Boulder deputy police chief hires legal counsel amid Elijah McClain accusations and escalating dispute

By John Herrick, Boulder Reporting Lab (Via AP Storyshare)

A high-profile dispute is brewing in Boulder connected with the ongoing trial over the death of Elijah McClain.

Boulder’s deputy police chief, Steve Redfearn, has hired a lawyer in response to allegations from a local attorney related to the case. McClain, a 23-year-old Black man, died in 2019 in Aurora after he was forcibly arrested while unarmed and given a powerful sedative by paramedics.

Redfearn’s decision came after the NAACP Boulder County published letters calling for his resignation.
Redfearn was a captain with the Aurora Police Department on the night police confronted McClain. He arrived on the scene as McClain was being transported to the hospital. In September 2021, Redfearn left the Aurora Police Department, where he had worked for 22 years, and joined Boulder’s department.

Last month, he was subpoenaed as a witness by state prosecutors in the first trial over the death of McClain. During his testimony, Redfearn said he changed the computer-aided dispatch (CAD) report after the officers’ encounter with McClain from “suspicious person” to “assault on a police officer.” He modified the report after speaking with officers who were on the scene but before the completion of any investigation into the incident.

It is now established fact that McClain did not assault officers on the night he was forcibly arrested.
Even so, the code used to describe the incident that night does not appear to have played a role in any of the subsequent investigations into McClain’s death. Instead, investigators have relied on body camera footage and interviews with police officers, among other evidence.

But in light of this testimony, three members of the NAACP Boulder County sent a letter to city officials on Oct. 1, alleging Redfearn’s decision to change the dispatch records “reeked of a cover up.” The organization is circulating a petition calling for Redfearn to resign or be removed. The petition has not been approved by NAACP headquarters, Portia Prescott, the president of the NAACP Colorado, Montana, Wyoming State Area Conference, told Boulder Reporting Lab. Such approval is standard protocol under the organization’s bylaws, Prescott said.

In an interview with Boulder Reporting Lab, Redfearn said he changed the dispatch code because an officer informed him that McClain had attempted to grab his gun. Investigators have since found no evidence to confirm this claim after reviewing body camera footage. Redfearn said there was no specific dispatch code for this type of incident, so he chose the next “closest thing,” based on the information he received at the time.

“There was no intent on my part to cover anything up,” Redfearn said. “My changing that code did not indicate that I believed that that happened. I was just doing it based on what was shared with me.”

Once Redfearn learned McClain had lost consciousness during his encounter with officers, he said he called Aurora’s detective commander and requested an investigation by a critical incident team. That team included representatives from the Aurora Police Department, the Denver Police Department and the 17th Judicial District Attorney’s Office, according to the City of Aurora. This request prompted the first investigation into the officers’ encounter with McClain within hours.

“I did quite the opposite on scene of what someone would do if they were intending to try to cover something up,” Redfearn said.

In an Oct. 22 letter to community members also calling for Redfearn to resign, Darren O’Connor, chair of the criminal justice committee for NAACP Boulder County, cited a lawsuit that alleged Redfearn and dozens of other officials used excessive force in their response to a June 2020 vigil for McClain outside the Aurora Municipal Center. The vigil included clashes between demonstrators and police wearing riot gear. O’Connor alleged the response from police is an example of Redfearn’s “history of violence against peaceful civilians.”

The defendants denied many of the allegations and settled the case by agreeing to pay the five plaintiffs $750,000. Redfearn told Boulder Reporting Lab he was one of hundreds of officers called to the scene that day, and he was following orders from a command post. He said he deployed pepper spray when three men tried to take a nightstick from a sheriff’s deputy.

In their letters, O’Connor and the NAACP have highlighted Redfearn’s decades-long career with the Aurora Police Department and the omission of this experience in his city biography. A 2021 state civil rights probe found the Aurora Police Department “has a pattern and practice of racially biased policing, using excessive force, and failing to record required information when it interacts with the community.” The report was published the same month Redfearn joined the City of Boulder.

“[City officials] knew that if they put on his bio he had 22 years of experience in Aurora that eyebrows might go up,” O’Connor, who has been leading the calls for Redfearn’s resignation, told Boulder Reporting Lab.

Redfearn said he is proud of his career in law enforcement. While in Aurora, he was among the officers who responded to the 2012 Aurora movie theater shooting in which the gunman killed 12 people.

“I’ve had to overcome a lot to get to where I am in this profession,” he said. “I’m very proud of the work that I’m doing.”

In light of the public allegations circulating against him, Redfearn said he has hired Stan Garnett, a former Boulder County district attorney, in his personal capacity to help him “weigh any options going forward.” He has not taken any legal action, but said the allegations against him have been “disparaging” and “borderline, if not flat out, defamation.”

“In this case, mischaracterization and sometimes just flat out inaccurate remarks just aren’t helpful. And so I felt like I needed to have some protection,” Redfearn said.

