Issue 8

Defining “Substantial Burdens” on Religion and Other Liberties

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose real limits unless it is given a way to do so that avoids forcing judges to second-guess claimants’ beliefs about what is important in religious matters. And here legal texts, history, and precedent do not shed much light.

For answers, this Article looks to how our law handles the same issue for other liberties—when legal burdens on them trigger scrutiny. It is the first article to pursue this approach, which has support in case law on other liberties. This Article offers, in the process, the most comprehensive theory to date of how other liberties guard against incidental burdens. Each liberty is shaped by what I call an “adequate alternatives” principle: a law that burdens the liberty will trigger heightened scrutiny if the law leaves no adequate alternative way to exercise that liberty. And an alternative is adequate if it lets someone realize the interests served by that liberty to the same degree, and at no greater cost. This principle can guide doctrine on those liberties in new circumstances and inform debates about which liberties to constitutionalize in the first place.

And applying the principle to define “substantial burdens” on religious liberty would resolve many issues that have vexed courts. The resulting test would urge deference to believers on religious questions but not on what “substantial” means, thus limiting this liberty. Yet the test would expand protection for religious minorities harmed by existing doctrines biased toward mainstream religions. And it would offer cogent answers to a range of cases discussed here, involving inmates, street preachers, and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects.

Introduction

Does the Free Exercise Clause entitle people to exemptions from general laws that happen to burden their religion? For decades, the U.S. Supreme Court said yes.1 1.See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972).Show More Then in Employment Division v. Smith (1990),2 2.494 U.S. 872, 878–79 (1990).Show More it said no. Now, in Fulton v. City of Philadelphia (2021),3 3.141 S. Ct. 1868 (2021).Show More five Justices have signaled a willingness to reverse Smith and say yes again.4 4.See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled).Show More That would restore heightened scrutiny of—and exemptions from—neutral laws that incidentally burden religion. But two pivotal Justices in Fulton said that if and when the Court reverses Smith, it will face several questions about what should replace Smith. This Article proposes answers, with wide-ranging implications for the future—and limits—of free exercise rights. Its framework also provides a method for developing doctrines on other liberties, like speech, guns, and travel—and for telling which liberties a system ought to constitutionalize at all.

Under the pre-Smith regime, which exists now in more limited contexts under some federal and state statutes, courts would ask if a law had “placed a substantial burden” on a person’s religious exercise.5 5.Hernandez v. Comm’r, 490 U.S. 680, 699 (1989).Show More If so, courts would apply heightened scrutiny, granting her an exemption from the law unless doing so would have harmed a compelling interest.6 6.Sherbert, 374 U.S. at 404, 406–07.Show More But how to test for substantial burdens? That is, when should heightened scrutiny kick in?

This Article develops answers based on how our law handles the same issue as it arises for other constitutional liberties—when legal burdens on them are serious enough to trigger heightened scrutiny.7 7.See infra Section II.A.Show More Courts have developed large bodies of case law on that question. And in answering this issue for one liberty, courts have often drawn on the doctrines defining the trigger for heightened scrutiny under other liberties.8 8.Id.Show More Some Justices have hinted that borrowing from other liberties might be the best way to limit religious liberty, too (and one circuit has already gestured vaguely in this direction9 9.See, e.g.,Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)).Show More).10 10.See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical).Show More This method promises to provide a practical way for courts to limit religious liberty. But this Article is the first to pursue this approach—offering, in the process, the most comprehensive theory to date of how constitutional liberties in general guard against incidental burdens.

As shown below, courts have relied on what I call an adequate alternatives principle.11 11.See infra Part II.Show More This principle triggers heightened scrutiny of a law that burdens a civil liberty if the law leaves no adequate alternative means of exercising the liberty at issue. And an alternative is adequate if it allows people to pursue the interests served by that liberty to the same degree and at no greater cost.

This Article shows that applying that principle to religion offers easy-to-implement answers to several questions about the scope of religious liberty. The answers are especially timely as critics fear that if and when this particular Court reinstates free exercise exemptions, it will fail to impose sensible limits on exemptions.12 12.See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T].Show More The concern not to over-protect has arisen especially in politically charged cases raising Christian claims in the “conscience wars.”13 13.See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015).Show More These include Fulton itself, which involved a Catholic agency declining to work with same-sex couples as foster parents.14 14.Fulton, 141 S. Ct. at 1874–75.Show More

