By Glenn C. McGovern

One of the latest issues in police civil liability is the sudden in-custody death incident that is widely reported in the media. Typically, a person is taken into police custody and force is used to overcome resistance, resulting in sudden death of the arrestee in police custody with no physical cause showing up in the autopsy report of the coroner. These incidents raise various legal and social issues. There is increasing awareness and publicity of sudden in-custody deaths, which are reported in the media. Many are reported as related to increase Taser use in the press. The speakers discussed that Taser use is perhaps now commonly over used due to new, young, police officers that are insecure and have not grown up with self-defense skills, are not as articulate and communicative in dealing with even minor conflicts with people as were older officers of a prior age before texting and video games. These younger officers tend to use a Taser when other alternatives are available and not exhausted. In-custody deaths sometimes occur with Taser use or in severe restraints such as hog-tying or long-term use of immobilization in restraint chairs. (See Cruz v. Laramie 239 F. 3d. 1183 C.A. 10 (Wyo. 2001) on hog-tying and Acad Emerg Med Journal April 2009, Vol 16 Suppl 1 entitled “Can a Restraint Chair Cause Respiratory or Ventilatory Compromise?”). Sometimes the detainee wants to strike shiny objects but is in fact not trying to escape but is suffering from excited delirium and that is a known common symptom of he condition. This can be misdiagnosed or misinterpreted by the untrained police officer resulting in excessive or improper force being used resulting in death of the detainee. Unfortunately, the sudden-death incidents raise unanswered medical questions.

Whatever the cause of these incidents, the increase in sudden death incidents require police to deal with the problems and new procedures are being adopted and taught. What I learned from this seminar was that police departments now need to adopt new police procedures to deal with the problem that can be a matter of life or death for the detainee. When a person is taken into police custody, he becomes the police’s responsibility—he is their ward-and they are responsible for his care. There is a legal duty to give medical care if needed. Failure to provide medical care can result in cruel and unusual punishment. Under Estelle v Gamble, 429 U.S. 97 (1977), serious mental illness is included under the deliberate indifference to serious medical and mental health care needs rule. In state court only negligence need be proved is such cases and not deliberate indifference as required under the 8th Amendment and 42 U.S.C. § 1983.

I recently attended a program on the subject of excited delirium and sudden in-custody deaths in police conflicts in Baltimore, Maryland with a room full of emergency physicians, police internal affairs investigators and police procedure experts. Many of these experts that lectured created training curriculums for police department in dealing with these types of cases. It was an eye-opening experience to hear and witness actual so-called excited delirium cases on video from actual police incidents. I came away with more questions than answers. Before the 2-½ day seminar I did not fully appreciate all the issues involved in such cases. Handling such cases is a challenge for coroners, police, internal affairs investigators, district attorney, EMS workers, ER doctors and the attorney representing the deceased detainee.

My questions going into the seminar were: 1. Do Tasers and hog tying kill people and cause sudden death? 2. Why the seemingly increasing trend of in-custody police deaths? 3. Do people die in custody suddenly due to improper police procedures and why? 4. Is there really such a thing as a medical condition called “excited delirium”? 5. Is diagnosis of “excited delirium” just an excuse for the use of improper police procedures? 6. Can new police procedures prevent sudden deaths from excited delirium or Taser use? 7. Why is there an upsurge in Taser use and Taser deaths by officers and injuries by officers in Taser training? 8. Why has Taser now abandoned its position Tasers do not cause harm and now warns of several uses to avoid that may cause injury or death? 9. Are there some other reasons for these sudden deaths or excited delirium deaths? 10. What, if any, is the role of black box anti-depressant withdrawal symptoms in these cases. I cannot answer all those questions in the allotted space. I will give you some new insights into this perplexing topic of excited delirium syndrome (EXDS) leading to sudden in-custody deaths.

I did not get all my EXDS questions answered. Many issues are still medically unknown due to insufficient medical research. Much new research is needed and is ongoing. But I did come away with a better appreciation of this controversial topic as it regards police liability and sudden death cases.

The American College of Emergency Physicians recently issued a white paper on October 6, 2009 on excited delirium (EXDS). It recognized excited delirium as a medical condition and made an analogy to infant sudden death syndrome and the years of research needed to find the cause, which was unknown for years. This is interesting since the DSM IV does not list excited delirium as a listed diagnosis. If an expert testified a person died of excited delirium, his opinion could be struck after a Daubert hearing, since there is insufficient peer reviewed research supporting such an opinion. However through differential diagnosis, the paper suggests, while the answer is hardly ever going to be obvious, but a careful exhaustive analysis of the symptoms and history can help doctors treat the symptoms and save a life.

