In January of 2021, Colorado Attorney General Phil Weiser announced a grand jury investigation into the death of Elijah McClain, the 23-year-old Black man killed in 2019 after being detained by police and administered a common sedative, the anesthetic ketamine.
Nine months later, on Wednesday September 1, Weiser stepped up to a podium before a room full of journalists to announce the grand jury was finally returning an indictment—one that not only charges the three police officers who initially detained and subdued Elijah McClain, but also charges the two responding Aurora Fire Rescue (AFR) paramedics, Peter Cichuniec and Jeremy Cooper.
The paramedics are both charged with manslaughter and criminally negligent homicide, as well as multiple counts of second degree assault and crimes of violence.
Weiser called the grand jury indictment a “formal accusation” and promised justice “for Elijah McClain, his family, his friends and the state.”
While those charges still have to be proven in court, some paramedics and EMTs, like Reilly Capps, believe that regardless of the outcome this should open up a serious conversation about Emergency Medical Services (EMS) and the ways in which EMTs use sedatives and how they work with police. Because while the National Association of Physicians calls the suggestion that ketamine is routinely used for non-medical purposes “dangerously misleading,” Capps says he saw it and other sedatives used for non-medical purposes on a regular basis.
“[Sedatives] were used for making our lives easier,” he says, then pauses before adding, “and for making cops’ lives easier.”
Capps is a certified EMT who worked for AMR in Boulder for two years and did his training in Denver. He recalls one ambulance ride during his training when his crew responded to a woman who was bleeding from her head and clearly altered on either drugs or alcohol. Capps explains that in such a situation EMS protocols dictate that a patient cannot refuse medical treatment—they have to be taken to a hospital. “EMS can’t simply walk away,” he says.
“She ended up getting into a scuffle with us about whether or not she wanted treatment, and she just didn’t want to go in the ambulance,” Capps says. “So we shot her up with sedative drugs in order to just get her to be quiet and get in the back.”
Capps says he was immediately uneasy with this method of apprehension; it felt like an invasion of the person’s body, he says. But he was still in training, so he didn’t question it—the first time.
But when it happened again, just a few weeks later on another ride in Denver, he decided to approach his instructor about it.
“She told me, ‘Look, this is just how we do it. These people are dangerous, and we have to protect ourselves,’” Capps recalls. Which meant that if someone was acting aggressively or unruly, the best thing to do was to sedate them, Capps says.
The culture and expectations within EMS seem to promote that attitude, from Capps’ perspective. More than 90,000 patients are transported to Denver-area hospitals every year by paramedics, who respond on average to over 300 calls per day, according to an analysis done by Aladtec. Those EMS providers have to move quickly from one call to the next, without much rest or delay in between. On top of having such a distressing job, paramedics, EMTs, and other EMS providers undergo extreme stress, often struggle with PTSD, and rarely seek out or receive counseling or emotional support services (read: “Under a cloak of darkness,” Boulder Weekly, April 4, 2019).
Capps says EMS providers simply don’t have the time, the bandwidth, or the emotional energy to handle resistant patients with as much empathy and understanding as they might warrant. And sometimes, he says, they’re encouraged by the police to medicate someone in their custody.
“My sense is that sometimes when a person is resisting arrest, the cops will [tell paramedics] things like, ‘Look, this guy has excited delirium, don’t you think?’ with the suggestion of, ‘Hey, can you work with me to make this an easier apprehension?’” Capps says.
Which was allegedly what happened on August 24, 2019, when AFR paramedics Cooper and Cichuniec were called to respond to the scene of Elijah McClain’s arrest.
According to a blog post from the City of Aurora, published two days after the incident: “Due to the level of physical force applied while restraining the subject and his agitated mental state, officers requested Aurora Fire Rescue (AFR) and Falck Ambulance respond to render professional medical attention.”
The ambulance arrived at 10:53 p.m. and McClain was already on the ground, his hands cuffed behind his back. He’d vomited into his ski mask and was telling officers he couldn’t breathe and that what they were doing “was hurting.”
The grand jury indictment asserts: “After approximately two minutes on the scene, Cooper and Cichuniec both concluded that Mr. McClain was suffering from excited delirium. Cooper reached his diagnosis after receiving some information from officers and observing McClain for about one minute.”
The City of Aurora’s Investigation Report and Recommendations elaborates: “Aurora Fire Lt. Peter Cichuniec advised Falck Rocky Mountain to draw up a 500 milligram dose of ketamine based on his inaccurate estimation that Mr. McClain weighed about 190 pounds. At 10:59 P.M. or 11:00 P.M., Paramedic Cooper administered the ketamine to Mr. McClain. At the time of the injection, Mr. McClain had not moved or made any sounds for about one minute.”
AFR’s own incident report admits that the Falck medic who provided the lethal drug hadn’t been able to do his own assessment of McClain due to “darkness as well as multiple APD officers being on top of (patient).”
