*1 1167 IV, though agency Part the did not decide sion, judicial it to review APA entitles the action, and that Secretary’s adverse of these claims. But for the the either reasons of Pa reopening the of encompasses stated, correctly “action” the court district held 702; § Shala See 5 lomar’s claim. U.S.C. 405(g) subject-mat- § not that “does afford Inc., Care, Long on Term v. Ill. la Council jurisdiction” over the reopening ter RAC’s 1084, 1, 23, 120 146 L.Ed.2d S.Ct. 529 U.S. Sanders, 109, See at decision. 430 U.S. 97 (2000). indepen not an But the APA is 1 980. S.Ct. jurisdiction. grant subject-matter dent 457-58, Home, 119 S.Ct. Your 525 U.S. at IV. CONCLUSION Sanders, 107, 930; 430 at 97 S.Ct. U.S. above, easy is As stated this not an case §§ 405(g) 42 U.S.C. pursuant 980. And legitimate Palomar has a interest and 1395ff(b)(l)(A), jurisdiction gen is and our finality which it But as we advances. see erally by scope agency’s limited the of the it, Congress stage by the set here estab- Linda, Loma “final decision.” See the above, lishing program RAC aimed at Here, recoup- at as discussed F.3d 1074. ing payments. no decision on the excessive Medicare It there been final said has reopening, cause and so good reopenings RAC’s for that expressly per- were be beyond power is our to review. that issue under guidelines by mitted set the Secre- regulations. by tary Secretary her Long v. Illinois Council on Shalala regulations explicit made that there would Care, contrary. Inc. is not to the Term decision, appeal no of a reopening be and Supreme There stated that the the Court that such a was “final.” In decision these may provide not a agency fact that an ” agree the a is circumstances we district hearing “particular for contention point” question good the because after the “ac- court that “beside cause to through the tion” has been channeled reopen litigated could not then be after reviewing agency court an de- agency, “a upon claim determination was revised au- has 405(g) adequate § tеrmination under dit a RAC. any statutory to resolve or con- authority AFFIRMED. agency contention that the does
stitutional cannot, 23,
not, or 529 U.S. at decide.” that federal 1084. This means S.Ct. may review contentions that
courts certain decide; it not agency does not does may any
mean that federal courts review For every example, contention. rejected Pa- considered and
district court
MARQUEZ,
Lydia
on behalf of herself
claim,21and
have
process
lomar’s due
we
statutory
as and on behalf of
rejected
claim
considered and
Palomar’s
Marquez,
reopening regulations are con-
beneficiaries
of Ronаld
de
statute,
ceased;
trary
supra
Marquez,
to the Medicare
see
Edward
an individ-
largely
recognizes
exception
motion to dismiss was
based on the
21. Sanders
requirement
"plausible"
process
due
claim.
plaintiff's
See
405(g)’s "final decision”
*10,
grounds,
WL
at
*12. Because Pa-
challenges based on constitutional
claim,
process
a due
process
lomar does not raise
but
does not make
due
Palomar
posture
procedural
in St.
argument
appeal,
exception
does
because
Francis
so
here,
argu-
Palomar’s
at
dividual; Marquez, Jr., Ronald an
individual; Cynthia Carina Marquez, individual;
an Mario Ahumada, Rico individual, Plaintiffs-Appellants, PHOENIX, municipality
CITY OF or
ganized under the laws of the State of
Arizona; Guliano, David in his indi capacity
vidual as an officer with the
City Department; of Phoenix Police Roper, capac
Joshua in his individual
ity as an officer Department;
Phoenix Police TASER
International, Inc., corpo a Delaware
ration, Defendants-Appellees.
No. 10-17156.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 2012.
Filed Sept. 2012.
