Hammer v. Gross, s. 87-6682

• Decision Date: 06 September 1989
• Docket Number: 88-5638,Nos. 87-6682,s. 87-6682
• Citation: 884 F.2d 1200
• Parties: Timothy HAMMER, Plaintiff-Appellee, v. Charles GROSS; Armando Zatarain; Newport Beach City, Defendants-Appellants, Timothy HAMMER, Plaintiff-Appellant, v. Charles GROSS; Armando Zatarain, Newport Beach City; Linda Delapena, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1200

884 F.2d 1200

58 USLW 2168

Timothy HAMMER, Plaintiff-Appellee, v. Charles GROSS; Armando Zatarain; Newport Beach City, Defendants-Appellants, Timothy HAMMER, Plaintiff-Appellant, v. Charles GROSS; Armando Zatarain, Newport Beach City; Linda

Delapena, et al., Defendants-Appellees.

Nos. 87-6682, 88-5638.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 1988.

Decided Sept. 6, 1989.

Thomas J. Feeley, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellants.

Stephen Yagman, Yagman & Yagman, P.C., Los Angeles, Cal., for plaintiff-appellee.

Jeffrey Wertheimer, Rutan & Tucker, Costa Mesa, Cal., for amicus curiae, City of Yorba Linda.

Frederick R. Millar, Jr., Supervising Deputy Atty. Gen., State of Cal., San Diego, Cal., for amicus curiae, State of Cal.

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

Before HALL, WIGGINS and THOMPSON, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appeal No. 87-6682 presents the difficult constitutional question of how much, if any, physical force police officers may use to compel a drunk driving suspect to submit to chemical testing in order to obtain evidence of intoxication for use in a criminal prosecution. Plaintiff-appellee Timothy Hammer brought this action under 42 U.S.C. Sec. 1983 (1982), against defendants-appellants City of Newport Beach, California, former Newport Beach police chief Charles Gross, and Newport Beach police officer Armando Zatarain. Hammer claims that Officer Zatarain used excessive force to obtain a blood sample after lawfully arresting him for driving under the influence ("DUI") of alcohol, and that this use of excessive force was action under color of state law which deprived him of rights secured by the Fourth and Fourteenth Amendments to the United States Constitution.

On timely appeal from a final judgment that was based on a jury verdict in favor of Hammer appellants contend, inter alia, that the district court erred in denying their motions for directed verdict and judgment notwithstanding the verdict ("JNOV"). They argue that neither the officer's actions nor the City policy regarding the use of force were unconstitutional and that, in any event, the individual officers were entitled to qualified immunity. We reverse.

I

Viewing the evidence in the light most favorable to Hammer, the relevant facts for purposes of this section 1983 action are as follows. At approximately 4:00 a.m. on June 23, 1985, Timothy Hammer was arrested upon probable cause for driving under the influence of alcohol, after failing a series of field sobriety tests administered by defendant-appellant Armando Zatarain, a police officer employed by the City of Newport Beach, California.

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 would refuse to take any of the tests because he thought "there was a good possibility" that a chemical test would indicate that he was intoxicated. Hammer later explained that he refused because he doesn't like needles. Hammer also testified that he believed his driver's license would be suspended for six months if he refused to submit to all three tests. ¹

Zatarain transported Hammer to the emergency room in a Newport Beach hospital, Hoag Memorial, 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 whether Hammer would submit to a blood test; Hammer again verbally refused. At that point, Zatarain told a Hoag Hospital laboratory technologist, Linda De La Pena, to withdraw the blood sample despite Hammer's objections. Although Zatarain denied ever having touched Hammer from the time appellee was first seated in the chair in the emergency room until De La Pena completed the blood withdrawal, Hammer testified that the officer grabbed his shoulders from behind and held him down in the chair while De La Pena began to swab his left forearm with iodine. Hammer "jumped" when De La Pena attempted to insert the needle into his arm, at which 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.

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 De La Pena 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 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 De La Pena took the blood sample as the other officers watched. ²

On September 23, 1985, Hammer filed this section 1983 action seeking compensatory damages from all defendants, and punitive damages from the individual defendants. Defendants moved for summary judgment on November 10, 1986, asserting that the individual defendants were entitled to qualified immunity and that, because Zatarain contended that he was five feet away from Hammer during the blood withdrawal, there was no genuine issue of material fact as to a violation of the Fourth or Fourteenth Amendments. The district court denied defendants' motion on December 8, 1986. No appeal was taken from that decision, and the case proceeded to jury trial on October 6, 1987.

After a three-day trial and a denial of defendants' motion for a directed verdict, the jury of six men rendered a verdict on October 8, 1987, in favor of plaintiff-appellee Hammer, and assessed compensatory and punitive damages against Zatarain and Gross, and compensatory damages against the City of Newport Beach. The district court denied defendants-appellants' motions for judgment notwithstanding the verdict, and for a new trial, in a hearing held on November 16, 1987, and entered an order of final judgment the following day. Defendants timely appeal from that judgment. ³

II

We consider first whether the district court erred in refusing to grant appellants' motions for directed verdict and for judgment notwithstanding the verdict ("JNOV"). This court applies the same test when reviewing a district court ruling on either of these motions, and our inquiry on appeal is identical to that of the district court. 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). That is, viewing the evidence as a whole in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, we must decide de novo whether there was substantial evidence to support the jury's verdict or, on the contrary, whether the only reasonable conclusion is that the moving party is entitled to judgment as a matter of law. Id.; Peterson v. Kennedy, 771 F.2d 1244, 1252, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). We also review de novo all questions of federal and state law. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

It is well-settled that a plaintiff in a section 1983 action must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the claimant of a right secured by the Constitution or federal law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981). Appellants do not challenge Hammer's showing of action under color of state law. They do, however, argue that Hammer has failed as a matter of law to prove any deprivation of a constitutional or federal right in this case.

A

Until very recently, there were two arguably overlapping constitutional theories under which a plaintiff could proceed in a section 1983 action seeking damages against arresting officers who subjected him to physical force to obtain blood sample evidence for use in a DUI prosecution. The first was a theory that the particular search and seizure of blood alcohol evidence was "unreasonable" and, hence, a violation of the Fourth Amendment. A line of Supreme Court cases, beginning with Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and most recently including Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), would have controlled the Fourth Amendment issue in such an action.

The second theory was that the application of force by police in conducting the search and seizure was excessive in that it was "intentional, unjustified, brutal, and offensive to human dignity" in light of the need and purpose for which force was applied and, hence, a denial of substantive due process guaranteed by the Fourteenth Amendment. See Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir.1987); Rutherford v. City of Berkeley, 780 F.2d 1444, 1446 (9th Cir.1986); Meredith v. Arizona, 523 F.2d 481, 484 (9th Cir.1975) (adopting standard from Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). ⁴ The leading Supreme Court cases in this substantive due process area, in addition to Schmerber, were Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).

In their briefs, the parties strongly disagree as to the applicability, meaning, and limits of these cases. Appellants argue that Schmerber...