concurring:

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.

I join in the reversal of the district court’s judgment because it cannot be determined from the pleadings whether appellant can prove facts which would entitle him to relief. According to the allegations of the complaint, appellant was subjected to a forcible, painful, and humiliating seizure of evidence against his will. The complaint placed in issue the constitutionality of the procedure employed. The district court erred in resolving that issue without an evidentiary hearing on the total circumstances surrounding the challenged police conduct. The reasonableness, within the meaning of the Fourth and Fourteenth Amendments, of the seizure of evidence will turn upon such factual questions as whether the police were acting under any authorization, whether there was an urgent need for the hair sample in the criminal investigation, whether efforts were made to minimize appellant’s emotional and physical discomfort, and whether excessive force was *552 utilized during the procedure. 1 I would therefore vacate the judgment below and remand to give appellant the opportunity to support the allegations of his complaint with factual proof.

The majority opinion goes a step further and decides the constitutional issue on the merits, holding that the failure of the police to obtain a warrant rendered the challenged procedure unconstitutional. I respectfully suggest that the holding looks beyond the factual allegations of the pleadings 2 and misses the true thrust of appellant’s complaint. The complaint was directed at the means and procedures employed in obtaining the evidence and the police officers’ disregard for appellant’s personal sensitivity. A prior judicial authorization, without more, would not have avoided the alleged emotional and physical trauma suffered by appellant. Moreover, I find considerable support for appellee’s position that a warrant was not constitutionally required under the circumstances presented here. See United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974); United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); cf. Charles v. United States, 278 F.2d 386 (9th Cir.), cert. den. 364 U.S. 831 , 81 S.Ct. 46 , 5 L.Ed.2d 59 (1960). In any event, I believe the question should not be resolved without the benefit of a complete factual record. I would therefore refrain from deciding the constitutional claim on the merits and would remand for a full evidentiary, hearing.

. The facts relevant to appellant’s constitutional claim are much the same as those relevant to appellee’s defense of immunity. Indeed, it has been noted that the immunity of a state officer is integrally related to a civil rights claim against him, and that a complaint under 42 U.S.C. § 1983 should allege facts sufficient to overcome the officer’s qualified immunity in order to state a cause of action. Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. den. 414 U.S. 1033 , 94 S.Ct. 462 , 38 L.Ed.2d 32 (1973).

. The pleadings set forth no allegations pertaining to a search warrant. The issue of a warrant requirement was not directly addressed until appellant moved to vacate the judgment of dismissal. R.A. 40.