As Amended Denial Rehearing
4,Oct. 2012. *3 Shumway, of G. Lynn Law Office
G. Phoenix, AZ, Shumway, argued Lynn and filed the briefs for the individual cause Ahumada, Mario Chelsea appellants, Rico Doctolero, Cynthia Marquez, Ed- Ronee Marquez, Jr. Marquez, Ronald ward Marquez, as appellant Lydia as for as well personal represen- and as an individual the Estate Marquez of Ronald tative Marquez. of Ronald Acedo, & D. Wieneke Nicholas Struck P.L.C., Love, Chandler, AZ, argued filed the for the individual cause аnd brief and Offi- Officer David Guliano appellees, Roper, municipal and for cer Joshua him of Phoenix. With appellee, Wieneke, accident, injury L. car causing the brief was Kathleen her to Love, P.L.C., Chandler, Wieneke & make statements about Struck odd her relation- God ships AZ. and the devil. Concerned was happening, Lydia about what knocked Petersen, Pamela B. Law Office of on the bedroom door. When the scream- Petersen, Peoria, AZ, argued Pamela B. ing stopped, she returned Short- sleep. appellee, the cause and filed the brief thereafter, ly Lydia again awoke tо sounds International, With her on TASER Inc. “praying Sensing and yelling.” Holly brief were L. Gibeaut and Mi- “something wrong, something there was Brave, International, Inc., chael TASER *4 on,” going Lydia nearby bad went to the Scottsdale, AZ. relative police. home of a and called the Roper Joshua Officer was the first to began gather arrive. He to from details Marquez of the family members he while waited outside the home for Officer David SCHROEDER, Guliano, Before: MARY who was en M. route. The officers O’SCANNLAIN, F. DIARMUID and learned that Ronald attempting was GRABER, P. Judges. SUSAN Circuit perform an exorcism on three-year-old (so Destiny, but far as his relatives Opinion by O’SCANNLAIN; Judge knew) weapоns. he had no The officers by Judge Dissent SCHROEDER. instructions, radioed for they but after girl little heard “a screaming crying and OPINION like she in severe pain something [was] or O’SCANNLAIN, Judge: Circuit her,” torturing they they [was] decided consider whether a police We officer has could not wait. constitutionally by used excessive force re- assistance, Lydia’s With the officers en- peatedly deploying electronic control proceeded tered the house and to the bed- commonly a known as “taser”— device— room The door. screaming continued. a against combative suspect whether Roper Officer drew his TASER X26 ECD the manufacturer pro- of that device has (“X26”),an electronic control device manu- vided sufficient warning repeated that its by defendant-appellee factured TASER may lead to use death. International, (“TASER”);1 Inc. Officer his pistol. Guliano drew service At the I door, they identified police themselves as A The shouting officers. until the intensified longer officers could no Early July 28, 2007, Destiny. in the hear morning of for Lydia Marquez Concerned the child’s safety, was roused from her the offi- sleep by the sounds of cers decided to enter “yelling cussing” ... and the bedroom but coming spare open from a in her were bedroom Phoe- unаble the door because a nix, Arizona, home. Inside her son bed had been shoved in aper- were front of the Ronald, her granddaughter Cynthia, Using ture. weight, their combined body great-granddaughter Destiny. her A few the eventually men were the able to force earlier, days Cynthia had suffered a partially open head door at an angle. Roper, Prolonged Application acronym 1. TASER is an a Conducted "Thomas A. After Ho, Jeffrey Weapon See Swift’s Electric Rifle.” D. Physically Electrical in et Exhausted al., Adults, Emergency Absence Electrocardiographic Change (2009). J. Med. taller, apply clambered into the room X26 “drive-stun mode.” who De- thus, through gap. this ployed a user removes the cartridge from places weapon’s the X26 and by chaos. The greeted He was relative- exposed electrodes direct contact with was cluttered with two ly small bedroom the skin. “Drive-stun mode” does not in- dresser, beds, large and a a TV stand. capacitate target, but instead encour- and furniture were smeared with walls ages suspect to comply causing malfunctioning A air conditioning blood. minutes, pain. Over the next three Offi- Shirtless, sweltering. left the room unit cers Roper and Guliano each tried to use heavy-set larg- Ronald rеclined on the mode, Roper’s inX26 this but Ronald was er bed with the now silent and motionless choke-hold, flailing wildly they so Destiny his hands hidden. were never sure Cynthia quite large good They at 19 was made contact. testi- —who naked in the corner woman—was scream- fied that charge most of the either went ing. Her face showed evidence of a recent into the air or into the officers themselves beating. It was later discovered that Ron- they passed single as X26 each *5 in gouged eye attempt ald had her to contact, other. Even they when did make exorcize her demons. weapon the seemed to havе no effect on Ronald.' Ronald Roper
