SAN FRANCISCO (CN) - Police officers who used their Tasers on a drug-addled man with a heart condition urged the 9th Circuit to grant them immunity against wrongful-death claims.
Officers Jason Hart, Bernard Dalia, and Naomi Arellano tried to apprehend retired truck driver Richard Abston on Feb. 7, 2008, because Abston was driving the wrong way on a highway in Merced, Calif.
Abston was not wearing a shirt and had a large scar on his chest where he had undergone open-heart surgery and received a pacemaker two years earlier.
The officers testified that they did not notice the well-healed scar and assumed Abston was on drugs because of his erratic behavior and apparent indifference to their weapons.
A blood test allegedly revealed that Abston had methamphetamine and lidocaine in his system.
After the officers beat Abston with batons, he ran away and climbed on top of a tractor trailor that was stopped on the highway.
One officer emptied a can of pepper spray in the altercation, but Abston merely wiped the spray from his chest and licked it off his hand.
Officer Hart used his Taser after Abston got off the trailer cab and began running down the highway. The officers struggled to restrain Abston and managed to put him in handcuffs after using the Taser at least twice more.
With his legs still free, Abston kicked Hart hard enough to tear his rotator cuff.
Abston stopped breathing at some point after the officers put him in leg shackles, and he died shortly thereafter.
In May 2011, a federal judge refused to grant the police officers summary judgment on most claims.
They have appealed this decision to the 9th Circuit, but the widowed Maureen Abston says that the officers continued to assault Abston even after he had stopped resisting.
Her attorney, John Nisenbaum, says Hart pressed his knee into Abston's back for more than a minute after he was fully restrained.
The officers say Abston was trying to "head-butt" them, but Nisenbaum refutes this claim.
Prone restraint can cause positional asphyxiation when a person is held down while lying on their stomach, Nisenbaum said.
He told the court that officers kept Abston in the prone position for an unreasonable and life-threatening amount of time.
Judge Dorothy Nelson, part of a three-person panel at the hearing last week asked: "Once the man was handcuffed, why was there an immediate safety threat that justified pinning him down and sitting on him until he was asphyxiated?"
The officers' attorney, Dale Allen, of Low, Ball & Lynch in San Francisco, told the court that "this is not a case of excessive force."
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