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

Editor’s note: This article uses the term “excited delirium” because the term is used in the court’s ruling. Following guidance from the medical community and other thought leaders in the law enforcement industry, Lexipol removed this term from our policy guidance in 2022.

Roell v. Hamilton Board of Commissioners, et al., (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.

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.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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