There and elsewhere, if courts found a “substantial burden” anytime someone claimed one, however trivial the burden in fact was, courts would be doing what skeptics of exemptions—and several Justices in Fulton15 15.Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id.at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting).Show More—oppose: replacing Smith’s categorical denial of exemptions with “an equally categorical strict scrutiny regime,”16 16.Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring).Show More as Justice Barrett put it. This would give religious claimants carte blanche. To avoid doing so, courts must insist, as Justice Sotomayor once wrote of a statutory religious exemptions regime, that merely “thinking one’s religious beliefs are substantially burdened . . . does not make it so.”17 17.Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting).Show More

But as Part I shows, a single fear has stopped the Court from setting real limits on “substantial burdens,” including in culture-war-related cases like Burwell v. Hobby Lobby Stores, Inc.18 18.Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives).Show More The Court worried that any attempt to limit successful claims would require judges to play theologians, deciding for themselves what is true or important in religious matters.19 19.Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990).Show More

So for any substantial burdens test to have a shot at appealing to this strongly pro-religion Court, it will have to avoid forcing judges to do theology. This Article offers a practical test that does so while still imposing real limits on religious claims in culture-war cases. But as seen in many other applications below, this test is also well-suited to “the vast majority of claims brought under” religious liberty statutes, which “have nothing to do with topics like contraception, gay rights, or abortion.”20 20.Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights).Show More

The substantial burdens test proposed here also aims to avoid a second problem, which has plagued lower courts’ substantial burden doctrines: by relying on concepts drawn from mainstream religions, courts have harmed religious minorities.21 21.See infra Subsection III.D.1.Show More So for minorities and also (as seen below) inmates, the substantial burdens test has been “the most difficult doctrinal hurdle” to clear.22 22.Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777.Show More For example, one study found that courts hearing “Muslim prisoner claims” often second-guessed the prisoners’ religious views and “summarily den[ied]” their claims.23 23.Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020).Show More Because minorities bring the majority of claims under existing statutes,24 24.Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374.Show More refining the “substantial burdens” test would meet a pressing need whether or not Smith is reversed. That need arises in cases involving Apache Indians wearing headdresses with eagle feathers, Sikhs carrying kirpans to work, Santerían priests performing sacrifices, Black churches using inner-city spaces, Muslim prisoners growing beards, and Jewish inmates keeping kosher.25 25.John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017).Show More This Article’s substantial burdens test aims to offer protection in such cases without over-protecting in others.

But as Part II reveals, this basic problem—developing a balanced but limited trigger for exemptions from incidental burdens—is not unique to religious liberty. Courts face the same challenge in implementing other constitutional liberties. For example, this exact issue arose regarding abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.26 26.505 U.S. 833, 874 (1992).Show More In fact, it is an underappreciated fact that the changes Casey made to Roe v. Wade27 27.410 U.S. 113 (1973).Show More were entirely about limiting which incidental burdens on pre-viability abortion would require a compelling justification and which would not.28 28.It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties.Show More And Casey’s express reason for introducing this distinction into abortion law was to bring abortion in line with all other constitutional liberties, under which “not every law which makes [the liberty] more difficult to exercise is, ipso facto, an infringement of that right.”29 29.Casey, 505 U.S at 873 (plurality opinion).Show More Specifically, Casey held, only laws imposing an “undue burden” on abortion should require a compelling justification.30 30.See id. at 874.Show More And while this test was criticized as novel, its substance resembled doctrines playing the same narrowing role for other liberties.31 31.See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A.Show More Bringing out the resemblance here will show how to extend those other liberties’ doctrines to new circumstances—and how to fashion a well-supported substantial burdens test for religion, in the absence of textual or historical guidance for doing so.

To that end, Part II draws a principle from the laws of speech, abortion under Roe and Casey, and other liberties. These doctrines not only forbid state action that targets protected conduct, but also guard against incidental burdens from some neutral laws.32 32.See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens).Show More Which? The law’s answer is guided by what I call an adequate alternatives principle. This principle triggers heightened scrutiny of a law burdening a civil liberty if the law leaves no adequate alternative means of exercising the liberty. But courts have said little on what makes an alternative “adequate.” To derive an answer, Part II extrapolates from case law and rights theory. Ultimately, the adequate alternatives principle ensures that laws curbing some liberty will leave people other ways to pursue the interests served by that liberty to the same degree, at no greater cost. This account can be used to clarify the scope of any number of liberties.

