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
How later courts described this case
- 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 reasonably could have believed his actions lawful under the Fourth Amendment."
- 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)
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
with whom BROWNING, GOODWIN, BEEZER, and THOMPSON, Circuit Judges, join, Dissenting:
I respectfully dissent. I believe that the majority misperceives either the scope of the fourth amendment or the strength of the evidence presented to the jury in this case.
I do agree that this case is controlled by Schmerber v. California, 384 U.S. 757 , 86 5.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber , the Supreme Court sketched the scope of fourth amendment strictures when police extract blood from an uncon-senting person. It is clear that the extraction need not be carried out under authority of a warrant if the extraction is necessary to preserve evanescent evidence. 1 384 U.S. at 770 , 86 S.Ct. at 1835 . It is also clear that the police are entitled to use some physical force in order to successfully extract the blood sample. See Graham v. Connor, 490 U.S. 386, 396-97 , 109 S.Ct. 1865, 1871 , 104 L.Ed.2d 443 (1989). Therefore, the fourth amendment did not prohibit Officer Zatarain from using some force to extract blood from Hammer.
As the majority agrees, the analysis is not altered by the fact that California has adopted a statute which mandates that the state’s Department of Motor Vehicles suspend the license of any person who refuses to submit to a blood alcohol test after reasonably being requested to do so by a police officer. Cal.Veh.Code § 13353(a) (West’s Supp.1990). The California courts have repeatedly indicated, that section 13353 does not alter the analysis of fourth amendment claims. See People v. Ryan, 116 Cal.App.3d 168, 82-83 , 171 Cal.Rptr. 854 (1981) (section 13353 did not alter constitutional analysis of fourth amendment claim); People v. Puccinelli, 63 Cal.App.3d 742, 746 , 135 Cal.Rptr. 534 (1976) (“It is also clear that the right to obtain and utilize [forced blood extractions] under the authority of Schmerber has not been eliminated by the enactment of section 13353.”) The California courts have also wisely indicated that section 13353 grants a person a single opportunity to submit to a blood alcohol test. Once a person refuses, the police are not obligated to give the person a second opportunity to comply with the stat *855 ute. See Dunlap v. Department of Motor Vehicles, 156 Cal.App.3d 279, 283 , 202 Cal.Rptr. 729 (1984) (police not required to give person second opportunity to take blood alcohol test after initial refusal); Morphew v. Department of Motor Vehicles, 137 Cal.App.3d 738, 743-44 , 188 Cal.Rptr. 126 (1982) (person lawfully arrested for drunk driving may not avoid impact of section 13353 by frustrating officer’s ability to administer blood alcohol test). I say this is a wise approach because, whatever might seem ideal to those who have months to ruminate on the situation, it does not seem reasonable to require officers to deal with a driver’s tergiversation about tests. At any rate, California has done nothing to alter the application of the fourth amendment; the outcome of this case is controlled entirely by Schmerber and its progeny.
Given that the police were entitled to use some physical force to extract a blood sample from Hammer, the issue remaining is whether the force used was excessive. The majority correctly notes that the issue is generally one for the jury to decide. Reed v. Hoy, 909 F.2d 324, 329-30 (9th Cir.1989), modified on other grounds and reh’g denied, No. 87-4324, slip op. 7655 (9th Cir. July 18, 1990). However, in this case there was no evidence from which a reasonable jury could conclude that Officer Zatarain used excessive force. Zatarain did not initiate the use of physical force nor did he use more than was minimally necessary to safely extract the blood sample. On the contrary, he used almost no force at all. As the panel pointed out, and the majority appears to accept, the officer inflicted no violence whatever upon Hammer’s person. Any injury occurred as Hammer tried to jump away from the needle, for those activities caused both him and the officer to fall to the floor. 2
While the majority avoids saying so, the effect of its decision is that blood cannot be extracted from a drunk who refuses to have it done, and that is particularly so if the drunk is willing to become the least bit physical about it. That is unfortunate, because whatever one might think about atrocious amounts of force being used for trivial purposes, those thoughts do not define this case. Rather, this is a case where the force itself was trivial and the need to protect the public from the atrocities wrought by this sort of crime — drunk driving — is compelling. In short, even viewing the evidence in the light most favorable to Hammer, as we must, the only reasonable conclusion is that the defendants were entitled to judgment as a matter of law. 3 See Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356 , 1360 (9th Cir.1986), cert. denied, 484 U.S. 826 , 108 S.Ct. 92 , 98 L.Ed.2d 53 (1987).
Finally, I agree that people under arrest, even drunks, must be treated with humanity and justice. The Constitution demands no less. But police officers are humans and citizens also. They, too, deserve to be treated with justice and with respect for their humanity. When they do their jobs properly, judges and juries should not call them lawbreakers and annullers of our Constitution. I fear that the majority does an injustice to the City and to these officers and makes it considerably more difficult for others to do their jobs when faced with recalcitrant citizens.
I would, therefore, uphold the decision of the panel and reverse that of the district court.
. Of course, Schmerber and the other cases in this area are driven by the fact that evidence of intoxication is indeed evanescent. Thus, delays substantially affect the accuracy of testing.
. Here is Hammer's testimony about the incident: "Q. What’s the next thing that happened after she [the nurse] started swabbing your arm? A. Well, when she started to put the needle in my arm, then I jumped. I was saying, no, you are not going to take my blood. And I jumped with him and the chair, and he was trying to hold me down, and I was trying to get away from the needle before she stuck it in my arm. Q. What happened? A. He was pushing me down. I was trying to get away. We both went over onto the ground. Q. With him on top of you? A. He was behind me, like somewhat wrestling with me.”
. Perhaps the typically persuasive argument of Hammer's experienced counsel induced the jury to think that any force whatever was too much. If so, it was led into error. Led or not, err it did.