Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding D.C. No. 2:08-cv-01132-NVW
The opinion of the court was delivered by: O'scannlain, Circuit Judge:
Argued and Submitted April 17, 2012-San Francisco, California
Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.
Opinion by Judge O'Scannlain;
Dissent by Judge Schroeder
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.
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 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 something [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 electronic control device manufactured by
defendant-appellee TASER International, Inc. ("TASER");*fn1
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 malfunctioning air conditioning unit left the room sweltering. Shirt-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 performed 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 contact. They testified that most of the charge either went into the air ...