By Robert Phillips
Deputy District Attorney (ret.) 

Excited Delirium: New law eliminates the term “excited delirium” as an excuse in police use-of-force cases. Will it change anything? 

On Oct. 8, Gov. Gavin Newsom signed into law AB 360, authored by Assembly Member Mike Gipson (D-Carson), enacting into law Evidence Code §1156.5 and H&S Code §§24400 through 24403, to become effective on Jan. 1. This legislation eliminates from official recognition and use of the oft-used term “excited delirium” (or anything similar: excited delirium syndrome, hyperactive delirium, agitated delirium, and/or exhaustive mania.) 

So why do we in law enforcement care?  

The term “excited delirium” has been around for decades. Over the last 15 years, it has increasingly been?used in attempts to provide an explanation for how a person experiencing severe agitation can die suddenly, suggesting in police use-of-force cases, for instance, that the death was the result of something other than the force used by the police. For instance, it was used as a legal defense in the 2020 high-profile deaths of George Floyd in Minneapolis; Daniel Prude in Rochester, New York; and Angelo Quinto, in Antioch, Calif., among others.  

However, in reality, “excited delirium,” if a “condition” at all, is one that is not even recognized by the American Medical Association or the American Psychiatric Association. The National Association of Medical Examiners has specifically?rejected excited delirium?as a cause of death.

In October, the American College of Emergency Physicians disavowed its 2009 position paper supporting the term as a diagnosis. It now recommends that: “The term excited delirium should not be used among the wider medical and public health community, law enforcement organizations, and ACEP members acting as expert witnesses testifying in relevant civil or criminal litigation.”   

Medical professionals are now beginning to recognize that “excited delirium” is, at best, a symptom of an underlying condition, and not a “condition” in itself. Such a symptom can be caused by any number of things: old age, hospitalization, major surgery, substance use, medication or infections. As noted by at least one medical professional – Sarah Slocum, a psychiatrist in Exeter, N.H., who co-authored a?review of excited delirium?published in 2022 – it wouldn’t be any more appropriate to put “excited delirium” on one’s death certificate as the cause of death than it would be to list something more common, such as a “fever.” It’s what it was that caused the excited delirium that should be the issue, just as it would be in determining what it was that caused a fever that eventually led to someone’s death. 

In enacting AB 360, California becomes the first state to prohibit excited delirium from being recognized as a valid medical diagnosis or cause of death. The law also prohibits a peace officer from using the term “excited delirium” to describe an individual in an incident report. It does not prohibit the peace officer from describing an individual’s behavior. 

The Evidence Code will forbid the use of the term in civil cases as well, as per subdivision (a) of E.C. §1156.5: “Evidence that a person suffered or experienced excited delirium shall not be admitted in any civil action.” However, a witness is not precluded from talking about the existence or non-existence of the symptoms observed: “A party or witness may describe the factual circumstances surrounding the case, including a person’s demeanor, conduct, and physical and mental condition at issue, including, but not limited to, a person’s state of agitation, excitability, paranoia, extreme aggression, physical violence, and apparent immunity to pain, but shall not describe or diagnose such demeanor, conduct, or condition by use of the term excited delirium, or attribute such demeanor, conduct, or physical and mental condition to that term.” (Italics added. Subd. (b)) 

H&S Code §§24400 et seq. extends the same rules, with even more specificity, to criminal investigations. “Excited delirium shall not be recognized as a valid medical diagnosis or cause of death in this state.” (H&S §24401(a)) 

While precluding any “state or local government entity, employee or contractor of a state or local government entity” from using the term “excited delirium” (subd. b)), as well as prohibiting “(a) coroner, medical examiner, physician, or physician assistant” from using the term on any “certificate of death, or in any report (subd. (c)), the legislature specifically addresses peace officers in H&S § 24402.  

Short and to the point, H&S § 24402 says: “A peace officer shall not use the term excited delirium to describe an individual in an incident report completed by a peace officer.” This does not mean, however, that a person’s exhibited mental condition, as observed by a peace officer, is irrelevant. The same section goes on to provide that: “A peace officer may describe the characteristics of an individual’s conduct, but shall not generally describe the individual’s demeanor, conduct, or physical and mental condition at issue as excited delirium.”  

Of interest here is that the legislature did not specify whether this restriction on the terminology used by a peace officer is limited to civil cases. It is also interesting that none of these statutes single out prosecutors as similarly being precluded from using the term. 

E.C. §24403 only tells us that “Pursuant to Section 1156.5 of the Evidence Code (above), evidence that a person suffered or experienced excited delirium is inadmissible in any civil action.” Until an appellate court tells us otherwise, one would seemingly have to interpret all of the above as dictating to us that although peace officers may not use the term “excited delirium” or any of its equivalents as listed in E.C. § 1156.5(c) and H&S Code § 24400 in his or her official reports, criminal or civil, or when testifying in a civil case, using the term while testifying in a criminal case is apparently (and inexplicably) allowed.  

And while “prosecutors” are not specifically mentioned, it is apparent that the same rules apply to them as well, the legislature having included in subd. (a) of H&S §24401 among those restricted, any “state or local government entity, employee or contractor of a state or local government entity.” 

So why the big to-do about all this? Of concern to minority rights activists, excited delirium is alleged by some to be a term that has historically been disproportionately applied to explain away the deaths of Black men while in law enforcement custody (e.g., George Floyd; see above). Whether this is true, or as common as some argue, the mere possibility that it might be should be of concern to law enforcement as well. On the other side of this coin, however, one must also wonder how, by merely removing from the English vocabulary one term used to describe the occasional result of what is collectively referred to as “police brutality,” the situation can be improved.  

Trying to be objective, it appears to the author here that the idea is to eliminate, or at least restrict, an excuse used by some law enforcement officers for inflicting unnecessary pain and suffering on an arrestee, for example: “He became exceedingly difficult to subdue due to the ‘excited delirium’ he was exhibiting, requiring the increase in force used.” Whatever the reasoning behind these new statutes, however, or whether they will have their intended effect, it is hard to criticize the legislature for making the effort. So, let’s go along with the program and see what happens. 

Special thanks to Captain Oscar Garcia of the Huntington Beach Police Department for suggesting this topic to research.