While Aurora’s Elijah McClain may be perhaps the most well-known person who died as a result of an overdose of ketamine in Colorado, he’s far from the only one, nor the only Coloradan who has suffered long-term ill effects from the drug, according to testimony to the House Judiciary Committee on Wednesday.
Many who have experience with ketamine administered during police interactions aren’t satisfied with the steps to limit its use, as contained in an amended version of House Bill 1251, which was approved by the committee after a lengthy hearing.
One by one, they said it should be banned outside of a hospital setting.
That included McClain’s mom, who appeared remotely but was unable to testify at the hearing. Her attorney spoke on her behalf.
Qusair Mohamedbhai said no paramedic who was involved in McClain's death has been held accountable, either through Internal Affairs or the criminal justice system. In a statement published Wednesday evening by the Aurora Sentinel, he said that anything less than a ban does not acknowledge the death of McClain.
"It's a step in the right direction but we are past incremental change on the backs of our dead community members," the statement read.
As introduced, HB 1251 would have required paramedics to obtain the weight of an individual before administering ketamine. But that proved to be logistically difficult, as many ambulances are not equipped with such technology, or the effort to get an accurate reading is complicated by the person’s behavior. So sponsors Rep. Yadira Caraveo, D-Thornton, and Rep. Leslie Herod, D-Denver, offered a strike-below — a rewrite of the bill — that limits the use of ketamine in nonhospital settings and imposes sanctions, including criminal penalties, when improperly used.
Those who administer ketamine must be trained in its use, must monitor vital signs and attempt to weigh the individual to ensure an accurate dosage. If they are unable to weigh the patient, the strike-below said at least five other people must agree with the weight calculation, although that was later amended down to two who are trained in weight assessments.
Ketamine and related “chemical restraint” drugs cannot be used to “subdue, sedate or chemically incapacitate” someone as a form of punishment or to facilitate an arrest, the amended bill now says. And “excited delirium” is not a justifiable emergency that could allow the use of ketamine, the bill now says.
More importantly, police officers cannot direct a paramedic to administer ketamine, the bill says, nor can a paramedic rely solely on a police officer’s information for doing so.
The bill’s language that drew the most objections from medical professionals was a requirement that paramedics report to the state’s Peace Officer Standards and Training (POST) board when a police officer tries to get them to administer ketamine, as well as requiring other police officers to either intervene or turn in their colleagues to the POST board when they witness such an action. That also carries criminal penalties for the officer directing the use of a chemical restraint, or for officers who fail to intervene.
That won’t foster good communications between paramedics, other medical professionals and police officers, they testified Wednesday.
Committee members noted they were wading into medical practice, an area in which they have little experience.
The committee first heard from those who have seen firsthand the effects of ketamine, including Lakewood City Councilwoman Anita Springsteen, who witnessed her city’s paramedics* administer ketamine to her boyfriend during a police incident. Springsteen was not speaking on behalf of the city council.
The March 2020 incident involved Jeremiah Axtell, who was handcuffed at the time when he was injected with ketamine. Both Axtell and Springsteen said Axtell had said he was cooperating with police at least 40 times during the exchange. The incident was related to Axtell’s complaints about an assisted living facility across the street where overflowing garbage, including adult diapers, were causing problems, including animals rummaging through the trash. Springsteen said that while police reports described Axtell as “out of control,” she videotaped the incident which showed him being cooperative.
“There's no appropriate use of ketamine. Ketamine should be banned,” Springsteen said.
Injected with ketamine twice, Axtell said he woke up in the morgue. He’s now one of several people who have filed lawsuits against police departments and paramedics over the drug's use.
Another is Elijah McKnight, who is suing Arapahoe County and South Metro Fire after being injected with 750 mg of ketamine. He wound up intubated and in intensive care as a result. McKnight acknowledged he had been somewhat combative with police officers in the August 2019 incident (the same month that Elijah McClain died). But he was injected only after being tased repeatedly, and then handcuffed by police officers, he said. By then, he said, he had agreed to cooperate.
“I support the bill but it’s not enough,” he told the committee.
