion and anger to me um because elijah mcclain should not be should be here today celebrating his birthday and it's because of the blatant flaws of our police department you know our ems and also our firefighters that were there that he's not here um so my questions i have three questions and i need some clarification on these if you can help me with this um the first question is on page 13 the pdf um you basically stated in here in this particular section on implicit bias that you couldn't determine that there was any there was um implicit that bias played a role into this case so let me ask you a question the first question i have is what is your interpretation of bias do you think action is biased because elijah mclean was walking doing nothing to anyone at all he was playing his music he wasn't doing anything and then he three officers came up to him and aggressively put him down on the ground and would this have happened to a per person who was white um i i guess for me i'm just i'm trying to understand what is what is do you believe action is biased do you think that what is your what is your ideology of bias specifically of how it pertains to this and then my third question is regarding the major crimes investigation commander dudley i think was still in the department until december but you stated in the report that you were unable to get any kind of information from him or any kind of anything that could be concluded in this report so i just wanted to know why was that and even after the fact why couldn't he get uh have some type of statement in here or is there statements in here that he made that maybe i'm not seeing in the report so those are my three questions for this go around so thank you councilmember i i'll start and maybe my colleagues will join in um so we looked at this incident and the mandate that we were given was to was twofold was to in the first instance to attempt to determine the facts as best we could from the evidence that was available and then based on those facts to do an analysis of whether there were systemic flaws in policy in training in the accountability systems in you know other recommendations we can make to the to the city um you'll see that the report we went into great detail looking at two primary sources of information the videotape that was available to us and the interviews that were conducted at the offices we looked at other things as well but those were the premises to develop the facts in looking at those sources of information when we compared the behavior of the officers against the known research on implicit bias whether or not the actions of the officers were motivated by their perceptions of mr mclean based on his race we saw both of the officers and in the actions of the ems staff things that were consistent with that research items are consistent with that research but there was no specific statements that were made that explicitly you know office where we could draw a conclusion that the officers you know intentionally um took the steps they took because of his race but we did see behavior that was consistent with bias implicit bias implicit bias is actually in order to understand and study it it would be more effective to do that looking at a broad range of other incidents if you saw a pattern of this kind of behavior and compared the way that african-american and latinx people were treated as opposed to the way white people are treated under certain circumstances so we identified implicit bias as an issue of concern we drew the council's attention to the research on implicit bias and we recommend that that question be looked at very carefully by the city to determine whether or not bias plays a role in the way policing services are delivered and there are certainly as we've noted there are indicators that are of concern and the steps that should be taken in order to to address those now as to um officer dudley he was retiring as we were attempting to interview him we had initial contact and made efforts to try to set up an interview he left the department before we were able to do that and he did not respond to further inquiries in order to set up to establish an interview so we made efforts there was initial contact it was right around the time he was retiring within a few weeks of retirement that was not able to be scheduled before his retirement and then um we've not heard from him since that despite efforts to speak okay thank you mayor i yield the rest of my time thank you uh um council member hilts you're recognized for five minutes thank you um i just wanted to say thank you for your diligence and thoroughness on this report i think that this shines a light on a lot of deeper systemic issues that we weren't quite aware of in the way that they are happening and i think you you did bring that to light i just wanted to remind the public that this was not a public safety hire i believe that it was a resolution it came to a study session the full council voted i believe unanimously i'll let staff correct me if i'm wrong to move forward with 21cp so i don't want the public to be um just confused or misled about how that happened i actually don't have any questions for you i think the report was very straightforward and did a great job of outlining things and so i just want to thank you for your time but make no promises that i have a question already so thank you um to all of you for for your time and expertise it was an honor to be able to do this work council member gardner you are recognized for five minutes thank you mayor first i want to thank the investigation team uh for their uh diligence in completing this report i think it was uh very thorough and frankly what what came back was um what my expectations were going to be for what the report would look like so i appreciate kind of the holistic look at the entire incident from the initial call all the way through the after investigation because i think there were findings in each of those areas and things that were concerning and um you know things that maybe uh we need to change and things we did right so um i i really appreciate that um a couple of questions uh the first is uh specific to the um i guess constitutionality of the initial the initial stop the fourth amendment requires the reasonable suspicion of criminal activity to justify the stop in your mind do you feel like there was that bar had been met so based upon the information that we had available to us that we were not able to talk to the officers that were involved they may have additional information that they didn't share in their interviews that may affect that decision but based on the information we have available to us we did not see reasonable suspicion that a crime have been committed was being committed or was to be committed based upon the 9-1-1 call and the very brief observation that the officers conducted before they took mr mclean into custody i don't know which um which panelists this will be for but um it has to do with the after investigation and the decision not to open an internal affairs investigation uh in your opinion do you think an internal affairs investigation should have been opened and should that decision rest solely with the chief or should we do that differently i can go ahead and take a crack at that jonathan thank you it is our opinion and we do detail that in the report that we felt that internal affairs should have been involved in this investigation best practices across the country in these type of situations there's always two conflicting issues one being a criminal investigation which many agencies will use their major crimes or homicide to conduct that investigation and then there's also the administrative investigation which is conducted by internal affairs this is also the guidance has been indicated in our report that is even given out by the cops office of the department of justice events there's very peculiar issues within each one that the administrator cannot take the criminal and vice person so you have to very carefully keep those separate will be affected in these type of situations and then my last question is for dr costello so for context i brought forward the moratorium on use academy which of course was supported unanimously by council so i am curious uh based upon what the information you had available to you uh do you feel like the use of ketamine was appropriate and if so or if not i guess what additional evaluation could have been done uh to give you a more concrete answer what's going on with clay it's okay can you hear me okay great um i i think that when we talk about the decision to use ketamine they're really in my mind kind of two decision points that occur in this case there is the initial decision that was made to ask for the academy to be brought in kind of preparation for what they expected to ensue over the next several minutes um and that they that was largely based on the the report from the police which we discussed separately in the report about how to improve the quality of that piece of information and then what they got from their dispatch and their clinical experience and all of the other factors that went in based on basically their first minute or so of interaction or of observation and and when i talked in in the session last week i said you know at that point i think the request for ketamine as a as a direction that they were headed potentially is appropriate now what we have is a second point in time which is now in not usually in most cases six minutes or seven minutes down the line but the separation in time created this opportunity for the paramedics to really kind of get more information and and that is the heart of where i focus in the report on the assessment opportunities that were missed and the opportunity to gain more information either to corroborate what the they were told by the police initially and what their initial impressions were and reaffirm that with good information or to get assessment pieces that then refuted where they were originally going and so in my practice when i use this medication which i use fairly frequently i often will go in with one idea and as i gather more information change my mind along the way and in this case i think there was a missed opportunity to really meaningfully gather information in that six-minute interval that potentially would have changed their mind and so it's sort of a long way of saying it depends um and and so that missed information that they that they did not have potentially would have changed their mind but because they didn't have it i don't have it either and so it's not a matter of of supporting or not supporting it it's really that the initial decision to ask for it i think was appropriate based on the protocols and the way that they're written and the information they had whether or not six minutes later it was the right decision that's not a that's not a distinction that i can make unfortunately because that piece of information that i've really kind of you know emphasized in the report is what's missing mr gardner your time has expired uh council member mariel you are now recognized for five minutes uh thank you mayor and thank you to the panel um i'll just get to it so can you just quickly remind the public of the the role that this report plays in other investigations um the capacity for this report to potentially influence or impact other ongoing investigations so we were careful to attempt not to actually influence or impact other investigations this is a fairly complicated environment as you know in terms of the the work that's being done that arises out of the death of mr mclean there was the evaluation that was done by the state's attorney there's a currently a investor the criminal investigation