On September 11, 2012, the Ninth Circuit Court of Appeals decided Marquez v. City of Phoenix et al. [i], which serves as an excellent review regarding the law related to the constitutional requirements for a legal use of force. The facts of Marquez, taken directly from the case, are as follows:

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”); 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 or into the officers themselves as they passed the single 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 resuscitation 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 “hypertensive/ atherosclerotic cardiovascular disease” as a contributing 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 discharges were not the uniform five-second cycle associated with the weapon.  It is unclear how long the X26 was in contact with Ronald while discharging. [ii]

The Marquez’s sued the City of Phoenix and the officers for excessive force in violation of the Fourth Amendment. Additionally, they sued TASER® International, which will not be discussed here other than to note that TASER® was granted summary judgment by the district court which was affirmed by the Ninth Circuit on appeal.  Further, the Marquez’s sued the officers under state law, which will not be discussed here other than to note that the officers were granted summary judgment in district court and on appeal.  This article will only focus on the Fourth Amendmentexcessive force claim in which the district court granted summary judgment for the officers and found their use of the TASER® in this case was reasonable. The Marquez’s appealed to the Ninth Circuit Court of Appeals.

The issue before the Ninth Circuit was whether the officer’s repeated use of the TASER® on Marquez was reasonable force under the Fourth Amendment.  At the outset, the Ninth Circuit noted:

Determining whether the force used to effect a particular 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, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (internal quotation 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 circumstances 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 officers . . . 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). [emphasis added] [iii]

The court then stated that they will first consider “the amount of force and the extent to which that force intruded on Ronald [Marquez’s] Fourth Amendment rights. [iv] Based on the fact that Ronald received nine (9) five second cycles from the TASER® (two in probe mode and seven in drive-stun mode), and he was wrestled into submission by two police officers, the court found that he experienced a significant intrusion into his Fourth Amendment rights.

The Ninth Circuit then had to determine whether this significant intrusion was reasonable or unreasonable under the Fourth Amendment.  In other words, the court had to balance Ronald’s Fourth Amendment interests against the government interests at stake in this case.  To complete this balancing test, the court considered three factors from the United States Supreme Court case of Graham v. Connor. [v]

The three factors that courts consider when determining whether an officers use of force was reasonable under the Fourth Amendment are:

(1) The severity of the crime at issue;

(2) Whether the suspect posed an immediate threat to the officer and/or others; and

(3) Whether the suspect actively resisted or attempted to evade arrest by flight. [vi]

The Ninth Circuit also stated:

[T]his list is not comprehensive. Instead, we examine the totality of the circumstances, 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). [Emphasis added]

The Ninth Circuit then applied the facts of Ronald’s case to the factors from Graham v. Connor.  First, the court looked to facts that relate to the severity of the crime at issue.  They noted that the police arrived to screaming, found a barricaded door, and upon entry were greeted by a blood-spattered room.  They also observed a child in distress who was held in a choke-hold by Ronald.  The court stated that, based on these facts, they had cause to believe at least one serious crime had occurred. Thus, this was not a mere case of dealing with a mentally ill person who was only a threat to himself or who was not actively resisting arrest.

Next, the court considered whether Ronald actively resisted the officers attempt to rescue the child and place him in custody.  The court noted that Ronald was indeed warned that he would be “tased” if he did not comply.  The court further noted that, although the Marquez’s allege that Ronald was merely experiencing spasms from the repeated use of the TASER®, nothing in the medical examiners reports or physical evidence contradicts the officer’s testimony regarding the active resistance offered by Ronald.  The court also noted that the medical examiners report was also consistent with the officer’s testimony of a prolonged struggle with Ronald.  As such, the Ninth Circuit found that Ronald was actively resisting arrest.

Lastly, the Ninth Circuit considered whether Ronald posed a threat to the officer and others. The Marquez’s argued that the threat posed by Ronald dissipated when the officer rescued Destiny (the child being choked).  However, the Ninth Circuit stated that it was reasonable for the officers to believe that Ronald also posed a threat to Cynthia who was in the room during the struggle, and had in fact been previously injured by Ronald.  Further, the court noted that it was reasonable for the officers to believe that Ronald was a threat to their safety as they attempted to arrest him.  The Ninth Circuit stated that “when officers respond to a domestic abuse call, they understand that violence may be lurking and explode with little warning.” [vii]  Further, Officer Roper testified that Ronald began assaulting him as soon as Destiny was rescued from the room and that it was not realistic for him to retreat from the room through the small space at the partially barricaded door.

Thus, in light of the considerations above, the Ninth Circuit held that although officers used significant force in this case, the force used was reasonable and justified by the significant government interest at stake. [viii] As such, they affirmed the grant of summary judgment in favor of the officers on the Fourth Amendment excessive force claim.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 10-17156, 2012 U.S. App. LEXIS 19048 (9th Cir. September 11, 2012)

[ii] Id. at 2-7

[iii] Id. at 13

[iv] Id. at 14

[v] 490 U.S. 386 (1989)

[vi] Graham, 490 U.S. at 396

[vii] Marquez at 18

[viii] Id. at 19

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