WASHINGTON -- A brief, unexplained Supreme Court order yesterday made it appear that police now have less authority than they have had for a quarter-century to use force to get blood samples from drunken-driving suspects.
The court refused, without comment, to review a 6-5 decision by a federal appeals court spelling out a new, more restrictive rule on the use of physical force by officers when a suspect refuses to submit to a test of drunkenness.
The Supreme Court's unwillingness to disturb that decision made it appear that the justices found no strong reason to second-guess the ruling at this point.
The fact that the Supreme Court declined review does not mean the justices agreed with the Circuit Court, nor does it mean the lower court decision is the law nationwide.
The ruling by the 9th U.S. Circuit Court of Appeals in San Francisco meant the tribunal had largely cast aside a 1966 Supreme Court ruling as the standard for weighing the use of force when officers deal with a drunken-driving suspect who is resisting a demand for a sobriety test.
In 1966, the Supreme Court declared in Schmerber vs. California that police may use whatever force they deem necessary to obtain a blood sample, so long as officers did not go so far as to "shock the conscience." That was a lenient standard, giving police wide authority.
But the 9th Circuit Court, in a case involving action by police in Newport Beach, south of Los Angeles, said a 1989 Supreme Court ruling now controlled all cases involving the use of force by police in initial encounters with suspects.
The 1989 decision, Graham vs. Connor, declared that police must not use more than the amount of force "a reasonable officer" would use -- a test that balances the privacy rights of the individual against the objective the police are pursuing at the time.
Although that decision involved taking an individual into custody, the Circuit Court ruled in the Newport Beach case that the same standard should be used once the officers have detained an individual.
The ruling came in a case involving Timothy Hammer, stopped by police early one morning six years ago. After he failed sobriety tests at the scene, he was taken to a hospital for more tests.
After he refused to take another test, a police officer wrestled him to the floor, then summoned other officers to hold him down as a hospital aide took the sample.
Mr. Hammer sued, claiming the officers violated his rights. A jury awarded $2,500 in damages against the city of Newport Beach, plus damages against the arresting officer.
The Circuit Court, laying down the new standard, upheld the damages only against the city. It ruled that the arresting officer could not have expected that he would be judged by a new constitutional standard.
The case was Newport Beach vs. Hammer (No. 91-270).
Libel lawsuit. The court also refused to review a California state court ruling that a Japanese publisher of Focus, a magazine that specializes in sensational stories, may be sued for libel in California for a story critical of a Japanese man living in the state temporarily, when the publisher's only contact with California was the sale there, by others, of 40 copies of the magazine. Shinchosha vs. Superior Court (No. 91-478).
Music royalties. Without comment, the court refused to block the payment of $843,000, plus interest, in music royalties to singers B. J. Thomas and Gene Pitney and the Shirelles singing group. A Nashville music publisher used master recordings made by those performers but insisted that it need not pay royalties for a past period when another firm owned those recordings. That claim was rejected in lower courts. Gusto Records vs. Thomas (No. 91-703).
Airline crash. Without explanation, the court turned aside a plea to reinstate a $50 million "punitive" damages award to 137 survivors of passengers killed in 1983 when a Korean Air Lines jet, Flight 007, was shot down by Soviet military planes when the airliner veered off course and strayed over Soviet territory. A lower court ruled that such damages had been barred by an international commercial air treaty, the "Warsaw Convention." The case was Dooley vs. Korean Air Lines (91-251). In a separate order, the court also refused to hear a challenge by Korean Air Lines to the jury's verdict that the airline had engaged in "willful misconduct," leading to the incident. The case was Korean Air Lines vs. Dooley, (No. 91-547).