Background
On a summer evening in 2019, Elijah McClain walked to a convenience store in Aurora, Colorado, bought iced tea, and danced in the parking lot. A caller reported a “sketchy” person in a ski mask; Aurora police officers stopped Mr. McClain, struggled to restrain him, and applied a carotid hold that caused him to briefly lose consciousness. Paramedics Jeremy Cooper and his supervisor Peter Cichuniec arrived and — based on the officers’ report and their visual assessment — concluded Mr. McClain was experiencing “excited delirium.” They decided to administer ketamine. Cooper injected 500 mg, a dose calibrated to a weight estimate that turned out to be about 77 pounds too high. Mr. McClain stopped breathing and was later declared brain dead.
After the District Attorney for the 17th Judicial District declined to prosecute anyone for Mr. McClain’s death, Governor Jared Polis issued Executive Order D 2020 115 directing the Attorney General to investigate and, if warranted, prosecute. A state grand jury indicted Cooper and Cichuniec on charges including reckless manslaughter, criminally negligent homicide, and second degree assault. The two were tried together. The jury convicted Cooper of criminally negligent homicide but acquitted him of all other charges. Cooper appealed, challenging both the Attorney General’s authority to prosecute and the jury instruction on the standard of care.
The Colorado Court of Appeals affirmed the AG’s jurisdiction but reversed the conviction and ordered a new trial on the grounds that the jury received an incorrect standard-of-care instruction — and was then misled when it asked the court to clarify.
The Court’s Holding
On the jurisdictional question, the court held that section 24-31-101(1)(b), C.R.S. 2025, independently authorizes the Attorney General to prosecute whenever the Governor requires it — and that this power coexists with, rather than being displaced by, the special prosecutor statute at section 16-5-209. The elected district attorney’s decision to decline prosecution does not foreclose the Governor from invoking the AG’s authority. The court applied decades of Colorado Supreme Court precedent recognizing that district attorneys hold “the bulk of prosecutorial powers,” but that this authority is “neither unlimited nor exclusive.”
On the standard-of-care question, the court held that Colorado’s criminal negligence statute — which requires a “gross deviation from the standard of care that a reasonable person would exercise” — must be read in context. Where the allegedly negligent conduct is the professional act of a licensed paramedic providing emergency medical treatment, the “reasonable person” in the instruction is a reasonable paramedic in the same circumstances, not a lay member of the public. The court grounded this holding in the Colorado Supreme Court’s decisions in People v. Hall (1999) (skier standard of care) and Mata-Medina v. People (2003), as well as civil medical malpractice doctrine. It emphasized that the prosecution itself tried the case on the theory that Cooper violated paramedic training and protocols — making a generic “reasonable person” standard internally incoherent.
The court found the error was not harmless: the jury affirmatively told the court it did not understand “the standard of care,” and the court compounded the error by telling jurors to apply “common and ordinary meanings” rather than clarifying that Cooper’s conduct should be judged against that of a reasonable Aurora paramedic in 2019 treating a patient in Mr. McClain’s condition. Because the People could not show beyond a reasonable doubt that this failure was harmless, the conviction was reversed and the case remanded for a new trial.
Key Takeaways
- When a criminally negligent homicide charge is premised on a professional’s conduct, the jury must be instructed to evaluate that conduct against the standard applicable to a reasonable person in that profession and situation — not a generic layperson.
- Colorado’s Governor may direct the Attorney General to prosecute a case even where the local district attorney has affirmatively declined to prosecute; the special prosecutor statute (§ 16-5-209) is an alternative mechanism, not the exclusive one.
- When jurors signal confusion about an element of the offense, the trial court must clarify with substance — simply telling them to apply “common and ordinary meanings” is inadequate and, in a professional-conduct case, affirmatively misleading.
- This decision is a companion to People v. Cichuniec, 2026 COA 43, which reversed Cichuniec’s criminally negligent homicide conviction on the same standard-of-care grounds.
Why It Matters
The Elijah McClain case became a national focal point on police-involved deaths and the use of ketamine by first responders. This ruling does not exonerate anyone — it holds that Cooper deserves a new trial at which the jury is properly told how to measure a paramedic’s conduct. For Colorado’s emergency medical services community, the court’s professional-standard holding means that EMS providers facing criminal charges for treatment decisions will be judged by peers, not by what a layperson would have done. That distinction can be decisive in any case where expert testimony on proper protocol is contested.
For prosecutors and defense attorneys statewide, the ruling clarifies two important points: the Governor’s executive order authority is a genuine alternative prosecution vehicle, and trial courts must take jury questions about elements of the offense seriously by providing substantive answers. A referral back to pattern instructions — particularly when those instructions are facially inadequate for the case being tried — is reversible constitutional error.