                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2479
JEFFREY J. SULLIVAN,
                                          Plaintiff-Appellant,
                              v.

JON BORNEMANN and ED WHEALON,
                                       Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
         No. 00-C-1392—William C. Griesbach, Judge.
                        ____________
  ARGUED JANUARY 14, 2004—DECIDED SEPTEMBER 14, 2004
                        ____________



 Before FLAUM, Chief Judge, and POSNER and DIANE P.
WOOD, Circuit Judges.
  DIANE P. WOOD, Circuit Judge. After Jeffrey Sullivan was
arrested for disorderly conduct, the Shawano County Jail in
Wisconsin refused to admit him without a medical clear-
ance, because of his high breathalyzer test result. To obtain
that clearance, officers Jon Bornemann and Ed Whealon took
Sullivan to the emergency room of a local hospital. After
Sullivan failed voluntarily to produce a urine sample, the
emergency room doctor ordered a catheterization. At the
direction of medical personnel, Bornemann and Whealon
physically restrained Sullivan during the brief procedure.
2                                                   No. 03-2479

  Believing that the officers’ actions violated his constitu-
tional rights, Sullivan brought suit under 42 U.S.C. § 1983
and added a supplemental battery claim under Wisconsin
law. Ruling on stipulated facts, the district court concluded
that even if Bornemann and Whealon were not authorized
to restrain Sullivan, qualified immunity shielded the officers
from any liability. We affirm the judgment based on our
conclusion that no constitutional violation occurred, which
makes it unnecessary for us to reach the second part of the
qualified immunity inquiry.


                                I
  On November 14, 1999, Bornemann arrested Sullivan and
charged him with disorderly conduct. Sullivan was eventually
handcuffed after initially resisting arrest. A pat-down search
of Sullivan’s person turned up a marijuana pipe. Bornemann
then transported Sullivan to the Shawano County Jail for
processing, where jail personnel administered a
breathalyzer test. When Sullivan’s test registered a .25,
indicating a high level of intoxication, the jail refused to admit
him without a medical clearance. Bornemann transported
Sullivan to the Shawano Medical Center emergency room.
  Upon arrival at the hospital, Sullivan became so uncoop-
erative and verbally abusive that Bornemann called for
assistance. Whealon responded to the call, and the two
officers accompanied Sullivan into the emergency room. Kathy
Actenberg, a certified nurse employed by the Medical
Center, took Sullivan’s vital signs and noted that he had an
elevated heart rate and blood pressure in the upper range of
a normal reading. Nurse Actenberg also observed that
Sullivan was uncooperative, angry, and combative, and that
he seemed disoriented and intoxicated. She knew that
Sullivan had a high breathalyzer result and had been found
with a marijuana pipe.
No. 03-2479                                                 3

  After Nurse Actenberg reported these findings to emer-
gency room doctor Rajeshwar Hanmiah, also employed by
the Medical Center, Dr. Hanmiah directed her to obtain a
urine sample from Sullivan. Dr. Hanmiah testified that he
gave this order because Sullivan’s behavior was erratic and
inconsistent with his level of intoxication and elevated
heart rate. Further, Dr. Hanmiah was concerned that
Sullivan may have ingested other drugs that would interact
with the alcohol in his system. Dr. Hanmiah did not,
however, document these concerns on Sullivan’s medical
chart.
  After receiving instructions from Dr. Hanmiah, Nurse
Actenberg asked Sullivan to produce a urine sample vol-
untarily. Sullivan tried but ultimately failed to do so, even
after Nurse Actenberg ran water in the bathroom sink to
assist him. After half an hour had passed, Dr. Hanmiah
directed Nurse Actenberg to obtain a sample by cathe-
terization, a routine non-surgical procedure. Dr. Hanmiah
testified that he ordered the procedure based on medical
necessity after reviewing Sullivan’s physical appearance,
disposition, and vital signs.
  Nurse Actenberg explained to officers Bornemann and
Whealon that Sullivan’s ability for movement had to be
restricted to minimize the risk of injury and infection during
the brief procedure. She did not solicit, nor did the officers
offer, any opinions or suggestions about Sullivan’s medical
care. They played no role in Dr. Hanmiah’s decision to order
a catheterization. Moreover, Bornemann specifically
informed Sullivan that the urine sample would not be used
for criminal prosecution or other evidentiary purposes.
  After Sullivan was placed on an emergency room bed,
Bornemann restrained Sullivan by placing his arms around
Sullivan’s legs and placing his upper body across Sullivan’s
legs, using his body weight to hold Sullivan’s legs station-
ary. Whealon applied a pressure point technique consistent
4                                                No. 03-2479

