City of Aurora sued over police response to 'violin vigil' following Elijah McClain death

Five attendees of a rally and vigil for Elijah McClain held last month in Aurora are suing the Colorado city and its interim top cop over what they say was an unconstitutional police response that "terrorized" peaceful protesters.

On June 27, thousands of demonstrators gathered for a "violin vigil" to celebrate the life of McClain, a 23-year-old Black man who died last year a few days after police confronted him as he was walking home from a convenience store.

In social media footage of the gathering, held on the lawn of the Aurora Municipal Center, serene violin music contrasted with images of officers approaching in riot gear and spraying the crowd with pepper spray.

"Against the backdrop of the violinists' beautiful and haunting soundtrack, these officers under [Aurora Police Department] direction bullied and indiscriminately deployed chemical agents on the men, women, and children who had gathered to peacefully remember Elijah. Some even wielded batons and shot projectiles," states the class action lawsuit, which names the city of Aurora and Interim Chief Vanessa Wilson, among others, as defendants. "They terrorized an already reeling and grieving community."

The plaintiffs are seeking damages for "emotional distress, humiliation, loss of enjoyment of life and other pain and suffering," according to the complaint. The lawsuit is also calling for injunctive relief regarding police behavior at demonstrations, including requiring body-worn cameras to be recording and unobstructed at all times, to only give orders to disperse when there is "imminent danger of harm to persons (not property)" and to bar the use of chemical agents, including pepper spray, against those "exercising their rights of free speech and assembly."

"Today, we are proud to represent leaders of the Aurora community who have filed this class action lawsuit to do what Aurora's officials refuse to: hold Aurora's out-of-control police department accountable," said Mari Newman, one of the attorneys who filed the lawsuit Thursday, in a statement.

The five plaintiffs include two members of the city's new community police task force and the chairwoman of the Arapahoe County Democratic Party.

The city has not been served yet, according to Aurora City Attorney Daniel Brotzman.

"As soon as we obtain a copy of the complaint from the Court, we will begin analyzing it," Brotzman said in a written statement. "Since we haven't seen it, only accounts from the media, we will need time to evaluate the claims."

ABC News has reached out to the Aurora Police Department for comment.

At a June 30 virtual meeting called to address the police department's widely criticized response, Aurora's interim police chief defended the officers' actions, saying they were trying to protect peaceful demonstrators from a small group of agitators.

"I'm deeply concerned that children were frightened by that," Wilson said. "People were confused by that, and I profusely apologize for that."

McClain's death has gotten renewed attention amid calls for justice for George Floyd, who died while in police custody on May 25. Nationwide protests have included violin vigils in honor of McClain, a certified massage therapist and self-taught violin player.

On the night of Aug. 24, 2019, while McClain was out buying soft drinks, someone called 911 to report a suspicious person who was reportedly wearing a ski mask and waving his arms as he walked down a street.

When responding police officers grabbed him, police body camera video captured McClain telling them, "I am an introvert. Please respect the boundaries that I am speaking." Several minutes into the video, he also could be heard saying, "I can't breathe," and told the officers he was in pain as they applied a chokehold.

When paramedics arrived, they gave him ketamine, a sedative. He suffered a heart attack on the way to the hospital and was later declared brain dead. He died on Aug. 30.

After an investigation by the county's district attorney, the three officers did not face any charges.

Last month, following a series of rallies and protests demanding justice for McClain, Colorado Gov. Jared Polis appointed state Attorney General Phil Weiser as the special prosecutor to investigate the death and potentially file charges.

ABC News' Clayton Sandell and Jeffrey Cook contributed to this report.