Fisher v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN FISHER, 

Plaintiff-Appellee,

and

SANDRA FISHER,

Plaintiff,

v.

No. 04-16095

CITY OF SAN JOSE,

D.C. No.

Defendant-Appellant,

and

 CV-01-21192-PVT

ORDER AND

CITY OF SAN JOSE POLICE OPINION

DEPARTMENT; OFFICER BOLER;

OFFICER BARNETT; OFFICER CORREA;

OFFICER ESQUIVEL; OFFICER HONDA;

OFFICER KINSWORTHY; OFFICER

O’BRIEN; OFFICER RYAN; OFFICER

NGUYEN,

Defendants.



Appeal from the United States District Court

for the Northern District of California

Patricia V. Trumbull, Magistrate Judge, Presiding

Argued and Submitted

April 5, 2006—San Francisco, California

Filed November 20, 2007

Before: David R. Thompson, Marsha S. Berzon, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Callahan

15039

FISHER v. CITY OF SAN JOSE 15043

COUNSEL

Clifford S. Greenberg, Senior Deputy City Attorney, San

Jose, California, for defendant-appellant City of San Jose.

Donald E.J. Kilmer, Jr., San Jose, California, for plaintiff-

appellee Steven Fisher.

ORDER

The opinion filed on January 16, 2007 is hereby withdrawn

and replaced by this concurrently filed opinion. The pending

petition for rehearing en banc is denied as moot. The parties

may file new petitions for rehearing.

OPINION

BERZON, Circuit Judge:

Steven Fisher claims constitutional violations stemming

from a twelve-hour standoff at his apartment between him and

a large number of San Jose police officers, at the end of which

he came out of the apartment and submitted to arrest. He sued

the city of San Jose (“the City”) and several officers under 42

15044 FISHER v. CITY OF SAN JOSE

U.S.C. § 1983, contending, among other things, that the arrest

was invalid because the police never obtained or attempted to

obtain a warrant. A jury found for the defendants on all

claims, including a claim for warrantless arrest. Fisher there-

upon filed a renewed motion under Federal Rule of Civil Pro-

cedure 50(b) for judgment as a matter of law on the

warrantless arrest claim. Granting the motion against the City,

the district court ordered the City to pay nominal damages of

one dollar and issued an injunction regarding future training

of police officers. We uphold the district court’s ruling on

appeal, as we agree that the failure to obtain a warrant under

the circumstances of this case constituted a constitutional vio-

lation as a matter of law.

I. Background

A. The Standoff

On the afternoon of Saturday, October 23, 1999, Fisher

bought two twelve-packs of beer and settled in at home for an

evening of watching the World Series and cleaning rifles from

his collection of approximately eighteen World War II-era

firearms. Both the guns and the beer figured prominently in

the ensuing events.

Those events began when, around midnight, Leo Serrano,

a security guard at Fisher’s apartment complex, was walking

near Fisher’s apartment investigating noise complaints regard-

ing Fisher’s upstairs neighbor. Fisher’s apartment is on the

bottom floor of the apartment complex and has a sliding glass

door leading out to an enclosed patio; passers-by can see into

the apartment through the glass door. Noticing Fisher in his

apartment, Serrano motioned for him to come outside and

speak with him. Fisher walked out, carrying the rifle he had

been cleaning when Serrano called to him.

When Serrano asked Fisher about the noise coming from

his upstairs neighbor, Fisher was generally unresponsive,

FISHER v. CITY OF SAN JOSE 15045

eventually changing the subject to the Second Amendment.

Throughout the short conversation, Fisher held his rifle in var-

ious positions. Whether Fisher pointed the rifle at Serrano is

not clear: At trial, Serrano testified that Fisher did not, but an

officer who had been called to the scene testified at trial that

when he arrived at Fisher’s apartment complex, Serrano told

him that Fisher had pointed the rifle toward him during the

initial encounter. Either way, Serrano suspected that Fisher

was intoxicated and, feeling uncomfortable and frightened in

Fisher’s presence because of the liquor, the gun, and the odd

reaction to Serrano’s questions, left to tell his supervisor

about his interaction with Fisher. The supervisor notified the

police, who responded by sending officers to the scene.

