Marquez Ex Rel. Marquez v. City of Phoenix

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 O’Scannlain;

Dissent by Judge Schroeder

11042 MARQUEZ v. CITY OF PHOENIX

COUNSEL

G. Lynn Shumway, Law Office of G. Lynn Shumway, Phoe-

nix, Arizona, argued the cause and filed the briefs for the indi-

vidual appellants, Mario Rico Ahumada, Chelsea Ronee

Doctolero, Cynthia Marquez, Edward Marquez, and Ronald

Marquez, Jr. as well as for appellant Lydia Marquez, as an

individual and as the personal representative of Ronald Mar-

quez and the Estate of Ronald Marquez.

Nicholas D. Acedo, Jones, Skelton & Hochuli, P.L.C., Chan-

dler, Arizona, argued the cause and filed the brief for the indi-

MARQUEZ v. CITY OF PHOENIX 11043

vidual appellees, Officer David Guliano and Officer Joshua

Roper, and for the municipal appellee, the City of Phoenix.

With him on the brief was Kathleen L. Wieneke, Jones, Skel-

ton & Hochuli, P.L.C., Phoenix, Arizona.

Pamela B. Petersen, Law Office of Pamela B. Petersen, Peo-

ria, Arizona, argued the cause and filed the brief for appellee,

TASER International, Inc. With her on the brief were Holly

L. Gibeaut and Michael Brave, TASER International, Inc.,

Scottsdale, Arizona.

OPINION

O’SCANNLAIN, Circuit Judge:

We consider whether a police officer has used constitution-

ally 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 cuss-

ing” coming from a spare bedroom in her Phoenix, Arizona,

home. Inside were her son Ronald, her granddaughter Cyn-

thia, 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

11044 MARQUEZ v. CITY OF PHOENIX

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 to

gather details from members of the Marquez family while he

waited outside the home for Officer David Guliano, who was

en route. The officers learned that Ronald was attempting to

perform an exorcism on three-year-old Destiny, but that (so

far as his relatives knew) he had no weapons. The officers

radioed for instructions, but after they heard “a little girl

screaming and crying like she [was] in severe pain or some-

thing [was] torturing her,” they decided they could not wait.

With Lydia’s assistance, the officers entered the house and

proceeded to the bedroom door. The screaming continued.

Officer Roper drew his TASER X26 ECD (“X26”), an elec-

tronic control device manufactured by defendant-appellee

TASER International, Inc. (“TASER”);1 Officer Guliano drew

his service pistol. At the door, they identified themselves as

police officers. The shouting intensified until the officers

could no longer hear Destiny. Concerned for the child’s

safety, the officers decided to enter the bedroom but were

unable to open the door because a bed had been shoved in

front of the aperture. Using their combined body weight, the

men were eventually able to force the door partially open at

an angle. Roper, who was taller, clambered into the room

through this gap.

He was greeted by chaos. The relatively small bedroom

was cluttered with two beds, a dresser, and a large TV stand.

The walls and furniture were smeared with blood. A malfunc-

tioning air conditioning unit left the room sweltering. Shirt-

1

TASER is an acronym for “Thomas A. Swift’s Electric Rifle.” See Jef-

frey D. Ho, et al., Absence of Electrocardiographic Change After Pro-

longed Application of a Conducted Electrical Weapon in Physically

Exhausted Adults, 41 J. EMERGENCY MED. 466, 469 (2009).

MARQUEZ v. CITY OF PHOENIX 11045

less, the heavy-set Ronald reclined on the larger bed with the

now silent and motionless Destiny in a choke-hold, his hands

hidden. Cynthia—who at 19 was quite a large woman—was

naked in the corner screaming. Her face showed evidence of

a recent beating. It was later discovered that Ronald had

gouged her eye in an attempt to exorcize her demons.

Officer Roper ordered Ronald to “[l]et go of the child or

I’m going to tase you.” When Ronald did not comply, Roper

deployed the X26 in “probe mode.” Two darts shot from the

front of the X26 and lodged in Ronald’s left side. If it had per-

formed as intended, the X26 would have incapacitated Ronald

by overriding his central nervous system through a series of

electrical pulses. But the X26 functions properly in this mode

only if the darts are separated by at least four inches. This

would have required Roper to have been standing at least

seven feet from Ronald, but the cramped conditions in the

bedroom made that impossible. As a result, the X26 did not

appear to affect Ronald as intended. Nevertheless, Roper

pulled the trigger a second time. When this discharge also

appeared not to work, Roper removed the cartridge and tested

the X26 to see if it was functioning. While he was doing so,

Officer Guliano—who had not yet been able fully to enter the

room—extracted Destiny through the partially open door. He

passed her into the arms of a waiting relative before joining

Officer Roper inside the bedroom.