Finally, Part III applies the adequate alternatives principle to limit what will count as a “substantial burden” on religion.33 33.Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49.Show More It offers a unified resolution of dozens of cases and several unsettled questions. The cases addressed involve prisoners and death row inmates; street preachers and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects. And the general legal questions addressed in Part III, some of which were raised by Justices in Fulton, include the following: What questions judges should ask in assessing substantiality, whether to allow exemptions from “garden-variety laws,”34 34.Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted).Show More whether to treat “indirect and direct burdens on” religion differently,35 35.Id.Show More what forms of religious exercise to count in the first place, when to defer to claimants’ beliefs about a burden’s significance, and when not to defer. The test will ensure that heightened scrutiny applies only when the religious claimant really is worse off than others subject to the same law, allaying concerns about over-protecting religion. But the test will also avoid the constitutional landmines of having judges do theology or giving short shrift to less familiar, minority religious claims.

  1. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972). ↑
  2. 494 U.S. 872, 878–79 (1990). ↑
  3. 141 S. Ct. 1868 (2021). ↑
  4. See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled). ↑
  5. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). ↑
  6. Sherbert, 374 U.S. at 404, 406–07. ↑
  7. See infra Section II.A. ↑
  8. Id. ↑
  9.  See, e.g., Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)). ↑
  10. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical). ↑
  11. See infra Part II. ↑
  12.  See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T]. ↑
  13. See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015). ↑
  14. Fulton, 141 S. Ct. at 1874–75. ↑
  15. Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id. at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting). ↑
  16. Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). ↑
  17. Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting). ↑
  18. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives). ↑
  19. Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990). ↑
  20. Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights). ↑
  21. See infra Subsection III.D.1. ↑
  22. Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777. ↑
  23.  Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020). ↑
  24. Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374. ↑
  25. John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017). ↑
  26. 505 U.S. 833, 874 (1992). ↑
  27. 410 U.S. 113 (1973). ↑
  28. It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties. ↑
  29. Casey, 505 U.S at 873 (plurality opinion). ↑
  30. See id. at 874. ↑
  31. See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A. ↑
  32. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens). ↑
  33. Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49. ↑
  34. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted). ↑

  35. Id. ↑

The But-For Theory of Anti-Discrimination Law

Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as coextensive—something we now know not to be true—it is unclear whether all “disparate treatment” is truly proscribed. In the absence of a clear commitment to proscribing all disparate treatment, judicial law-making has run amok. The result has been the development of a network of technical rules that have all but eclipsed the factual question of whether discrimination took place, and that have been devastating to discrimination plaintiffs’ success.

This Article contends that the time has come to resolve the theoretical crisis in anti-discrimination law. In a series of recent cases, the Supreme Court has situated the question of whether an individual or group would have fared differently “but for” their protected class status as the central defining question of anti-discrimination law. Moreover, the Court has suggested that this inquiry flows from anti-discrimination law’s plain text. As such, there are compelling arguments to be made that a true disparate treatment principle—the but-for principle—is the textually mandated inquiry in anti-discrimination law, and that judicial deviations from this standard are illegitimate.

This idea—that our anti-discrimination laws must reach all contexts where the outcome would be different “but for” the sex, race, or other protected class status of those affected—is simultaneously conservative in its aspirations and potentially radical in its legal effects. Such an approach comports with our often-stated commitment that all individuals in our society be given equal opportunities, and not be judged on the basis of their race, sex, or other protected class status. But anti-discrimination law has strayed far from these anti-disparate treatment principles—and thus taking such a commitment seriously would have truly significant effects. This Article thus suggests that reorienting our inquiry around the factual question of whether the outcome would be different “but for” protected class status is important to ensuring that anti-discrimination law can achieve its basic promises.

Introduction

Discrimination law has long been in theoretical crisis. Because its core theory—disparate treatment—was recognized at a time when “disparate treatment” and “intentional discrimination” were believed to be one and the same, anti-discrimination law’s foundational cases conflate the two.1 1.See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth).Show More This has created a fundamental question as to disparate treatment law’s central theoretical principles. Does disparate treatment law in fact prohibit all “disparate treatment,” (i.e., all decisions in which the outcome would have been different “but for” race, sex, or other protected class status)? Or does it prohibit only the narrower category of “intentional discrimination” (i.e., decisions in which protected class status played a conscious role)?