Sergeant Ryan was among the first to arrive, at around 2

a.m. After speaking with Serrano, Ryan approached Fisher’s

patio and attempted to get Fisher’s attention by throwing

small rocks at the sliding glass doors. Fisher came to the door

but, rather than answering Ryan’s questions, spoke in a ram-

bling fashion of his Second Amendment rights. Ryan, too,

believed that Fisher was intoxicated.

After Ryan tried to speak with Fisher, more police officers

began arriving at the scene; eventually, over sixty officers

participated in the standoff. Early on, some officers tele-

phoned Fisher’s apartment. When Fisher’s wife, Sandra,

answered the phone, the officers instructed her to leave the

apartment, which she did. It is not clear whether she put the

phone back on the hook, but it was busy throughout the

remainder of the standoff. When she emerged, Sandra

informed the police that no one other than Fisher was inside

the apartment. She also confirmed that Fisher had eighteen

rifles in the apartment and had been drinking.

At approximately 3 or 4 a.m., Jan Males, a tactical negotia-

tor, arrived and tried to communicate with Fisher. Unprompt-

ed, Fisher informed Males that he had a right to bear arms. He

invited Males into his apartment but said he would shoot her

15046 FISHER v. CITY OF SAN JOSE

if she did come in. Males determined that this statement was

a criminal threat, a felony.

Aside from that interaction, throughout the early morning

Fisher repeatedly told the police to “go away, leave me alone,

and don’t bother me.” Twice during that period, Officer

Boler, who was observing the apartment from across the

street, reported that Fisher was pointing one of his rifles at

Ryan and Males, who were the officers closest to Fisher’s

apartment and were sheltering themselves behind a tree. Boler

also reported that Fisher was moving the rifles around his

apartment. Despite these observations and the threat to Males,

no officer told Fisher during those early morning hours that

he was under arrest.

Fisher was last seen with a rifle at approximately 6:30 a.m.

A little while later, at around 7 a.m., the Mobile Emergency

Response Group and Equipment (“MERGE”) team came to

the scene, replacing the patrol officers who had arrived first.1

Some of the replaced patrol officers returned to the station

house to write police reports about the incident.

The MERGE team finished evacuating all residents from

the surrounding apartments at 7:30 a.m. At that point, believ-

ing that Fisher had committed a crime — pointing a rifle at

police officers — the MERGE team focused its efforts on

forcing him out of his apartment to arrest him. Officers used

a bullhorn to ask Fisher to leave his apartment, but did not tell

him he was under arrest. The officers had Fisher’s power

turned off at 8:48 a.m. and then broke the sliding glass doors

so a “throw phone”2 could be tossed through, as Fisher’s

phone remained busy. At 10:52 a.m., the police set off a

“flash-bang” device, designed to get Fisher’s attention and

disorient him briefly. Two hours later, at approximately 1:00

1

The MERGE team was called at 4:45 a.m.

2

A throw phone is a phone encased in a box that also contains an open

microphone.

FISHER v. CITY OF SAN JOSE 15047

p.m., the police began throwing CS gas canisters into Fisher’s

apartment.3 One of the CS gas volleys sent glass flying, cut-

ting Fisher’s forehead above one eye.

At 2 p.m., the police again attempted to contact Fisher, this

time by bullhorn. They finally achieved telephone contact, via

the throw phone, at 2:13 p.m. Fisher stated at that point that

he was willing to leave his apartment and offered to leave

naked so that the police would not suspect him of carrying a

weapon. When the police told him that this was not necessary,

he said that he would come out in his boxers and socks. The

police approved this plan.

