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MARQUEZ v. CITY OF PHOENIX

No. 10-17156.

693 F.3d 1167 (2012)

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, Plaintiffs-Appellants, v. CITY OF PHOENIX, a municipality organized under the laws of the 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.

United States Court of Appeals, Ninth Circuit.

Filed September 11, 2012.

As Amended on Denial of Rehearing October 4, 2012.

Attorney(s) appearing for the Case

G. Lynn Shumway, Law Office of G. Lynn Shumway, Phoenix, AZ, argued the cause and filed the briefs for the individual 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 Marquez and the Estate of Ronald Marquez.

Nicholas D. Acedo, Struck Wieneke & Love, P.L.C., Chandler, AZ, argued the cause and filed the brief for the individual 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, Struck Wieneke & Love, P.L.C., Chandler, AZ.

Pamela B. Petersen, Law Office of Pamela B. Petersen, Peoria, AZ, 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, AZ.

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

OPINION

O'SCANNLAIN, Circuit Judge:

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...

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