Marquez Ex Rel. Marquez v. City of Phoenix

Opinion by Judge O’SCANNLAIN; Dissent by Judge SCHROEDER.

OPINION

We consider whether a police officer has used constitutionally excessive force by repeatedly deploying an electronic control device — commonly known as a “taser”— against a combative suspect and whether the manufacturer of that device has provided sufficient warning that its repeated use may lead to death.

I

A

Early in the morning of July 28, 2007, Lydia Marquez was roused from her sleep by the sounds of “yelling ... and cussing” coming from a spare bedroom in her Phoenix, Arizona, home. Inside were her son Ronald, her granddaughter Cynthia, and her great-granddaughter Destiny. A few days earlier, Cynthia had suffered a head injury in a car accident, causing her to make odd statements about her relationships with God and the devil. Concerned about what was happening, Lydia knocked on the bedroom door. When the screaming stopped, she returned to sleep. Shortly thereafter, Lydia awoke again to sounds of “praying and yelling.” Sensing that there was “something wrong, something bad going on,” Lydia went to the nearby home of a relative and called the police.

Officer Joshua Roper was the first to arrive. He began…

Dissenting, in part:

I agree with the majority that TASER adequately warned that repeated shocks in stressful situations could lead to death. I therefore disagree with the majority’s holding that the force was not deadly. Because there was no established law on the point at the time of Ronald’s death, however, I concur in the result on the federal claim discussed in Part III of the majority opinion. The officers were entitled to qualified immunity. See Mattos v. Agarano, 661 F.3d 433, 452 (9th Cir.2011) (en banc).

The state law claims of excessive force, however, should have gone to the jury. The officers, in their own words, “panicked” when faced with this unarmed, mentally ill man. They attacked Ronald with the X26 while “flipping [it] on and off,” and they pulled the trigger a total of 22 times. The coroner found five pairs of taser burn *1181 marks on Ronald’s chest and two taser probes embedded in his chest. A recent study published in a journal of the American Heart Association has concluded that a single taser shock to the chest can kill. See Douglas P. Zipes, Sudden Cardiac Arrest and Death Associated with Application of Shocks from, a TASER Electronic Control Device,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYDIA MARQUEZ, on behalf of  herself as and on behalf of the statutory beneficiaries of Ronald Marquez, deceased; EDWARD MARQUEZ, an individual; CHELSEA RONEE DOCTOLERO, an individual; RONALD MARQUEZ, Jr., an individual; CYNTHIA CARINA MARQUEZ, an individual; MARIO RICO AHUMADA, an individual, No. 10-17156 Plaintiffs-Appellants, D.C. No. v.  2:08-cv-01132- CITY OF PHOENIX, a municipality NVW organized under the laws of the

OPINION

State of Arizona; DAVID GULIANO, in his individual capacity as an officer with the City of Phoenix Police Department; JOSHUA ROPER, in his individual capacity as an officer with the City of Phoenix Police Department; TASER INTERNATIONAL, INC., a Delaware corporation, Defendants-Appellees.  Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted April 17, 2012—San Francisco, California 11039 11040 MARQUEZ v. CITY OF PHOENIX Filed September 11, 2012

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges.

Opinion by Judge…