United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 95-3870

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Thomas E. Freeman, *

 *

Appellant, *

 *

v. *

 * Appeal from the United States

Fred Jackson, Warden; John * District Court for the

Roccaforte, Lt.; Robert Bryant, * District of Nebraska.

Lt.; John Hubbard; Charles Kelly,*

Capt.; Doug Squires, Sgt.; Jeff * [UNPUBLISHED]

Lickci; Ronnie Welch; Charles *

Herdon; Michael Hoch; John *

Swanson, *

 *

Appellees. *

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 Submitted: February 6, 1997

 Filed: February 14, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Thomas F. Freeman, a Nebraska inmate, filed a 42 U.S.C. § 1983

action against two police officers and numerous employees of the

Douglas County Correctional Center, claiming that they violated his

constitutional rights by executing a state court order to obtain

blood and saliva samples which was not supported by probable cause;

subjecting him to excessive force; and refusing to show him a copy

of the order, or allow him to speak with his attorney. Freeman

claimed that instead of forcibly drawing his blood, defendants

should have pursued the explicit contempt penalty provided in the
 The Honorable Thomas D. Thalken, United States Magistrate

Judge for the District of Nebraska, to whom the case was referred

for final disposition by consent of the parties pursuant to 28

U.S.C. § 636(c).

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order. The district court granted defendants' motions for summary 1

judgment based on qualified immunity. After de novo review, we

affirm. See Demming v. Housing and Redev. Auth., 66 F.3d 950, 953

(8th Cir. 1995) (standard of review). 

Freeman did not have a right to consult with counsel prior to

giving the sample, see Schmerber v. California, 384 U.S. 757, 765-

66 (1966) (blood test, which entails virtually no risks, trauma, or

pain for most people, does not involve right to counsel); South

Dakota v. Neville, 459 U.S. 553, 559 n.8 (1983) (Schmerber rejected

arguments that coerced blood tests violated right to counsel and

the prohibition against unreasonable searches and seizures), and

did not rebut defendants' evidence that he had access to his

attorney during the subsequent five days he spent in lockdown.

We agree with the district court that defendants'

interpretation of the order--as allowing them to physically

restrain Freeman to obtain a blood sample--was reasonable, thus

entitling them to qualified immunity. The order authorized "any

detention which may be necessary." Cf. McCurry v. Tesch, 824 F.2d

638, 642 (8th Cir. 1987) (officers protected by qualified immunity

for carrying praying church goers out of church on Monday morning;

action was result of reasonable interpretation of two court

orders). Freeman's argument that defendants' only recourse for his

failure to voluntarily comply with the order was criminal contempt

is meritless.

As a pretrial detainee, Freeman's excessive-force claim is

properly analyzed under the due process clause of the Fourteenth

Amendment. See Graham v. Conner, 490 U.S. 386, 395 & n.10 (1989)

(due process clause protects pretrial detainee from force amounting
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to punishment). We agree with the district court's determination

that Freeman's due process rights were not violated: defendants

acted in good faith reliance on a court order, and the force used

was reasonable and did not exceed the force necessary given

defendants' unrebutted evidence that Freeman poured soap on his

cell floor to make it slippery, put up a struggle, previously

thwarted an attempt to take blood by slitting his wrists, and

refused to cooperate. Cf. Burton v. Livingston, 791 F.2d 97, 100

(8th Cir. 1986) (due process clause inquiry includes determinations

of whether officers acted in good faith or maliciously and

sadistically, and whether force used exceeded force needed).

Finally, we conclude the police officers reasonably believed

the order authorizing them to obtain the sample was supported by

probable cause: the supporting affidavit indicated that Freeman fit

the description of a man suspected in fourteen sexual and attempted

sexual assaults, that Freeman owned a car matching the description

of the suspect's car, that he had been identified in a lineup as

the perpetrator of one of the assaults, that his fingerprints had

been discovered at the scene of one of the attempted assaults, that

all of the attempts and assaults shared a common modus operandi,

and that, as part of his job, he had prior contact with one of the

victims. See Thompson v. Reuting, 968 F.2d 756, 760 (8th Cir.

1992) (police officers entitled to qualified immunity in § 1983

case if they had objectively reasonable belief affidavit

established probable cause); cf. United States v. Martin, 28 F.3d

742, 744 (8th Cir. 1994) (probable cause found for arrest warrant

where suspect matched description given by victim, and owned van

seen near crime scene). 

Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.