Officer ordered to “[l]et you.” of the child or I’m go going tase After the finally officers wrestled Ron- not comply, Roper When Ronald did de- submission, ald into Cyn- turned to in ployed “probe the X26 mode.” Two thia, who was trying then to assault from the front of the X26 darts shot and Roper. It took or two three minutes and lodged in Ronald’s left side. If it had deployments two of the X26 to subdue her. intended, performed as the X26 would When officers returned their attention to incapacitated by overriding Ronald have Ronald, they found that he had a weak system through his central nervous a ser- pulse. efforts, Dеspite resuscitation Ron- But pulses. ies of electrical the X26 func- ald went into cardiac and arrest died. properly only tions in this mode if the performed Dr. Kevin Horn autopsy. the separated by are at four darts least inches. many deaths, Unlike in in-custody cases of required Roper This would have to have only the evidence of controlled substances at standing been least seven feet from system marijuana in Ronald’s meta- Ronald, the in cramped but conditions the did, however, bolites. Dr. Horn discover impossible. bedroom made that As a re- that Ronald suffered from heart disease. sult, the not appear X26 did to affect Ron- body Ronald’s also a signs showed Nevertheless, Roper ald as intended. struggle “multiple, incidental” “[c]on- trigger the a pulled second time. When tusions and He abrasions.” had seven sets work, discharge appeared this also not to of burns consistent with “drive-stuns” from Roper cartridge removed the and tested probes an X26 and two in his embedded functioning. the X26 to see if it was While lower left chest. Dr. Horn listed the cause so, doing he was Officer Guliano—who had of death as “excited delirium.” He listed yet fully not been able to enter the room— “hypertensive/atheroselerotic cardiovasсu- Destiny through extracted the partially condition, contributing lar disease” as a open passed her door. He into the arms but made no mention in of the X26 a waiting joining aof relative before Officer similar role. Roper inside the bedroom. Subsequent investigation in demonstrated point, Roper
At this Ronald kicked thighs groin. Roper pulled trigger the and decided to that the officers the X26’s times, II discharges but
combined cycle five-second as- the uniform were not A weapon.2 It is unclear sociated with challenging In the district court’s sum- X26 was contact with long the how order, mary Marquezes first judgment discharging. Ronald while that the court too contend district focused warning much on TASER’s about the risks B prolonged exposures associated with to its family (“Marquezes”) Marquez In products. provided TASER They sued TASER brought this lawsuit. warning “weapons that its general while of the X26 on a state- the manufacturer as designed incapacitate person [are] law, liability theory of failure to strict reducing from a safe distance while They asserted that TASER should warn. death,” injuries likelihood serious or repeated exposure its have warned that officers needed “to remember to sudden death due to products could lead very nature of use of force ... involves a failure, particularly among cardiac those degree get of risk that someone will hurt obese, ill, mentally or intoxicated. who are may physical or even be killed due to Roper and Guliano They also sued Officers exertion, circumstances, in- unforeseen (1) excessive force violation of the susceptibilities.” dividual TASER further pursuant Fourth Amendment to U.S.C. circumstances, “[i]n warned some (2) wrongful state-law death.3 susceptible people, it is conceivable party summary judgment. Each moved for the stress and exertion of extensive re- *6 granted summary The district court peated, prolonged, applica- or continuous judgment in favor of after con- TASER tion(s) may of the TASER device contrib- warnings that at the time of cluding its exhaustion, stress, to cumulative ute and as a risk(s).”4 Ronald’s death were sufficient matter associated medical fur- TASER of law. The district court also concluded ther that one of warned the risks associat- repeated of that the officers’ use the X26 with “exhaustive ed exertion” was Sudden given was reasonable that “the officers In-Custody Syndrome.5 Death The dis- an were confronted with individual sus- warnings trict court determined that these crimes, a pected poten- of serious who was “cаpture[d] the circumstances of this case” threat, who, by accounts, tial all and were thus sufficient as a matter of law. resisting arrest.” Marquezes point The to TASER’s addi- that, Marquezes timely appealed. warning
