Does Excited Delirium Create a Legal Duty to De-Escalate?

By Ken Wallentine

Roell v. Hamilton Board of Commissioners, et al., 2017 WL 3864618 (6th Cir. 2017)

Gary Roell had a serious, chronic mental illness. He quit taking his anti-psychotic medications in June 2013 and by August 12, 2013, he was in the throes of excited delirium. Naked, other than a t-shirt, Roell trashed his condominium and then went to the neighbor’s condominium, where he threw a flower pot through the window.

Awakened by the crashing glass, the neighbor walked to the window and tried to talk to Roell, who then threw a window screen at the neighbor and shouted at her. The neighbor called the police, reported the broken window and said Roell was “acting crazy.”

Three deputies arrived at the scene and the neighbor told them Roell was in the back, breaking things. As the deputies went through the garden gate, they saw Roell in the state of excited delirium, holding a hose with a metal nozzle and a garden basket. When a deputy asked Roell what was going on, Roell turned and charged toward the deputies.

At this point, one deputy took his TASER® in-hand and arced it as a warning. The deputies told Roell to show his hands and drop the items, but Roell swung the hose and the basket at the deputies as he reached them. Two deputies then grabbed onto Roell. The deputies struggled briefly with Roell on the ground, but he was slippery (either from sweat or water) and broke away. The third deputy joined in, attempting to control Roell’s arms, to no avail.

Roell stood and moved back through the garden gate. One deputy fired the TASER probes into Roell and then all three deputies tried, unsuccessfully, to handcuff him. A deputy then applied the TASER in drive-stun mode to Roell’s leg, but Roell managed to break away from the deputies and stood. A second set of TASER probes was fired and though Roell still fought, the deputies were able to handcuff him. Due to his powerful resistance, they needed to use two sets of handcuffs and had to handcuff Roell in front.

When Roell delivered a strong kick to the groin of one deputy, another deputy retrieved leg shackles from the patrol car. The deputies applied the shackles and restrained Roell, who went limp and began to snore. He repeated the snore-and-fight cycle twice before one of the deputies checked him and found no pulse. Though deputies and medics administered CPR, Roell did not revive. The coroner ruled that Roell’s death was due to “excited delirium due to schizoaffective disorder” and determined the death resulted from natural causes.

On-Demand Webinar
A Rational Approach to Incorporating De-Escalation Into Policy
Presented by: Laura Scarry and Ken Wallentine

De-escalation is hardly a new concept, but in the wake of several recent police encounters with tragic outcomes, the media and some civilian groups have zeroed in on it. Responding to this scrutiny, some law enforcement agencies are reworking their use of force policies to stress the need for officers to take measures to defuse situations before resorting to force.

De-escalation tactics are an essential tool for patrol officers. But mandating de-escalation is a slippery slope that can have the reverse effect, endangering officers who may hesitate to use reasonable use of force. In this session, we’ll explore how agencies can effectively incorporate de-escalation principles into policy without creating confusing or inconsistent policies.

View Now!


Roell’s widow sued, claiming the deputies used excessive force and that they were inadequately trained. She also argued the deputies had a legal duty to de-escalate. She relied on the testimony of a college professor who opined that Roell’s violent encounter with the deputies would have likely ended peacefully without a confrontation if the deputies had talked him into surrendering.

The court also considered testimony that the best practice in dealing with excited delirium subjects is to wait to contact the subject until there are multiple officers and medical personnel on-scene and to try to use verbal techniques. This is a classic case of Monday-morning quarterbacking. It is speculative, at best, that Roell’s violent escapade would have been stopped by persuasion. Before any physical contact and before giving commands, the deputies tried conversation with Roell. De-escalation works, except when it doesn’t.

Further, the court observed that even if there might have been a better approach, that doesn’t mean the deputies violated constitutional rights. “The Fourth Amendment … does not require police officers to take the better approach, … only that they take a reasonable approach” (Cook v. Bastin, 590 F. App’x 523, 528 (6th Cir. 2014)). The court also held the agency “had a satisfactory training program in place regarding officer interactions with individuals suffering from mental illness and excited delirium.”

