                                                                           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                            NOT FOR PUBLICATION                             JAN 31 2013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




                                         2
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.




                                            5
      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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