John G. Peters, Jr., Ph.D. and Gregg J. Gunta, Esq.
On May 15, 2019, Appleton, Wisconsin, police officers and firefighters responded to a bus passenger’s medical emergency at the Valley Transit Center in downtown Appleton. The passenger, later identified as 47-year-old Ruben Houston of Wausau, Wisconsin, was asleep on the bus and did not get up to exit when it arrived at the Transit Center. Passengers reported him snoring oddly, while another passenger claimed Mr. Houston appeared to exhibit symptoms of a seizure. Police and firefighters were called to help him.
Firefighter first responders quickly examined Mr. Houston and concluded he was most likely suffering from an opioid overdose because his eyes were extremely dilated and he had inconsistent breathing. The opioid antagonist, NARCAN® (naloxone HCI), was administered and shortly thereafter Mr. Houston awoke, but appeared to be confused, paranoid, angry, and violent. He told first responders he had taken four of his wife’s morphine pills because both of his legs bothered him on the bus ride. Paramedics informed Mr. Houston that he needed to go to the hospital because, when the NARCAN wore off, the morphine could trigger another “overdose.”
Appleton firefighter Mitchell Lundgaard brought Mr. Houston a cot so he could lie down, but he declined saying he wanted to get home. Appleton Police Sergeant Christopher Biese asked if he could conduct a “pat down,” but Houston refused, saying he just wanted to get back on the bus. Transit employees told Mr. Houston he could not reboard the bus because of liability. Sergeant Biese then attempted to do a pat down, but Mr. Houston kept turning his right side away from the sergeant.
Body-worn camera video footage showed that Mr. Houston got very aggravated and suddenly and unexpectedly pulled out a .380 semiautomatic handgun from under his shirt and fired two shots. One shot struck Firefighter Lundgaard in the back, killing him. Another shot struck Appleton Police Officer Paul Christensen in the leg. Then, running while shooting, Mr. Houston grabbed Brittany Schowalter by the neck and used her as a shield, as Officer Christensen and Sergeant Biese returned fire, striking Mr. Houston in the arms, fingers and stomach. He later died in a local hospital.
Waking the Dragon
Emergency Medical Service (EMS) providers often refer to the time immediately following the administration of NARCAN to a patient as “waking the dragon.” As shown in the murder of Firefighter Lundgaard, the sudden awakening of Mr. Houston proved deadly. First responders must make reasonable attempts to anticipate and mitigate risks of individuals who become agitated and violent before “waking the dragon.”
One California paramedic has stated that experience is a great teacher and when NARCAN is given too fast to a patient, (s)he may awaken very angry and violent. “You have ruined their high and they are not happy,” he said. “That is why I suggest giving small doses of NARCAN to wake them slowly and to also evaluate their reactions.”
Michael Leonesio, a retired California peace officer and paramedic, echoed the paramedic’s cautions. “I learned my lessons about NARCAN when I was on the street. If you wakened a patient too quickly, you were probably going to fight an angry person,” Leonesio said. Continuing, he said, “Because more police officers are being trained to do medical interventions, it is important for them to learn and to know the possible risks associated with the use of pushing antagonists too fast.”
Limited Safety Warnings and Dangers about NARCAN Use
The opioid antagonist, NARCAN, is a brand name for a product which is often given to, and used by, law enforcement officers when they need to reverse an apparent opioid overdose in people. Nonetheless, the warnings provided to many first responders focus on the safety of the antagonist and not on their personal safety. One author who was associated with Boston Public Health wrote that she had never had a patient become violent after being given naloxone. She continued saying that what makes a patient agitated is when they receive too much medication too quickly.
The Bureau of Justice Assistance (BJA) published that naloxone “is a very safe medication” and that it is “uncommon” for the revived patient to “become violent or combative” (https://tinyurl.com/y68uss5s). PDR.net identified several adverse reactions to the use of NARCAN identifying “hallucinations” as a MODERATE adverse reaction, and “agitation” as a MILD adverse reaction.
In contrast, several authors and studies have noted that naloxone may result in violent patient behaviors and may require the restraint of pre-hospital patients to prevent violence. In one study (2002-2003), 28% of restrained patients had assaulted first responders. Many patients develop “Post-Acute-Withdrawal Syndrome (PAWS)” which is not an official medical diagnosis, but patients may experience withdrawal or withdrawal-like symptoms. Use caution! Being assaulted by a patient in the field is a form of workplace violence.
Workplace violence is simply violence which occurs in the workplace. Many “workplaces” of first responders are in the “field” and are not limited to a hospital setting. Violent behavior is not simply an overt act, but rather a process which includes stress building over time which often includes personal conflicts and problems, and personal failures. Opioid use may be a signal to first responders that the person has coping issues with life, job, family, etc. The person may want to “escape” to euphoria through the use of opioids and when first responders interrupt this journey by administering NARCAN, the person awakes angry that his (or her) journey has been shortened and/or stopped. The possible results are aggression and violence.
To prepare employees about the dangerous risks associated with the use of antagonists such as NARCAN, appropriate training and policy are needed.
Create Awareness through Appropriate NARCAN Policy and Training
Law enforcement officers are increasingly expected by their employers and their supervisors to handle medical emergencies.