At this point, Ronald kicked Roper in the thighs and groin.

Roper decided to apply the X26 in “drive-stun mode.”

Deployed thus, a user removes the cartridge from the X26 and

places the weapon’s exposed electrodes in direct contact with

the skin. “Drive-stun mode” does not incapacitate the target,

but instead encourages the suspect to comply by causing pain.

Over the next three minutes, Officers Roper and Guliano each

tried to use Roper’s X26 in this mode, but Ronald was flailing

so wildly that they were never sure that they made good con-

tact. They testified that most of the charge either went into the

air or into the officers themselves as they passed the single

11046 MARQUEZ v. CITY OF PHOENIX

X26 to each other. Even when they did make contact, the

weapon seemed to have no effect on Ronald.

After the officers finally wrestled Ronald into submission,

they turned to Cynthia, who was by then trying to assault

Roper. It took two or three minutes and two deployments of

the X26 to subdue her. When officers returned their attention

to Ronald, they found that he had a weak pulse. Despite resus-

citation efforts, Ronald went into cardiac arrest and died.

Dr. Kevin Horn performed the autopsy. Unlike in many

cases of in-custody deaths, the only evidence of controlled

substances in Ronald’s system was marijuana metabolites. Dr.

Horn did, however, discover that Ronald suffered from heart

disease. Ronald’s body also showed signs of a struggle with

“multiple, incidental” “[c]ontusions and abrasions.” He had

seven sets of burns consistent with “drive-stuns” from an X26

and two probes embedded in his lower left chest. Dr. Horn

listed the cause of death as “excited delirium.” He listed “hy-

pertensive/atherosclerotic cardiovascular disease” as a con-

tributing condition, but made no mention of the X26 in a

similar role.

Subsequent investigation demonstrated that the officers

pulled the X26’s trigger a combined 22 times, but the dis-

charges were not the uniform five-second cycle associated

with the weapon.2 It is unclear how long the X26 was in con-

tact with Ronald while discharging.

B

The Marquez family (“Marquezes”) brought this lawsuit.

2

If an officer pulls and releases the trigger on the X26, it will discharge

for five seconds. The discharge may be lengthened by continuing to

depress the trigger after five seconds ends. It can be shortened by flipping

a safety switch. The X26 discharges in this case were as short as one sec-

ond and as long as eleven.

MARQUEZ v. CITY OF PHOENIX 11047

They sued TASER as the manufacturer of the X26 on a state-

law, strict liability theory of failure to warn. They asserted

that TASER should have warned that repeated exposure to its

products could lead to sudden death due to cardiac failure,

particularly among those who are obese, mentally ill, or intox-

icated. They also sued Officers Roper and Guliano for (1)

excessive force in violation of the Fourth Amendment pursu-

ant to 42 U.S.C. § 1983 and (2) state-law wrongful death.3

Each party moved for summary judgment.

The district court granted summary judgment in favor of

TASER after concluding that its warnings at the time of Ron-

ald’s death were sufficient as a matter of law. The district

court also concluded that the officers’ repeated use of the X26

was reasonable given that “the officers were confronted with

an individual suspected of serious crimes, who was a potential

threat, and who, by all accounts, was resisting arrest.”

The Marquezes timely appealed.

II

A

In challenging the district court’s summary judgment order,

the Marquezes first contend that the district court focused too

much on TASER’s warning about the risks associated with

prolonged exposures to its products. In 2007, TASER pro-

vided the general warning that while its “weapons [are]

designed to incapacitate a person from a safe distance while

reducing the likelihood of serious injuries or death,” officers

needed “to remember that the very nature of use of force . . .

involves a degree of risk that someone will get hurt or may

even be killed due to physical exertion, unforeseen circum-

stances, and individual susceptibilities.” TASER further

3

The Marquezes also sued the City of Phoenix, but they have abandoned

that claim on appeal.

