What is the test for a civil rights action under the Civil Rights Act?

I concur in the reversal of the district court's judgment dismissing the action on the pleadings. Complaints under the Civil Rights Act are to be liberally construed and should be dismissed for failure to state a claim only if the plaintiff can prove no set of facts which would entitle him to relief. Sherman v. Yakahi, 549 F.2d 1287 (9th Cir., 1977). I agree with the majority opinion insofar as it holds that the complained of procedure was a "search and seizure" within the meaning of the Fourth Amendment and therefore subject to constitutional scrutiny. I also agree with the majority's directive that the failure of the police to obtain a search warrant should be considered in assessing the reasonableness of the procedure. However, I depart from the majority ruling to the extent it holds that the absence of a search warrant renders the procedure unlawful per se.

In his complaint, appellant alleged, inter alia, that the challenged procedure was carried out against his will by use of threats and force, that he was thereby placed in fear of bodily harm, and that he suffered pain and humiliation at the hands of appellee. Thus, on its face, the complaint posed the issue whether the procedure employed in obtaining the hair sample was so unreasonable or outrageous as to amount to a violation of appellant's constitutional rights. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). On the basis of the pleadings, the district court ruled "(t)he subjective 'shock the conscience' test of Rochin v. California . . . ha(d) not been met." R.A. 36.