Also there now appears a necessity for medical personnel, police, plaintiff attorneys and internal affairs investigators to do what is now referred to as a “psychological autopsy” in these cases to explain the actions taken or not taken. Namely, after the incident a full history of the decedent needs to be completed and documented including, medical history, mental illness history, alcohol and drug abuse history, rectal temperature, unusual speech patterns, obsession with shiny objects such as mirrors and windows, prescriptive medical drug use, whether “black box” anti-depressants were used or discontinued, drug abuse history, schizophrenia history, bi-polar history, paranoid behavior, grandiose behavior, disorganized thinking, disorganized behavior, bizarre behavior, rigid muscles, immunity to mace and tear gas, and super human strength are items to be research and noted. 911 records that give clues as to symptoms are critical. Witness statement and police reports are important. An officer’s report writing can make or break liability in these cases. These above listed symptoms are all symptoms that seem to be related to excited delirium and often lead to sudden death. If the detainee dies in the police cruiser, it may lead to legal liability of the police department. Proper police and prompt medical treatment of these cases make the difference between life and death. (Several speakers noted no one seems to every die in an ambulance.) Conversely, the inappropriate handling of these situations can lead to excessive force, improper police procedures and liability for the police department who fails to properly interpret the so-called excited delirium cases and take prompt medical action instead of pure police action.

I witnessed two such examples of such incidents on video at the seminar. In one, a male was speaking in tongues, then with speech like the R2D2 robot in Star Wars, acting paranoid, appearing very hot, sweating (hyperthermia) with a rectal temperature of over 108 degrees F. He had taken all his clothes off in the presence of his mother running outside and around the home. What was happening is he was supposedly experiencing excited delirium due to illegal drug use (or drug withdrawal) and his brain was literally overheating. He had abuse drugs and was combative due solely to a medical condition. If not treated within an hour, he would be another victim of sudden death or be killed by police due to the nature of his medical condition. He was very agitated and incapable of conversation with officers. The supervising officer, properly trained, and knowledgeable in the department policy on excited delirium cases, broke in the officers radio conversations enroute to the scene in their radio conversations. The well-trained supervisor asked a few questions about the incident and the bizarre behavior of the male was described in detail. The supervisor then immediately announced this was a case of excited delirium and ordered the incident to be treated as such by the enroute officers. An untrained officer may have called in a swat team with a different result. The supervisor then ordered an ambulance to follow the officers to the scene and to be on standby at the scene. The officers then handled the case as an excited delirium incident when they approached the male, attempted to talk to him to no avail, then restrained him where he exhibited the super human strength, which they dealt with. They then later restrained then injected him immediately with a Haydol injection, immobilized him with excess straps to a stretcher to overcome his great strength. They had EMS personnel from the ambulance transport him not in a police cruiser, but placed him in an ambulance where he was treated, rushed him to an ER where he was packed in ice in the groin and under arm areas. He had committed crimes with his bizarre behavior but was placed in a hospital instead of jail. This saved his life. It also saved the police from a lawsuit for his certain death if he was jailed and untreated. He fully recovered and returned to as a normal peaceful human being within one hour of treatment, fully reincarnated back to a cordial human being, due to swift proper medical care. With untrained police officers and EMS personnel, he would have been another sudden death in police custody victim.

Over 50% of our society’s mental illness patients now end up in U.S. jails ---not hospitals. U.S. jails are now the largest mental health facilities although that is not their intended function. Diagnosis of EXDS can be similar to other mental conditions.

Some of the symptoms of schizophrenia are:

1. Delusions
2. Fixed false beliefs
3. Bizarre, Grandiose, or Paranoid
4. Disorganized Thinking
5. Disorganized Behavior

Other medical conditions that look like schizophrenia are:

1. Substance Intoxication
2. Substance Withdrawal
3. General Medical Conditions
4. Malingering
5. TBI- (traumatic brain injury)