being done by the colorado attorney general the colorado attorney general's also open up a pattern of practice investigation that will look at the systemic issues in the department and make decisions about whether there's patterns of violations in addition to that the civil litigation that's underway by the mclean family and the uh there's been an investigation that or a i'm sorry request for technical assistance through 21cp that's looking at some of the same sets of issues that the patent and practice investigation is looking at so when we undertook this work because of the important rights of the individual officers with the pending potential i'm sorry i missed the federal criminal investigation the fbi's also conducted a criminal investigation so we were sensitive to the the important rights of the officers um in those proceedings and the interests of the people who are investigated for the purpose of the criminal investigation to to avoid creating a conflict we looked at the record that was available to us we offered the officers an opportunity to meet with us we didn't ask the city to compel their testimony and would that would i believe would have been inappropriate for us to do so and we did not reach um you know ultimate conclusions on some of the issues that are going to be resolved in those other proceedings our goal was to do a sufficient analysis of to identify the facts and then do a sufficient analysis of those facts that we could make recommendations as to how the department could improve and those things that we identified as systemic issues that arose out of our investigation okay thank you um so i just just for context there um you know i'm running out of time here but um my next question and might have to pick this up in the next conversation is on the the the term excited delirium um at least in the research that i've done there seems to be some controversy over that definition and if you guys are hearing some feedback you might want to mute uh just i've gotten some feedback today that that might be the case so um but if you i guess it's not a term defined in the dsm-5 it's a term that i've i've see believed to have some i guess it's kind of a catch-all diagnosis and so i'd love to um explore if that is a if that is a common diagnosis and if there are any patterns in this diagnosis in terms of outcomes um you know if that's you know just overall it are there any patterns and outcomes with this particular diagnosis i assume that one is for me um so there is some controversy around excited delirium as a diagnosis and and they there is a lot of literature out there um initially um i got in my initial sort of drafting i got pretty far in the weeds on some of this but um it was really beyond the scope of this particular project to really evaluate the veracity of that and the validity of that diagnosis there's tons and tons of academic literature about that that you can dig into if you need something to read at night but it is it is certainly for the purposes of our analysis in this case it wasn't so much a matter of whether of getting into the medical controversy surrounding it for the purposes of aurora it exists in their protocol and so from the standpoint of looking at the case we followed that as the presumptive diagnosis that was made and the treatment pathway that follows from there and so believe me i can talk for hours about all of the academic literature which i'm 100 sure you do not want to me to do but um the as far as patterns in these patients what we do know is that even with the best possible intervention in the cases of true excited delirium is that there's a fatality rate that runs around 10 um and so it is it is an illness that we find disproportionately in communities of color and disproportionately in patients that have other history and so it is a population that already is at risk when they encounter this environment um and and it is it's a it's a certainly an area that's ripe for further exploration on many many levels this case we just touched on it because it was the presumptive diagnosis and the protocol that they followed and we treated it essentially outside that level of controversy because it exists in the protocol council memorial your time has expired council member johnson you're recognized for five minutes thank you mayor and thank you to the investigative team not only for the investigation but also for the recommendations i found that particularly helpful um i want to talk a little more about the internal affairs process um during our during the press conference there was a question to our chief about you not being able to to interview the officers because of the ongoing criminal investigation um [Music] would that preclude could our chief still pursue um from this moment on um an internal affairs investigation not to have maybe those comments um used um criminally potentially i know there's some rules with that but just to kind of dig in more with our our processes i guess this would be a a question to the chief on the team your thoughts on that yes well the way that aurora is set up right now the chief is the only one who can authorize internal affairs investigations which one of our recommendations was to move away from that and to make internal affairs some automatic participants in certain investigations such as officer-involved shootings or in-custody deaths the concern that you're hearing about is the issue of if you mandate an employee to give an interview or to you know take a statement then that could take any criminal proceedings that are ongoing which is why they would stay away from them right now and why most agencies separate the investigations and don't proceed with the internal affairs investigation until after they they know what the result is going to be for the criminal investigation as to whether the chief could do something after this is all over that's really going to be the chief's call of the city uh you know response to do that but what we were recommending in the report states is that we feel it should be an automatic inclusion of internal affairs in these type of situations thank you and i have a follow-up on the horse review board on page nine you had talked about making some changes to that and one of the recommendations the our current chief is pursuing is having some community members as part of the the forced review board and just wanted to get your thoughts on that i know you said that there should be changes but specifically to having some community members i have seen that in several jurisdictions and that is in my opinion it's always a good thing to involve a community when you're looking at the operations of the police department and even to involve the community in formation of training um you know issues where the community is affected they should have a say so i i don't see a problem with that if that's a method the chief is going down i think that's a good decision but that's going to be you know her call and your guy's call thank you i don't know if i have time so if i'm cut off i'll just continue it before but i also want to talk about ketamine which i believe a little different from counci member gardeners on page 10 and the policies around that we actually use protocols based on the denver metro ems medical directors which is several municipalities in that area um basing our policy off of that so i didn't know if you had followed that if you suggested a change to that system because i keep hearing we're following those protocols we're following those protocols and not necessarily tailoring it to the city of aurora so just wanted to get some thoughts on that i think that the protocols that are in place are certainly the ones that apply regionally um the specific recommendations that i made i kept general um in the sense that all of the the beauty of aurora's system right now is that they do protocol revisions and they do review of protocol information in their collective medical directors group about every six months which is much much more often than a lot of municipalities do most municipalities review annually or biannually so it is an opportunity that is in place in aurora to really impact the way that that medication is used and to make sure that we can add a few things in there that allow that medication to be used in a safer manner and so it is i made the recommendations really with the idea that you know addressing this particular situation as we were asked to for the city of aurora knowing that that has broader implications that said most of the protocol guidance and recommendations evolves very quickly i think we'll see a lot of evolution over the next year or two with these incidents particularly and the attention that's been paid by the national association of ems physicians and the american society of anesthesiology um there are recommendations that are going to be forthcoming and all agencies really need to be very agile in the way that they address this in their communities and and involve the communities in what they feel comfortable with councilmember johnson your time has expired uh council member burzens for fight you're recognized for five minutes want to say to the mclean family i'm so sorry that you have to go through this tonight i can't imagine a worse thing that a mother and father and friends would have to go through so i i apologize and we all want justice for elijah but we need to do it the right way um okay so let me get started my question is well my first question is um the material received by the panel is the same material received by the adams county district attorney's office now i wonder how is it that the district attorney's office findings were opposite of the of the panel findings that's that has me puzzled here after our officers um responded to the 911 call officers woodard asked elijah to stop three times but he continued walking and he was clutching a white bag with items in it officer radina said stop sir can you please cooperate we're going to talk to you and then things escalated and he was taken over to the grass to get off the hard surface then they kept on uh rodina said he's going for your gun and they took him to the ground i understand that there was one um uh i forget what you call it that didn't work so somebody else uh did that chokehold um and according to uh your chart on page 120 on the um excited delirium he displayed several symptoms according to your chart sweating agitation uh excessive strength um and you did say you read this report somebody else asked you earlier i was going to ask you i got beaten to it [Music] another point i'd like to make is dr stephen cena did the forensic autopsy and i i did some research on him he has over 30 years of autopsy experience close to 7 000 autopsies and he does testify in tour in court and depositions so i don't know if you spoke with him or not i it wasn't in your report that you spoke with dr cena um he in addition to being his specialty as a foreign pathologist he also uh has a fellowship in surgical pathology at johns hopkins uh hospital so you know he seems to be a person that would know what he's talking about um so according to him though he found that the ketamine while he found marijuana and ketamine um but that the ketamine was in therapeutic limits it was at 1.4 and the acceptable limit is 1 to 6.3 so that was acceptable he said the matter of death was undetermined but a combination of intense physical exertion and a narrow left coronary artery contributed to his death now i didn't see anything in your report about his heart condition maybe i missed it because it was it was a long report was there something in there about his heart condition now i didn't specifically address the heart condition in the report largely because