These questions about anti-discrimination law’s core principles remain unanswered even today, with important adverse consequences for anti-discrimination law. In the absence of a clear commitment to barring “disparate treatment,” judicial law-making has run amok. Few judges even ask the question of whether a policy decision—or an employment action—would have turned out differently had the individual or group affected been white, male, or of a majority religion.2 2.See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law.Show More Instead, across both constitutional and statutory law, convoluted doctrines result in the dismissal of the majority of anti-discrimination claims, whether or not “disparate treatment” (in the literal sense) has in fact occurred.3 3.See infranotes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017).Show More

This Article suggests that the time has come to address this theoretical crisis, and recenter anti-discrimination doctrine around what ought to be its core principles. As the very name of the doctrine suggests, “disparate treatment” law is supposed to be centrally concerned with differential treatment. This simple principle—that all groups and individuals have a right to receive the same treatment at the hands of government, employers, and others, regardless of race, sex, or other protected class status—is central to what anti-discrimination law is supposed to do. If our “anti-discrimination” principles regularly absolve defendants of liability where groups or individuals in fact would have been treated better if they were white, or men, or non-disabled, then anti-discrimination law is not worthy of its name.

While addressing anti-discrimination law’s theoretical crisis has long been urgent, it has recently become far more plausible. Across a series of recent cases, the Supreme Court has articulated the view that anti-discrimination’s law’s central defining principle is what I refer to in this Article as the “but-for principle.”4 4.Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim).Show More Thus, the Court has embraced the view that where the outcome would be different “but for” the protected class status of those affected, anti-discrimination law is violated.5 5.See sources cited supra note 4.Show More This is of course simply another way of saying that disparate treatment (in its literal, not technical, sense) is proscribed. As such, the Court’s recent cases offer renewed opportunities to suggest that anti-discrimination law must be centered on a true “disparate treatment” theory, which would mandate liability wherever differential treatment occurs (i.e., wherever the outcome would be different “but for” protected class status).

Importantly, the Court has situated its reasoning in these cases as founded on the “plain meaning” of anti-discrimination law’s statutory text.6 6.Bostock, 140 S. Ct. at 1743, 1750.Show More As such, they offer an unusual opportunity to argue that a true disparate treatment principle not only resides at the core of anti-discrimination law but also in its plain textual meaning. In a Supreme Court where textualism is the ascendant method of statutory interpretation, this makes it uniquely plausible to claim that a commitment to proscribing all actual differential treatment is not only the preferred theory of disparate treatment law but (at least for statutory anti-discrimination law) the textually mandated one. And because disparate treatment doctrine has typically been construed comparably across the constitutional and statutory domains,7 7.See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. SeeU.S. Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests.Show More such a move could have profound impacts in the constitutional domain as well. As such, the current moment offers unique opportunities for resolving the theoretical crisis at the heart of anti-discrimination law and for addressing the many doctrinal pathologies that have arisen out of it.

Ironically, if there is one major obstacle to harnessing this recent turn in the Supreme Court’s case law toward a true disparate treatment paradigm, it may be those who are, in theory, most committed to building a meaningful body of anti-discrimination law. Many anti-discrimination scholars and advocates have critiqued the but-for principle—and indeed at times disparate treatment law in general—perceiving it as a weak substitute for preferred theories of anti-discrimination law, such as disparate impact and motivating factor liability.8 8.Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484).Show More This longstanding opposition to the but-for principle may make anti-discrimination scholars and advocates reluctant to draw on these cases and accompanying theoretical principles, regardless of their potential.

But this Article suggests that the increased risks of embracing the but-for principle are slight—and that the opportunity costs of not doing so are considerable. The opportunity to recenter disparate treatment law around what should be its core theoretical commitment is not one we ought to take lightly. Without such a core theoretical commitment, we can expect to continue to see an anti-discrimination law without any central rudder, overrun by judge-made doctrines, and highly susceptible to individual judicial biases.9 9.See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”).Show More Punitive or harmful government policies that would not have been adopted “but for” the (minority) race of those affected will continue to proliferate and go unremedied.10 10.See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX].Show More Employment decisions that treat women, minorities and members of the LGBTQ community more harshly than those who are men, white, cisgender and straight will continue to be evaluated—and often dismissed—under a network of doctrines that bear little relationship to whether differential treatment occurred.11 11.See Sperino & Thomas, supra note 3, at 1–4.Show More

In contrast, an embrace of the but-for principle—and centering it as anti-discrimination law’s core commitment—offers myriad concrete opportunities to argue for a more sensible and elegant approach to anti-discrimination law. Under the but-for principle, our foundational inquiry ought to be a simple and factual one: would the outcome have been different “but for” the race, sex, or other protected class status of those adversely affected? While in many cases answering this factual question may be difficult—just as it is in, for example, tort claims—the procedure for doing so is straightforward. The fact finder (jury or judge) ought to consider all of the relevant evidence and consider whether it appears, by a preponderance of the evidence, that a different outcome would have resulted had the protected class status of those affected been different. For example, would the Voter ID law have been passed, if those it had been likely to disenfranchise were overwhelmingly white? Or would a man have been assumed to be uncommitted to work—and thus denied a promotion—simply because he had small kids?

