In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.
The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.
After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.
While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.