i'm not a forensic pathologist and so um my my expertise and and believe me um dr cena and i trained in the same place so uh we will um i i absolutely defer to my forensic pathology colleagues um as far as determination of cause of death and and i feel fairly confident just based on what you've told me tonight that if there was a way to determine a cause of death if there was an answer to this puzzle that he would have provided it if it had come from the autopsy and so i i think based on just personal knowledge not of cena particularly but of my colleagues that are forensic pathologists um they really really want to give an answer to a family and and if there is an answer that they can they can back up with the data that they have they will provide it and and so it's it's a very difficult position for them to say we're not sure that your time has expired councilmember uh councilmember mark connell you are recognized for five minutes all right thank you mayor and i would like to extend my thanks to the panel for joining us this evening so i just want to dive right in here since we are on a clock uh my first question is a bit of an inconsistency i think in one of the recommendations uh i'm begin based off the context of our conversation i think it's just a typo but i just want to run a bio to be sure so the recommendations that the panel believes this case should have been referred to internal affairs for review and strongly urges the city to consider the important role of internal affairs reviewing all off and reviewing all officer-involved deaths you then talk a bit about what major crimes role is and then what internal affairs role is then you state the current policy that requires the chief to open an internal affairs investigation places the chief in a difficult position and limits the likelihood of review by the department for compliance with policy so the way i read that it seems like you're basically saying to use internal affairs but then advocating against it so was there a typo somewhere where we were meant to talk about major crime instead of requiring the chief to go to a uh intern rather the chief is required to go to major crimes instead of internal affairs no i i i don't think it was a typo maybe a lack of clarity although as you pointed out it is a long report what what the what the current procedure now is is that an internal affairs investigation can only be opened if the chief first authorizes that there be an internal affairs investigation that is unusual i've looked at you know some 30 departments around the country i've never seen that particular provision before general affairs should have a self-starting authority so whenever whatever comes to their attention there might be a violation of policy they should be able to investigate with without having to get permission from the chief and they should always investigate um incidents where there's been serious injury or there's a death that arises out of those those incidents the problem with the policy now is that the chief has to be persuaded that there's a reason to investigate before the investigation occurs that puts her in a double bind because she's also the consumer of the investigation so she has to decide you know there's something enough here to investigate go investigate it and tell me what it is that thing i've already reviewed to open the investigation and that puts her in a that puts her in this double bind it should happen automatically should happen according to policy and against you know criteria that's been established and is clear okay understood thank you for that clarity and i'm inclined to agree with you uh my second question also on internal affairs is that it is not currently a transparent process and a critical part of what our community has been asking for is transparency into the department and how it handles these kinds of investigations uh but again sending matters to ia kind of puts a lid on the issue while the investigation is underway so my question to you is how would you recommend that we make this process more transparent for the public so i think that there are lots of models around the country there may well be i i would i would use um some caution would be before you made every aspect of internal affairs public because internal affairs ought to have a reach that gets to conduct of officers that is non-punitive that's just simply corrective conduct to conduct of officers that might result in their termination from the department and if you are unable to counsel officers and correct officers move them from one position to another if the um if that's placed under scrutiny then that can be a challenge i think that there are a couple of other things that can provide a lot of transparency in the department that is to be very effective i think the idea of the monitor that's been proposed if that's properly constructed that where the monitor has independence and has the proper authority to engage in the kind of program audits that are necessary and that those program audits are made public that you can provide a lot of transparency for that process a civilian complaint process can also provide a lot of transparency into the department i'm a big believer that if you just focus transparency on punishment that you really miss the boat because that you're you're then focusing on stuff after it's happened and where you can have the greatest influence where a community's voice can have the most influence and most important is to be heard around what is the policy of the department what are the enforcement priorities what are the how is training done who is involved in training getting the community engaged in training um you know thinking about what are the strategies around public what is public safety in a community that those engagements can have a much more meaningful impact on creating trust and legitimacy and effectiveness of policing right now the opacity of a police department often happens because the decisions around all of those things around what we're going to train on what are our policies what are our enforcement priority priorities what are the tactics that police are going to use all of that has made decisions made by the chief and nobody ever reuses we you know police departments are not every democratic institutions if you democratize the front end and you engage people on all of those critical elements on the front end then the need for transparency about discipline becomes much more diminished your time has expired your time has expired uh councilmember combs you are now recognized for five minutes thank you mayor and thank you to the panel for taking the time to be here with us again um i appreciate you uh interacting with us now so i have a couple of questions related to kind of whether or not some of the things that we've seen are more unique to aurora or how commonly you see certain types of things that are relevant to this investigation so the first one is in relation to the body-worn cameras on page 13 and footnote 18. it seems like there were officers that arrived that were not involved in a struggle that did not activate their body cameras multiple officers as well as officers that had gaps in their body camera footage and then the officers that were engaging all had their cameras either dislodged or disabled um so is that kind of widespread disablement oh and then there was also a mislabeling and destruction of a piece of footage from another officer is that type of unavailability of body camera footage common and what kinds of things can we do to address kind of those failures in having that documentation i'd like to address that somewhat you do see a lot more of police work because of bodybuild cameras these days but unfortunately when you have physical altercations the possibility of camera being knocked off or being obscured is is not uncommon i'm not going to say it happens all the time but it's not uncommon i've seen it in other jurisdictions the issue of making sure that every officer turns their camera on is something that every department struggles with at times and for some departments these are fairly new mechanisms very fairly new devices and actually it's going to take some time and it's going to take some accountability measures that there's consequences when that does not occur and i see most agencies put that into place so i don't want to say that it's a common thing but i'm also not going to say that i have not seen these type of of issues with other departments and other incidents and it's something that we as a profession or they as a profession need to keep on top of because unless they make sure that everyone knows it's very important for all aspect for that camera to be on and for the you know the taping to be continuous and available to people to look at that's going to be a very important aspect of the investigation it's not the the end all we always say that these cameras are tools but they tell a very important part of the story if i could just add one point there's also ambiguity in the department's policy about so some of the late arriving officers um there's ambiguity of the policy um a lack of clarity is probably better than ambiguity about who should be turning their cam their body-worn cameras on and who shouldn't and i think if you look at sort of model policies around the country they're much more richly detailed than the policies than the directives of the the aurora police department i think if we found that to be actually true in a number of the critical policies that were relevant to this particular incident that the the the the kind of guidance that it provided officers was insufficient to actually provide the clarity that they needed so i don't know that that resulted in anything happening or not happening that night but it's certainly if you're going to hold people accountable if you're going to train to those policies and hope people encounter those policies the greater level of clarity and the reduction of as much ambiguity as you can and the more richly detailed that they can be the stronger your ability to actually train people to the standards that you want them to behave to and then hold them accountable to those standards great and then the other question i have and i don't know if this is something you guys visited is around aurora's refusal to obey a lawful order law that we have on the books um because on page 25 to 26 um officer rodima talks about the fact that mclean was obey disobeying all orders and that was why he thought that he may have had folks going hands-on with mr mclean was that refusal to obey so do you see that type of law on the books in a lot of places and if so do you think there may have been any contribution to kind of the violations of civil rights that you uh discussed in this report so that that law is relatively common i've seen that in large number jurisdictions that chief may probably have seen it in tucson and other places where he has worked but the crux of the application of that law and we certainly i've seen this in other places where you see patterns of um officers um you know engaging in conduct which is unconstitutional um you know demanding ids from people when there's no lawful basis demand ids here to stop people so the crux of the application of that law in a constitutional manner is that there has to be a lawful basis for the officer to make that order under our constitutional framework and under the constitution of colorado an officer who approaches you you do not have to stop you are free to go if an officer wants to encounter you unless there is reasonable suspicion that you've committed a crime or committing a crime or you're about to commit a crime and so that right to go about your way which is enshrined in our