Members Only | March 19, 2021 | Reading Time: 4 minutes
Chauvin’s attorney is back on his bullshit
A version of the fraudulent "excited delirium" play, writes Lindsay Beyerstein
Former Minneapolis police officer Derek Chauvin’s criminal defense team is still trying to show that George Floyd died of a drug overdose or high blood pressure or something—anything—other than Chauvin’s knee pressed down on his neck.
In August, his defense argued that all charges against Chauvin should be dropped because, attorney Eric Nelson said, an overdose of fentanyl was responsible for Floyd’s death. Hennepin County Judge Peter Cahill was not convinced, but at this week’s pretrial hearings, Nelson was back on his bullshit, asking Cahill to allow evidence about another time Floyd swallowed pills and suffered from very high blood pressure.
The idea that 46-year-old George Floyd coincidentally died of natural causes exactly eight minutes and 46 seconds after Derek Chauvin started squeezing his neck is preposterous. The Hennepin County medical examiner ruled Floyd’s death a homicide. A second independent autopsy confirmed the officers, and not the drug, killed Floyd.
The various drugs in George Floyd’s system (one of which was methamphetamine), and his hardened arteries, may have made him more vulnerable to death during police restraint, but this is legally irrelevant to Derek Chauvin’s culpability.
Nevertheless, right wing media has stressed his health problems, including coronary artery disease, high blood pressure, and a long-running battle with addiction.
Floyd did in fact have a significant amount of fentanyl in his system when he died. But we know he didn’t die from a fentanyl overdose. An opioid overdose unfolds in a predictable order: The person drifts off to sleep and eventually stops breathing.
Floyd, by contrast, was wide awake and begging for his life as the officers handcuffed him and pressed him face down into the concrete. Floyd’s desperate protests that he couldn’t breathe are further evidence that he wasn’t overdosing. Opioids numb the agonizing feeling of breathlessness that signals you are not getting enough air.
The various drugs in Floyd’s system (one of which was methamphetamine), and his hardened arteries, may have made him more vulnerable to death during restraint, but this is legally irrelevant to Derek Chauvin’s culpability.
“This is the classic eggshell skull,” Chauvin prosecutor Matthew Frank said, referring to the legal principle that a victim’s fragility does not lessen an assailant’s guilt.
If you punch someone in the head and they die because they have a fragile skull, you’re not any less guilty, even if a healthy victim would have survived. Judge Cahill agreed:
“The officers have to deal with their arrestee as they find him.”
The defense’s strategy is part of a long history of scientifically dubious attempts to blame detainees for dying. Police have been using the dubious label of “excited delirium syndrome” (ExDS) to excuse deaths in custody for decades. The label helped officers avoid charges in the deaths of Elijah McClain (August 2019) and Daniel Prude (March 2020), and other unarmed Black men who have died in police custody.
In Texas, one in six non-shooting deaths in police custody was blamed on “excited delirium syndrome,” and nearly 85 percent of the victims were Black or Hispanic men, according to a 2017 analysis by the Austin American-Statesman.
The condition is alleged to be most common among younger men with histories of stimulant drug use and/or mental illness. The sufferer is said to be cut off from reality, impervious to pain, extremely strong, and very aggressive. ExDS is not a diagnosis recognized by the American Psychiatric Association, the American Medical Association or the World Health Organization. Proponents of the ExDS label admit there are no standard criteria for diagnosing it, and no objective signs at autopsy.
There’s no there there.
Derek Chauvin’s defense strategy is part of a long history of scientifically dubious attempts to blame detainees for dying. Police have been using the dubious label of “excited delirium syndrome” to excuse deaths in custody for decades.
Above all, “excited delirium syndrome” is a narrative purporting to explain why a young healthy person might drop dead in police custody through no fault of the officers. It is alleged to be a fatal disease already well-advanced by the time the police show up. It’s this so-called “disease” that causes the person’s combative behavior and the “disease” that ultimately claims his life. The “excited delirium narrative” is also perfect to justify rapid escalation of force and extreme forms of restraint.
As Floyd lay on the sidewalk, rookie cop Thomas Lane asked if he should be rolled onto his side, saying, “I am worried about excited delirium, or whatever” (stress added).
“That’s why we’ve got him on his stomach,” Chauvin replied, using the suspicion of “excited delirium syndrome” to justify extreme and dangerous police restraint.
Critics say deaths ascribed to “excited delirium” are a predictable result of hog-tying extremely agitated people: If a man is struggling, he’s using extra oxygen. His adrenaline is pumping, which increases heart strain. The pressure on his torso makes breathing shallower. So he may be taking in oxygen, but unable to blow off carbon dioxide—which acidifies the blood and sets the stage for deadly complications. There’s no need to posit a mysterious disease to explain why people sometimes die this way.
“Excited delirium” has always been a racialized concept. The term was coined in the 1980s by a Miami medical examiner seeking to explain why 17 dead Black sex workers were found semi-nude with non-lethal levels of cocaine in their systems. Dr. Charles Wetli hypothesized that the women were done in by a lethal mix of sex and drugs. “For some reason,” Wetli said, “the male of the species becomes psychotic [after chronic cocaine use] and the female of the species dies in relation to sex.” These women were later found to have been strangled by a serial killer, but that didn’t stop the concept from evolving into the go-to excuse for deaths of restrained people in police custody.
If the police must take their arrestee as they find him, then they’re legally responsible if they do something reckless that kills him—even if the same treatment wouldn’t have killed a healthier person. The appeal of “excited delirium” is that it supposedly breaks the causal chain between the police officers’ actions and the person’s death.
The Chauvin defense team’s focus on Floyd’s drug use and chronic health issues is just an underhanded way to invoke “excited delirium” defense by another name.
Lindsay Beyerstein is an award-winning documentary filmmaker and investigative journalist. She’s host of The Breach podcast (for the Rewire News Group) and a judge for the Sidney Hillman Foundation, which honors excellence in journalism in service of the common good.
Published in cooperation with Alternet.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.