How a racialized, gendered theory became the go-to defense for police officers who kill people in custody
by Brooke Kaufman
The term “excited delirium,” or agitated delirium, first entered legal discourse in the 1980s. Dr. Charles Wetli and Dr. David Fishbain used the theory to explain the sudden deaths of 12 Black women in Miami, assumed to be sex workers, who were found with small amounts of cocaine in their system. Wetli speculated that women of a “certain [blood] type”—i.e. Black women—were more likely to have a lethal reaction to sex in combination with cocaine usage. After a 14-year-old girl was found dead in a similar manner, without traces of cocaine, the chief medical examiner stepped in and ruled the deaths as homicides, leading to the eventual capture of a serial killer. Wetli, for his part, continued to assert that Black women and men had a higher risk of suffering from “cocaine-related delirium”—a “racialized and gendered” theory that lacked scientific basis. [See: CLN, Dec. 2021, p.12.]
Despite the shadow cast by Wetli, excited delirium went on to become a widely used term. In 2007, “excited delirium syndrome” was coined by Dr. Vincent Di Maio and his wife Theresa Di Maio, who, at the time, worked as defense experts for the technology and weapons producer TASER International (now Axon Enterprise). Today, the term is used as a catch-all for deaths in police custody, typically for persons with substance use disorders or mental illness, though it is disproportionately applied to the deaths of young Black men.
A March 2022 report from Physicians for Human Rights (“PHR”), “‘Excited Delirium’ and Deaths in Police Custody: The Deadly Impact of a Baseless Diagnosis,” argues that “excited delirium” lacks validity as a medical or psychiatric diagnosis under international criteria for health conditions and mental disorders. According to the report’s authors, many of whom are physicians or have legal expertise, literature in support of excited delirium (often coming from law enforcement or TASER/Axon) is known to misrepresent, misquote, and distort the underlying causes of the so-called syndrome. The term, which has no agreed upon definition by clinicians and scientists, is rooted in subjective opinion, not evidence. Its use as an explanation for agitated behavior and resistance during police encounters, which could be caused by mental illness or substance use, is particularly worrisome and means these factors will continue to go undiagnosed and untreated. Meanwhile, an excited delirium diagnosis is now common practice in the aftermath of aggressive or fatal incidents involving the police.
Though the term is not recognized by the American Medical Association or the American Psychiatric Association, it has earned approval from law enforcement affiliates like the American College of Emergency Physicians and National Association of Medical Examiners. In-custody deaths from heart attacks, drug or substance overdoses or withdrawals, acute psychosis, and oxygen deprivation are often classified by law enforcement agencies as cases of excited delirium—despite presenting different medical emergencies. According to the PHR report, diagnoses have “come to rest on racist tropes of Black men and other people of color as having ‘superhuman strength’ and being ‘impervious to pain,’ while pathologizing resistance to law enforcement.”
Medical examiners and coroners consider behaviors such as agitation, fear, hyperactivity, or noncompliance with directions to be symptoms of excited delirium, which law enforcement officers respond to with violence and physical restraint. These methods can lead to asphyxia from prone, or lying face down, and other types of restraint, which may cause death. In these cases, the cause of death will be listed as excited delirium—not police use of force. But excited delirium is not a recognized medical diagnosis and thus cannot be cited as an officially determined cause of death. The widely discredited theory, according to PHR, is a “descriptive term” for a multitude of symptoms and signs, all able to be attributed to underlying conditions such as mental illness. To prevent deaths in police custody, these conditions must be identified and treated. Doing so may prevent police officers from responding to medical emergencies with unlawful aggression—and getting away with it.
The PHR report makes four key recommendations to the American College of Emergency Physicians and National Association of Medical Examiners, state and local governments, and U.S. Congress: (1) publicly clarify that excited delirium is not a medical diagnosis and thus unable to be listed as a cause of death; (2) utilize alternative forms of crisis response; (3) establish independent oversight systems to investigate deaths in police custody; and (4) use Congressional oversight authority to monitor the use of excited delirium in the context of deaths in custody and systemic racism in the criminal justice system.
Over the years, excited delirium has outgrown Wetli’s reports on cocaine-related deaths to become a term that is heavily used by law enforcement, forensic pathologists, emergency physicians, and the courts. But how did this happen? To understand the troubled history of the term, we must first consider the correlation between police killings and crisis response. According to PHR, anywhere from 25-50% of all police killings occur during responses to calls involving mental health, behavioral health, or substance use disorders. To this day, the impacts of the deinstitutionalization movement of the 1950s are felt in communities where people with severe mental illnesses are more likely to come in contact with the carceral system than forms of treatment or resources. Calling 911 in a mental health crisis means armed police acting as first responders and performing the job of mental health counselors or clinicians. Oftentimes, this will escalate the situation, endangering the person who is in need of help to a potentially lethal extent.