constitution and recognized universally by the courts would mean nothing if you could if it is overcome simply by an officer saying you must stop and you know at that point you converted every encounter from a voluntary encounter to a minimum military stop or possibly an in-custody arrest and that would render that freedom under the fourth amendment and under the colorado constitution for you to be free from unlawful searches and seizures and nullity and so that's why it's important if you're going to apply that law the lawful order that there has to be a lawful basis to have engaged in that stop and then under the constitution if there's a if you've got that lawful basis then under the constitution an appropriate amount of force is authorized in order to do that investigative or jerry stop and to conduct that risk but without that lawful basis you know you can't convert that lawful basis just simply by saying you know i told him to stop he didn't stop therefore every consensual encounter becomes you know a terry stop it or an arrest that's councilman coombs your time has expired marriage pro tem bergen uh you are now recognized for five mayor um and thank you to the panel for the thorough investigation i know it was a really difficult case and uh a very tragic death that you had to investigate um and i do appreciate the recommendations um in the report i think what we're we obviously want to make sure that this never happens again um it i i think you know the whole the whole point of every step that went along the way is is based on that stop and i and so my question is under the the the terry stop is did you review the apd training manual for the techniques that we use for reasonable suspicion because in the report you know the 9-1-1 call comes in uh suspicious person all all the attributes there um so i i know it's probably extremely difficult from a perspective of stopping someone having that ability and then but then the police and their training so did you look at the training manual that we that we have for that particular item we did not we did look at the directives the directives okay um and then i i want to talk about the the process again with the investigation where it goes from major crimes use of force um and then the internal affairs so major crimes looked at it in combination with denver and other i guess other entities then there's the use of force committee and then when we get to internal affairs you said that that um right now the way aurora does it is that the chief has to initiate the internal affairs um does internal affairs have to wait for the d.a criminal investigation so technically no and there's various ways in which departments deal with this so and it's important to just untangle what each of these things do major crimes is is there just to determine whether or not there's enough evidence to send to the da of whether a crime has been committed and so that is a that is a sort of a specialized function the forced review board is to determine whether or not there's need changes to policy training tactics they're they're looking at observationally for the entire department as to you know is there some systemic issue that we ought to be addressing here and that's why you won all the various force compliance bodies and you want the training academy involved in the porsche view board ia is determined was there a policy violation which is different than whether it was a lawful violation did someone violate policy and should there be corrective action that flows from that either you know punitive or non-punitive corrective action that that the officer so they each have these these um these very different functions um so that but the ia is not dependent upon the da completely no they're they're not but there's one piece which is really important about that the internal affairs will always want to talk to the subject officer and they'll want to be able to learn from the subject officer what that what that you know interview that officer the department is permitted to compel that officer to testify under it but if they do so um if they compel it off testify while there's a criminal investigation or underway or there's a risk that there will be a criminal investigation then any evidence that is derived from that interview has to be excluded from the subsequent criminal trial so police departments do this in one of two ways they either will blow off the two investigations and create a hard wall and that's actually very hard to do and so there's risk involved when you can do that to allow the criminal investigation to proceed on one track internal affairs investigation to proceed on a second track you interview the officer compel the testimony etc the other way that departments handle this is that you let the criminal investigation proceed and internal affairs does everything other than its interview with the subject officer so its entire investigation and then at the end it will after the criminal the question or the criminal is resolved it will then do its if the officer will then have its testimony compelled and you'll go the evidence okay um and then same for the use of force did did the officers deviate from the policies because i mean obviously it looks like excessive use of force but did they deviate from the policies we did not reach a conclusion and i'm reluctant to reach a conclusion tonight because of the implications of the officers about what they do okay i do recommend changes to the policies however yes and i appreciate that very much um my final question may pretend your time has expired recognize myself for five minutes um dr um costello in um looking at um the in the issue of ketamine um on page um 57 the report uh states that the body-worn camera the footage reflects that mr mclean had not moved or made any sounds in the approximately one minute prior to the administration of the ketamine in addition at that time of the ejection mr mclean was neither moving nor making any sound although the body-worn camera footage indicates that his chest was rising and falling um doctor if we're talking about excited delirium which which was the the diagnosis at that time um and ketamine is by your assessment is an appropriate um tool in terms of of being able to um to control a patient uh safely suffering from excited delirium but elijah mclean was was not moving um physically at the time that the academy was administered shouldn't the ems personnel have recognized that fact and wasn't it then wrong to utilize ketamine at that time um i think there's there's some nuance in the answer to the question um it is the when you follow the clinical pathway of excited delirium in a general case just if you have clear classic textbook excited delirium um those cases that result in a fatality um and like i said let me let me preface this by saying i'm going to have this i'm going to give you this answer a separate from the situation here with him um if you have classic textbook every symptom on the list excited delirium that you can go to youtube and find 100 videos of there is that percentage of patients and that will progress to cardiovascular collapse and cardiac arrest and they have that sort of quiet interval that we always warn law enforcement about we warn ems about and that they in their training have to be attuned to as the sign that this patient is significantly declining what we don't want in the treatment of excited delirium in that early aggressive intervention on excited delirium is for patients to get to that place and we tailor the interventions to try and avoid getting to that quiet interval which is essentially a portend of significant clinical decline i think that the only real issue in this case is that it is very hard to distinguish whether or not his his clinical decline was present but masked by the ketamine as opposed to their as opposed to basically the paramedics gave this ketamine and and his expected response to the ketamine would have mimicked the response of a patient that was at the tail end of an excited delirium cardiovascular collapse they look exactly the same and so it would have been extremely difficult for anyone to differentiate between the two especially in the absence of more information that they could have used and would potentially have helped so that was sort of that kind of i talked a little bit around your question but does that answer it i would think that if i were to i mean if i'm not a medical professional but i mean the notion of excited delirium is that the patient is is is has erratic physical behavior and here uh the patient is no longer there's no movement other than you could tell the person's still breathing mr mclean was still breathing but there was no other movement and so it would you know it wouldn't that cause um uh an ems individual to pause in terms of uh being a applying uh ketamine in that particular instance um the short answer to your question is i hope so um well it's this happening i mean yeah and the the nuance of the policy is really that it's this excited delirium and then there's this danger to self or others issue that comes up in their policy and it is a very different thing to look at at a subject who is in handcuffs and moving but has three police officers sitting on top of them or you know restraining them versus how a paramedic will view that patient in light of the fact that they are going to put that patient not in handcuffs but in soft restraints in the back of an ambulance and take that patient to the hospital by themselves absent specific training in resistance techniques or in skin painful controls or any other method to control a patient and so i want to be careful to differentiate the excited delirium as a diagnosis from the risk to self or others because that differentiation becomes very important when you put a when you when you go from subject with the police to patient with ems it becomes very important when you're going to put somebody in the back of an ambulance by themselves with one paramedic on the way to the hospital and so that's why judicious use of sedation becomes more important to preserve the safety of both the patient but also of the personnel who are going to be accompanying that patient to the hospital remember lawson we are now in in the second round and you are recognized for five minutes thank you mayor miss castillo this might be a question for you um i'm looking on page 107 and this is the delay in the clear transition of care for mr mclean um and then that the first paragraph it says body worn cameras footage indicates that after arriving on the scene aurora fire personnel approached mr mclean but stood back for several minutes and observed so do you think i mean the first question i have is is that kind of pause within the fire department's policy to to wait until police officers say that they can help or assist someone um that's my first question on that if you could answer that and then i'll go to my part my additional question um i think that as far as being in policy it is not specifically in policy uh generally in the more global world of ems um ems agencies will traditionally uh defer to officers to let them know when it is safe for them to approach patients um you know the scene scene safety issues come up frequently where officers are the first to encounter a situation and then make sure that patients are the subjects are safe before ems approaches that said i think that the length of time that it took to really transition mr mclean from subject to patience which is sort of how i make the distinction um is unusual in the sense that i i would have liked to see those those medics step in soon i would have liked to have seen a clear hey we're going clearly going to the hospital and so this is your call