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By all accounts, 29-year-old Ricky Escobedo put up one heck of a fight before he died in police custody.

On the night of Nov. 17, 2002, police in Redwood City, Calif. were summoned to the home of Escobedo's ex-girlfriend, who had called 911. Escobedo was trying to break into her apartment and wouldn't go away.

When the officers arrived, Escobedo was on the balcony outside the apartment, talking gibberish about bugs biting him and a dead cat.

The police patted Escobedo down, but he turned aggressive. Soon eight officers were wrestling with the powerful 200-pound man, who refused to give in. They used pepper spray, nunchucks and a straitjacket-like wrap, then "dogpiled" on top of him to break his resistance.

When the tussle finally ended 20 minutes later, Escobedo lay motionless. He had died of a heart attack, and blood tests revealed that he had amphetamine in his system. He also had several broken bones and a damaged trachea.

But when the medical examiner filled out his report, he said the primary cause of death was "excited delirium."

San Francisco plaintiffs' lawyer Randy Darr represented Escobedo's family in a civil suit that ultimately settled for $250,000. There's no doubt in his mind about the real cause of death.

"It was the cops," he said. "No question. Imagine being in a heated struggle and having six or eight hundred pounds sitting on top of you."

In Darr's view, "'Excited delirium' is a way to explain unexplained deaths. When you die from positional asphyxia, there's no way to tell that's what killed you."

A growing controversy

Nationwide, medical examiners are increasingly citing excited delirium as a cause of death when suspects die in police custody. In a number of these cases, Taser stun guns were utilized. (See related story.)

But lawyers who handle police misconduct cases, like Darr, believe that "excited delirium" is a way for the police (and stun gun maker Taser International) to avoid liability.

In June, the Justice Department's National Institute of Justice issued a report concluding that there was no medical evidence that Tasers create a heightened risk of cardiac dysrhythmia. However, the report said that the devices can contribute to stress and excited delirium.

But Eric Balaban, senior staff counsel with the American Civil Liberties Union's National Prison Project, said there's no medical support for the term.

He argues that if it were a recognized syndrome, it would be appear in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

"It's not a recognized medical diagnosis, there's no established medical literature on excited delirium that's used in medical schools, and they don't train physicians or psychiatrists in diagnosing [it]," he said. "It's really only used by coroner's offices as a means of explaining erratic behavior by persons who were [experiencing] drug intoxication."

Andrew C. Clarke, a plaintiffs' attorney at Borod & Kramer in Memphis, Tenn., said that the term emerged in cocaine-ridden Miami in the 1980s to describe a "lethal cocktail" of drugs and stress that can lead to death.

"Excited delirium has become law enforcement's response to everything," said Clarke, who has handled many police misconduct cases. "Taser? Excited delirium. Pepper spray? Excited delirium. Hog tying? Excited delirium."

Clarke said he has taken five cases involving deaths that were attributed to excited delirium while in police custody. All settled.

"I had one case where the medical examiner said it was excited delirium and the cops said they never struck [my client]," he said. "But going over the autopsy, there were 14 blunt-force traumas to the head, there was a shoeprint on his back, baton strikes on his legs. The medical examiner said those didn't cause his death. I'm sure they helped."

Excited delirium was also listed as the cause of death for Patrick Lee, 21, who died in 2005 after being shocked by Tasers 19 times outside a Nashville, Tenn. nightclub.

Tommy Overton, a Nashville solo attorney who is representing the family in a suit against the Metropolitan Nashville Police Department, complained that excited delirium only appears as the cause of death for fatalities that happen in police custody.

"You're not going to go out and find many cases of a person who … just fell over dead of excited delirium," he said. "It always involves some kind of interaction with a police officer."

"There are all kinds of people walking around with the same levels of drugs that these purported excited delirium people died from," said Darr. "Under [this] theory, just the stress of talking to cops should cause people to get excited delirium and die. But I've yet to see an excited delirium case that doesn't involve dogpiling."

Discrediting the diagnosis

Lawyers who handle policy brutality cases involving excited delirium say there are a number of issues that need to be addressed.

"You always have the complicating issue of drugs," Darr said. "Your expert's on the stand and [opposing counsel] will say, 'Mr. Expert, can you tell the ladies and gentlemen of the jury with certainty that the meth didn't kill this person?' And you can't answer that question any other way than 'It could have, but I don't think so.'"

Clarke said the first step in these cases is to get the toxicology report from the medical examiner and look for evidence of asphyxiation. For instance, he said, popped blood vessels in the eyes are signs of asphyxiation, not drugs.

The attorney should then examine what was in the person's system, comparing the drug levels in the body versus the drug levels in the urine. If there's a wide gap, Clarke said, that means the drug had been processed and the person's behavior is less likely to be categorized as excited delirium.

Third, lawyers should try to reconstruct the arrest, identifying the circumstances, the restraint instruments that were used, the position the client was placed in and how long he was in it.

Darr said it's also helpful to have outside evidence to indicate that the police misbehaved.

"It could be radio calls, civilian witnesses, a camera. You need something to document the length of the struggle. How long were they sitting on him? That sort of thing."

Staff writer Nora Lockwood Tooher contributed to this report.

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com