The tional to TA- “[u]nrelated condition, pulls trigger specific 2. If an officer and releases the on 5.Rather than a medical X26, discharge it will for five seconds. “syndrome” this is the term used to describe discharge may lengthened by be continu- police when an individual dies while in custo- ing trigger depress to five after seconds dy phenomenon of unknown causes. The has safety flipping It can be shortened a ends. tаrget study been the of much scientific discharges switch. The X26 in this case were Cf., more than a decade. Mann v. Taser Int’l long as short as one second as as eleven. Inc., 1291, (11th Cir.2009) 588 F.3d n. 4 1299 Robinowitz, Report (citing Carolyn B. of the Marquezes 3. The also sued the of Phoe- 453 Counsel Science and Public Health nix, but have abandoned claim on (2009)). appeal. complete warning 4. The in effect at the time reproduced Appen- of Ronald’s death is in the opinion. dix to this warning populations may that certain be at conditions such as excited exposure,
SER exhaustion, intoxi- delirium, drug exposed severe an increasеd risk of death when to abuse, over- drug chronic cation or In products. determining and/or its whether a struggle may result physical from exertion detail, warning provides we enough must The Mar- injury or death.” in serious many factors” because “ex- “be sensitive of this that the inclusion contend quezes may ability cessive detail detract from the TASER’s language rendered additional typical of users and consumers focus on to its prolonged exposure warnings about important aspects warnings.” of the thereby inade- equivocal and products (Third) Restatement of Torts: Products quate. (1998); Liability § 2 cmt. i Powers v. cf. Inc., Int’l, 398, 217 Ariz. Taser P.3d “[wjhere law, Arizоna Under , (Ariz.Ct.App.2007) (noting 781-82 warning must be warning required, is 777 that, law, controlling absent case the Ari apprise a consum reasonably readable and care under the look to exercising reasonable zona courts will the Restatement of er Torts). and serious circumstances of the existence idiosyncratic When case involves to enable the danger of the sufficient ness reactions—usually allergy an but in this against it.” protect himself consumer application case an unusual reaction to the Sears, Co., Ariz. Roebuck & Brown warning electronic control device—a (Ariz.Ct.App.1983). 667 P.2d required only is “when thе harm-causing product] of the is one [aspect to which a warnings meet this stan TASER’s people” number substantial would be warning that its In addition to dard. subject. Restatement used with (Third) generally should be products of Torts: Liability § 2 cmt. k. care, specifically TASER warned Products, avoid practical, should] [officers “[w]hen provided TASER could have a stronger expo continuous [using] prolonged or warning specifically addressed risks sure(s) electrical to the TASER device’s (A by vulnerable populations. faced man- discharge” susceptible people because “in always can provide ufacturer more infor- *7 thаt the and exer it is conceivable stress mation.) But further detail could have repeated, prolonged or tion of extensive ability process detracted from officers’ of the TASER application(s) continuous warning given. the that was Id. at cmt. i. may contribute to cumulative ex device Marquezes And the have neither shown stress, haustion, medical and associated people that a “substantial number” of were risk(s).” explains also that warning The by alleged idiosyncratic affected the reac- the medical risks associated with one of language they explained tion nor what In-Custody Death exhаustion is Sudden Thus, agree we preferred. would have Id. Syndrome. warnings precise These cover warning district court that such with the ly happened unper here. We are what as a matter of law.6 was sufficient that we by Marquezes’ request suaded warnings out piece read one of TASER’s Ill of context. brings Marquezes’ us to the This
B against claims and Roper 1983 Officers Marquezes they that The assert Guliano. suggest that TA- Marquezes The also a triable issue of fact that the provided specific presented a more SER should have affirming summary judgment ments we affirm the district court's con- 6. Because sufficient, warning we this was clusion that awаrd. argu- alternative need not reach TASER's 1174 intruded on Ronald’s Fourth Amendment of force was unreasonable.
officers’ use
433,
rights.