McClain—who, notably weighed just 140 pounds—was given a dose of ketamine that would have been adequate for a 220-pound adult. Just minutes later, on the way to the hospital, he suffered cardiac arrest and although he was revived went into an irreversible coma.
Days later, on August 30, Elijah McClain’s family made the decision to take him off of life support.
Now, Cooper and Cichuniec are facing eleven criminal charges each: manslaughter; criminally negligent homicide; second-degree assault with intent to cause bodily harm; second-degree assault for recklessly causing bodily harm with a deadly weapon (ketamine); second-degree assault for administering a drug for a purpose other than lawful medical or therapeutic treatment; and two counts of crimes of violence for each assault charge.
“I have never handled a case where something like that has happened,” Kevin Mahoney, with the Mahoney Law Firm, a medical malpractice and personal injury law firm in Boulder, says of the charges against the AFR paramedics. He calls it “highly uncommon.”
When asked about the legality of EMTs and paramedics using sedatives to help police detain someone or to do so on their own, Mahoney is taken aback.
“I didn’t have any idea about that until now . . . and that is very surprising,” he says. “And I’m guessing that it’s going to happen a lot less frequently now.”
That guess is likely to come true, thanks to a bill signed by Governor Jared Polis in July 2021. The “Appropriate Use Of Chemical Restraints On A Person” Act (HB-1251) severely restricts and limits the use of ketamine on agitated patients outside of hospital settings—essentially suspending the use of ketamine for EMS providers completely. Representative Leslie Herod (D-Denver) introduced the bill during the 2021 legislative session.
“You cannot forcefully inject someone with a drug that can kill them without having the proper medical attention right there and supervision right there, and it can never happen at the direction of law enforcement,” Herod told Fox 31. “These are common sense things that unfortunately, we shouldn’t have to legislate. But unfortunately, we do.”
Of course, not everyone agrees with that sentiment. Many in the emergency medical response industry see the ketamine suspension as a barrier to providing adequate care. Scott Sholes, president of the Emergency Medical Services Association of Colorado, said there will undoubtedly be consequences to limiting their access to pharmaceutical sedatives.
“The consequences of this bill, likely unforeseen and unintended by the Colorado General Assembly, will dramatically impact our ability to safely treat and transport mental health and other patients experiencing life-threatening emergencies, and EMSAC is working with CDPHE to reinstate those waivers within the parameters of the new legislation,” Sholes told Fox31 in a July 2021 interview.
For his part, Capps is also torn about how all this is shaking out. On the one hand, he says it’s scary to think that a paramedic on duty doing their best to help someone in need could be charged with manslaughter or assault with a deadly weapon if they truly need to use ketamine in the field and something unforeseen happens.
“At the same time, I also think that the culture of EMS needs to change,” he says. “We use sedative drugs way too much. We sedate people that have no business being sedated. It’s kind of appalling how often we shoot people up with Versed or ketamine as a way to get them off our backs or to calm them down because we don’t want to deal with them anymore.”
Judging by the actions and language of Colorado’s lawmakers and attorney general, they agree with Capps.
“I agree that chemical restraints like ketamine should only be used in true medical emergencies,” Governor Polis wrote in his signing statement for HB-1251. “Furthermore, ketamine should not be used for law enforcement purposes. When on-scene, there should be a formal hand-off from the responding officer to the EMS provider.”
“We want to make sure [EMS providers] are not stepping beyond their duties and directing the use of a drug so deadly and volatile that it’s resulted in the death of people like Elijah McClain,” Representative Herod told the Denver Post.
For now, Cooper and Cichuniec and the three officers charged alongside them remain innocent until proven guilty. The case will go to trial and their innocence (or lack thereof) will be determined by a jury of their peers. If they’re found guilty, Capps thinks it will dramatically change the way paramedics do their jobs—for the better.
“I think it could definitely reduce the unnecessary or unwarranted or just overly-aggressive use of other sedatives, for sure,” he says.
According to Mahoney with Mahoney Law Firm, though, convicting the paramedics is still a big “if.” It’s hard enough to convince a jury that a healthcare provider made a mistake, let alone to convince them that they did so maliciously, he says. “If even just one person doesn’t buy it, then you’ve got a hung jury.”
This case could set a new precedent for EMS providers across the country who administer sedatives on a daily basis for both medical and non-medical purposes. Like the police officers who responded to the scene and arrested Elijah Mcclain, EMS providers like Cooper and Cichuniec could be liable to criminal prosecution should they use sedatives knowingly and inappropriately—and also in the case that they do so completely on accident.
Regardless of the outcome in court, this conversation is one among many necessary discussions that began as a result of Elijah McClain’s death. It’s tragic that it took his death to do that, but Capps says the system needs an overhaul and McClain might have helped make that possible.
“They say cops are expected to be social workers and mental health professionals, and [EMS is] expected to do some of that, too. And it’s just too fucking much. We just can’t do it all and we shouldn’t do it all,” Capps says. “People get into this for healing and saving—not to be enforcers. But, sometimes, we’re forced into that role.”