And the problem is impacted by race. In 2021, the Office of the United Nations High Commissioner for Human Rights reported that law enforcement officers “frequently violate the rights of Black people experiencing mental health crises,” discriminating based on their race and disability. Racial bias and disability-based stereotypes lead officers to believe a person’s behavior makes them a danger to themselves and to others; such an accelerated, baseless diagnosis is what prompts an unjustified and/or lethal response to the person’s distress.
Investigations into custodial deaths vary by state and jurisdiction, meaning medical examiner and coroner systems are not beholden to a national standard for performing autopsies on persons whose death raises “suspicion of crime or foul play, including police violence.” A 2017 Harvard study found misclassifications and cases of underreporting after reviewing data on police killings in 2015. Coroners and medical examiners were determined to have downplayed the role of police officer interactions in official death investigations. The National Vital Statistics System (“NVSS”), a federal government entity that reports on law enforcement-related deaths, was also shown to have “misclassified” a stunning 55.2% of police killings, in addition to underreporting deaths that occurred in low-income areas. Another study comparing NVSS to media-based databases found that NVSS “failed to report” about 17,100 deaths “attributable to police violence” from 1980-2019. The same study found that, from the 1980s to the 2000s, police-related deaths were most common amongst non-Hispanic Black people, followed by Hispanic people of any race. According to PHR, underreporting of law enforcement-related deaths is often attributed to the lack of explicit standards or guidelines for completing death certificates. Also, many medical examiner and coroner offices work for or are part of police departments—a conflict of interest if police officers are under investigation for wrongful death.
As part of its report, PHR conducted a review of the medical literature on excited delirium and excited delirium syndrome as a medical diagnosis and cause of death. PHR team members also reviewed abstracted articles and general literature on the subject, in addition to holding interviews with forensic pathologists and other medical and legal experts, such as emergency physicians and lawyers, on police custody deaths. The goal of these efforts was to reach a consensus on the validity of excited delirium as a scientific term able to be used in legal discourse.
The report’s findings are organized chronologically to chart the evolution of excited delirium in psychiatric and law enforcement circles. PHR begins with an analysis of the Wetli and Fishbain reports on the serial murders of Black women in Miami, leading into the first position papers and publications on excited delirium syndrome. The subsequent rise in the term’s usage coincided with developing research on the safety of prone restraint tactics as it related to police accountability. TASER/Axon was later identified as an early proponent of excited delirium syndrome and pushed for its adoption by medical examiners and police chiefs.
In 2009, a group of TASER-affiliated restraint death defense experts and consultants joined together as the American College of Emergency Physicians to publish the “White Paper Report on Excited Delirium Syndrome.” According to PHR, the White Paper Report does not shy away from the limitations of excited delirium theory: “[The report] acknowledges that the pathophysiology of ‘excited delirium syndrome’ is not understood, that there are no tests or standard diagnostic criteria, and that the medical treatment for the ‘syndrome’ is unknown.” The report also allows that “in most cases, the underlying disease will be untreated at the time of [excited delirium] presentation”—affirming the notion that excited delirium has become a substitute for diagnosing and treating other conditions. The White Paper pinpoints 10 “specific features” of the syndrome: pain tolerance, agitation, not responding to police presence, superhuman strength, rapid breathing, not tiring despite heavy physical exertion, naked/inappropriately clothed, sweating profusely, hot to the touch, and attraction to/destruction of glass/reflective surfaces.
The report identifies these features without citing medical literature, nor does it assume the validity of these symptoms as a “screening tool” for excited delirium in situations involving the police. PHR notes that many of these symptoms, such as “superhuman strength” and an abnormally high pain tolerance, are associated with racist tropes directed at people of color, writing: “This is doubly concerning given that Wetli had asserted without evidence 18 years prior that 70 percent of people who died of cocaine-induced delirium were Black men and that ‘it may be genetic.’” A 2011 reiteration of the White Paper Report in the academic, peer-reviewed literature failed to discuss the need for valid screening tools. Conflicts of interests related to TASER/Axon also went unaddressed.
The death of Martin Harrison exemplifies the dangers of an excited delirium diagnosis. On August 13, 2010, Harrison was arrested for jaywalking in Oakland, California. Police arrested Harrison after a warrant check uncovered a failure to appear on a DUI charge and took him to the Alameda County Santa Rita Jail. During a medical intake screening, Harrison appeared visibly intoxicated and told the licensed vocational nurse (“LVN”) that he had a history of alcohol withdrawal. The LVN then sent Harrison to the jail’s general population without instituting any treatment protocols. Just three days later, Harrison experienced severe alcohol withdrawal, or delirium tremens, and hallucinations. The 10 deputies dispatched to his cell tased Harrison, severely beat him, put a spit hood on him, and knelt on top of Harrison after forcing him into a prone position. Harrison died during the incident.