Agarano,
Mattos v.
661 F.3d
dispute
Roper
do not
Marquezes
Cir.2011)
(9th
(en banc). Regardless
441
his X26 in order
justified
deploying
was
single
much
in a
of how
force is involved
Destiny, but
contend
to rescue
X26,
application
agree
of an
we
that con
justification for the use of force dissi-
any
Destiny
at a
siderable force was used here.
Smith
safe distance.
pated once
Cf.
(9th
Hemet,
689,
City
700
v.
394 F.3d
of
“Determining
the force
whether
Cir.2005) (en banc) (noting that all claims
rea
particular
to effect a
seizure is
used
anаlyzed
of force are
under the Graham
Amendment re
under the Fourth
sonable
Jose,
(citing
City
standard
Ward v.
San
of
nature
balancing
a careful
of the
quires
(9th Cir.1992))).
280,
967 F.2d
284
of the intrusion on the individ
quality
supports
The record
the inference that
against
Amendment interests
ual’s Fourth
cycles
Ronald received nine five-second
countervailing governmental interests
from the X26: two while it was ineffective-
Connor,
v.
490 U.S.
at stake.” Graham
ly
“probe
deployed
mode” and seven
386, 396,
1865,
A
comprehen
S.Ct. 1865. But this list is not
First,
Instead,
totality
we must consider the amount of
sive.
we examine the
circumstances, including
force and the extent to
that force
the
fac-
which
whatever
was,
by
Marquezes
7. The
assert that Ronald
in
statements
the officer
the available
fact,
evidence,”
Henrich,
twenty
physical
shocked more than
times. While
Scott v.
39 F.3d
912,
(9th Cir.1994),
recording system
we
the X26’s data
does show
915
conclude
times,
received, most,
trigger
depressed
at
that the
22
Offi-
Ronald
seven full “drive-
(one
consistently
cycles
Roper
cers
and Guliano have
tes-
stun”
of the X26
for each set of
discharges
autopsy).
tified that most of these
were into
bum marks found at his
Similar
light
testimony,
the air.
In
of this
the Mar-
review indicates that the officers ended their
quezes
bring
in
must
forth more than mere alle-
use of the X26 after Ronald was
handcuffs.
judgment.
Marquezes’
contrary rely
gations
summary
assertions to the
to survive
See
"[CJarefully
entirely
transcriрtion
Gregory,
F.3d at 1106 n. 3.
on an inaccurate
of Offi-
523
record,
examining]
Roper’s
with
all the evidence in the
cer
interview
Phoenix’s Profes-
contemporaneous
reports,
medical
sional Standards Bureau.
such as
particular
in a
case. bed and to kick the
may
example,
be relevant
officers. For
tors
MacPherson,
805,
Roper
630 F.3d
he kicked
in
Bryan
groin
the
after he
See
Cir.2010).
(9th
example,
cartridge
For
we have
removed the
Roper
before
(when,
police
began redeploying
if the
summoned to
it
were
under
the
stated
ill
protect mentally
Marquezes’
theory,
a
offender
own
there
thе scene to
should have
movement).
himself,
in-
government
the
has less
been no X26-induced
Noth
from
record,
“in
using
ing
reports,
in
force. Drummond ex rel.
such as medical
terest
Anaheim,
contemporaneous
Drummond v.
343 F.3d
statements
the officer
(9th Cir.2003).
contrast,
1052,
evidence,”
if
By
physical
Greg
the available
[or]
ory,
3,
that he
at
the officer warned the offender
523 F.3d
1106-07 & n.
under
force,
Indeed,
re-
employ
suspect
credibility.
would
but
mines the officers’
comply,
government
autopsy
only
has an
fused to
available medical evi
—the
increased interest in the use of force. See dence—shows numerous incidental contu
Rutherfоrd,
Deorle v.