The court held that the deputies were entitled to qualified immunity. When an officer is sued for excessive force, the court first asks whether the officer’s actions violated the plaintiff’s Fourth Amendment right to be free from unreasonable seizure and whether the constitutional right allegedly violated was clearly established at the time of the incident. (See “Chief’s Counsel: Hill v. Miracle: Adapting the Graham Standard to Non-Criminal Interventions” in the August issue of Police Chief Magazine discussing the case of Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017)).

The court applied the three-factor test of Graham v. Connor (490 U.S. 386 (1989)). The Graham factors consider:

1) The severity of the crime at issue

2) Whether the suspect poses an immediate threat to the safety of the officers or others

3) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight

By the time the deputies arrived, Roell had caused significant property damage and was a continuing threat to his neighbors. He violently resisted arrest. Even though Roell didn’t explicitly threaten the deputies, he was holding a hose with a metal nozzle that could be an impact weapon and could be used to choke the deputies. The court had no difficulty ruling that the deputies’ force was reasonable.

This case presents two vital takeaways. First, the court notes evidence that the deputies believed Roell was mentally ill, holding that “the deputies were therefore required to take into account Roell’s diminished capacity before using force to restrain him.” However, the court also recognized the tense, uncertain and rapidly evolving character of the attempt to control Roell, holding that even if Roell’s mental illness suggested some downward adjustment of force, “no precedent establishes that the level of force used by the deputies in this case was excessive or that the deputies were required to use only verbal de-escalation techniques.” Persuade when possible, but again, de-escalation simply isn’t always possible.

Second, the agency’s training program meant the county didn’t incur liability for failure to train. Don’t neglect to train officers on the challenges of agitated subjects in chaotic events. Quality training is available from many sources. The Institute for the Prevention of In-Custody Death has been offering excellent training on excited delirium for several years. Go to for more information. (Full disclosure: I’m a member of the Board of Directors of the Institute.) In this case, the deputies’ training helped them recognize the challenge they faced of excited delirium and deal with it in the best way possible.

Lexipol Law Enforcement

CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.


    (844) 312-9500

Director Daniel Keen
Northampton (PA) Department of Corrections

“It came down to three main factors for us: safety, time and efficiency. This is a way to protect  the staff, public and inmates in the best interest of all.”

Major Jeff Fox
Vigo County (IN) Sheriff's Office

“Lexipol’s Implementation Services program was key to getting our manuals off the shelf. If it weren’t for that, we wouldn’t be implemented today. Departments should recognize their limitations and realize that they likely don’t have the resources to do it on their own. Implementation Services is key to getting it done.”

Chief Deputy Ray Saylo
Carson City (NV) Sheriff's Office

"It’s a huge priority of this administration to teach policy to our sergeants, and Lexipol’s Daily Training Bulletins help us do that. We are constantly drilling into them that policy will protect them as an individual officer. If they ensure that their people are following policy, even if they’re sued, they will be OK.”

Sgt. Bryan Ward
Cumberland County (PA) Sheriff's Office

"Calling Lexipol an insurance policy doesn’t do it justice, because it doesn’t capture the enormous power that partnering with Lexipol provides.”

Chief Deputy Klint Anderson
Weber County (UT) Sheriff's Office

“We spent a considerable amount of money and effort trying to develop and maintain comprehensive and legally based policies and procedures. Lexipol has relieved us of that burden and provided us with a policy system that we have great confidence in and that we can tailor to suit our particular goals and community standards.”

Sheriff Blaine Breshears
Morgan County (UT) Sheriff's Office

“We had a use of force lawsuit, and as soon as the attorneys discovered that we have Lexipol, they said, ‘We won’t have an issue there.’ Our policies were never in question.”

Lt. Craig Capps
White County (TN) Sheriff's Office

"I would recommend Lexipol to any law enforcement agency, whether three-person or 2,000-person—it makes no difference. The program works.”

Chief John Defore
Hiawatha, KS

“By offering 365 daily training bulletins to my officers, I am saving far more than the cost of the software every year. In fact, I was able to show my commissioners a cost savings by utilizing Lexipol for our policy and policy training needs.”

Captain Jeff Schneider
Yakima (WA) Police Department

“KMS tracks and logs when people acknowledge and accept updates, which is very important, and it lets us track who isn’t getting the updates so we can give them the appropriate attention.”

