The Honorable H. Franklin Waters, Chief Judge, United States

District Court for the Western District of Arkansas, adopting the report and recommendation of the Honorable Beverly R. Stites , Un itedStates Magistrate Judge for the Western District o f Arkansas. ___________ No. 95-2103

___________ Robert Neil Joos, Jr., * also known as David Dean, * *

Appellant, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Deputy Ratliff, Benton County; * Deputy Spann, Benton County; * [PUBLISHED] Sheriff Andy Lee; Unknown * Deputies, of Benton County Jail, * *

Appellees. *

___________ Submitted: March 18, 1996 Filed: October 11, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.
Robert Joos appeals from the district court's judgment in favor of 1 defendants following an evidentiary hearing in his 42 U.S.C. § 1983 action
. We conclude the force employed against Joos in connection with his arrest was both de minimis and a reasonable response wh en Joos resisted officers' attempts to effect his arrest and booking. We further conclude that the district court proper ly denied the remainder of Joos's claims and that an extended discussion is unwarranted. Accordingly, we affirm.-2-

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

The tr uncated statement of facts in the court's per curia m opi nionconceals from view what is important about this case
. Mr. Joos claimed, among other things, that Mr. Ratliff use d exc essive force against him in order to secure his fingerprints
. Mr. Ratliff testified that Mr. Joos would not allow himself to be fi ngerprintedand that Mr. Joos had made a fist with his thumb tuck ed inside in order to prevent it. According to his ow n accoun t, Mr. Ratliff then seized Mr. Joos, pressed his thumb agains t Mr. Joos's mandibular nerve junction below his jaw, an d repeatedlypushed his thumb forward toward Mr. Joos's nose in a n effort to compel him to open his hand. Indeed, Mr. Ratliff fel t oblig edto repeat this maneuver two or three times the next da y before Mr. Joos finally relented. The magistrate judge, as she had to, accepted Mr. Ratliff's testimony as true, but concluded tha t Mr. Joos was a pre-trial detainee and that Mr. Ratliff's action s were "reasonably related to goals of obtaining plaintiff' s identity..."
Thoughthe matter is not entirely free from doubt, my ow n evalu ationof the undisputed facts in this case leads me to th e concl usionthat, at the time of the incidents of which Mr. Joo s compla ins, he was an arrestee, not a pre-trial detainee, an d that his allegations are therefore to be judged against th e reasonableness requirements of the fourth amendment. See Gr aham v. Conno r , 440 U.S. 386, 395 (1989). Whether the force exerted o n Mr. Jo os in this case was constitutional, therefore, depends o n whether it appears to have bee n reasonable in the circumstances in which it was resorted to. Because determining reasonableness requires a comparison o f ends and means, I take it that it is proper to evaluate th e-3-

importance of the object that the force was employed to achieve
. Preventing the escape of a dangerous felon, for instance, or-4-

preventing an assault on an officer, would be objects that woul d legitimate a large amount of force indeed. But here, th e fingerprinting of Mr. Joos was collateral to the core objects of a criminal proceeding. There is no finding that Mr. Joos's identity was not known, or, even if it was not, that that would hav e interfered with prosecuting him for the offense with which he was charged. So the object of the force, namely, to secure Mr. Joos's fingerprints, seems not to have been essential to the achievement of a compelling government objective. At the means end of th e inquiry, it seems evident that the amount of force used agains t Mr. Joos was not de minimis , that it was resorted to repeatedly , andthat it caused Mr. Joos not inconsiderable pain -- enoug h indeed to cause him to do some thing that he very much did not want to do. Under these circumstances, I cannot say that the force appli ed to Mr. Joos was reasonable. In fact, using force to extrac t information from the bodies of persons accused of crime can rarely be reasonable. I would therefore reverse the district court' s judgment and remand the case for an inquiry into Mr. Joos's damages on this aspect of his complaint.
A true copy.

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