11048 MARQUEZ v. CITY OF PHOENIX

warned that “[i]n some circumstances, in susceptible people,

it is conceivable that the stress and exertion of extensive

repeated, prolonged, or continuous application(s) of the

TASER device may contribute to cumulative exhaustion,

stress, and associated medical risk(s).”4 TASER further

warned that one of the risks associated with “exhaustive exer-

tion” was Sudden In-Custody Death Syndrome.5 The district

court determined that these warnings “capture[d] the circum-

stances of this case” and were thus sufficient as a matter of

law.

The Marquezes point to TASER’s additional warning that,

“[u]nrelated to TASER exposure, conditions such as excited

delirium, severe exhaustion, drug intoxication or chronic drug

abuse, and/or over-exertion from physical struggle may result

in serious injury or death.” The Marquezes contend that the

inclusion of this additional language rendered TASER’s

warnings about prolonged exposure to its products equivocal

and thereby inadequate.

[1] Under Arizona law, “[w]here a warning is required, the

warning must be reasonably readable and apprise a consumer

exercising reasonable care under the circumstances of the

existence and seriousness of the danger sufficient to enable

the consumer to protect himself against it.” Brown v. Sears,

Roebuck & Co., 667 P.2d 750, 757 (Ariz. Ct. App. 1983).

[2] TASER’s warnings meet this standard. In addition to

warning that its products should generally be used with care,

TASER specifically warned that “[w]hen practical, [officers

4

The complete warning in effect at the time of Ronald’s death is repro-

duced in the Appendix to this opinion.

5

Rather than a specific medical condition, this “syndrome” is the term

used to describe when an individual dies while in police custody of

unknown causes. The phenomenon has been the target of much scientific

study for more than a decade. Cf., Mann v. Taser Int’l Inc., 588 F.3d 1291,

1299 n.4 (11th Cir. 2009) (citing Carolyn B. Robinowitz, REPORT OF THE

Counsel on SCIENCE AND PUBLIC HEALTH 453 (2009)).

MARQUEZ v. CITY OF PHOENIX 11049

should] avoid [using] prolonged or continuous exposure(s) to

the TASER device’s electrical discharge” because “in suscep-

tible people it is conceivable that the stress and exertion of

extensive repeated, prolonged or continuous application(s) of

the TASER device may contribute to cumulative exhaustion,

stress, and associated medical risk(s).” The warning also

explains that one of the medical risks associated with exhaus-

tion is Sudden In-Custody Death Syndrome. These warnings

cover precisely what happened here. We are unpersuaded by

the Marquezes’ request that we read one piece of TASER’s

warnings out of context.

B

[3] The Marquezes also suggest that TASER should have

provided a more specific warning that certain populations

may be at an increased risk of death when exposed to its prod-

ucts. In determining whether a warning provides enough

detail, we must “be sensitive to many factors” because “ex-

cessive detail may detract from the ability of typical users and

consumers to focus on the important aspects of the warnings.”

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt.

i (1998); cf. Powers v. Taser Int’l, Inc., 174 P.3d 777, 781-82

(Ariz. Ct. App. 2007) (noting that, absent controlling case

law, the Arizona courts will look to the Restatement of Torts).

When a case involves idiosyncratic reactions—usually an

allergy but in this case an unusual reaction to the application

of an electronic control device—a warning is required only

“when the harm-causing [aspect of the product] is one to

which a substantial number of people” would be subject.

RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt.

k.

[4] TASER could have provided a stronger warning that

specifically addressed risks faced by vulnerable populations.

(A manufacturer can always provide more information.) But

further detail could have detracted from officers’ ability to

process the warning that was given. Id. at cmt. i. And the

11050 MARQUEZ v. CITY OF PHOENIX

Marquezes have neither shown that a “substantial number” of

people were affected by the alleged idiosyncratic reaction nor

explained what language they would have preferred. Id. Thus,

we agree with the district court that such warning was suffi-

cient as a matter of law.6

III

This brings us to the Marquezes’ § 1983 claims against

Officers Roper and Guliano. The Marquezes assert that they

presented a triable issue of fact that the officers’ use of force

was unreasonable. The Marquezes do not dispute that Roper

was justified in deploying his X26 in order to rescue Destiny,

but they contend that any justification for the use of force dis-

sipated once Destiny was at a safe distance.