from here forward and there was a lot of back and forth which is part of the collaboration that has to occur to keep everyone safe but in this case i think there's a culture in place that isn't necessarily in policy and that's really what we identified is that if this case is indicative of what's going on across the board then this was the recommendation we offered in the report and that's that's really how we approached it and then my second question is do you think because those are matters of minutes of life and death in in terms of you know people getting assistance and help um when mr mr mclean said that he couldn't breathe then he was it was i mean he couldn't you know he was gagging and i know he was you said that excited delirium was kind of in intact at that time don't you do you feel that aurora fire should have intervened and and did something to assist regardless of what the police officer said they that before the trip despite the transition of of patient to um aurora police to the patient care i i guess i'm just looking at that little time scope if that could have made a bigger difference if they would have just intervened at that time when he was going through and saying he can't breathe he was you know he was kind of suffocating and not and just at just at that time so i'm just wondering um if there if they're if it could have been a difference or should do you think that they should have intervened at that time and not listen to the transfer of patient of person being uh you know incarcerated or being you know handcuffed to and sit on to the to the care part of it so sorry if i'm kind of getting mixed up i think it's multiple questions with them i think i understand the question i mean i think what you're asking is do looking at it do i think the paramedics should have stepped in sooner and would that have changed the outcome and the answer to those two things do i think the paramedics should have stepped in sooner and would it have changed the outcome is is yes to the first note of the second but that's just based on on what i saw and i would i would love to have more information obviously i would love to have had a nice you know monitor tracing or a nice yeah but so much of this that is centered in policy and in the transition and in the relationship between law enforcement and ems on the scenes where these patients in the situations where these patients have to be transitioned and are still continuing to have issues we the officers now are sort of held by this duty to act to step in and i and it was where i referenced in the report the language i want to make sure and i and i really want the the ems agencies to come away with a sense that they have a responsibility based on their medical knowledge based on what they have in their education that is not necessarily in the education and training of the officers that if they feel there is something going on that doesn't fit the picture that they feel empowered and protected to step in and and so i want to make sure that if there is any of those five or six ems personnel that are uncomfortable with what is going on with that patient that the city sets up an environment and a culture not necessarily policy but just an environment and a culture that they feel like they can both have the authority to do that and that they're protected in their efforts to do that um both from like a personnel standpoint and from from basically just to being able to go to bed and put your head down on the pillow at night that you did the right thing because we lost in your time has expired uh council member gruber you were recognized for five minutes thank you mayor i i want to thank you again for the recommendations and i want to thank the police department for the changes that they've made based on what they've learned through the elijah mclean case and the tragedy that happened that night i would like to review some of the information that that's been discussed so far you know as we mentioned earlier council hired as a civil rights attorney to conduct the investigation and and as was stated earlier uh the first thing that was looked at was the elements of implicit bias to determine whether this was an implicit bias case i still have a bit of an issue with that i would have preferred to follow the facts to see where they go well let me go to the next part about the internal affairs the questionnaire repeatedly comes up as to why didn't the chief make the decision and again it wasn't commander dudley it wasn't uh the vice chief o'keefe was the chief of police nick metz why did he make the the decision to go to internal affairs can you tell me what he said when you asked him so we did not speak to chief metz and he had left the department by the time that the decision was made not to send it to internal affairs um our recommendation it actually doesn't matter on why the chief decided or not to decide it's internal affairs but we did teach chief wilson about this and did get get visibility into what happened all right the policy the policy was was broken can i say because twice you've raised twice you've raised the question sorry i have many of my independent questions i have many more questions to go through so if i may i want to jump to the investigation itself so what i understand uh there was a the investigation book on this is over 600 pages and it entails every bit of discussion that occurred along the way and all of the evidence did you have access to that yes we did okay so during the um questioning i think what it would what typically happens from what i understand i'm not a lawyer but from what i understand is that the suspect is put in a chair the defense attorney is put with the suspect uh in a case like this we have both the uh the aurora investigator as well as the denver police investigator uh sitting in the same room there's a video camera the video camera goes outside and in this case the 17th judicial district district attorney had a representative and then there were there were several other senior police uh monitoring the um the interrogation is that what you understand yes we watched all those videos okay so then from what i understand then is that and again not being a police officer but what typically happens is the uh the first question is tell us your side of the story tell us everything you said in which case the the suspect in this case the suspect officer goes through the entire story and then what happens is that the investigators ask questions that are um similar to but different to try to find out whether or not the suspect answers the question in the same way as the original story following that the uh the group moves outside the the two investigators from denver and aurora meet with the 17th d.a and the senior officers to determine whether or not there's any other questions that should be asked is that is that what you saw uh um roughly i i'm not sure i'd characterize it quite that way but yeah okay so then but but i guess the issue that i have is that the information you presented to us implied that um the uh the investigating officer was leading the suspect officer to say magic words in other words he was he was uh um put words in his mouth but didn't that occur didn't that discussion i mean again you you covered one page or half a page of a 642 page document that didn't matter that wasn't the in the first line of questions i was in a subsequent line of questioning where the investigating officer was repeating what had been said to him previously this is that so i encourage you to look at the the interview as a whole um and i would encourage you to watch the video and you will see that the questions that were posed were neither probing nor an effort to try to understand you know holes or gaps in what the officer said or to explore the application of the relevant legal standard so it's not interesting we did pull out some portions of that interview as illustrations but i encourage you to read that we spent much time looking at those videos and we actually got them transcribed so we could review them if you look at them as a whole it's a very different kind of interview than you would do of anyone else who's being suspect of a crime okay so that's interesting because what that implies is that the auroral police department was colluding with the denver police department and colluding with the district attorney of the 17th judicial district and because of the evidence that came from the coroner colluding with the coroner so so uh are is are you saying that that that collusion occurred that they were there that's not what we're saying that's not what we're saying at all and and you know i think you're drawing a a an inference from this that is not in the report and we were very careful in the report this is a national problem in police departments where they investigate themselves you see you see this replicated in departments all over the country where when there's an investigation of a police officer it is treated as a debt investigation that's different from the investigation of any other potential crime that's why we make recommendations to ensure that there is proper training and supervision of the officers who have to do this very difficult task it is very difficult to investigate another police officer and candidly prosecutors will tell you it's very difficult to prosecute a police officer because you're dependent on that department for every other case that you're going to bring so thank you the process is really critical and what we saw here was a lack of training of those officers and a lack of supervision okay again if i may i only have a minute or two left so i just want to point out that the national news came out and said the two major findings of this report were number one the stop was illegal when we clearly have a legal decision from the 17th district attorney or 17 judicial district attorney saying that it was in fact legal and then we also have the accusation that the that there was some sort of collusion going on and the investigation itself is tainted and should not be uh counted and i would contend that both of those are opinion um you know i can watch a broncos game and the next day i can tell you everything they did wrong but at the same time it's not i wasn't there and i you know it's just very very difficult to to to read a report that says what they did was all wrong while reading other reports from the people actually involved as to what they did the 640 council member your time has expired thank you councilmember hilcher now recognized for five minutes thank you very much um i had just two follow-up questions on some comments that were made previously um one i just wanted to clarify who was the who was chief when the decision not to go to ia was made i missed it in that conversation it would have been chief wilson okay that's new to me so thank you um the second question that i had oh go on i was just to say the decision to decision about whether to go to ia or not would have been made after in this circumstance would have been made after the district attorney had issued his report so it would not okay under under the policies of the department it would not have been right for that decision to be made until after the the decision had been made by the prosecutor thank you that's i mean that's the first i've heard that from the city side so i really appreciate that clarification um my second question is more about other cities so there's been a lot of talk about department policy versus the law and my hunch is that the law would supersede a police policy so i guess i don't know if you can answer my question so it might be a comment it might be a question but i just wonder if department policies are intentionally designed to shield officers