In the Harrison case, the defendants hired both Di Maio and Wetli as expert witnesses. No one disputed that Harrison was experiencing delirium tremens—which has an International Classification of Diseases code—but both expert testimonies claimed Harrison presented a “classic” and “pure” example of excited delirium. The term, though, has no ICD-9 or ICD-10 code, which prevents it from being used as a medical diagnosis or cause of death. The Harrison case would end in a $8.3 million settlement in 2015. But it did not spur changes to internal policies or training at Alameda County’s Santa Rita jail, which is among the largest jails in the country.
Excited delirium continues to be a defense for law enforcement officers who “kill people during the course of restraint,” whether during the initial police encounter or later in custody. According to the Austin-American Statesman, from 2005 to 2017, more than one in six non-shooting deaths that took place in police custody were attributed to excited delirium. A January 2020 report from Florida Today found that of “85 deaths attributed to ‘excited delirium’ by Florida medical examiners since 2010, at least 62 percent involved the use of force by law enforcement.” According to a Berkeley professor of law and bioethics, who searched these two news databases and three others from 2010 to 2020, of the 166 reported excited delirium custodial deaths, Black people made up 43.3 percent, with Black and Latinx people accounting for a combined 56 percent. An unrelated 2018 study found that excited delirium is now a disproportionately used cause of death for young Black men.
As use of the excited delirium defense grows, so too does opposition from the American Medical Association and the American Psychiatric Association. In 2020 and 2021, statements were released by both associations criticizing the use of excited delirium as a justification for excessive use of force, especially in cases where Black men die in police custody. The AMA said the term has been used to support “inappropriate and discriminatory” police action; the APA called on the U.S. Department of Health and Human Services to investigate all cases under the label of excited delirium. Both associations have said the term should not be used until “clear diagnostic criteria” is established and more data are made available. Meanwhile, the American College of Emergency Physicians (“ACEP”) continues to assert that excited delirium is a form of delirium. In 2021, the ACEP released a new task force report on “Hyperactive Delirium with Severe Agitation in Emergency Settings” that outlined concerns about “potential bias” but did not refute or attempt to correct the 2009 White Paper Report.
The use of excited delirium has spread beyond the United States to places like Australia, Canada, and the United Kingdom. All the while, more Americans—people of color especially—are being killed at the hands of police and having their deaths attributed to excited delirium.
Elijah McClain was 23-years-old at the time of his death in August 2019. He was walking home from the store when police unlawfully arrested him, beat him, and placed him in a chokehold. When paramedics arrived on scene, they diagnosed McClain with excited delirium and injected him with a dose of ketamine for someone twice his weight. McClain went into cardiac arrest in the ambulance and died four days later. “Justice for Elijah McClain” later became part of the Black Lives Matter movement and the fight to end police brutality.
Daniel Prude had recently been hospitalized for erratic behavior when police found him, naked on the street, and ordered him to lie face down on the ground. His brother Joe overheard on an officer’s radio as police handcuffed Prude and put a spit hood over his head and face, all while he was pinned down. Three officers then assumed a three-point “pushup” position atop Prude, focusing their weight on his head, back, and legs until he vomited and became unresponsive. Prude was pronounced dead one week later. On the officer’s radio, he can be heard saying the officers were “trying to kill me.”
Angelo Quinto was 30 years old and experiencing a mental health crisis when police knelt on his back for five minutes until he stopped breathing. He died three days later in the hospital. His mother, who was home with him at the time, heard Quinto say at least twice to the officers, “Please don’t kill me.”
Forensic pathologists and other physicians have warned that excited delirium is being used as a “proxy” for restraint asphyxia during police encounters. In other words, law enforcement is using a bogus diagnosis that lacks scientific validity to justify unlawful police violence. People of color, especially young Black men, are disproportionately being killed in this manner. And while police may believe excited delirium syndrome is a one-way ticket to exoneration for their crimes, there are ways to close the accountability gap. Some of these include: establish a consensus on the meaning of excited delirium; implement national standards for death investigations; seek out alternative responses for people in crisis and define deaths in custody as a public health issue; and eliminate teachings on excited delirium from law enforcement policies and training materials. In the meantime, expert testimony on excited delirium should be barred from court until validity is established in the medical community. The same goes for officers looking to use the term as a defense for lethal misconduct.
Excited delirium is not a medical diagnosis, and its use by law enforcement to cover up wrongful deaths and other rights violations is yet another tactic to perpetuate discriminatory violence against Americans under the guise of “doing their job.” It is a racialized, gendered theory that should never have gained traction in any realm related to public safety.
Source: “Excited Delirium” and Deaths in Police Custody: The Deadly Impact of a Baseless Diagnosis, Brianna da Silva Bhatia, MD, et al., Physicians for Human Rights, phr.org, March 2022.
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