Fisher emerged from his apartment at 2:35 p.m. He initially

followed police instructions, walking in the designated direc-

tion and keeping his hands in the air. Soon, however, he

stopped walking forward. One of the officers thereupon shot

him in the leg with a “sage gun,” which shoots less-than-

lethal rubber bullets. Fisher then lay down on the ground, and

the officers handcuffed him and took him into custody.

Some of the police officers involved in the first shift who

returned to the police station after they left in the morning tes-

tified that they had intended to arrest Fisher. All the police

officers who were asked at Fisher’s § 1983 trial whether they

attempted to procure a warrant said they had not, including

some of those who returned to the station in the morning.

Also, all of the officers who were asked testified that they did

not believe a warrant was necessary. Finally, all of the offi-

cers who were asked testified that they knew that judges are

available twenty-four hours a day to issue warrants.

Fisher was tried for felony violations of California Penal

Code sections 417 and 417.8, which prohibit, in general,

drawing, exhibiting, or using a firearm or deadly weapon

against a peace officer or with the intent to resist or prevent

3

CS gas causes irritation and burning sensations.

15048 FISHER v. CITY OF SAN JOSE

an arrest. The jury deadlocked, and Fisher then pleaded no

contest to a misdemeanor charge of brandishing a firearm in

the presence of a security officer.

B. The Lawsuit

Fisher and his wife sued the City, the San Jose Police

Department, and several San Jose police officers. They

alleged, among other causes of action, that (1) Fisher’s war-

rantless arrest was an unreasonable seizure; and (2) the use of

the sage gun and of the CS gas constituted state law batteries.

The basis for the claim against the City was that it was “either

jointly and severally liable; and/or vicariously liable through

the doctrine of respondeat superior for the actions of its

employee police officers also named herein in their individual

capacity.”

After an eight-day jury trial, Fisher filed a motion for judg-

ment as a matter of law under Federal Rule of Civil Procedure

50(a), but the court denied the motion. The jury then found

for the defendants on all claims. After the jury verdict, Fisher

filed a renewed motion for judgment as a matter of law under

Federal Rule of Civil Procedure 50(b). The court denied the

motion on all other grounds but granted it as to the warrant-

less arrest claim against the City.

In so ruling, the district court laid out its reasoning in some

detail. Observing that “[t]he very circumstances under which

Steven Fisher w[as] arrested negate any implication that there

was any great exigency in arresting him without securing a

warrant,” the court ruled that, because “between 6:30 a.m. and

the time Fisher was taken into custody at 2:35 p.m., no exi-

gency existed[,] . . . Defendants . . . had ample opportunity

and time to seek a warrant from a neutral and detached ‘mag-

istrate,’ as they were required to do under law.” The court

expressed skepticism as to why, when “well over sixty offi-

cers [were] present at the Fisher’s apartment complex,” not

FISHER v. CITY OF SAN JOSE 15049

one of them was able to seek a telephone warrant before

Fisher submitted to arrest.

The court awarded one dollar in nominal damages to Fisher

and injunctive relief, ordering the City to train its officers “on

what is required under the Fourth Amendment and the case

law interpreting it lawfully to arrest a suspect in his or her

home and on the procedures for obtaining warrants both in-

person and on the telephone.” The City now appeals, chal-

lenging only the court’s constitutional determination regard-

ing the failure to obtain a warrant.

II. Standard of Review

This appeal arises from the grant of a Rule 50(b) renewed

motion for judgment as a matter of law. That Rule provides:

If the court does not grant a motion for judgment as

a matter of law made [under Rule 50(a)], the court

is considered to have submitted the action to the jury

subject to the court’s later deciding the legal ques-

tions raised by the motion . . . .