Centering this approach has the potential to address many of the pathologies that currently plague both statutory and constitutional anti-discrimination law. The search for a particular individual bad actor (or actors) becomes far less relevant if the but-for principle is the central defining principle of disparate treatment doctrine since the question can be asked without defining the precise role of particular individuals in producing the discriminatory action.12 12.Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination).Show More So too, the search for a strong form of self-aware conscious intent should not be dispositive if our central focus is on whether the outcome would have been different “but for” the protected class of those affected. Self-aware intent certainly may be helpful in proving “but for” causation, but it is only one of many ways that but-for causation can be shown.13 13.Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor).Show More Finally, widespread recognition of the but-for principle as the central defining feature of disparate treatment doctrine would provide an opportunity to address the myriad technical doctrines that currently result in the dismissal of numerous statutory anti-discrimination claims, without ever asking the core question of whether discrimination took place.14 14.See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims).Show More

In addition to providing the opportunity to address many of anti-discrimination law’s pathologies, the but-for principle could also provide a stronger foundation for many of anti-discrimination law’s equality-promoting doctrines and scholarly ideas. As the case of Bostock v. Clayton County demonstrates, the stereotyping principle—long critiqued by some for its lack of statutory foundation15 15.See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring).Show More—can be situated comfortably within the but-for principle, offering it renewed vigor and promise.16 16.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020).Show More Similarly, the theory of “negligent discrimination”—long argued for by some anti-discrimination scholars17 17.See infra notes 226–29 and accompanying text.Show More—becomes largely unnecessary under a but-for discrimination regime.18 18.See infra Section IV.B.Show More A true but-for standard would also effectuate many—though certainly not all—goals of other equality-promoting doctrines, such as motivating factor and disparate impact.19 19.See infra Part IV.Show More

As such, there are many potential benefits to embracing the but-for principle as the theoretical core of disparate treatment doctrine and relatively few genuine drawbacks. Indeed, many of the sources of opposition have rested on misconceptions about what “but for” demands or permits (including, for example, misconceptions that a but-for standard effectively requires a showing that protected class status was the sole cause of the defendant’s actions).20 20.See infra Part V.Show More Other sources of opposition have rested on fears that the but-for principle (or other anti-classificationist approaches) would endanger minority-protective doctrines such as affirmative action.21 21.See infra Subsection V.A.2.Show More But as this Article demonstrates, much of what anti-discrimination scholars and advocates hope to accomplish through alternatives to the but-for principle can be achieved through the embrace of the principle—and much of what they hope to avoid has already come to pass.22 22.Id.Show More

The time has come to resolve the theoretical crisis in anti-discrimination law. This Article takes up that work. The Parts that follow describe the theoretical crisis at the heart of anti-discrimination law, develop arguments for how it may be resolved, and suggest what the benefits of such a resolution might be. But before proceeding to this substantive discussion, it is important to note the role of terminology in both generating—and ultimately solving—anti-discrimination law’s theoretical crisis. For too long we have conflated two concepts—“disparate treatment” and “intentional discrimination”—and we ought not to do so going forward. Thus, in this Article, when I use the term “disparate treatment,” I mean a true disparate treatment standard—that the outcome would have been different “but for” the protected class of those affected. When I refer to “intentional discrimination,” I mean to describe the narrower class of disparate treatment that is perpetrated with discriminatory intent.23 23.Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016).Show More Both of these standards are distinct from a “disparate impact” standard, which asks whether the burdens of a policy or practice fall more heavily on a particular group, but in a context where disparate treatment need not be present.24 24.42 U.S.C. § 2000e-2(k).Show More

The remainder of this Article proceeds as follows. Part I makes the case that anti-discrimination law is in conceptual crisis, describes the origins of this crisis, and details the ways that this theoretical crisis has led to serious pathologies in contemporary anti-discrimination law. Part II turns to the set of recent cases in which the Supreme Court has described the but-for principle—a true disparate treatment principle—as the central defining feature of anti-discrimination law and describes the potential of such cases for resolving anti-discrimination law’s theoretical crisis. Part III illustrates what a factual, but-for-centered inquiry might look like in an individual case and describes the radical systematic potential of arguing that this simple factual inquiry must control. Part IV describes how many of the objectives of the equality-promoting doctrines that anti-discrimination scholars and advocates have favored can be effectuated by turning to a true disparate treatment inquiry, via the but-for principle. Finally, Part V addresses likely headwinds to a project of recentering anti-discrimination law around the but-for principle, including potential progressive objections to such a project, potential legal obstacles, and judicial attitudes that may pose a barrier to reform.