Obviously, deciding what is a mental or medical condition and what type of mental/medical condition is versus pure criminal conduct/intent is impossible for a non-medical person to distinguish without special training. The problem is compounded today in the U.S. by the overwhelming social trend where as many as 50% of actual mental patients end up in police custody as end up in psychiatric institutions where they belong, due to their mental illness. This trend requires police officers to have special EXDS training to properly respond with appropriate force and police procedures. Unfortunately, this situation is slowly being addressed in medical research. Much of that research is not peer reviewed. Some of it is sponsored by industry such as Taser that has a vested interest in the outcome of the research. There is no agreed definition of excited delirium. It usually involves a sudden death of an individual where an autopsy fails to reveal evidence of sufficient trauma or natural disease to explain the death. EXDS is not a recognized medical diagnosis. EXDS is not recognized by the American Medical Association and the AMA does not approve the diagnosis. A counter argument can be that is can be classified under other recognized diagnosis such as:

• 799.2X abnormal excitement
• 296.00S Manic excitement
• 799.2AM Psychomotor Excitement
• 307.9AD Agitation
• 799.2V Psychomotor Agitation
• 780.09E Delirium
• 293.1J Delirium of Mixed Origin
• 292.81Q Delirium, Drug-Induced
• 292.81R Delirium, Induced by Drug (ICD)

Excited delirium is not new. In 1849 Dr. Luther Bell observed chronic agitated delirium deaths in the United States. In the American Journal of Insanity Oct. 1849. 40 cases over a 12-year period with 30 individuals dying were noted in the study.

Dr. John G. Peters, a police trainer and police procedures expert noted EXDS has observable behavioral clues. Other speakers in the field confirmed this. Struggling or resistance can indicate a possible immediate medical emergency, which takes precedent over criminal prosecution. Fearful hiding, extreme agitation, tireless energy, sweating and removal of clothes, rapid emotional changes, disorientation about time and place or time and purpose with disoriented about self with visions of grandeur are clues that the officer need to be trained to observe so medical care can be obtained. If such a person is taken into custody or placed in jail, rather than put in an ambulance and sent to and ER immediately, can result in death and police liability. There is a constitutional duty for a detainee to receive needed medical care. There is thus arguably a requirement for an EXDS police department policy and training by every police department in handling EXDS cases. Officers are required to be trained to handle drug-impaired persons, alcohol impaired person and people with diminished capacity. EXDS is no different according to the police trainers and ER doctors at the seminar.

Field sedation of such individuals can save their lives according to a speaker, Dr. Michael Curtis, MD, FACEP and Emergency Physician and EMS Medical Director. These individuals are suffering from hyperthermia and possibly acidosis and abnormal ph levels. All physicians who spoke did not accept this acidosis explanation. Perhaps this is a symptom that is important. But what is excited delirium is not important as is recognizing the phenomenon and giving immediate medical care. There is a “Golden Hour” for medical treatment for EXDS that if not promptly given can probably result in death. Dr. Curtis pointed out the EXDS causes are: General medical conditions such as infectious diseases, metabolic diseases; Toxicological conditions, toxins, drugs of abuse, therapeutic medications, alcohol, use and abuse of alcohol, adverse reactions and withdrawal reactions; Mixed conditions and Unspecified Causes.

Toxicology tests for urine, blood, hair, saliva, sweat and vitreous is needed as well as immunoassay toxicology testing such as ELSA, FPIA and KIMS. Creatine Kinase (CK) and Myoglobin is also helpful as is Potassium test, which must be taken before death. It has an unknown role in EXDS and in TASER injury. Potassium tests and CK can show Rhabdomyolysis, a condition that can result in renal failure and dark urine. Interestingly AED defibrillators are 93% of the time ineffective due to PEA/Asystole non-shockable rhythms.

I had a case of a detainee handcuffed improperly in a small police cruiser locked in a closed vehicle without air conditioning in 90 degree F weather. The traffic stop detainee almost died of Rhabdomyolysis when his kidneys shut down. Only a careful analysis of the doctors multiple tests lead to a diagnosis. Such extensive testing would not have been done in most cases and the disease would have been a mystery.

If medical devices are used all this AED and medical devices information is important and should be saved for future treatment and use in litigation. The problem is this equipment is in the ambulance and is reused and lost unless preserved immediately. Rectal temperatures are helpful but ambulance personnel will usually not take them. Hospital electronic medical records that are linked to electronic monitoring devices can be helpful in creating a real timeline.

Handling these cases is a challenge for all concerned with the limited medical information and research at present. But one thing is clear. Whatever the cause of sudden death or EXDS there are now recognized proper police procedures that are to be followed to avoid sudden death of detainees in police custody cases—whether in fact from EXDS or other medical causes—it does not matter what you call it. The duty to give immediate necessary medical after-care to detainees now exists based on what we do know today.