Neguse's Elijah McClain/Ketamine Bill Is Stricter Than Colorado's

Colorado Congressman and rising national political star Joe Neguse is the driving force behind the Ketamine Restriction Act, which would prohibit the use of ketamine during arrests. Many believe ketamine was a factor in the August 2019 death of Aurora's Elijah McClain, who was injected with the powerful anesthesia medicine during a brutal encounter with police. And while Colorado recently passed ketamine restrictions (the measure will become law with Governor Jared Polis's signature), Sheneen McClain, Elijah's mother, has a clear preference for the Neguse version.

"Ms. McClain was neutral when it came to her support of the Colorado version of the ketamine bill, because it simply didn't go far enough," notes her attorney, Qusair Mohamedbhai. "But Representative Neguse's bill completely bans the use of ketamine in arrest and detention, and Ms. McClain enthusiastically supports his efforts."

House Bill 21-1251, titled "Appropriate Use of Chemical Restraints on a Person," was sponsored by a powerful quartet of Colorado legislators led by Representative Leslie Herod. But it was opposed by the Colorado Association of Chiefs of Police, as well as health-care advocacy organizations such as the Emergency Medical Services Association of Colorado, which see ketamine as an effective way of controlling a highly agitated individual if administered with care. As a result, the final draft of HB21-1251 restricts ketamine use during busts rather than nixing it entirely. Its summary states:

When a peace officer is present at the scene of an emergency, an emergency medical service provider authorized to administer ketamine in a prehospital setting shall only administer ketamine if the EMS provider has:

• Weighed the individual to ensure accurate dosage or estimated the individual's weight with the agreement of 2 personnel trained in weight assessment if the EMS provider is unable to weigh the individual;
• Training in the administration of ketamine;
• Training in advanced airway support;
• Equipment available to manage respiratory depression; and
• Equipment available to immediately monitor the vital signs of the individual receiving ketamine and the ability to respond to any adverse reactions.

Leaving open the option of using ketamine during arrests troubles Mohamedbhai in light of what he sees as "the systemic racism behind uses of ketamine and false diagnoses like excited delirium," a condition that seems to become more controversial with each passing year.

Indeed, the American Medical Association recently announced a new policy that opposes excited delirium determinations, as well as ketamine injections to address them, because they can be used to justify excessive police force, particularly against Black men such as McClain. According to the AMA, the policy:

• Confirms the AMA’s stance that current evidence does not support “excited delirium” as an official diagnosis, and opposes its use until a clear set of diagnostic criteria has been established

• Denounces “excited delirium” as a sole justification for law enforcement use of excessive force

• Underscores the importance of emergency physician-led oversight of medical emergencies in the field

• Opposes the use of sedative/hypnotic and dissociative drugs — including ketamine — as an intervention for an agitated individual in a law enforcement setting, without a legitimate medical reason

• Recognizes the risk that sedative/hypnotic and dissociative drugs have in relation to an individual’s age, underlying medical conditions, and potential drug interactions when used outside of a hospital setting by a non-physician

Here's how Mohamedbhai sums up his objections to defenders of ketamine deployment to address excited delirium: "Shame on anyone who takes the Hippocratic Oath to do no harm but endorses the use of this extremely dangerous drug during arrests. And we applaud the AMA's stance on the use of ketamine."

The Ketamine Restriction Act has been introduced but not formally published, so the complete text is not yet available. But in a statement, Neguse makes it clear that his legislation tries to eliminate wiggle room.

"In far too many circumstances, ketamine is being used to help effectuate arrests without a full appreciation of the health risks," he notes. "The tragic death of Elijah McClain in Colorado underscores the clear need to rethink the use of this drug in cases of arrest and detention to ensure nothing like this ever happens again to a member of our community. Our bill builds on legislation recently passed by the Colorado legislature to enact a federal prohibition on ketamine for arrests and detention, other than at a hospital. This is common sense and it’s imperative we get it done."

Click to read the final version of Colorado House Bill 21-1251.