In February 2020, Teresa Fuentes’ son died after being injected with ketamine at the Trinidad Correctional Facility. He had 843 mg of ketamine in his system, according to the autopsy, she said.
“Somebody should be made accountable for that,” she told the committee. “My grandchildren lost their father and I have lost my son.”
But most of the testimony on Wednesday came from those who objected, some strenuously, to the bill as rewritten.
Dr. Kevin McVaney is medical director for the Denver Emergency Medical Response System, which includes Denver Health Paramedics, the Denver Fire Department, the Denver Police Department and the Denver Communications Center. He told the committee that between 2006 and 2013, Denver had eight restraint-related deaths. The solution was to devise a comprehensive, “excited delirium” plan, which included early training with 911 dispatch, Denver Fire and Police, and that would alert someone to a behavioral emergency.
There have been no deaths in Denver since that plan was implemented, McVaney said.
“My fear with this bill is that if we move without knowing exactly what we're doing, if we create a circumstance where law enforcement cannot work in cooperation and under the direction of paramedics in the field, what we will have is a return to our previous deaths,” he said.
Yolanda Amezcua, an EMS education coordinator with Denver Health, added that paramedics often have just seconds to identify and manage a situation where someone is agitated, combative or otherwise violent.
“This bill does not accurately reflect or consider the unique role and reality paramedics encounter as they provide care for patients exhibiting these extremely dangerous behaviors or medical emergencies outside of a hospital,” Amezcua told the committee. And the bill’s overly-broad language restricts clinical decision-making in circumstances where chemical sedation is the most appropriate means to safely treat potentially life-threatening situations, she said.
"The bill will put paramedics at increased unnecessary risk because it fails to consider or understand the dangerous situations we face when caring for extremely agitated, combative, or violent patients," Amezcua said. She’s been in situations where her life was threatened by patients when called upon to render aid. One patient tried to bite her and break his own arm in order to injure her, she told the committee.
“There is not much time for dialogue [in those situations] because the fight is on,” she said. “However, our job is to make sure that we are not restraining the patient to the point to where they suffer respiratory failure.”
Amezcua also took issue with the bill’s language requiring her to report police officers who ask for chemical restraints. When parameters are put on what’s considered medical information or a suggestion, “that's when we're going to start getting this breakdown of overall communication between all emergency responders on that scene,” she said.
“We are there to care for the patients, period,” said one paramedic. “We're not there to enforce laws. We're not there to put on anyone under arrest, we're there to do the best thing, the right thing for our patients.”
Other witnesses said reporting officers to the POST board is not appropriate, given that the POST board lacks an investigative function, and that reports should go to an officer’s supervisor.
Herod told the committee that the sponsors have worked with 50 different stakeholders, but it was clear that more negotiations are likely, prompted by requests from committee members on both sides of the aisle. Rep. Terri Carver, R-Colorado Springs, led the questioning on the bill and suggested several amendments, including one to strip out the reporting requirement to the POST board, as well as the language that would assess a misdemeanor on police officers who fail to intervene when another officer has directed the use of a chemical restraint.
These are serious medications with serious side effects, Caraveo told the committee at the end of the hearing, and should only be given only based on legitimate medical information, “and not under the influence of individuals who have no medical training.”
Ketamine is being used in the field as a use of force, Herod said.
“It is being used for law enforcement purposes to restrain and sedate someone. But oftentimes, people are being injected with ketamine who are not resisting arrest,” possibly at two to three times the recommended dose, she said. “It has caused death, caused people to go into coma, and caused harm to our communities,” with no repercussions for officers.
There is video footage of officers abusing their authority to direct the use of ketamine, Herod said, adding that it is used disproportionately on people of color. "We need to change that.”
She said paramedics have the training to administer it, but should not be directed to do so by law enforcement.
As to the POST board language, “when you’re using ketamine against someone’s will, for purposes of an arrest, it’s the same as using a taser, baton or firearm,” she said. If it’s being used outside the legal bounds, there should be recourse and sanctions.
Herod pledged to continue to work on the bill, which passed on a 7-4 party-line vote and now heads to the full House.
Correction: An earlier version said Axtell was administered ketamine by the police; it was actually paramedics.