272 F.3d
1284 sions and is consistent
a prolonged
(9th Cir.2001).
evidence,
In
struggle.
light of this
Marquezes may
rely
not
on mere allega
finding
Here the relevant factors favor a
summary judgment.
tions to defeat
Id.
this use of force was reasonable.
reasons,
Roper
Once
and Guliano traversed Ron-
For similar
the officers could
barricade,
they
greeted by
reasonably
thought
ald’s
were
a
have
that Ronald
room,
adult,
injured
blood-spattered
posed
Cynthia.
an immediate risk to
We
in
[repeatedly]
and a child
evident distress. This alone
“have
observed that
vo
‘[t]he
that at
latility
involving
was cause to believe
least оne
of situations
domestic vio
result,
particularly
serious crime had occurred. As
lence’ makes them
danger
” Mattos,
(alteration
easily distinguished from the
this case is
ous.’
from themselves. e.g., ably have believed that they were them- at 343 F.3d 1058. danger. selves in Officers are well aware colleagues injured
Ronald—who was warned that he would that more of their are if comply be “tased” he did not also on domestic any violence calls than on —was result, actively resisting Though arrest. the Mar other Id. sort. As offi- “[w]hen *9 quezes allege any apparent call, that resistance cers to a respond they domestic abuse was, fact, involuntary spasms may lurking muscle understand that violence be X26, (in- by they explode warning.” caused have offered no and with little Id. contrast, omitted). By proof. Roper quotation Officers and ternal Roper marks consistently have that consistently began Guliano testified has stated that Ronald actively struggling, pushing assaulting Ronald was him as soon as had Guliano (that is, body Destiny his knees into his that he could so removed before Guliano room). use his feet both to lever himself off the himself еntered the And the Mar- 1176 “deadly Roper simply physical that di- fines force” as: “force
quezes’ suggestion Roper leave is unrealistic. sengage and that is with the purpose causing used of himself to fur- expose have had to would physical injury death or serious or in the squeeze body his injury as he tried to ther of its use or capa- manner intended use is that through partially open door creating a causing ble of substantial risk of would then angled into the room. Officers physical injury.” death or serious Ariz. way their back into the have had to force 13-105(14). § The Marquezes Rev. Stat. Cynthia if help arrest Ronald or to room to рoint to no case either in Arizona or in it. she needed finding any courts of federal use electronic although the officers used summary, In deadly control device to be force. And case, justi- significant force in this it was produced have no that an evidence government inter- fied the considerable capable creating X26 is of a substantial ests at stake.8 physical injury. risk of death or serious At most there is evidence the form of TV journals scientific that it a potential carries Finally, Marquezes argue injury very risk of in a group small of improperly granted the district court sum people. mary judgment their state law claims But if qualify even the X26 did as “dead- against wrongful the officers for death. ly force”—a matter we need not decide— we conclude that the act Because officers jury force, no reasonable could find that the cir- reasonably using ed this claim justify cumstances here failed to cannot succeed under Arizona law unless the use of (1) “deadly the use of the X26 constituted deadly deadly force. The use of force is (2) force,” deadly the use of force was permissible under Arizona law if an officer justified. Compare not reasonably necessary believes that it is Ariz. Rev. Stat. § (providing 13-M09 law enforcement offi prevent “effect an arrest or escape immunity cers with for all reasonable uses custody a person peace from of whom the force), of non-deadly with Ariz. Rev. Stat. reasonably likely officer believes ... is § (requiring showing 13-410 an additional endanger human life or inflict serious bodi- force). deadly to immunize the use of ly injury apprehended to another unless delay.” are not without
