Paramedics are rarely charged if someone they’re treating dies. The Elijah McClain trial is testing that

By Emma Tucker, CNN

(CNN) — A guilty verdict against two Colorado paramedics for the 2019 death of Elijah McClain could have a chilling effect nationwide, experts said, due to the unprecedented nature of a criminal case against medics who are largely protected from liability while treating people in emergencies.

The prosecution rested its case Wednesday after calling many witnesses who previously testified in the trials of three Aurora police officers involved in the incident. The two Aurora Fire Rescue paramedics, Jeremy Cooper and Peter Cichuniec, have pleaded not guilty to charges of manslaughter and criminally negligent homicide.

The two emergency medical technicians standing trial for the death of someone they treated in police custody is unparalleled, experts told CNN. Paramedics are typically local government agents protected by statutory immunities where injury and death can occur even when they abide by their medical training.

It is rare for police officers to face criminal charges for on-duty encounters due to laws protecting their right to use force, but it is exceedingly so for emergency medical technicians to face any consequences – professional, civil or criminal – for their actions on the job.

Cooper and Cichuniec were indicted by a grand jury in 2021, along with three Aurora police officers. Nathan Woodyard was found not guilty by a Colorado jury in November on all charges. Randy Roedema and Jason Rosenblatt were jointly tried beginning in September. Roedema was found guilty of the lesser-included charges of criminally negligent homicide and third-degree assault and will be sentenced in January. Rosenblatt was acquitted of all charges.

The charges against the five first responders stem from the arrest of McClain, 23, on August 24, 2019, when officers responded to a call about a “suspicious person” wearing a ski mask, according to the indictment. The officers confronted McClain, a massage therapist, musician, and animal lover, wrestled him to the ground and placed him into a carotid hold as he was walking home from a convenience store carrying a plastic bag with iced tea.

What makes the case against Cooper and Cichuniec stand out among other claims against paramedics is their diagnosis of McClain with “excited delirium” – a controversial term describing violent agitation – and giving him the powerful sedative ketamine before he suffered a heart attack on the way to the hospital and died three days later, said Candace McCoy, an attorney and criminal justice professor at the John Jay College of Criminal Justice.

McClain, who weighed 143 pounds, was estimated by the paramedics to weigh 200 pounds and injected with a dose of ketamine to match, the indictment said.

Cooper and Cichuniec were suspended from their roles in September 2021 after being criminally charged, a spokesperson for the Health Facilities and Emergency Medical Services Division of the Colorado Department of Public Health and Environment told CNN. The department will make a decision to remove their certifications depending on the outcome of the trial, the spokesperson said.

The ketamine factor

Defense attorneys for the three Aurora officers at trial blamed McClain’s death on the paramedics’ decision to inject him with a dose of ketamine too large for his size. The use of ketamine by emergency responders to tranquilize people against their will has raised controversy and triggered investigations in multiple states.

The decision was made to administer a 500 mg dose of Ketamine, which should have been closer to 325 mg for McClain, according to the indictment.

“By the time he was placed on the gurney, Mr. McClain appeared unconscious, had no muscle tone, was limp, and had visible vomit coming from his nose and mouth,” the indictment said. “(Officer) Roedema said he heard Mr. McClain snoring, which can be a sign of a ketamine overdose.”

Though an initial autopsy report said the cause of death was undetermined, an amended report publicly released in 2022 listed “complications of ketamine administration following forcible restraint” as the cause of death. The manner of death was undetermined.

Dr. Stephen Cina, the pathologist who signed the autopsy report, wrote he saw no evidence injuries inflicted by police contributed to McClain’s death, and McClain “would most likely be alive but for the administration of ketamine.”

Prosecutors called their last witness to the stand Wednesday, Dr. Roger Mitchell, a forensic pathologist who reviewed footage from the incident. He testified McClain showed signs of having a deficiency in oxygen, or hypoxia, but there was “no evidence of excited delirium.” Mitchell said McClain needed oxygen and fluids, as well as a physical examination before he was injected with ketamine.

“If that was done, then I don’t believe that the ketamine would have been given,” Mitchell testified.

Emergency medical technicians and police officers arrive at the scene with differing purposes, but their roles can intersect “instantly,” Hodge said.

“You can imagine the dynamics of who is trying to lead on those two different and often sometimes divergent missions: stabilizing the patient and stabilizing for a criminal related threat,” Hodge said. “In a routine situation, there are not too many cases like this where paramedics and police are caught up in the dynamics of trying to contain for the scene what they were there to accomplish, and a horrific outcome of course occurs.”

One potential result of the trial could be that paramedics “should not believe at face value what police tell them,” according to McCoy, an expert on the rule of law and topics such as police practices and accountability in public organizations.

A criminal conviction in the trial could lead to paramedics being leerier about arriving at a scene where law enforcement is present by showing they could be held liable even when their only purpose is to give medical help, according to James Hodge, director of the Center for Public Health Law and Policy at Arizona State University.

“We don’t want to authorize paramedics or police to engage in egregious behaviors related to any person seeking specific care,” Hodge said. “But on the flip side, the moment you target paramedics – potentially arriving on scene and being directed by police as to what they can and cannot do in real time – with potential liability, there’s a very serious chilling effect at work here.”

A high burden of proof on prosecutors

When an action by an officer or paramedic turns criminal, statutory immunities are swept away, Hodge said, which can open an avenue for lawsuits alleging a breach of constitutional duties. But proving criminal activity, intent or gross negligence by paramedics is a heavy burden on prosecutors, Hodge said.

“You’re generally not seeing paramedics brought up on cases related to what they tend to do in the field – absent some true demonstration of gross negligence, wanton or willful misbehavior or true criminal effort or activity involved,” Hodge said. “Whether the specifics of the McClain case fall into that, we don’t know yet, but if so, that’s the potential to reach some level of liability for these paramedics.”

It’s more common for paramedics to be sued or accused of negligent duty or medical malpractice on the job, but those claims are frequently dismissed due to the challenge in proving a patient’s injury was caused by potential negligence or criminal activity, Hodge said.

One case in point stemmed from an incident inside a Michigan jail in 2017. Two paramedics and an officer were charged in 2018 with manslaughter in the death of William Marshall, who was in custody at the jail for drug possession when he began convulsing on the floor, having muscle spasms and was unable to walk, according to Wayne County prosecutors.

When paramedics arrived, Marshall said he was having a seizure and pleaded for help, prosecutors said, but neither paramedic offered medical attention, and he was placed back in the cell. He died within a few hours from cocaine toxicity, prosecutors said. In 2019, the charges against the officer and the two paramedics were dropped after a judge ruled the prosecution could not prove their actions caused Marshall’s death.

Prosecutors reluctantly bring charges against government agents shielded by the doctrine of sovereign immunity and have ample leeway in “judgment calls” in the field, according to McCoy. Prosecutors face a high burden to prove beyond a reasonable doubt to jurors the paramedics were so negligent it caused a death, she added.

“But even for negligence, you must prove that it’s so far out of the normal medical standard that the EMTs were basically renegades, and that’s hard to prove. It’s not that jurors love EMTs, but they have medical training so it’s hard to assess,” McCoy said. The defense, however, will seek to cast doubt on the negligence of the homicide, she added.

“All they need is one or two jurors to sympathize with the EMTs,” said McCoy.

CNN’s Andi Babineau contributed to this report.

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