from culpability because if you look nationally officers who very clearly do something wrong are oftentimes not found guilty or they don't go to court at all and a lot of times what you hear in the press and i'm not talking about aurora specifically but what you hear in the press is a lot of well we followed policy we followed policy and so is there a trend where policy is used to shield culpability because it's easy to say well i might have done something wrong but it's in my policy so therefore i shouldn't be held accountable for that um and obviously that's a an internal policy thing we have to look at here but if i could address that i'm not aware of any department that makes their policy to try and controvert constitutional law and in fact police departments derive any power that they have from the constitution the constitutional law and the case law is always changing how different things occurred what you're talking about is one of the complaints that you've heard across the country about lack of accountability but it's not always just involved within a police department that's why in the president's task force which i was a member we talked about there needs to be a review and an evaluation of the entire justice system because you're looking at not only police departments you're looking at prosecuting attorneys you're looking at courts looking at legislators all of these issues come to play the department will follow the policy if the policy needs to be corrected because there's been change in case of that needs to be done the idea that we colluded or said that there was collusion excuse me on the part of anyone was really not what occurred here what we said based on our review of the information we had we felt that they didn't have the reasonable suspicion to conduct the stops that they did and that's what we said and he said that policy needs to reflect what the law says on how they address things and how they do things and the training needs to be as such also thank you um so i guess there's some confusion on the back end here on on who was chief at the time so i wonder if maybe and not not right now but get a timeline of when that ia investigation um would have been appropriate to have started so i guess it would have gone to the fourth review board and then it goes to the chief review board and then it would be an ia i'm just not sure on the timeline and there's some back and forth on your message my understanding of the way the policy is set up since the chief has to say on whether a case becomes an internal affairs case i'm not sure it really details exactly when that decision has to be made because there could be events that happen so they're so traumatic such as this one that it may not wait until after the fourth review board but then you run into the issue as jonathan was talking about how do you wall off those two separate investigations so when that decision has to be made i'm not sure of i know that after the forced review board occurred and that decision would have been a good time to make that but could have determination been made earlier than that i don't know so we really didn't look into that all we know is that the decision was not made to send it to an internal affairs and we recommend that these type of cases always go to material affairs thank you it sounds like there may have been a couple of opportunities under different leadership to have gone to ia at different points in time and we didn't do that at any point and that's what your recommendation includes okay thank you that's all my questions thank you mayor and thank you all for being here again uh thank you councilmember hiltz uh councilmember gardner you're not recognized for five minutes thanks mayor um i want to focus a little bit on um some of the constitutional issues again and kind of restate some comments and questions that have been made up until now um so first in your opinion do you feel like there was reasonable suspicion for the stock to happen in the first place from what you were able to review no and what we were able to review in the interview with the officers reasonable suspicion was not apparent from the video nor was it articulated by the officers taking that to the next step uh when when elijah mcclain was arrested was there probable cause for an arrest similarly it's not apparent from the videos and it was never articulated by the officers and their interviews my next question is there a constitutional requirement to stop if a police officer tells you to stop no there's not i mean in fact you have a constitutional right to go along your way um when you encounter a police officer unless that officer has reasonable suspicion that you've committed a crime you're about to commit a crime or you're committing a crime then and then my last question is kind of a follow-up to what councilmember hill to ask but does police training supersede constitutional requirements no the constitution is the constitution is the fundamental law of the land it is it controls um what officers can and cannot do well i appreciate those uh those answers it appears some of my colleagues the constitution is only uh it's it's just when they want to use it when it's convenient for them because there were several constitutional violations that happened in this stop and they don't seem to mind that so that's all for me thank you councilmember gardner councilmember mario you are now recognizing five minutes for five minutes thank you and just again if you hear an echo just mute yourself it's whatever tech issues um i just to follow up um to uh melissa costello um around the excited delirium you mentioned um disparate impacts of the diagnosis of excited delirium um though it wasn't the the scope of this particular investigation would that be a recommendation of yours for us to and the police department to look into that uh validity or look into that diagnosis as a legitimate diagnosis in our police department um i think i think if you're far beyond what the scope of this was and this is something that when you look at this diagnosis really what the research is hunting for is either a genetic predisposition or is there a medication combination or is there a a a sensitivity in the brain there's tons and tons of very very high level academic neuroscience research going on well beyond the scope of the the police department as far as education and training for the officers and for the paramedics i hope at some point we can in the future we can really find the thing that is is the answer to why certain people have excited delirium or and so and some people don't there are patients that can you know have psychiatric issues and and substance abuse their whole life and never experience this and we don't know what the difference is it's the same the same thing as there are people who will have a glass of wine and and do fine and there are patients who develop alcoholism and we don't know necessarily what the difference is between those and that really is going to be the kind of the the long-term future answer to this problem is is we may be able to identify a population that is at risk and and help develop policy around that but we're definitely we're definitely not there um and so from the standpoint the scope of the city and from the standpoint of the police department and ems it's not something you can build policy around it's just you have to make sure that your assessments are valid that we're corroborating the information we get from the officers that our handoffs are smooth and that we're getting good information being delivered and being heard so that we can do the best for the patient councilmember i could just say something very quickly because i'm worried a little bit about this discussion um the report does not reach the conclusion that mr mclean had excited delirium and in fact the evidence that we observed on the body cam video creates at least a conflicting record about the symptoms that were reported things like you know did he have extraordinary strength was he you know constantly fighting with the officers what we know is that you heard um one the officers have a perception that he was engaged in those behaviors and when you soon on the body cam video um you see him struggling to breathe and he's vomiting and to get out of the way so there's there's no there's no conclusion it was reached that he had he had excited delirium or that even the the symptoms that are consistent with the situation were actually happening or were just perceived by the officers but for all intents and purposes i mean it sounds like that was the um prevailing understanding of the the officers involved of what that diagnosis would look like is is that fair to say i don't think we know that that wasn't i don't think we know the answer to that question okay um great uh since i'm running out of time um we are i guess it kind of to me like begs the question around um who determines the validity or or i guess best practice of our policies um you know they're alluding to whether or not like this is actually something we investigate or is um a specific concern in this conversation around the excited delirium um you know but if there are disparate impacts um that certain policies have um who determines you know whether or not that's the case that really isn't what our school was about we recommended that these issues be looked at best practices and followed i know that there are other inquiries reviews and investigations ongoing that may actually look into that and provide to the department of city recommendations on best practices that they're finding throughout the nation and then it will be up to the department and ultimately i guess the council to decide yes that's the practice we want to adopt for the city of new york and i can answer that i can answer that um really really uh the prevailing um backup there is a an organization um basically a conference that is put together called the gathering of eagles and that conference has put together the the eagles within that conference are uh the uh ems medical directors the physicians who lead the 50 largest municipal ems organizations in the country and that isn't that conference is an opportunity along with the information that comes from the national association of ems physicians and the american college of emergency physicians that isn't those organizations are the ones that sort of lead the best practices and the changes that occur in policy and those the the community of ems board certified physicians ems physicians that lead ems organizations around the country is a very small community we all we all to some varying degree kind of know each other and and when change comes out when when policy or good data comes out that evidence is that it's time for best practices to change that gets dispersed relatively quickly and aurora is fortunate to be participating in kind of that denver metro um consortium because of the fact that it qualifies them to be participating in this larger organization that is very very aggressive about disbursing policies and changes that need to be made in response to these types of issues uh councilman memorial your time has expired uh council member johnson you are now recognized for five minutes thank you mayor and thank you to my colleagues you're asking really great questions i'm like oh i have a new one and then someone um asks what what i'm thinking but um dr costello i really want to um say that i'm very interested and glad of your with your expertise on on ems and and ketamine it was um definitely an area of interest for me and and i appreciate that i just i guess this is to the group obviously we had a very defined scope and it was very thorough and and like it was mentioned there's going to be