We convinced the use of an 13- Ariz. Rev. Stat. deadly 410(C)(2)(c); X26 involves force. Arizona law de- see also v. Garcia United clearly using 8. Because we conclude that there was no cient case lаw establish here, we against constitutional violation need not an electronic control device the al leged reach the district alternative court's conclu- victim of domestic violence violated the Constitution). qualified sion that the officers were entitled to While this incident occurred later, immunity any because violation of the Fourth several months there were no interven clearly ing legal developments, Amendment was not established at the which would have Callahan, placed any possible time incident. Pearson v. violation that occurred in Cf. al-Kidd, 223, 236, “beyond 555 U.S. 129 S.Ct. 172 L.Ed.2d this case debate.” v. Ashcroft (2009). note, however, - U.S. -, 2074, 2083, We do our recent 131 S.Ct. (2011). generally discussion in Maitos. As that case makes L.Ed.2d 1149 See Cockrell clear, Cincinnati, Fed.Appx. as late as 2006 there was no case law (6th Cir.2012) suggesting clearly (unpublished) even (collecting alone establish- cases —let ing concluding the use anof electronic control de- that as of 2009 had courts —that suspected granted qualified immunity vice on an "plain individual of domestic whenever actively resisting actively resisting violence who was [were] arrest vio- tiffs tased while ar *10 Mattos, with, by physically struggling lated the Constitution. 661 F.3d rest threaten Cf. officers”). (noting ing, disobeying at 452 that thеre was not suffi- or even (9th granddaughter States, & n. 14 not release his from a F.2d choke-hold, Cir.1987) he struggled viciously under then Arizona law (applying quarters against attempt- close the officers Act to conclude that Tort Claims Federal him, ing daughter, to restrain deadly his who justified using was an officer attacks, had also been the victim of his deadly a “felonious and prevent force to Thus, throughout. remained the room suspect attacking on himself assault” rock) properly the district court awarded sum- (citing a stick and him with Ariz. 13-410). mary judgment on this claim. jury No reasonable Rev. Stat. unlikely to Marquez
could find AFFIRMED. human life or inflict serious bodi-
endanger first, APPENDIX if at he would ly injury not subdued: *13 qualified immunity. See Agara Mattos v. SCHROEDER, Judge, Circuit no, Dissenting, in part: (9th (en Cir.2011) 661 F.3d banc). I agree majority with the that TASER adequately that repeated warned shocks force, The state law claims of excessive stressful situations could lead to death. I however, gone should have to the jury. therefore disagree with the majority’s officers, words, “pan- their own holding that the deadly. force was not Be unarmed, icked” when faced with this men- cause there was no established law on the tally ill man. They attacked Ronald with death,
point at the time of Ronald’s howev er, off,” the X26 “flipping while [it] I concur in the result on the federal claim discussed Part III of majority they pulled trigger a total of 22 times. opinion. The officers were entitled to The pairs coroner found five of taser burn
H81 majority’s portion opinion of the af- chest and two taser on Ronald’s marks of the state law firms dismissal claims. A in his chest. recent embedded probes journal in a of the Ameri- study published has concluded that Association
can Heart chest can kill. shock to the
single taser Ar- Zipes, P. Sudden Cardiac Douglas
See Applica- and Death Associated
rest *14 from, a TASER Electronic Shocks
tion of Device, Circulation, 30, 2012, Apr.
Control eight (analyzing the medical records at 4 BALLAST, MAINLINE ROCK AND men, being after tased of whom died seven Petitioner, INC., area, concluding that in the chest cause cardiac ar- from an X26 can shocks
rest). burn marks were pairs Two more LABOR, Safety Mine SECRETARY OF body. Ron- elsewhere on Rоnald’s (MSHA); found and Health Administration Safety attack. Federal Mine and Health Re- immediately following this ald died Commission, Respondents. view “not con- majority states that it is The the use of an X26 involves vinced that No. 11-9525. if we are not “con- deadly force.” Even force, deadly Appeals, United States Court of that the officers used vinced” Tenth Circuit. in a to decide the position neither are we as a matter of law. issue April Filed 2012. that if majority goes on to conclude May Ordered Published 2012. force was deadly, force used was such circumstances. This
justified under the of fact. Whether use of question
too is a small, range in a
deadly weapon at close justified room was nevertheless
crowded threatening conduct is an is-
by Ronald’s jury. be decided
sue that should Arizona decision under Arizona Re-
No 13-410(c)(2)(c) supports
vised Statute question as a matter of law.
resolving cites, majority Garcia v.
The case
(9th
States,
Cir.1987),
United patrol attack on a border
involved a direct and was decided under different
agent of the statute.
section
Accordingly, judg- I would vacate the on the in favor of the defendants
ment for further
state law claims and remand I there- as to those claims.
proceedings from the respectfully
fore must dissent