Fed. R. Civ. P. 50(b). It is thus Rule 50(a) that sets out the

standard for granting Rule 50(b) motions — whether there is

a “legally sufficient evidentiary basis [for a reasonable jury]

to find for that party on [an] issue,” and, if not, whether “a

claim or defense . . . can, under the controlling law, be main-

tained or defeated only with a favorable finding on that

issue.” Fed. R. Civ. P. 50(a). “Sufficient evidence” is “evi-

dence adequate to support the jury’s conclusion, even if it is

also possible to draw a contrary conclusion.” Pavao v. Pagay,

307 F.3d 915, 918 (9th Cir. 2002).

This court reviews the district court’s grant of a renewed

motion for judgment as a matter of law de novo. Id. The dis-

trict court’s “judgment is proper if the evidence, construed in

the light most favorable to the nonmoving party, permits only

15050 FISHER v. CITY OF SAN JOSE

one reasonable conclusion, and that conclusion is contrary to

the jury’s verdict.” Id. Moreover, “when reviewing a motion

for judgment as a matter of law, we apply the law as it should

be, rather than the law as it was read to the jury,” even where

the party failed to object to the instructions. Pincay v.

Andrews, 238 F.3d 1106, 1109 n.4 (9th Cir. 2001).4

4

The City argues, to the contrary, that because Fisher did not object to

the instructions at trial, he can make a Rule 50(b) motion only on the

ground that, on the jury instructions given, no substantial evidence sup-

ported the verdict. This argument is not illogical, but it is incorrect.

True, an “appellant may not challenge on review the correctness of

instructions to which he took no exceptions or only a general exception.”

Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 182 n.5 (9th

Cir. 1989) (quoting Coca Cola Bottling Co. of Black Hills v. Hubbard,

203 F.2d 859, 862 (8th Cir. 1953), and noting the Supreme Court’s

implicit adoption of this principle in Aspen Skiing Co. v. Aspen Highlands

Skiing Corp., 472 U.S. 585 (1985)). But that principle does not foreclose

appellate review of an underlying legal question in the case through a Rule

50(b) motion. “ ‘[T]he failure to object to an instruction does not render

the instruction the “law of the case” for purposes of appellate review of

the denial of a directed verdict or judgment notwithstanding the verdict.’ ”

City of St. Louis v. Praprotnik, 485 U.S. 112, 120 (1988) (plurality opin-

ion) (quoting City of Springfield v. Kibbe, 480 U.S. 257, 264 (1987)

(O’Connor, J., dissenting)). If a party moves under Rule 50 for judgment

as a matter of law both before and after the verdict, as Fisher did, the

motions are “sufficient to preserve the . . . issue for appeal, ‘[a]lthough the

same legal issue was raised by both those motions and [by] the jury

instruction.” Air-Sea Forwarders, 880 F.2d at 183 (quoting Praprotnik,

485 U.S. at 120) (second alteration in original). As the jury instructions

on the warrant issue do not matter to our review of the grant of the Rule

50(b) motion, we do not consider them.

FISHER v. CITY OF SAN JOSE 15051

III. Warrantless Arrest or Seizure

A. Arrest or Seizure Inside the Home and Exigent

Circumstances

1. The Warrant Requirement

[1] In general, police may not enter a person’s home to

arrest him without obtaining a warrant. See Payton v. New

York, 445 U.S. 573, 589-90 (1980); United States v. Prescott,

581 F.2d 1343, 1350 (9th Cir. 1978).5 Indeed, “[a]t the very

core [of the Fourth Amendment] stands the right of a man to

retreat into his own home and there be free from unreasonable

governmental intrusion.” Silverman v. United States, 365 U.S.

505, 511 (1961); see also Frunz v. City of Tacoma, 468 F.3d

1141, 1142 (9th Cir. 2006) (“Physical entry into the home is

the ‘chief evil against which the wording of the Fourth

Amendment is directed.’ ” (quoting United States v. U.S. Dis-

trict Court, 407 U.S. 297, 313 (1972)); LaLonde v. County of

Riverside, 204 F.3d 947, 954 (9th Cir. 2000) (noting “the

home is perhaps the most sacrosanct domain and . . . there,

Fourth Amendment interests are at their strongest”). To pro-

tect this right to privacy in the home, the decision as to

whether sufficient probable cause exists to arrest someone at

home cannot be left to police officers:

[Fourth Amendment] protection consists in requiring

that [inferences from the evidence] be drawn by a

5

Although the words of the Fourth Amendment are familiar, it is worth

recalling them before embarking on an exegesis of the warrant require-

ment in the unusual circumstances here presented. The Fourth Amendment

reads:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to

be seized.

