DENVER – Nearly two years after the death of Elijah McClain in Aurora, Rep. Joe Neguse, D-Colo., introduced a bill Monday that would, if passed, ban the use of ketamine during a person’s arrest or detention outside a hospital setting.
The federal measure comes on the heels of a measure that limits ketamine administration by first responders passed by Colorado state lawmakers in this year’s legislative session, sponsored by State Rep. Leslie Herod, which was also passed in the wake of McClain’s 2019 death.
Neguse’s bill, which will be called the Ketamine Restriction Act, is also sponsored by Rep. Jason Crow, the Democrat who represents the district that includes Aurora, as well as several other members of Congress, including House Judiciary Committee Chairman Jerrold Nadler, D-N.Y.
The federal bill would block Byrne grant money from going to any state or local agency that has not prohibited the use of ketamine for a person’s arrest or detention other than in a hospital. The Edward Byrne Memorial Justice Assistance Grant Program gives federal money to local and state law enforcement to put toward law enforcement, court programs, corrections, drug treatment programs and more, and Colorado jurisdictions receive millions in the grant money each year.
Neguse said he sponsored the bill because of McClain’s death and the ongoing conversation about the use of ketamine by first responders in Colorado.
“In far too many circumstances ketamine is being used to help effectuate arrests without a full appreciation of the health risks,” Neguse said in a statement. “…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.” Neguse called the bill a common-sense measure he believes is “imperative” to get passed.
“While no legislation can bring back Elijah or ease his family’s pain, we must learn from this injustice. As a legislator, our community deserves more than my thoughts and prayers, they deserve action,” Crow said in a statement. “The Ketamine Restriction Act would ban the use of ketamine during arrest and detention can help prevent future tragedies.”
Herod, who sponsored HB21-1251, which is awaiting the governor’s signature, said Neguse’s measure would expand ketamine restrictions across the nation.
“This is a national pandemic, and today, Congressman Neguse’s leadership introducing the Ketamine Restriction Act will help reduce stories like Elijah’s and hold law enforcement accountable,” she said in a statement. “In Colorado, we took the first step in restricting its use and I’m proud to work with the Congressman to further our efforts.”
Her bill would require paramedics to weigh a person, or if that is not possible to agree with another on a person’s weight, and to be trained in ketamine administration before it could be given to a patient. They would also have to try to get authorization to administer the drug by a medical director and would have to have equipment on site to monitor the person’s vital signs.
The bill would also, if signed by the governor, require law enforcement officers to intervene and report if a fellow officer is using ketamine on a person, and prohibit paramedics from using ketamine to help in a person’s arrest or detainment unless there is a medical emergency.
McClain went into cardiac arrest after he was administered 500 milligrams of ketamine – a dose recommended for a 200-pound person. McClain weighed 143 pounds at the time. He died less than a week later after being declared brain dead.
The Adams County coroner found McClain’s death was undetermined but couldn’t rule out a reaction to the drug.
An independent investigation into the events that led up to McClain’s death found that first responders believed McClain was experiencing “excited delirium” – commonly used as a reason to administer ketamine. But it also found that body camera footage “does not reflect any effort by Aurora Fire to test or confirm” the diagnosis of excited delirium.
Neguse introduced the bill on the same day the American Medical Association’s meeting of House of Delegates issued a new policy saying it was opposed to the use of excited delirium as a medical diagnosis. The board “warns against the use of certain pharmacological interventions solely for a law enforcement purpose without a legitimate medical reason,” according to a news release from the AMA.
“As physicians and leaders in medicine, it is our duty to define the medical terms that are being used to justify inappropriate and discriminatory actions by non-health care professionals,” said AMA President-elect Gerald E. Harmon, M.D. in a statement. “The adoption of this policy represents an urgent step forward in our efforts to remove obstacles that interfere with safe, high quality medical care – and makes clear that the AMA will continue to aggressively confront all forms of racism or police violence against our patients in marginalized and minoritized communities.”
Qusair Mohamedbai, the attorney for McClain’s mother, Sheneen McClain, said she supports Neguse’s bill and believes ketamine “should never be used strictly for law enforcement purposes.”
Because police don’t actually administer the drug, they did not return a request for comment on the legislation. But some EMS organizations have signaled concern that banning ketamine could potentially remove an important safety tool for their employees.
Aurora has continued its ketamine moratorium, deciding not to renew Aurora Fire Rescue’s state waiver for the time being. The state has been studying the use of ketamine since last year. In 2019, paramedics administered ketamine 455 times, according to the Colorado Department of Public Health and Environment.
