Hammer v. Gross

Decision Date13 May 1991
Docket NumberNos. 87-6682,88-5638,s. 87-6682
Citation932 F.2d 842
PartiesTimothy HAMMER, Plaintiff-Appellee, v. Charles GROSS; Armando Zatarain; Newport Beach City, Defendants-Appellants, and Linda Delapena, et al., Defendant. Timothy HAMMER, Plaintiff-Appellant, v. Charles GROSS; Armando Zatarain; Newport Beach City, Linda Delapena et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Central District of California.



CANBY, Circuit Judge, announcing the judgment of the Court and an opinion of which all but Section III and IV is that of the Court. Section III of Judge Canby's opinion is joined by Judges Schroeder, Farris, and Reinhardt; Section IV is joined by Judges Schroeder, Farris, D.W. Nelson and Kozinski:

Appellant Timothy Hammer brought this action under 42 U.S.C. Sec. 1983, alleging that his constitutional rights were violated when a police officer, having arrested Hammer for drunken driving, employed force to cause Hammer to submit to extraction of a blood sample. A jury awarded Hammer damages against Armando Zatarain, the officer who employed the force, Charles Gross, then chief of police, and Newport Beach City, the employer of Zatarain and Gross. On appeal, a panel of this court reversed, holding that the trial judge erred in denying the defendants' motions for directed verdict and judgment notwithstanding the verdict. Hammer v. Gross, 884 F.2d 1200 (9th Cir.1989). Upon Hammer's petition, the full court then ordered this rehearing en banc.


The facts, viewed in the light most favorable to Hammer, were well-stated in the previous panel's opinion; for convenience, we repeat most of them here. In June 1985, Hammer was arrested upon probable cause for driving under the influence of alcohol, after failing a series of field sobriety tests administered by defendant Zatarain. After applying handcuffs, Zatarain told Hammer that he would be required to take one of three chemical tests (blood, breath or urine) to determine his blood alcohol level. Hammer replied that he refused to take any of the tests. He later testified that he did so because he thought "there was a good possibility" that a chemical test would indicate that he was intoxicated.

Zatarain transported Hammer to the emergency room of a Newport Beach hospital to obtain a blood sample. Upon arrival, Zatarain handcuffed Hammer by his right wrist to a hard plastic chair. Approximately five minutes later, Zatarain again asked Hammer whether Hammer would submit to a blood test; Hammer again verbally refused. At that point, Zatarain told a hospital laboratory technologist to withdraw the blood sample despite Hammer's objections. Although Zatarain denied ever having touched Hammer from the time he was first seated in the chair until the technologist completed the blood withdrawal, Hammer testified that the officer grabbed his shoulders from behind and held him down in the chair while the technologist began to swab his left forearm with iodine. Hammer, who later testified that he doesn't like needles, "jumped" when the technologist attempted to insert the needle into his arm. At that point he and Zatarain, who continued trying to restrain Hammer as Hammer tried to "wrestle away" from the needle, both went over sideways onto the floor along with the chair to which Hammer was still handcuffed. Hammer twisted his back as he hit the floor.

After picking Hammer up off the floor, Zatarain told Hammer that he was going to take the blood sample "the easy way or the hard way." Zatarain then went into the hallway, called in two other police officers to assist him and the technologist in administering the blood test, and threatened that they would throw Hammer to the floor and pin him down to complete the test if necessary. Hammer testified that at that point he said that he would consent to a breath test "if that's what it's going to come to," but that Zatarain insisted upon the blood test and once again held Hammer down in the chair while the technologist took the blood sample as the officers watched.


The first question before us on rehearing is whether the above facts can sustain the jury's verdict consistently with applicable law. Additional questions are whether the trial court properly instructed the jury in light of that law and, if not, whether defendants preserved the issue for appeal.

The foundation case is Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, the Supreme Court held that it did not violate the Fourth Amendment for police, upon probable cause but without a warrant, to cause a blood sample to be taken from an arrested, hospitalized suspect who had declined to take a breathalyzer test. Although the suspect had refused to consent to the extraction of blood, there was no suggestion of physical resistance by the suspect or use of force by the police. In determining that the extraction of blood was not an unreasonable search, the Court emphasized the routine nature of the test, and the fact that it was performed by a physician in a hospital environment. The Court noted that these factors had earlier led the Court to hold that extraction of blood from an unconscious, hospitalized suspect after a fatal crash did not "shock the conscience" and thereby violate the due process clause of the Fourteenth Amendment. See Breithaupt v. Abram, 352 U.S. 432, 435-38, 77 S.Ct. 408, 410-12, 1 L.Ed.2d 448 (1957). The Court in Schmerber also said, however, that

Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the "breathalyzer" test petitioner refused.... We need not decide whether such wishes would have to be respected.

Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. The Court also noted that it reached its judgment "only on the facts of the present record," and that its holding in no way indicates that the Constitution "permits more substantial intrusions, or intrusions under other conditions." Id. at 772, 86 S.Ct. at 1836.

As we have said, Schmerber involved no physical resistance and no use of force. The defendants argue, however, that the decision necessarily legitimizes the use of force to overcome resistance to a procedure that the defendants are entitled to employ. The Supreme Court could not have intended a rule, they say, that would refuse to honor a suspect's purely verbal objection but would give effect to an objection backed by physical resistance. Defendants support their argument with a footnote in Schmerber relating to the Court's rejection of Schmerber's Fifth Amendment argument:

We "cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest." Breithaupt v. Abram, 352 U.S., at 441 (Warren, C.J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force.

* * * * * *

Schmerber, 384 U.S. at 760 n. 4, 86 S.Ct. at 1830 n. 4.

We assume for purposes of decision that Schmerber does not preclude the use of force in some circumstances to extract a blood sample from a resistant suspect. The crucial question in this case, however, is whether a rational jury could conclude that the force used was excessive under the circumstances presented here. The defendants argue in part that the force could not have been excessive because, as plaintiff concedes, it did not rise to a level that "shocks the conscience." But to say that force must "shock the conscience" is to employ a shorthand version of a due process test that is no longer the correct one for evaluating the propriety of force used in effecting a search or seizure. Because the right in issue arises under the Fourth Amendment, "the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). 1 The test balances the intrusion on the individual's Fourth Amendment right against the governmental interests at stake, id., 109 S.Ct. at 1871, and the reasonableness of the search is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 1872. We have held that the Graham analysis is to be applied retroactively. Reed v. Hoy, 909 F.2d 324, 327-28 (modifying 891 F.2d 1421 (9th Cir.1989)).


We address, then, the question whether a rational jury could find that the actions of the defendants in employing the force that they did to overcome Hammer's resistance and extract his blood were not " 'objectively reasonable' in light of the facts and circumstances confronting them." Graham, 109 S.Ct. at 1872. The defendants contend that the force they employed was reasonable as a matter of law because, in addition to its not "shocking the conscience," it was no greater than that required to overcome Hammer's resistance. The test of reasonableness is not...

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