FILED
NOT FOR PUBLICATION JAN 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAUREEN ABSTON, individually, and No. 11-16500
as Personal Representative of the Estate of
Richard Abston; COREY ABSTON; DC No. 1:09 cv-0511 OWW
JACY ABSTON; LINDA ABSTON,
Plaintiffs - Appellees, MEMORANDUM *
v.
CITY OF MERCED, a municipal
corporation; RUSS THOMAS, in his
capacity as Sheriff for the the City of
Merced,
Defendants,
and
J. HART; B. DALIA; N. ARELLANO,
individually and in their capacities as
police officers for the City of Merced,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted December 6, 2012
San Francisco, California
Before: D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.
Defendants-Appellants, City of Merced police officers Jason Hart, Bernard
Dalia, and Noemi Arellano, are alleged to have used constitutionally excessive
force during the arrest of Richard Abston. Abston died at the conclusion of the
incident described below. Abston’s family members brought this action under 42
U.S.C. § 1983. The district court denied defendants’ motion for summary
judgment on qualified immunity grounds, and defendants have taken this
interlocutory appeal.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
Around 8:00 a.m., on February 7, 2008, in Merced, California, Abston was
high on methamphetamine and driving the wrong way – south in the northbound
lanes – of Highway 99. He pulled over when ordered to do so by a California
Highway Patrol (“CHP”) officer, but ignored repeated orders to exit the vehicle.
Following a scuffle with the CHP officer, during which Abston exhibited bizarre
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behavior,1 Abston took off running down the middle of the northbound lanes,
where traffic had stopped. He climbed to the top of a tractor-trailer’s sleeper cabin
and refused orders to descend. Defendants Hart and Arellano then arrived. Abston
refused to comply even after the CHP officer emptied a can of pepper spray in his
face. The officers climbed onto the tractor-trailer and forced him down. Abston
again took off running, this time toward a low, median barrier that separated him
from moving traffic in the southbound lanes.
Officer Hart drew his X26 Taser and warned Abston to stop or be tased, but
Abston kept running toward the median. Hart then deployed a five-second Taser
cycle in dart mode. Abston fell to the ground, attempted to get up, and began
crawling despite Hart’s warning to stop and put his hands behind his head else be
tased again. Hart deployed another five-second cycle and attempted to restrain
Abston’s hands. Arellano, accompanied by a CHP officer, arrived a few seconds
later. Abston was face-down with his hands clasped underneath his chest. He
kicked, screamed, and banged his head on the ground as officers attempted to
subdue him. Hart again warned Abston to stop resisting or he would be be tased.
1
Abston, who was sweating profusely, yelled something
incomprehensible about his son being in a hotel, unable to breathe. Defendants
maintain that Abston also exhibited abnormal strength and pain-resistance
throughout the encounter.
3
The third tasing, another five-second cycle, was administered less than two
minutes after the second. Hart applied a fourth, five-second cycle a few seconds
after the third.
By the time Dalia arrived on the scene, Abston’s hands were cuffed in front
of his body and defendants were struggling to control his legs. Abston kicked
Arellano, causing her to stumble backwards. He then kicked Hart in the shoulder
with such force as to require surgery. Eventually, officers succeeded in shackling
his legs.
A bystander captured the last few minutes of Abston’s life on video. On that
video, Abston is seen face-down, handcuffed and ankle-shackled, while defendants
apply pressure to his back. Defendants contend that their actions were necessary
because Abston was actively resisting. They acknowledge that Hart continued
applying his body weight to Abston’s prone body for 1 minute, 7 seconds.
Although the video is often obscured by passing vehicles, it is clear that for almost
one minute, Abston was handcuffed, ankle-shackled, prone, and physically
restrained by at least four individuals, including Hart. What is not clear is whether
Abston continued to resist during this period and, if so, whether his resistance was
anything more than minimal, considering that he was handcuffed and ankle-
shackled.
4
Less than three minutes after defendants left the scene, a CHP officer
noticed that Abston was not breathing. Abston was pronounced dead at 8:47 a.m.