Municipalities and law enforcement agencies that do expect their officers to use NARCAN must have a written policy about who is authorized to administer NARCAN and under what conditions. Clearly, a suspected opioid overdose is a medical emergency. Most law enforcement administrators who have authorized and adopted the use of NARCAN have such a policy. However, these policies often fail to identify and highlight the potential patient dangers and/or permit the limited restraint of the patient prior to the administration of NARCAN. For example, one Ohio sheriff’s department’s naloxone policy provided good procedural instructions for the administration of naloxone, but said nothing specific about restraint of the patient prior to using the drug. Policies can be used to remind officers about the dangers of using the drug, while simultaneously authorizing the temporary restraint of the patient prior to giving the drug for increased safety.
NARCAN training must include its proper administration and its potential of aggression and/or violence in the patient when administered too fast. Employees must know about potential adverse events so they can plan and prepare a timely response should a patient suddenly become violent. In January 2019, the United States Department of Health and Human Services (HHS) reported that “11.4 million people misused prescription opioids; that 2.1 million people had an opioid use disorder; and that, in 2017, two million people misused prescription opioids for the first time” (http://www.hhs.gov/opioids/).
Defensive tactics instructors must also be included in this training and policy mix. They must identify what type of safe pre-hospital restraint can be applied to people who are suspected of suffering an opioid overdose, prior to the administration of NARCAN. This training may focus on the use of flexible restraints applied around the wrists, frontal handcuffing, etc. It is not enough to warn about the dangers to officers and others by an aggressive patient. Pre-administration and pre-hospital restraint techniques must also be taught to the officers.
Your Legal Liability Protections
What about personal or municipal liability? Can force be used on people who are experiencing medical emergencies? Must the force used follow the factors in Graham v. Connor? Am I covered by my state’s Good Samaritan laws?
Many times, force must be used on people who are in the throes of a medical emergency. People who are in a state of excited delirium or similar agitated state must be captured, controlled and restrained before medical intervention can occur. The force used must be appropriate for the totality of the circumstances.
A Sixth Circuit case provides insight into how force may be analyzed when used on a person experiencing a medical emergency. In the case Estate of Corey Hill v. Christopher Miracle, 853 F. 3d 306 (6th Cir. 2017), a deputy responded to assist EMS at a call involving a diabetic emergency. The diabetic person became combative, kicking and swinging his arms at EMS providers. The deputy used his TASER® Electronic Control Weapon (ECW) in drive-stun mode to the agitated person’s right thigh. The drive-stun worked and calmed the person so EMS providers could re-establish an IV, administering dextrose (sugar).
The Sixth Circuit held that, when a situation does not meet the mirror image of the Graham test (i.e., patient has not committed a crime, is not resisting arrest, and is not directly threatening the officer), the following analysis can be used: “(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?; (2) Was some degree of force reasonably necessary to ameliorate the immediate threat?; and (3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?” (Estate of Corey Hill v. Christopher Miracle).
The Sixth Circuit held that “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity” (Estate of Corey Hill v. Christopher Miracle). This decision and analysis were applied to the facts of this case, and therefore became mandatory law in the Sixth Circuit, but only persuasive law in other Circuits. Check with your local legal counsel for appropriate guidance. Also, don’t forget to answer these questions in your incident report. Detailed explanations about what was perceived and what possible interventions were chosen and used will help defense counsel prepare for deposition and trial.
Of course, there are Good Samaritan laws which may help to protect officers from civil liability. Coauthor Gunta is a police and municipal defense attorney in Wisconsin and noted that the state of Wisconsin does provide immunity from both criminal and civil liability for law enforcement officers who participate in, or directly administer, an opioid antagonist and receive proper training from an ambulance service provider or a physician. However, there are requirements. One requirement is that the officer or firefighter receive the necessary training to “safely and properly administer naloxone, or another opioid antagonist . . .” What is “necessary training”? Check with local legal counsel and the program trainer to make sure the training meets state statutory criteria.
Make sure the training is competency-based; in other words, that the officer’s demonstration of his (or her) ability to administer NARCAN is quantitatively measured. Attendance in training does not equal competency, so make sure there is a measurable test given to each trainee. There should be a written examination (about the antagonist and agency policy) and a practical examination (demonstration of application) which can be objectively measured through quantitative performance objectives.
Tragically, Firefighter Lundgaard was murdered by the very patient whose life he had saved. There are often lessons to be learned from workplace tragedies and, in this case, it includes sharing information during NARCAN training about the potential violence and agitation from patients who received NARCAN. It also includes modifying agency policy to permit the reasonable restraint of individuals prior to the administration of NARCAN, if such a modification is necessary. Restraint training must include a scenario of briefly restraining an individual, usually handcuffed in the front, prior to administering NARCAN as a safety precaution to the patient, first responders and bystanders. The killing of Firefighter Lundgaard challenges general safety information and traditional training in the use of NARCAN and is another example of preventable workplace violence.
John G. Peters, Jr., Ph.D., CTC, CLS, serves as president of the Institute for the Prevention of In-custody Deaths, Inc., a Henderson, Nevada-based, training firm. A judicially qualified expert witness who has testified in federal, state and international courts, he is a frequent contributor to Police and Security News.
Gregg J. Gunta, Esq. has over 40 years of experience defending law enforcement officers and municipalities and is founding partner of Gunta Law Office, Milwaukee, WI. An experienced litigator, he is a sought after speaker and has numerous publications to his credit.