  1. * Many thanks to Michael Carrier, Jessica Clarke, Tristin Green, Guha Krishnamurthi, Alexandra Lahav, Shannon Minter, Zalman Rothschild, D’Andra Shu, Joseph Singer, Sandra Sperino, Michael Selmi, Brian Soucek, Charles Sullivan, and Deb Widiss for helpful conversations and feedback regarding this project, and to the editors of the Virginia Law Review for excellent editorial suggestions. Special thanks are owed to Jessica Clarke, Sandra Sperino, and Deb Widiss for extensive feedback. This Article was presented at the 15th Annual Colloquium on Labor and Employment Law (“COSELL”) and at the Association of American Law Schools 2021 Meeting and received excellent feedback from participants. ↑
  2. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth). ↑
  3. See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law. ↑
  4. See infra notes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017). ↑
  5. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim). ↑
  6. See sources cited supra note 4. ↑
  7. Bostock, 140 S. Ct. at 1743, 1750. ↑
  8. See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. See
    U.S.

    Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests. ↑

  9. Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484). ↑
  10. See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”). ↑
  11. See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX]. ↑
  12. See Sperino & Thomas, supra note 3, at 1–4. ↑
  13. Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination). ↑
  14. Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor). ↑
  15. See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims). ↑
  16. See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring). ↑
  17. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020). ↑
  18. See infra notes 226–29 and accompanying text. ↑
  19. See infra Section IV.B. ↑
  20. See infra Part IV. ↑
  21. See infra Part V. ↑
  22. See infra Subsection V.A.2. ↑
  23. Id. ↑
  24. Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016). ↑

  25. 42 U.S.C. § 2000e-2(k). ↑

Excited Delirium and Police Use of Force

­­­­

Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical condition has been used to justify deadly uses of force by police officers who detain individuals whose seemingly bizarre and uncontrollable behavior is believed to be a threat. Excited delirium is also commonly used by medical examiners and law enforcement to explain why the extreme toll taken on the bodies of people who experience these psychiatric episodes might lead to spontaneous death when they are in police custody. While this diagnosis is increasingly relied upon to explain police use of force and in-custody deaths, a curious matter remains unresolved: excited delirium, as an actual medical condition, does not seem to exist. It is not recognized as a valid medical diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) nor in the World Health Organization’s International Classification of Diseases (“ICD-10”), which are the most authoritative classifications of mental health conditions. Moreover, excited delirium has an ignoble history linked to racism and fraudulent forensic science. Nevertheless, excited delirium continues to play a prominent role in policing, prosecutions, and § 1983 constitutional tort claims adjudicated by federal courts when victims of police violence seek damages for violations of their constitutional rights.

This Article provides the first comprehensive assessment of excited delirium in law and legal scholarship. Drawing upon an original dataset that collects information on in-custody deaths over the past decade tied to excited delirium, this Article documents the extent to which this condition has been articulated by legal and medical actors as a cause of death in situations where police have used force. The data show, among other findings, that at least 56% of deaths that occur in police custody that are attributed to excited delirium involve Black and Latinx victims. By putting these findings in conversation with an examination of the scientific literature and § 1983 police excessive force cases that discuss excited delirium, this Article draws attention to how excited delirium has become a misplaced medical diagnosis that obscures and therefore excuses questionable uses of police force that produce harm and death—especially in communities of color. By relying on pseudoscience with little evidence, medical examiners and coroners have given life to a false medical condition that is often used to shield police officers from accountability when they use unacceptably harsh and unlawful force. Excited delirium shifts the blame for these deaths to what is often wrongly presumed to be an individual’s tragic medical condition, which obfuscates the structural conditions that predictably lead to unlawful uses of police force that are the more proximate cause of harm. By offering this examination of excited delirium, its role in policing, and how it impacts the adjudication of excessive force claims, this Article suggests that policymakers and legal actors should be more attentive to how science and medicine can be used inappropriately to impede police accountability and justice for victims of police violence.