Chief David Maine
The Village of Hunting Valley (OH) Police Department

“What we had before Lexipol had been around for years. It was like every other policy manual I had seen: It didn’t get the updates it needed. The Lexipol manual is a living, breathing document.”

Chief Deputy Lauren Osborne
Surry County (NC) Sheriff’s Office

“If there’s a change as a result of case law, or a procedure that needs to change, Lexipol does the legwork, sends it to us, we approve it and send it out to our people for acknowledgement—and it’s all documented.”

Sheriff Gerald Antinoro
Storey County (NV) Sheriff’s Office

“Lexipol is one of the best products I have seen in my 30+ years in law enforcement.”

Deputy Chief John McGinty
Simi Valley (CA) Police Department

“You get sued for your policies or you get sued for your actions, or both. You can only do so much about actions. But having Lexipol gives me confidence that if we draw a lawsuit, our policies won’t come under attack.”

Chief Kelly Stillman
Rocky River (OH) Police Department

“I can’t say enough about the positives from a chief’s perspective. I don’t know why everyone isn’t with Lexipol.”

Chief Jeff Wilson
Orofino (ID) Police Department

“The Lexipol Policy Manual is easy to use, it’s convenient and you have peace of mind knowing that you have a thorough manual that is going to stand up to any challenge the agency may face.”

Chief Ralph Maher
Oak Creek (CO) Police Department

“With Lexipol, I know our policy manual is going to be up to date. I can turn my back on it today and tomorrow there will be any needed updates waiting for me. That allows me to focus on some of the other things I have to do as a chief.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Commander Leslie Burns
Mercer Island (WA) Police Department

“Lexipol provides a huge advantage for agencies pursuing accreditation. The tools take about 60% of the difficulty out of the accreditation process. If you want to be accredited, this is the way to do it.”

Deputy Chief Robin Passwater
Kankakee (IL) Police Department

“If you don’t have Lexipol, even with a full-time person dedicated to policy, there’s almost no way you can keep updated on all the laws and also have the training component. It’s an excellent system.”

Assistant Chief Bill Holmer
Glen Ellyn (IL) Police Department

“It’s a no-brainer for me. Someone is watching for changes to laws for me, and then tweaking the content based on those changes or updates in best practices.”

Lt. Ed Alvarez
Bay Area Rapid Transit (BART) (CA) Police Department

“I like the mobile app because it tells me no matter where I am when I have updates to complete or when people take the DTBs. No matter where I am, I have access. The officers can get real-time updates. Everything is at their fingertips, any time.”

Chief Greg Knott
Basalt (CO) Police Department

“Lexipol gives you peace of mind because the policies that you’re implementing have been reviewed by professionals in the field and by attorneys—not just your agency’s legal counsel.”

Chief Corry Blount
Bartonville (TX) Police Department

“I feel comfortable that when we issue a policy, it covers what it needs to cover. It’s the most comprehensive policy content I’ve used in my career.”

Lt. Victor Pecoraro
Auburn (CA) Police Department

“The updates are super easy because you can pop them open, see the redline versions and be able to edit it on the fly. Once I learned I could do that, I was excited.”

Chief Joseph Morris
Arapahoe Community College (CO) Police Department

“Officers are not infallible. We have limited memories like everyone else. Working under stress presents more challenges. There are times we need to access policies in the field so we are comfortable in our decision making. The mobile application has been great for this!”

Captain Jesus Ochoa
Coronado (CA) Police Department

“Knowing that Lexipol is keeping our policies current means that there isn’t something else for us to worry about. We can focus on our jobs. That definitely gives us peace of mind.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Jim Franklin, Executive Director
Minnesota Sheriffs' Association, MN

"Lexipol is, indeed, ahead of the curve with their unique risk management solutions in law enforcement. The Minnesota Sheriffs' Association has been eagerly anticipating the release of the Lexipol Custody Manual. Lexipol meets the needs of law enforcement and custodial agencies by recognizing the emerging challenges facing our agencies, and providing comprehensive tools and resources to reduce liability and risk in a professional and highly efficient manner. The Minnesota Sheriffs' Association is proud of its continued partnership with Lexipol."

Close [X]
Close [X]
Close [X]
Close [X]