other different pieces to this but you know at the end on the conclusion page 152 it talked about the three main categories recommendations one was that policy training supervision um abuse of force and arrest the other was the accountability systems and major crime and and ia and then also that clarifying um suspect to patient when when ems is called i just wanted to see um obviously is very thorough very comprehensive but just um any of your opinions if you think that there should be if you could and if we could do this again another area um that that you think that should be explored in this that might not have been defined in the original scope for for the meta from the medical side it's very hard to think outside the scope um you know it is you know especially in the in the face of the other investigations going on and the medicine side of it is unique in the sense that there's there's two aspects of it that are unique one is that um there's a whole area of civil litigation that can occur on the medical side that is separate from everything that's going on right now and so digging on that side potentially exposes people to risk the second piece of it is there and i talked about this a little bit in our initial presentation and and then the subsequent interview with the with the press is that um the idea of continuous quality improvement in medicine and the way that we evolve and the way that we learn from from from things we've done in the past is is through that quality assurance process and through that peer review process which has very stringent protections um and and i view those protections absolutely as sacrosanct um and and so valuable to the evolution of of care that they i that they are not ever something i would consider digging into um i would love to be to be a part of a qa or qi of a different case in aurora just to witness the process because at least from an outside view the design of it is so elegant that um that i would love to see it in real time not specifically to this case but just in general um it is why i took the time to single it out as a best practice in that community because i think that if there is evolution to be made an improvement to be made in the medical community at least in the ems community the pieces are in place to do that well thank you if i could just add one thing i mean one of the things that we really are urging is that the police department become an organization that learns from every one of these events that if that if you have the proper role in jurisdiction of each of these various entities inside the department and they play the role that they're supposed to play then each of these events will be an opportunity for the city to continuously improve its work to do and on top of that if you really do bring in you know an inspector general type or a place monitor who's got the proper responsibilities that is also an opportunity for that constant improvement of the department mayor i'm i'm good thank you uh councilmember johnston uh councilmember berzins you are now recognized for five minutes very intently what y'all have said and your opinions according to the facts that you have um which obviously that's all you can go on um but i'm i'm really bothered at your opinion um that there was no reasonable suspicion to stop i you know i am very familiar with that area i'm there at least once a week and you said that this is not a high crime area it is a high crime area uh and it has been for years um i i don't know exactly where you got your information um but i i don't know if if you knew you know recently we've had so many shootings there the gas station was robbed people got hurt there's drug activity in the neighborhood um and i'm saying all this just to say our our police department knows that you know they they answer calls for crime there all the time day in day out so 24 7. i mean that's obviously what they do and you know it's disturbing to hear hear you say that that there isn't crime because there is i know there is uh my husband lived there um there is criminal and there's a lot of crime um so i i'm saying that because i believe that the police when they answered that 9-1-1 call and asked three times for mr mclean to stop and he didn't you know i think they went into their policing mode which is what they do that's what they were trained to do unfortunately they didn't know him they didn't know that he was a kind soul that he wouldn't hurt a fly they didn't know him and that's what breaks my heart is you know they saw a suspicious person with a ski mask and i don't know if he had on his head at the time he did at the 7-eleven a jacket waving his arms that's what they saw and they went into that doing what police do now you said that i mean it was 80 degrees outside and he had on a ski mask um if we had neighborhood policing maybe that wouldn't happen um because maybe they would have known him and known that he wouldn't hurt a fly he was a sweet sweet person but they didn't know that and honestly according to your report there has been and according to the district attorney that there was no evidence that any of the officers actually intended to hurt him i i read that and i think somebody said it here tonight i it that just bothers me that um that that was your opinion i feel like maybe you didn't have all the facts i don't know you know did you check out the lighting um in that area you know i just feel like maybe you didn't have all the facts and there was some reasonable suspicion but before i run out of time i want to ask i forget who is the lawyer here is it mr smith yes okay thank you um what you know this has been going on for a year and a half and um it's it's sad that it it hasn't been concluded yet but as you've stated there are more investigations going on but what what happens to um people that are arrested but not given say our police you know if we had thrown them in jail or whatever but they weren't given their due process what happens to people that aren't given due process so so a couple of things um if i if i might with the information that we received about the crime in that neighborhood came from the city we asked for the city for a heat map of crime and that's the what we relied on in our report that's the basis of our information we were not able to travel to colorado because of kovid um would have liked to have done that it's the first time i've ever been involved in an investigation to sort where i've not been able to be on the ground and that's unfortunate but we really yeah we're all we're all in in the copic time um the weather um that night was in this in the 60s um according it was it wasn't in the 80s was in the 60s um and when the officers observed mr mclean he was simply walking down the street he wasn't waving his arms he wasn't doing anything unusual that wouldn't have mattered for the analysis of whether or not he uh they had reasonable suspicion or not courts have looked at the question of presence in a high crime neighborhood is that does that give you reasonable suspicion the courts have said no it does not was wearing a mask does that give you reasonable suspicion no it does not give you reasonable suspicion in a high crime neighborhood doesn't give you reasonable suspicion wearing heavy clothes on a warm night doesn't give a reasonable suspicion you need more than that you need to know that there's you need to have some evidence that there's a crime that is being committed that would and the officers didn't see anything that night that would have um you know at least according to the video that we saw the 911 interview with the officers no one identified a crime that they thought he was committing or was about to commit so it is not about could you answer my question councilman uh councilmember burns your time is expired and i did get my questions council member version your time has expired thank you member marcano you are recognized for five minutes thank you mayor uh so i want to circle back to internal affairs and i just want to start with that i strongly agree with some of the comments made about democratizing the agency and kind of using positive reinforcement as opposed to just punitive approaches and that suggestion was actually very timely because i actually had a constituent reach out over the weekend about an incident that occurred near their home they captured the whole thing on camera and they have audio they gave that audio to pd as you know with the ask that you know they would love to lend their expertise as an attorney and someone who has experience in the criminal justice world to actually use this as a positive reinforcement and a teachable moment for some things that could have gone wrong but also to highlight all the things that didn't go wrong so my ask to you is are you familiar with a more open process that would allow residents to work with internal affairs or the department generally speaking to better policy before we have a catastrophic event and we you know to be proactive as opposed to be reactive i think that there are agencies across the country that could be looked at to have a little bit more open environments and involvement of the community internal affairs every agency goes out and looks for those type of opportunities those type of lessons that they can learn from that in tucson i'll speak just from personal experience we had an independent police auditor and it wasn't a monitor and a monitor is like when you have to prove that you're doing certain things and now that there was another way that the community could approach the department and say you know we feel that this was done wrong or we feel that this wasn't looked at appropriately they did not have subpoena power but they had a very good working relationship where we met monthly and we talked about the different cases so there's mechanisms like that what we would suggest is we're going to go out and look at the different type of community involvement mechanisms that get the community involved in situations such as officer review training policy development and find what works for aurora what people want to do and incorporate that into the department okay thank you so uh on a similar note the city will soon hopefully be standing up in independent review board uh pending the conclusion of the community police task force report on this matter um i'm curious in your expert and your experience what model of review board has been the most effective and how would you try to integrate such a thing with internal affairs so those okay good good there's a lot of learning on the question of civilian involvement in civilian oversight so and i know that the city is connected with the national association of um civilian oversight and law enforcement um and there are there are a lot of good models to do that um and so i encourage you to do that the what where i have seen it fail is where people rush without doing all of the various steps um and the first step in what a critical step is to engage the various communities that make up the city about what people see as the important roles for that board to be and then build out with clear authority clear responsibility and um and uh you know the kind of lack of ambiguity about who's doing what what's gonna happen those reports do they have subpoena power what staff do they have what investigative authority do they have are those reports public are they what is the line to the chief those various things and so i would take care and making sure that that happens i wouldn't rush to get it up quickly without having followed sort of the various diligent steps but there are a lot of really good approaches okay so you don't have a specific one that you would recommend then just kind of follow the communities i like i