with his law enforcement training to minimize Sullivan’s
movement. The technique involved Whealon’s placing his
index finger under the bridge of Sullivan’s nose and apply-
ing pressure. While Sullivan was restrained by the officers,
Nurse Actenberg passed a catheter up Sullivan’s urethra to
obtain a urine sample. The entire process lasted approxi-
mately one minute, with the actual catheterization taking
between 4-6 seconds. Subsequent to the procedure, neither
Bornemann nor Whealon had any further physical contact
with Sullivan. After receiving a medical clearance, Bornemann
transported Sullivan back to the Shawano County Jail for
processing.
  Sullivan never consented to the catheterization and claims
that he suffered pain from the procedure and from the pres-
sure point technique applied by Whealon. This prompted
him to file the present § 1983 action against the two police
officers, Dr. Hanmiah, Nurse Actenberg, and the Shawano
Medical Center, alleging violations of his federal constitu-
tional rights. Sullivan alleged a violation of his Fourth
Amendment protections against unreasonable search and
seizure and a violation of his due process right to refuse
unwanted medical treatment. He also asserted a battery
claim against officers Bornemann and Whealon and a medical
malpractice claim against the hospital defendants.
  The district court granted summary judgment in favor of
Dr. Hanmiah, Nurse Actenberg, and the Shawano Medical
Center on both the § 1983 claims (because the conduct al-
leged was not done under color of state law) and the medical
malpractice claims (because no finder of fact could conclude
that the hospital defendants had violated any applicable
standards of care). Later, after the case was transferred to
a different district judge, the court dismissed the federal
and state claims against officers Bornemann and Whealon
on qualified immunity grounds.
  The district court’s analysis first considered the source of
authority that permitted Dr. Hanmiah to order the cathe-
No. 03-2479                                                  5

terization notwithstanding Sullivan’s refusal to consent. It
concluded that the physician may not have faced a medical
emergency that justified ignoring Sullivan’s refusal to consent
to the catheterization procedure. Imputing this finding to
the police officers, the court concluded that if the doctor’s
catheterization order was not legally justified, Bornemann
and Whealon may not have been authorized to assist by
restraining Sullivan.
  The court ultimately held, however, that the officers were
shielded from liability on the basis of qualified immunity:
even if Dr. Hanmiah’s medical order was not justified as a
matter of law, the defendant officers did not violate any of
Sullivan’s clearly established rights by restraining him be-
cause a rule to the contrary would force police officers to
second-guess the medical judgment of emergency room
physicians. The district court dismissed the constitutional
claims against Bornemann and Whealon on this ground.
The district court also dismissed the battery claim, concluding
that Wisconsin law immunized the officers from liability
because they acted in a discretionary capacity.
  Sullivan appeals only from the rulings concerning
Bornemann and Whealon, leaving undisturbed the district
court’s resolution of his federal and state law claims against
the hospital defendants.


                              II
  The district court entered its judgment after receiving a
stipulation of the facts from the parties. Although the par-
ties suggest that we should review the judgment as if the
court had granted summary judgment, we have explained
that the proper standard of review that governs this pro-
cedure, more akin to a bench trial than anything else, is
found in Federal Rule of Civil Procedure 52(a). Hess v.
Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th
Cir. 2001) (internal citations omitted). “As we would after
6                                                 No. 03-2479