[5] “Determining whether the force used to effect a partic-

ular seizure is reasonable under the Fourth Amendment

requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.”

Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quota-

tion marks omitted). We undertake this inquiry with great

caution, making “allowance[s] for the fact that police officers

are often forced to make split-second judgments—in circum-

stances that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular situation.”

Id. at 396-97. While the existence of less forceful options to

achieve the governmental purpose is relevant, “[p]olice offi-

cers . . . are not required to use the least intrusive degree of

force possible.” Forrester v. City of San Diego, 25 F.3d 804,

807-08 (9th Cir. 1994); see also Gregory v. County of Maui,

523 F.3d 1103, 1107 (9th Cir. 2008).

6

Because we affirm the district court’s conclusion that this warning was

sufficient, we need not reach TASER’s alternative arguments for affirming

the summary judgment award.

MARQUEZ v. CITY OF PHOENIX 11051

A

First, we must consider the amount of force and the extent

to which that force intruded on Ronald’s Fourth Amendment

rights. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011)

(en banc). Regardless of how much force is involved in a sin-

gle application of an X26, we agree that considerable force

was used here. Cf. Smith v. City of Hemet, 394 F.3d 689, 700

(9th Cir. 2005) (en banc) (noting that all claims of force are

analyzed under the Graham standard (citing Ward v. City of

San Jose, 967 F.2d 280, 284 (9th Cir. 1992))).

[6] The record supports the inference that Ronald received

nine five-second cycles from the X26: two while it was inef-

fectively deployed in “probe mode” and seven when it was

deployed in “drive-stun mode.”7 He was also wrestled into

submission by two policemen. Together, these constituted a

not-insignificant potential intrusion upon Ronald’s Fourth

Amendment rights. See Scott v Henrich, 39 F.3d 912, 915 (9th

Cir. 1994).

7

The Marquezes assert that Ronald was, in fact, shocked more than

twenty times. While the X26’s data recording system does show that the

trigger was depressed 22 times, Officers Roper and Guliano have consis-

tently testified that most of these discharges were into the air. In light of

this testimony, the Marquezes must bring forth more than mere allegations

to survive summary judgment. See Gregory, 523 F.3d at 1106 n.3.

“[C]arefully examin[ing] all the evidence in the record, such as medical

reports, contemporaneous statements by the officer and the available phys-

ical evidence,” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994), we con-

clude that Ronald received, at most, seven full “drive-stun” cycles of the

X26 (one for each set of burn marks found at his autopsy). Similar review

indicates that the officers ended their use of the X26 after Ronald was in

handcuffs. The Marquezes’ assertions to the contrary rely entirely on an

inaccurate transcription of Officer Roper’s interview with Phoenix’s Pro-

fessional Standards Bureau.

11052 MARQUEZ v. CITY OF PHOENIX

B

Next, we balance Ronald’s Fourth Amendment interests

against the governmental interests at stake. Key to this inquiry

are “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of officers or others,

and whether he is actively resisting or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396. But this list is not

comprehensive. Instead, we examine the totality of the cir-

cumstances, including whatever factors may be relevant in a

particular case. See Bryan v. MacPherson, 630 F.3d 805, 818

(9th Cir. 2010). For example, we have stated that if the police

were summoned to the scene to protect a mentally ill offender

from himself, the government has less interest in using force.

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052, 1058 (9th Cir. 2003). By contrast, if the officer warned

the offender that he would employ force, but the suspect

refused to comply, the government has an increased interest

in the use of force. See Deorle v. Rutherford, 272 F.3d 1272,

1284 (9th Cir. 2001).

[7] Here the relevant factors favor a finding that this use of

force was reasonable. Once Roper and Guliano traversed

Ronald’s barricade, they were greeted by a blood-spattered

room, an injured adult, and a child in evident distress. This

alone was cause to believe that at least one serious crime had

occurred. As a result, this case is easily distinguished from the

only instance in which we have found the use of an electronic

control device to be unreasonable—where officers deployed

the device in “probe mode” against two unarmed women, who

had committed (at most) minor infractions and who were not

actively resisting arrest. Mattos, 661 F.3d at 445. It also ren-

ders inapposite those cases in which police are summoned to

protect mentally disturbed individuals from themselves. See,

e.g., Drummond, 343 F.3d at 1058.