Introduction

Tommie McGlothen Jr. left his sister’s house in the Lakeside area of Shreveport, Louisiana, while experiencing a mental health crisis in April 2020.1 1.Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42].Show More As he walked down the street, his erratic behavior gave a passerby the impression that McGlothen was attempting to break into a car. The police were summoned. When officers approached McGlothen, a dispute erupted and McGlothen was handcuffed. Witnesses noted that although McGlothen was not resisting at this point, the officers struck him several times and slammed him into a patrol car.2 2.Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT].Show More The officers then put McGlothen into the back of the car and left him there alone for nearly an hour. When they returned to check on him, McGlothen was unresponsive.3 3.Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP].Show More Paramedics arrived at the scene, and witnesses said that the “ambulance drove off slowly with no lights or siren,”4 4.KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ].Show More suggesting to some onlookers that he was already dead.

The local coroner, Dr. Todd Thoma, released a report on the cause of McGlothen’s death two months later. Curiously, he concluded that it was “natural”—the result of a psychiatric condition known as excited delirium. As Thoma explained:

These people get into a situation where they become confused, disoriented, violent, aggressive. They can’t listen to reason. There is no reason. This is a medical problem. This is not somebody’s behavioral problem . . . . When police try to restrain [people suffering from excited delirium] to try to take them into custody, it takes a lot of force sometimes to do that. . . . [They are also] impervious to pain.5 5.May, supra note 1.Show More

Thoma recites what has become an increasingly familiar narrative embraced by coroners, law enforcement, and other legal and medical actors when people seem to suddenly and inexplicably die after being involved with the police. The death is seen as an unfortunate, yet natural, byproduct of a psychiatric condition that causes people to get so overworked and agitated that they spontaneously die, through no fault of anyone or anything except for their own defective bodies.

But what is curious about the coroner’s initial determination of McGlothen’s death is that all available evidence suggests that he died from injuries other than some mysterious psychiatric disorder. Video evidence shows four police officers pummeling a handcuffed McGlothen for several minutes with repeated punches and kicks. They hit him with night sticks, tased him, and used mace.6 6.Herbert & Santana, supra note 3; May, supra note 2.Show More The coroner concluded that “[a]lthough [an] autopsy showed that Mr. McGlothen suffered multiple blunt force injuries from both his confrontation with police and the citizens earlier in the day and that evening, no injuries were life-threatening or could be considered serious.”7 7.Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3].Show More However, when McGlothen’s family saw his corpse, they were shocked by its condition. His sister, Macronia McGlothen, said: “When we got to the funeral it looked like he had been beaten. His nose was broken. His jaw was broken. And his eye was swollen. It looked like he had a fractured skull. . . . So something’s not adding up.”8 8.May, supra note 2.Show More

* * *

Science and medicine have longstanding relationships with law and, in particular, law enforcement. Forensic scientists have worked with police investigators for many years to help understand crime scene evidence, and medical examiners have lent their knowledge of human anatomy and pathology to help investigators understand how mysterious deaths might have occurred. This intimate relationship between medical knowledge and legal procedures has been well documented.9 9.See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century).Show More However, less attention has been paid to how medical professionals might use their knowledge of science and medicine to participate in—and, at times, even conceal—unlawful uses of force by law enforcement that lead to community members’ harm and death. For example, in a recent article in the California Law Review, my co-author and I examined how paramedics have partnered with police to administer harsh drugs that have a sedative effect, also known as chemical restraints, on people who have been detained or arrested—many of whom are thought to be experiencing excited delirium.10 10.Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021).Show More These drugs are often used not for the health and well-being of the person under arrest, but to assist law enforcement by easing their efforts at managing what are often thought to be unmanageable bodies. Chemical restraints, such as ketamine, have been increasingly employed by police and EMS responders in recent years and have led to unnecessary hospitalizations and deaths of detained people.11 11.Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS].Show More

The questionable relationship between medical professionals and law enforcement is not limited to chemical restraints. Medical examiners and coroners play a critical role in the legal system in providing the official cause of death when someone dies in police custody. Forensic pathologists are often relied upon by police and investigators to explain how an unusual or unexpected death might have occurred. Excited delirium, as a psychiatric disorder that is thought to place significant physical stress on people, appears to offer medical insight into what seems like an epidemic of people suffering from drug dependency or mental health crises dying without explanation.

