In a recent article authored by Tana Ganeva and published by The Appeal, a project of The Justice Collaborative, Budge & Heipt lawyer Erik Heipt sheds light on a controversial syndrome called “excited delirium” which has received renewed public attention following the killing of George Floyd.
From The Appeal, July 11, 2020:
—————————————————————————————————
George Floyd’s Death Puts Spotlight On Controversial Syndrome Called ‘Excited Delirium’
Coroners and police departments have cited the condition in cases across the country, often clearing officers of wrongdoing when people die in their custody. In Floyd’s case, experts say, the diagnosis is irrelevant to his death.
Less than three months before George Floyd died after Minneapolis police officer Derek Chauvin knelt on his neck for nearly nine minutes, a 33-year-old Tacoma, Washington, man died after he also stopped breathing while being arrested.
Tacoma police suggested that Manuel Ellis died after experiencing “excited delirium,” a controversial diagnosis frequently cited by law enforcement officials across the country, but that’s not recognized by either the American Medical Association or the American Psychiatric Association. Now, some legal observers say they believe excited delirium could play a role in the defense of the Minneapolis officers arrested in Floyd’s death, even as other experts—and Floyd’s autopsy results—suggest the syndrome was irrelevant.
When Floyd cried out that he couldn’t breathe during his arrest on May 25, one officer replied, “You are talking fine.”
Officer Thomas Lane, who was holding down Floyd’s feet, asked if they should put him on his side. “I am worried about excited delirium or whatever.”
“That’s why we have him on his stomach,” Chauvin, who has since been fired from the department and charged with second-degree murder and second-degree manslaughter, replied, showing no emotion as Floyd fell unconscious and stopped breathing.
It’s perhaps not surprising that Lane voiced concerns about excited delirium. In many police training guides and presentations, officers are told that people with excited delirium possess “superhuman strength” and are impervious to pain. “There’s no subtlety about the intensity of energy, the physicality. It doesn’t seem like you’re dealing with anything human,” William Everett, a self-described expert on excited delirium, is quoted saying in a Standards & Training lesson plan.
Far more controversially, officers are told that excited delirium can result in a sudden death. Yet, there have been few documented cases outside of police custody or correctional facilities. And legal experts suspect that most fatalities attributed to excited delirium occur when a suspect is asphyxiated after being violently restrained.
“Police departments fail to train their officers on [restraint-related] asphyxiation. They don’t want to take the position that people can die from it,” Erik Heipt, a Seattle lawyer who litigates police brutality cases, said. “Since their defense is excited delirium, police spend thousands of hours in being told how dangerous excited delirium can be. And they argue this in court. They tell them that you turn the suspect on their sides not because they might suffocate, but so they don’t die of ‘excited delirium.’ It’s the most bizarre thing in the world.”
A number of legal observers say they believe excited delirium could play a role in the legal defense for Chauvin because the term was specifically mentioned in his charging documents. One Dallas attorney told the Marshall Project last week that he believes there is a “high probability” that one or more of the officers might cite it as a defense.
Dr. Werner Spitz, a forensic pathologist who has worked on a number of high-profile cases including the assassination of Martin Luther King, Jr., said that claiming Floyd died of excited delirium, however, would completely miss the mark.
“Excited delirium has nothing to do with this case,” said Spitz, who also worked on the Casey Anthony, Phil Spector, and O.J. Simpson cases. “A legitimate question is the duration of oxygen deprivation and conscious pain until death.”
Heipt agrees. “Even if you think excited delirium is a legitimate condition or cause of death, there’s zero indication he was in a state of excited delirium,” he said. “People in this state, no matter what you want to call it, seem out of control. Hallucinating, agitated, running down the street.” Floyd had none of the characteristics associated with it, he said.
More critical, Heipt said, was the manner in which Floyd was restrained.
“When you kneel on someone’s neck or back when they’re handcuffed and prone, it’s going to impair breathing and cause the person to struggle for air,” he said. “So what often happens in asphyxia cases is that the person underneath the weight of the officers starts moving and bucking because they can’t breathe, and the officers perceive it as active or even aggressive resistance. This then causes them to push down harder, further impairing the person’s ability to breathe. [It] often only ends when the person goes limp.”
Chauvin appears to have been in clear violation of the Minneapolis Police Department’s use of force policies when he used his knee to hold down Floyd. Section 5-311 of the department’s policy manual states that an “unconscious neck constraint” may only be used “on a subject who is exhibiting active aggression,” “for life saving purposes,” or “on a subject who is exhibiting active resistance.”
“This was not an acceptable use of force,” Heipt says. “The policy only permits to use neck restraints on people who are either actively resisting or engaging in active aggression. George Floyd was not doing either of these things. He was lying still, saying he couldn’t breathe, and pleading for his life. For the last three minutes, he was pulseless. No reasonable officer could think that applying a neck restraint in this situation would be consistent with department policy.”
A medical examiner named Charles Wetli coined the term “excited delirium” in the 1970s after he theorized that doing too much cocaine was making people enter into a state of “excited delirium”—and drop dead. When Black sex workers and other women and girls started turning up dead in Miami in the 1980s, detectives had no idea why; there was no obvious mark of death, like stab wounds, strangulation bruises, or an obvious overdose. Wetli surmised that the women had experienced “excited delirium”—that their alleged cocaine use primed them to drop dead after just one subsequent sex act.
The death, however, of a teenage girl who had seemingly never done sex work and had no drugs in her system complicated that explanation. As it turned out, there was a likelier explanation for the women’s demise: a serial killer who asphyxiated them by putting sustained pressure on their chests and abdomens.
Nonetheless, the concept of excited delirium persists to this day. Like other officers across the country, Daniel McDonald, an officer in the Tampa Police Department, told The Appeal that he’s encountered the condition in the field. “Excited delirium, it’s definitely an issue,” he said. But, he also noted—with the caveat that he wasn’t present during Floyd’s arrest—that if excited delirium is suspected during any arrest, immediate medical attention is paramount. “Putting him on his side, that would be beneficial as well,” he said of the incident involving Floyd.
Tacoma police cited excited delirium when Ellis died on March 3 after he was restrained during what appeared to be a period of mental distress. Instead of excited delirium, however, a coroner ruled that Ellis’s cause of death was “respiratory arrest due to hypoxia due to physical restraint.”
In the past, other coroners have cited excited delirium as a cause of death, clearing officers of wrongdoing. Those cases have striking commonalities and echo the frantic pleas of Floyd.
Julie Cobio Duarte, Anthony Firkins’s widow, had a hard time watching the Floyd video. It reminded her of seeing her husband’s final moments on videotape after he died during an arrest following a car chase in Nampa, Idaho, in 2013. “Oh shit. I can’t breathe, I can’t breathe, I can’t breathe,” cried Firkins, who was 33. “If you’re talking, you’re breathing, dude,” an officer replied before Firkins took his last breaths.
“Watching the video of Floyd was just like watching Anthony all over again,” she wrote in a message to The Appeal from Richland, Washington. “That poor family. My heart goes out to them, and I pray for them. Excited delirium is a cop out! Just like Anthony, he said he couldn’t breathe, and just like Anthony, they thought because he was talking he could breathe. And just like Anthony he couldn’t and didn’t. … This is so wrong.”