[8] Ronald—who was warned that he would be “tased” if

he did not comply—was also actively resisting arrest. Though

MARQUEZ v. CITY OF PHOENIX 11053

the Marquezes allege that any apparent resistance was, in fact,

involuntary muscle spasms caused by the X26, they have

offered no proof. By contrast, Officers Roper and Guliano

have consistently testified that Ronald was actively strug-

gling, pushing his knees into his body so that he could use his

feet both to lever himself off the bed and to kick the officers.

For example, he kicked Roper in the groin after he removed

the cartridge and before Roper began redeploying it (when,

under the Marquezes’ own theory, there should have been no

X26-induced movement). Nothing “in the record, such as

medical reports, contemporaneous statements by the officer

[or] the available physical evidence,” Gregory, 523 F.3d at

1106-07 & n.3, undermines the officers’ credibility. Indeed,

the autopsy—the only available medical evidence—shows

numerous incidental contusions and is consistent with a pro-

longed struggle. In light of this evidence, the Marquezes may

not rely on mere allegations to defeat summary judgment. Id.

[9] For similar reasons, the officers could reasonably have

thought that Ronald posed an immediate risk to Cynthia. We

“have [repeatedly] observed that ‘[t]he volatility of situations

involving domestic violence’ makes them particularly danger-

ous.’ ” Mattos, 661 F.3d at 450 (alteration in original) (quot-

ing United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.

2005)). While Ronald was clearly not hitting Cynthia while he

was choking Destiny, the Marquezes do not explain why the

officers could not reasonably have thought that she would be

his next target if they left given her visible injuries and the

amount of blood in the room.

[10] Furthermore, the officers could reasonably have

believed that they were themselves in danger. Officers are

well aware that more of their colleagues are injured on

domestic violence calls than on any other sort. Id. As a result,

“[w]hen officers respond to a domestic abuse call, they under-

stand that violence may be lurking and explode with little

warning.” Id. (internal quotation marks omitted). Roper has

consistently stated that Ronald began assaulting him as soon

11054 MARQUEZ v. CITY OF PHOENIX

as Guliano had removed Destiny (that is, before Guliano him-

self entered the room). And the Marquezes’ suggestion that

Roper simply disengage and leave is unrealistic. Roper would

have had to expose himself to further injury as he tried to

squeeze his body through a partially open door that was

angled into the room. Officers would then have had to force

their way back into the room to arrest Ronald or to help Cyn-

thia if she needed it.

[11] In summary, although the officers used significant

force in this case, it was justified by the considerable govern-

ment interests at stake.8

IV

[12] Finally, the Marquezes argue that the district court

improperly granted summary judgment on their state law

claims against the officers for wrongful death. Because we

conclude that the officers acted reasonably in using force, this

claim cannot succeed under Arizona law unless (1) the use of

8

Because we conclude that there was no constitutional violation here,

we need not reach the district court’s alternative conclusion that the offi-

cers were entitled to qualified immunity because any violation of the

Fourth Amendment was not clearly established at the time of the incident.

Cf. Pearson v. Callahan, 555 U.S. 223, 236 (2009). We do note, however,

our recent discussion in Mattos. As that case makes clear, as late as 2006

there was no case law even suggesting—let alone clearly establishing—

that the use of an electronic control device on an individual suspected of

domestic violence who was actively resisting arrest violated the Constitu-

tion. Cf. Mattos, 661 F.3d at 452 (noting that there was not even sufficient

case law clearly to establish that using an electronic control device against

the alleged victim of domestic violence violated the Constitution). While

this incident occurred several months later, there were no intervening legal

developments, which would have placed any possible violation that

occurred in this case “beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2083 (2011). See generally Cockrell v. City of Cincinnati, 2012 U.S.

App. Lexis 3787, *11 (6th Cir. 2012) (unpublished) (collecting cases and

concluding that as of 2009 courts had granted qualified immunity when-

ever “plaintiffs [were] tased while actively resisting arrest by physically

struggling with, threatening, or disobeying officers”).

MARQUEZ v. CITY OF PHOENIX 11055

the X26 constituted “deadly force,” and (2) the use of deadly

force was not justified. Compare ARIZ. REV. STAT. § 13-409

(providing law enforcement officers with immunity for all

reasonable uses of non-deadly force), with ARIZ. REV. STAT.

