Abston Ex Rel. Estate of Abston v. City of Merced

MEMORANDUM

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 behavior, 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…