a bench trial, we will review the district court’s legal con-
clusions de novo and review any factual inferences the
district court made from the stipulated record as well as its
application of the law to the facts for clear error.” Id.;
Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004).
   We review the district court’s grant of qualified immunity de
novo. Delgado v. Jones, 282 F.3d 511, 515 (7th Cir. 2002). In
Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
explained the two-step procedure federal courts must use in
considering a qualified immunity defense. Id. at 200. “[T]he
first inquiry must be whether a constitutional right would
have been violated on the facts alleged; second, assuming
the violation is established, the question whether the right
was clearly established must be considered on a more
specific level . . . .” Id. The threshold question is thus
whether the facts alleged here, taken in the light most
favorable to Sullivan, show that the officers’ conduct vio-
lated Sullivan’s constitutional rights. Saucier, 533 U.S. at
200; Siegert v. Gilley, 500 U.S. 226, 232 (1991). We conclude
that the answer is no.
  Sullivan is not asking us to decide whether the Shawano
County Jail’s medical clearance process infringed his con-
stitutional rights. Indeed, he conceded at oral argument
that such a procedure serves a legitimate state purpose.
Bell v. Wolfish, 441 U.S. 520 (1979), holds that a particular
condition or restriction accompanying pretrial detention is
constitutionally permissible if it is reasonably related to a
legitimate governmental objective. Id. at 539. The defen-
dants assert, rightly in our view, that they have an obvious
interest in ensuring that detainees admitted to the jail do
not need immediate medical care, as such treatment and
care may not be readily available. Without such a proce-
dure, law enforcement officials risk liability if a medical
emergency occurs while the detainee is in their custody. See
Estate of Allen v. City of Rockford, 349 F.3d 1015, 1020 (7th
Cir. 2003) (explaining that police officers “would have left
No. 03-2479                                                  7

themselves open to charges of due process violations for
failure to provide appropriate medical care to a pretrial
detainee” if they prevented necessary medical treatment);
Collignon v. Milwaukee County, 163 F.3d 982, 991 (7th Cir.
1998) (stating that the county had a duty to provide for the
basic medical needs of a pretrial detainee). We have ap-
proved of similar policies calculated to provide reasonable
safety to persons in police custody. 163 F.3d at 990 (upholding
a jail’s enforcement of a suicide watch as “a preventative
safety measure” that was prudently designed to eliminate
the risk of injury to the detainee). Thus, there is no ques-
tion that the defendants had a legitimate state interest in
taking Sullivan to the emergency room for a medical clearance
after he registered a high score on the breathalyzer test.
   This case instead poses a far narrower question: did the
officers’ acquiescence in the nurse’s request to help her re-
strain Sullivan during the brief catheterization procedure
violate his rights under either the Fourth or Fourteenth
Amendments? The question is narrow for several reasons.
Sullivan has not appealed the district court’s rulings dis-
missing the hospital defendants, including the doctor who
ordered the catheterization or the nurse who performed it.
It is undisputed that Bornemann and Whealon had no input
into Sullivan’s medical care once he arrived in the emer-
gency room. In addition, Sullivan has not argued that the
catheterization was used to search for evidence determining
his guilt or innocence. It is uncontested that the
catheterization was performed solely to assure Sullivan’s
medical well-being before he was transported to the county
jail. We express no opinion on how, if at all, a difference in
any of these circumstances would affect the analysis.
  Sullivan’s Fourth Amendment claim challenges only his
right to be free of an unreasonable search and seizure; he
has not argued that Bornemann and Whealon used exces-
sive force in restraining him. Sullivan bases his Fourth
Amendment argument on search-and-seizure cases examining
8                                                No. 03-2479

physically invasive procedures used to retrieve evidence
from the person of the defendant. Winston v. Lee, 470 U.S.
753, 766 (1985) (finding that a compelled surgical procedure
to recover a bullet from beneath the skin of a robbery
suspect violated the Constitution); Rochin v. California, 342
U.S. 165, 172 (1972) (suppressing evidence obtained when
the police had the defendant’s stomach pumped to retrieve
capsules that they could not forcibly extract from his
mouth); Schmerber v. California, 384 U.S. 757, 771 (1966)
(determining that the state could submit drunk drivers to
a blood test for purposes of collecting evidence); United
States v. Husband, 226 F.3d 626, 631-33 (7th Cir. 2000)
(considering whether police may use general anesthesia to
recover evidence from the person of the defendant); see also
Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir. 1995) (deter-
mining that a catheter could be used for the purpose of
evidence retrieval). These cases do not answer the question
before us, however, because Sullivan’s catheterization was
not ordered by law enforcement officers to establish
Sullivan’s guilt or innocence. The results of the test, which
incidently showed the presence of both alcohol and mari-
juana, were never used in Sullivan’s criminal proceedings.
  While the Fourth Amendment does protect Sullivan’s
expectations of privacy, the law provides that this applies
only to “legitimate expectations that in certain places and
at certain times [an individual] has the right to be let
alone.” Winston, 470 U.S. at 758 (citation and internal quo-
tation marks omitted) (emphasis added). It is clear that
Sullivan’s expectations of privacy diminished substantially
once he was arrested for disorderly conduct (an arrest that
he has not challenged on probable cause or other grounds),
found to have drug paraphernalia on his person, and re-
corded a high alcohol level on the breathalyzer test. At that
point, the officers were entitled to seek medical attention.
  There is no rule to the effect that law enforcement offi-
cials are constitutionally prohibited from briefly restraining
No. 03-2479                                                9