Plaintiffs’ expert forensic pathologist opined that the cause of death was positional
asphyxia.
II.
We review the district court’s denial of qualified immunity de novo.
Blanford v. Sacramento Cnty., 406 F.3d 1110, 1114 (9th Cir. 2005). Disputed
issues of material fact are viewed in the light most favorable to the non-moving
party, here, plaintiffs. See KRL v. Estate of Moore, 512 F.3d 1184, 1188-89 (9th
Cir. 2008). We employ a two-part analysis to determine whether: (1) defendants
violated Abston’s constitutional rights; and, if so, (2) the right was “clearly
established in light of the specific context of the case” on the day of the arrest.
Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc) (internal quotation
marks omitted); see Saucier v. Katz, 533 U.S. 194, 200, (2001). We may, in our
discretion, “decid[e] which of [Saucier’s] two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
III.
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We analyze all claims of excessive force that arise during or before an arrest
under the Fourth Amendment’s “reasonableness” standard, as guided by Graham v.
Connor, 490 U.S. 386 (1989). See Smith v. City of Hemet, 394 F.3d 689, 700-01
(9th Cir. 2005) (en banc). We conclude that, viewed in the light most favorable to
plaintiffs, these facts establish a Fourth Amendment violation.
A reasonable fact-finder could conclude that defendants’ use of body
compression as a means of restraint was unreasonable and unjustified by any threat
of harm or escape when Abston was handcuffed and shackled, in a prone position,
and surrounded by numerous officers.2 Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (concluding that “the force
allegedly employed was severe and, under the circumstances, capable of causing
death or serious injury” where defendant officers allegedly “continued to press
their weight on [plaintiff’s] neck and torso as he lay handcuffed on the ground and
begged for air”).
IV.
2
Defendants argue that the district court erred in concluding that two
factual disputes were genuine and material: whether defendants (1) were aware
that Abston, who was shirtless throughout their encounter, had a well-healed chest
scar indicating pacemaker installation; and (2) removed Abston from the tractor-
trailer by pulling him down or allowing him to drop. In light of our disposition, we
need not reach these questions.
6
It was clearly established that defendants’ use of body compression to
restrain a prone and bound suspect, who was in no position to offer any meaningful
resistance, would violate the rule established by Drummond nearly five years
earlier, in 2003. See id. at 1059 (“The officers – indeed, any reasonable person –
should have known that squeezing the breath from a compliant, prone, and
handcuffed individual despite his pleas for air involves a degree of force that is
greater than reasonable.”); accord id. at 1062. During the period when Abston was
handcuffed, ankle-shackled, and prone, the bystander’s video creates a genuine
issue of material fact as to whether Abston resisted, and, if so, whether his
resistance was anything more than minimal. A reasonable jury could answer either
question in the negative, bringing defendants’ conduct within Drummond. See
Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We do not require a case
directly on point, but existing precedent must have placed the . . . question beyond
debate.”).
In contrast, it was not clearly established at the time of Abston’s arrest that
use of four, five-second Taser cycles within a span of approximately two minutes
against a suspect who appeared unarmed, fell to the ground following the first
tasing and thereafter presented no real threat of escape, and was surrounded by
three officers, was objectively unreasonable. See Bryan v. MacPherson, 630 F.3d
7
805, 833 (9th Cir. 2010). Because the Taser claims fail to survive Saucier’s
second prong under Pearson, 555 U.S. at 236, we need not reach the first prong.
Thus, we need not decide whether use of a Taser in the manner and in the
circumstances described here would be a Fourth Amendment violation under the
test laid out in Bryan, 630 F.3d at 823-32.
·•!•·
Because plaintiffs’ body compression claim survives Saucier’s qualified
immunity test, the district court did not err in denying defendants’ motion for
summary judgment as to that claim. The district court erred, however, in denying
partial summary judgment to defendants on plaintiffs’ Taser claims on the ground
of qualified immunity. Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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