§ 13-410 (requiring an additional showing to immunize the

use of deadly force).

[13] We are not convinced that the use of an X26 involves

deadly force. Arizona law defines “deadly physical force” as:

“force that is used with the purpose of causing death or seri-

ous physical injury or in the manner of its use or intended use

is capable of creating a substantial risk of causing death or

serious physical injury.” ARIZ. REV. STAT. § 13-105(14). The

Marquezes point to no case either in Arizona or in federal

courts finding use of any electronic control device to be

deadly force. And they have produced no evidence that an

X26 is capable of creating a substantial risk of death or seri-

ous physical injury. At most there is evidence in the form of

scientific journals that it carries a potential risk of injury in a

very small group of people.

[14] But even if the X26 did qualify as “deadly force”—a

matter we need not decide—no reasonable jury could find that

the circumstances here failed to justify the use of deadly

force. The use of deadly force is permissible under Arizona

law if an officer reasonably believes that it is necessary to “ef-

fect an arrest or prevent the escape from custody of a person

whom the peace officer reasonably believes . . . is likely to

endanger human life or inflict serious bodily injury to another

unless apprehended without delay.” ARIZ. REV. STAT. § 13-

410(C)(2)(c); see also Garcia v. United States, 826 F.2d 806,

812 & n.14 (9th Cir. 1987) (applying Arizona law under Fed-

eral Tort Claims Act to conclude that an officer was justified

in using deadly force to prevent a “felonious and deadly

assault” on himself by a suspect attacking him with a stick

and a rock) (citing ARIZ. REV. STAT. § 13-410). No reasonable

jury could find that Marquez was unlikely to endanger human

life or inflict serious bodily injury if not subdued: at first, he

11056 MARQUEZ v. CITY OF PHOENIX

would not release his granddaughter from a choke-hold, then

he struggled viciously in close quarters against the officers

attempting to restrain him, and his daughter, who had also

been the victim of his attacks, remained in the room through-

out. Thus, the district court properly awarded summary judg-

ment on this claim.

AFFIRMED.

MARQUEZ v. CITY OF PHOENIX 11057

APPENDIX

11058 MARQUEZ v. CITY OF PHOENIX

MARQUEZ v. CITY OF PHOENIX 11059

11060 MARQUEZ v. CITY OF PHOENIX

MARQUEZ v. CITY OF PHOENIX 11061

11062 MARQUEZ v. CITY OF PHOENIX

SCHROEDER, Circuit Judge, 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, “pan-

icked” 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 marks on Ronald’s chest and

two taser probes embedded in his chest. A recent study pub-

lished in a journal of the American Heart Association has con-

cluded that a single taser shock to the chest can kill. See

Douglas P. Zipes, Sudden Cardiac Arrest and Death Associ-

ated with Application of Shocks from a TASER Electronic

Control Device, Circulation, Apr. 30, 2012, at 4 (analyzing

the medical records of eight healthy men, seven of whom died

after being tased in the chest area, and concluding that shocks

from an X26 can cause cardiac arrest). Two more pairs of

burn marks were found elsewhere on Ronald’s body. Ronald

died immediately following this attack. The majority states

that it is “not convinced that the use of an X26 involves

deadly force.” Even if we are not “convinced” that the offi-

cers used deadly force, neither are we in a position to decide

the issue as a matter of law.

The majority goes on to conclude that if the force used was

deadly, such force was justified under the circumstances. This

too is a question of fact. Whether use of a deadly weapon at

close range in a small, crowded room was nevertheless justi-

MARQUEZ v. CITY OF PHOENIX 11063

fied by Ronald’s threatening conduct is an issue that should

be decided by the jury. No Arizona decision under Arizona

Revised Statute § 13-410(c)(2)(c) supports resolving the ques-

tion as a matter of law. The case the majority cites, Garcia v.

United States, 826 F.2d 806 (9th Cir. 1987), involved a direct

attack on a border patrol agent and was decided under a dif-

ferent section of the statute.

Accordingly, I would vacate the judgment in favor of the

defendants on the state law claims and remand for further pro-

ceedings as to those claims. I therefore must respectfully dis-

sent from the portion of the majority’s opinion that affirms the

dismissal of the state law claims.