a detainee at the direction of qualified medical personnel,
with the purpose of minimizing injury to the detainee.
Under the circumstances here, which we have already
recounted, the officers’ actions were entirely reasonable. As
the district court correctly noted in its discussion of the
qualified immunity defense, a holding to the contrary would
place law enforcement officers in the impossible position of
having to second-guess the medical judgments of emergency
room physicians. Police officers like Bornemann and Whealon
should not be at risk of liability under § 1983 for medical
decisions made exclusively by the emergency room physi-
cian. We conclude that the officers’ actions under the cir-
cumstances presented here did not violate Sullivan’s rights
under the Fourth Amendment. See Florida v. Jimeno, 500
U.S. 248, 250 (1991) (noting that the “touchstone of the
Fourth Amendment is reasonableness”).
   Sullivan’s due process claim is even less compelling. He
relies primarily on Cruzan v. Missouri Dept. of Health, 497
U.S. 261, 278 (1990), which held that a competent person
has a constitutionally protected liberty interest in refusing
unwanted medical treatment. But Cruzan, which dealt with
the rights of a person in a persistent vegetative state, has
little applicability to these facts. Moreover, the passage in
Cruzan on which Sullivan relies is followed by an important
qualification, in which the Court said that “determining
that a person has a liberty interest under the Due Process
Clause does not end the inquiry; whether respondent’s con-
stitutional rights have been violated must be determined by
balancing his liberty interests against the relevant state
interests.” Id. at 279. We have already noted that the state
has a substantial interest in assuring the medical stability
of its pretrial detainees; indeed, were it to be deliberately
indifferent to their health, it could be sued under the
Fourteenth Amendment. Allen, 349 F.3d at 1020. Applying
the balancing process envisioned by Cruzan, we have little
trouble finding that the minimal invasion of his privacy
interest here is outweighed by the state’s interest.
10                                                  No. 03-2479

  Moreover, Bornemann and Whealon played only a minor
role in the alleged invasion of his rights. They had nothing
to do with Dr. Hanmiah’s decision to order the catheteriza-
tion. Allen, 349 F.3d at 1021 (“Conspicuously absent from
the Cruzan opinion is any language suggesting that state
actors who are not physicians must prevent unwanted
medical treatment . . . .”) Furthermore, Sullivan strains
Cruzan by characterizing the county jail’s clearance process
as the type of medical care for which his consent is re-
quired. As his attorney conceded, Sullivan had no right to
refuse treatment once he was arrested and transported to
the emergency room. Bornemann and Whealon’s role in the
catheterization procedure did not violate any Fourteenth
Amendment norm concerning unwanted medical care. Be-
cause their brief restraint of Sullivan did not violate Sullivan’s
constitutional rights under either the Fourth or Fourteenth
Amendments, we need not consider whether the rule for
which Sullivan contends was clearly established, or if the
officers were entitled to qualified immunity. Saucier, 533
U.S. at 201.


                              III
  Sullivan also brought a battery claim against Bornemann
and Whealon under Wisconsin law. A Wisconsin statute pro-
vides that no action may be maintained against public
agencies or employees for acts done in the exercise of “legi-
slative, quasi-legislative, judicial, or quasi-judicial func-
tions.” Wis. Stats. § 893.80(4). Wisconsin courts have
recognized these quoted terms as being synonymous with
“discretionary functions,” Kimpton v. School Dist., 405
N.W.2d 740, 743-74 (Wis. Ct. App. 1987) (citation omitted),
and have held that a public officer is immune from suit
where the act or acts complained of fall within the scope of
the individual’s public office. C.L. v. Olson, 422 N.W.2d 614,
617-20 (Wis. 1988). The district court dismissed Sullivan’s
No. 03-2479                                             11

battery claim because it concluded that Bornemann and
Whealon acted in a discretionary capacity when they
obtained a medical clearance for Sullivan. Sullivan has
raised no argument on appeal to persuade us to reconsider
the district court’s resolution of this claim.


                            IV
  For these reasons, we AFFIRM the judgment of the district
court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—9-14-04
