Finally, defendants Zatarain and Gross contend that they were entitled to qualified immunity as a matter of law. These defendants are immune from personal liability if reasonable officers in their position, in light of clearly established law, could have believed that the actions they took were lawful.
See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). We conclude, as a matter of law, that reasonable officers could so have believed at the time of Hammer's arrest. At that time,
Breithaupt and
Schmerber had been decided, permitting withdrawal of a subject's blood when the subject was, respectively, unconscious or objecting. Both cases had established that the intrusion caused by the withdrawal of blood itself was not unreasonable.
Breithaupt had accepted the rule of
Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), holding force that “shocked the conscience” to be a violation of due process.
That standard was not violated by defendants Zatarain and Gross, as Hammer concedes. At the time of Hammer's arrest,
Graham v. Connor had not been decided. As we have indicated,
Graham imposes a balancing test that can, in the circumstances of this case, result in force being found excessive even though it did not rise to the level that shocks the conscience. Reasonable officers, however, cannot be required to have anticipated the ruling in
Graham. We conclude as a matter of law, therefore, that officers Zatarain and Gross are immune from personal liability in damages for their actions in applying or authorizing the use of force that was unreasonable in all the circumstances but well below the level that shocks the conscience.