really like an inspector general model personally i think a civilian complaint review board um or you know that receives complaints and separately an inspector general or or a police monitor with subpoena power and reporting authority is the model that i have seen in other places work the best and so yeah and i got to talk about the the ability of the department to also take care of their own issues and needs and so i like the system that we had in tucson with the auditor and the independent auditor where they meet together and they talk about the issues and come together on how to invest things all right mayor how much time do i have left uh you have uh 45 okay do my best here so uh independence and separate authority of medical personnel so the report mentions the lack of like the formal scene transition process that we have between apd and aurora fire rescue and we recently had an incident where body camera footage surfaced about an encounter in march 19 where an officer asks an emt to give a suspect some juice to go to sleep um i think that this scenario kind of speaks to your findings a bit and demonstrates that importance of both having a clear scene transition protocol and respecting the independence and authority of both of medical personnel so with that in mind is this an accepted or common practice for law enforcement agencies to do to you to ask for the use of sedatives for emergency personnel on a suspect so the short answer is no the longer answer is there are certain law enforcement agencies that do incorporate medically trained personnel within their their staff whether that's a paramedic who works with a swat team or whether that is a role i serve in as a as a police surgeon from time to time where there's somebody with medical background integrated into the law enforcement environment that can have input on a medical scenario general the general statement the more broad statement is medications are administered for medical purposes there is no indication for medications to be administered for any purpose other than a medical indication there is not an indication in law enforcement for administration of medication and so that is why the distinction between subject and patient is so important and so valuable and why we emphasized it in this report so heavily councilmember mcconnell your time is expired uh councilman coombs you are now recognized for five minutes okay i just want to make sure can you hear me well while i'm speaking i heard that maybe you could not okay great thank you um so my question is around the crisis intervention training you guys made some recommendations on refreshers for the crisis intervention training um and just codifying that a little bit more so there was a crisis intervention trained officer on the site officer rodima and the report suggests that perhaps he didn't have the opportunity to use his training i do wonder about the adequacy of our training based on a comment that he made that was recorded namely that aurora officers quote tend to take control of an individual whether that be an escort position a twist lock whatever it may be we tend to control it before it needs to be controlled he added we take action before it escalates and we have to use more force more action what not so i feel by controlling his arms we were able to use less force in the entire situation because we already had a general control of him um so my question is whether that's consistent with that type of approach to maintaining a situation and keeping it from de-escalating is consistent with appropriate best practices around crisis intervention training and um you know whether or not we should at any point have an approach to de-escalation that focuses on subduing people rather than garnering their voluntary engagement you bring up quite a few i'm sorry jonathan you want to take crack or i could do from the practitioner's in that you bring up some points there that the statement that you're referring to i think caused some concern for us as well and if you look at it from the viewpoint of if an officer has reasonable suspicion or probable cause to take someone into custody then that may have a little bit of merit before feed look think they're going to get violent something to try and minimize that but the emphasis behind crisis intervention trading is to give the officers the ability and the tools to deal with people who may be experiencing behavioral or mental health issues or vulnerable issues so that you don't get to the point of using force and you try and de-escalate those situations you observe a little bit you calm down there's been a lot of issues about you they did or did not have reasonable suspicion the issue of telling him three times to stop was all done in the space of eight seconds while they were advancing on him and then laid hands on him before he really had time to stop if you look at the video he was slowing down but the issue of going hands-on we think accelerated issues there crisis intervention would probably say use time distance and separation to try and calm the situation down to alleviate or negate the need for use of force i think one just a one clarifying point is that we actually didn't one of the reasons there was an area of concern is that we actually did not conclude that mr mcclain was in crisis at the time although you know and we do commend the city for its change in policy on suspicious persons i think that that was a very important change that emphasized the need to use time and space but i agree with the chief that that you did not see crisis intervention training on display that night uh i yield the rest of my time thank you councilmember uh combs uh mayor pro-tem bergen you are now recognized for five minutes thank you um and this is for mr smith uh you stated that your opinion that you had not seen enough evidence um to justify the the the basis for the stop and this is really important because i i don't want to give the wrong message to the public that that if an officer says stop you you just keep on going because i almost think that could cause you know a more escalation of a bigger problem we don't want to have that happen but constitutionally speaking isn't the district attorney charged with considering that same information as their review so the royal industry attorney is to determine whether a crime has been committed not every violation of the constitution is a crime and this goes back to the question that was asked that i didn't finish answering the earlier question there may be other remedies so if if someone's constitutional rights are violated it might result in the suppression of evidence that was seized during that that incident but the did the d.a find that he that the officers had a right to stop them the d.a concluded that we i disagree with the da's conclusion right okay um and did the officer i i maybe i read this wrong but did the officer say you are acting suspicious and i have the right to stop you the officer said something to that effect i'm not sure if that's the precise words but it's done okay so that you're saying that would not qualify as a reasonable no there's nothing that is not reasonable suspicion that a crime has been committed being committed or is about to be committed that is correct okay but you said they don't have the right to stop them unless they articulate but i thought he articulated you're acting suspicious and i have the right to stop you and i guess from the officer's perspective all the other 9-1-1 and all that i i'm just concerned that we understand fourth amendment rights for our citizens because if you know god forbid we don't want this to happen again we don't i don't want someone to just think oh i can just keep on going when the police tell me to stop do you know what i'm saying i understand what you're saying and people do have a right to continue along the way unless the officer has a right to stop them we did not see in the evidence here now people may choose to submit to the officer it might even be wise to submit to the officer but the constitution in which we were asked the question here when to look at this incident um was there a basis to engage in that stop that was never articulated okay um being suspicious whatever that means is not a basis under the constitution for there to be um a stop either a terry investigative stop or an arrest okay so do you disagree with the da's conclusion then that's correct okay um and then i real quick if i have time on the i think it is important on the medical side uh when the firefighters did show up and i now got by my notes but the two two of the firefighters um i think were told that a carotid cold had taken place but then i guess the paramedic was not told so i think you know you pointed out that that was a communication issue um and i guess this is for the for the doctor but that communication is critical because maybe they would have rendered different care i i don't know that they would have rendered different care um i think it's i think that's a leap that we didn't make in this report but i think that based on what we had is we have clear video body worn camera evidence that at least one or two members of that medical crew were standing face to face with an officer who said he had occurred and hold performed he had loss of consciousness and then in the subsequent interviews that were done with the paramedics the pair the two paramedics that sort of the two senior people who are decision making in this setting who are not the people in that video by the way just to be clear but the two senior paramedics who were really responsible for for mr mclean's care both said that they were not aware that he had had a loss of consciousness not necessarily they weren't aware that he had a carotid hole but that he had not had loss of consciousness so in your opinion though if if if they knew that he had a chronic hole is it in other departments is it a different medical procedure once you know oh the carotid will not we don't allow it now but a carotid cold happened so therefore i'm going to check abc it's it's hard to say um it's it's to me it's a fundamental misunderstanding in the information that was conveyed about why they were called if they were called because the because the officers had to call them under policy for the karate hold however had the officers called them for different reasons they said we have a legitimate medical concern here and we want you to look into it that may have prompted a different level of evaluation or he had a carotid hole with loss of consciousness and thus we want you know we need you to check him before he so very very many of these ems interventions where there's mandatory calls um result in ems coming and being like yep you're fine you know we pull out taser barbs and you know off you go and they don't they never come into the ems realm as a patient they revert back to law enforcement custody in the cases where they do ultimately become patients and go into ems custody then that is a transition that needs to occur in a more formal way thank you very much thank you pro tem bergen um i want to the members of the panel that did this independent investigation into this tragic incident i want to thank mr smith dr costello and chief evia senor for all of your hard work this has been an open wound in our our community and for us to heal uh we have to make uh reforms and you're never going to be able to make reforms never going to be able to change unless you truly understand uh what went wrong and i think that your work has shed light in terms of uh what went wrong on the 29th of october uh 2019. and so i want to thank you for that and with that uh this special council meeting is adjourned thank you thank you [Music] [Music] [Music] [Music] you