# Hammer v. Gross

> Court of Appeals for the Ninth Circuit · May 13, 1991 · 932 F.2d 842

URL: https://www.frixlaw.com/law-library/cases/8990594

## Case

- **Full name:** Timothy HAMMER v. Charles GROSS Armando Zatarain Newport Beach City, and Linda Delapena, Defendant Timothy HAMMER v. Charles GROSS Armando Zatarain Newport Beach City, Linda Delapena
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 13, 1991
- **Citations:** 932 F.2d 842; 1991 WL 74244
- **Precedential status:** Published
- **Opinion:** Concurrence by Reinhardt
- **Judges:** Beezer, Browning, Canby, Farris, Fernandez, Goodwin, Kozinski, Nelson, Reinhardt, Schroeder, Thompson
- **Cited by:** 135 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8990594

## How later opinions describe it (automated extraction)

- holding that the fact that the crime committed was a misdemeanor was a factor that the jury should consider in determining whether the forced used by the arresting officer against a DUI suspect to obtain a blood sample over the suspect’s verbal objection was reasonable
- rejecting plaintiff's contention that an officer who has used unreasonable force cannot, by definition, have acted reasonably, noting that "[w]hether a search is 'unreasonable' within the meaning of the Fourth Amendment is an entirely different question from whether an officer…
- noting that "the effect of [the majority's] decision is that blood cannot be extracted from a drunk who refuses to have it done, and this is particularly so if the drunk is willing to become the least bit physical about it"
- recognizing distinction between Fourth Amendment “unreasonableness” and qualified immunity “unreasonableness,” and citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)
- holding that the Fourth Amendment “does not preclude the use of force in some circumstances to extract a blood sample from a resistant suspect”

## Opinion text

REINHARDT, Circuit Judge,
concurring specially:
I fully agree with Judge Canby’s excellent opinion — with one minor exception. To the extent that Section IV sets forth the proposition that the plain error exception is inapplicable in appeals involving civil jury instructions, I disagree. As Judge Canby’s opinion acknowledges, the law in our circuit is unclear on this point. Reed v. Hoy, 909 F.2d 324, 327-28 (modifying, 891 F.2d 1421 (9th Cir.1989), and Eberle v. City of Anaheim, 901 F.2d 814, 820 (9th Cir.1990), suggest that we have retreated from the inflexible rule that we alone previously applied. For reasons that are not worth belaboring here, I do not believe it is necessary for us to reach the plain error question in this case. However, if we were required to do so, I would be inclined to take the approach set forth in Reed and Eberle , relax our earlier harsh rule, and join the other circuits in adopting a more flexible and reasonable approach.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8990594. Public record. Not legal advice.