He added that he wants to focus on implementing the department’s “reimagine policing” plan. “Maybe we can continue to move on with all the good work and this can stop being such a huge distraction,” he said.

Garnett is representing Steve Rosenblum, a former candidate for the Boulder City Council, in a defamation lawsuit against five local political organizers. Earlier this year, a judge dismissed the allegations against all but one of the defendants. Part of the case was tossed out under a Colorado law that aims to prevent frivolous lawsuits.

Dispatch reports are intended for internal record-keeping, Redfearn said. But the information documented in the report from the night of McClain’s encounter with officers emerged as one of the first official public records generated by police following their encounter with McClain.

With four years of hindsight, the suggestion that McClain assaulted an officer is shocking to many, given what is now known through body camera footage, investigations by law enforcement agencies and an independent investigation commissioned by the Aurora City Council.

The investigations into McClain’s death came under heightened scrutiny when his case received renewed attention during the 2020 protests over the police killings of Black people. In 2021, a forensic pathologist amended McClain’s autopsy report to change his cause of death from “undetermined” to “complications of ketamine administration following forcible restraint.” State lawmakers, meanwhile, enacted police reforms, including a ban on carotid chokeholds, following protests in which McClain’s name was chanted among the many who have died while in police custody.

The incident began on the evening of Aug. 24, 2019, when officers responded to a call about a man who was “acting weird.” They confronted McClain, a massage therapist, as he was walking home from a convenience store. Within seconds of asking him to stop, one officer grabbed him by the arm. An officer restrained him twice using a chokehold. An officer threatened to have a dog bite him if he kept “messing around.” After paramedics arrived on the scene, they injected him with ketamine. He later died in the hospital.

In November 2019, the former district attorney for the 17th Judicial District, Dave Young, declined to file charges against the three officers. It was later determined by an independent investigation that the Aurora Police Department’s investigation “revealed significant weaknesses in the Department’s accountability systems” and was “flawed and failed to meaningfully develop a fulsome record.”

The current trial is the result of a grand jury indictment that followed an investigation by Attorney General Phil Weiser, prompted by an executive order from Gov. Jared Polis. State prosecutors charged three Aurora officers for manslaughter and criminally negligent homicide for their role in McClain’s death, specifically the use of “violent subdual and restraint” techniques, according to the indictment.

In October 2023, a jury issued a split decision, convicting one officer and acquitting the other. Trials involving the third officer and two paramedics are ongoing.

O’Connor and other members of the NAACP Boulder County have suggested they made their allegations as part of a broader effort over several years to seek accountability for the officers who confronted McClain.

“What we know is it’s in conformity with the rest of [the Aurora Police Department’s] pattern and practice of changing the history of what actually happened,” O’Connor said, referring to the dispatch report changes. “It was a cover up.”

City Manager Nuria Rivera-Vandermyde has come to Redfearn’s defense, arguing the allegations against him are a “misrepresentation” of the facts.

“This was merely an administrative task to ensure that the dispatch call accurately reflected the information that was given to him at the time by the on-scene sergeants,” Rivera-Vandermyde said in a statement about the code change. She added, “The allegations shared with us from NAACP Boulder County are inaccurate and could damage the relationships that Chief Maris Herold and Deputy Chief Stephen Redfearn have worked hard to build in this community.”

Separately, in a recent email to councilmembers and city officials, Councilmember Mark Wallach said O’Connor’s campaign against Redfearn amounts to “performative outrage” and suggested it could harm the reputation of NAACP Boulder County.

Prescott, the president of the NAACP Colorado, Montana, Wyoming State Area Conference, said she did not know whether Redfearn’s decisions during his time as a captain in Aurora warrant his resignation.
“He has a scary background with Aurora. But now he’s making up for that,” she said. “He is testifying against the police. He is a witness for the attorney general.”

Prescott said a group of lawyers at NAACP headquarters should have reviewed the allegations before the Boulder branch called for his resignation. That is the standard protocol, she said.

“You know the resources we have at the D.C. and Baltimore offices to go investigate?” Prescott said. “It’s not a question of who’s right or who’s wrong. It’s a question of having many people behind you doing the homework and the fact finding.”

Martha Wilson, a former child welfare caseworker who was a founding member of the city’s Police Oversight Panel, said she has been following the trial from within the courtroom. She also attended the protests over McClain’s death in 2020. In the context of what is known now about the death of McClain, she said the decision to change the dispatch report was “disturbing.”

“That act is what criminalized him,” Wilson said. “There was so much unnecessary use of force that to then classify that as assaulting an officer is just — I don’t know how to reconcile that in my head.”

She is not calling for Redfearn to resign. Instead, Wilson said she would like to see reforms that require officers to take into account whether someone is on the spectrum and to add steps to the process of categorizing an incident as “assault on a police officer” in the dispatch reports.

“Those are two aspects where societal grief can help us to make better-informed decisions now,” she said.