There are at least three aspects of excited delirium that are unusual and worthy of exploration. First, excited delirium appears to be more common among Black people. Although studies on excited delirium are scant, data suggest that Black people are diagnosed as suffering from it at much higher rates than White people.12 12.See infra Subsection III.C.2.Show More Second, the disease strangely seems to happen when police are around. For example, a recent review in Florida Today showed that nearly two-thirds of the deaths in Florida officially listed as being caused by excited delirium over the past decade occurred while the decedent was in police custody or had some other interaction with law enforcement.13 13.Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3].Show More Yet, this may be an undercount as other deaths that implicate police officers in Florida and across the country might be presumed to involve excited delirium without official designation or further investigation.14 14.One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa.Show More And lastly, and perhaps most strangely, excited delirium is not a psychiatric disorder that is recognized by most medical professionals. Professional organizations such as the American Psychiatric Association15 15.Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N].Show More and the American Medical Association16 16.Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT].Show More have been extremely critical of the term and oppose its use. Medical guidebooks used to identify psychiatric conditions, such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) and the International Classification of Diseases (“ICD-10”), do not acknowledge it as a valid psychiatric disorder. Moreover, the peer-reviewed literature on excited delirium is rather thin; there is no clear articulation of causal mechanisms or pathways to support the notion that excited delirium has a distinct pathology that leads to death.

Nevertheless, excited delirium as a psychiatric diagnosis allows law enforcement to pathologize people’s behavior, justify the use of chemical or physical restraints (and even deadly force), or explain how someone might unexpectedly die while in custody. As one example, a recent investigation uncovered that paramedics in Colorado used a chemical restraint called ketamine to sedate 902 people who were thought to be experiencing excited delirium in pre-hospital (i.e., public) settings over a two-and-a-half year period.17 17.Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA].Show More This includes the death of Elijah McClain, a twenty-three-year-old Black man who was approached by police while walking down a street after a 911 caller said he “looked sketchy.”18 18.Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438].Show More Multiple officers tackled him and placed him in a chokehold. Paramedics injected him with ketamine when they arrived at the scene after the officers reported that McClain had “incredible, crazy strength” and was “definitely on something,”19 19.Id.Show More which were “signs they took not as a struggle to survive, but as symptoms of excited delirium.”20 20.John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S].Show More The amount of ketamine injected into McClain was grossly inappropriate for his size,21 21.Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”).Show More and McClain went into cardiac arrest in the ambulance on the way to the hospital. He died several days later.

The numbers from Colorado regarding the widespread use of ketamine in response to perceived episodes of excited delirium, along with evidence from other states, demonstrate that this unfounded medical diagnosis is having an increasing influence on: (1) how law enforcement assess and respond to people that they engage and their decision to use force; (2) how medical examiners and coroners classify the cause of death when police interactions have deadly endings; and (3) how courts review the appropriateness of police use of force when these matters are litigated as possible instances of excessive force that might violate the Fourth Amendment. This Article examines how excited delirium is being used in law, places these developments in a social and historical context, and provides an evidence-based set of recommendations on how law and policy should move forward.

This examination of excited delirium is closely connected to doctrinal issues regarding police use of force. Part II reviews the social context and community impact of police violence while also being attentive to the doctrinal evolutions that constitute modern use of force jurisprudence to show how law makes it difficult to hold police accountable when excessive force is used. Understanding the role of law in undermining accountability provides an important context for appreciating how excited delirium, as an ostensible medical diagnosis, became enmeshed in the legal system as an additional way to exculpate police officers of wrongdoing. Part III offers a close examination of the history of excited delirium and reviews the scientific evidence used to support it as a diagnosis. This Part ends with a discussion of an original empirical dataset that I collected on how excited delirium has been used to describe the cause of deaths that occur in police custody as reported in local newspapers over the past decade. Part IV continues this assessment by examining how excited delirium has been discussed in federal courts, mostly in constitutional tort cases pursuant to 42 U.S.C. § 1983. An examination of these cases demonstrates that federal courts often give weight and meaning to excited delirium that is not supported by the existing scientific evidence. Part V provides a series of recommendations on how federal courts, local police departments, and medical professionals (including coroners and medical examiners) should approach excited delirium. I then briefly conclude in Part VI.

  1. * Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A., Yale University; J.D., Columbia Law School; Ph.D., University of California, Berkeley. Many thanks to Amelia Dmowska, Hayley MacMillen, and Anna Zaret for their excellent research assistance. ↑

  2. Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42]. ↑

  3. Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT]. ↑

  4. Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP]. ↑

  5. KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ]. ↑

  6. May, supra note 1. ↑

  7. Herbert & Santana, supra note 3; May, supra note 2. ↑

  8. Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3]. ↑

  9. May, supra note 2. ↑

  10. See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century). ↑

  11. Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021). ↑

  12. Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS]. ↑

  13. See infra Subsection III.C.2. ↑

  14. Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3]. ↑

  15. One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa. ↑

  16. Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N]. ↑

  17. Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT]. ↑

  18. Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA]. ↑

  19. Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438]. ↑

  20. Id. ↑

  21. John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S]. ↑

  22. Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”). ↑

©Virginia Law Review Association. All rights reserved.