15052 FISHER v. CITY OF SAN JOSE

neutral and detached magistrate instead of being

judged by the officer engaged in the often competi-

tive enterprise of ferreting out crime. . . . When the

right of privacy must reasonably yield . . . is, as a

rule, to be decided by a judicial officer, not by a

policeman or Government enforcement agent.

Johnson v. United States, 333 U.S. 10, 14 (1948); see also

Steagald v. United States, 451 U.S. 204, 212 (1981) (“The

purpose of a warrant is to allow a neutral judicial officer to

assess whether the police have probable cause to make an

arrest or conduct a search.”). As a result, “the Fourth Amend-

ment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reason-

ably be crossed without a warrant.” Payton, 445 U.S. at 590.

[2] Because the warrant requirement for in-home arrests is

based on an understanding of the sanctity of the home, it is

primarily concerned with entries into a home to effect an

arrest, not with the seizure of the individual. Thus, “the criti-

cal time for determining whether any exigency exists is the

moment the officer makes the warrantless entry.” United

States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001) (en banc)

(per curiam) (emphasis added). As explained in the Second

Circuit’s opinion upon which Payton relied as “persuasive”:

To be arrested in the home involves not only the

invasion attendant to all arrests but also an invasion

of the sanctity of the home. This is simply too sub-

stantial an invasion to allow without a warrant, at

least in the absence of exigent circumstances, even

when it is accomplished under statutory authority

and when probable cause is clearly present.

United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)

(quoted with approval in Payton, 445 U.S. at 588-89). Indeed,

as the facts of Payton itself illustrate, a warrantless entry

made for purposes of arrest or seizure is constitutionally

FISHER v. CITY OF SAN JOSE 15053

invalid even if no arrest ensues because the suspect is not

there. See id. at 576-77.

[3] In determining whether an arrest occurs in a home or in

a public place, “it is the location of the arrested person, and

not the arresting agents, that determines whether an arrest

occurs within a home.” United States v. Johnson, 626 F.2d

753, 757 (9th Cir. 1980), aff’d, 457 U.S. 537 (1982). Apply-

ing that concept, every court that has considered the issue,

including our own, has concluded that if the police force a

person out of his house to arrest him, the arrest is deemed to

have taken place inside his home, and the Payton warrant

requirement applies. United States v. Johnson, 626 F.2d at

757. In United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.

1985), for example, “the police had completely surrounded

appellee’s trailer with their weapons drawn and ordered him

through a bullhorn to leave the trailer and drop to his knees.”

Id. at 893. Because the defendant “was in his trailer at the

time he was surrounded by armed officers, and since he did

not voluntarily expose himself to their view or control outside

his trailer but only emerged under circumstances of extreme

coercion, the arrest occurred while he was still inside his trail-

er.” Id.; see also Bing ex rel. Bing v. City of Whitehall, 456

F.3d 555, 564 (6th Cir. 2006) (“By laying siege to Bing’s

house, breaking his door and windows, and employing pepper

gas, the police accomplished . . . a Fourth Amendment sei-

zure.”); Ewolski v. City of Brunswick, 287 F.3d 492, 506 (6th

Cir. 2002) (“[P]olice efforts to force a barricaded individual

out of a home are properly treated as seizures . . . .”); Sharrar

v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (“[W]hen a

SWAT team surrounds a residence with machine guns pointed

at the windows and the persons inside are ordered to leave the

house backwards with their hands raised, an arrest has

undoubtably occurred.”); United States v. Maez, 872 F.2d

1444, 1450 (10th Cir. 1989) (holding that defendant was

arrested in his home when a SWAT team holding rifles sur-

rounded his trailer and asked him to leave his home by means

of a loudspeaker); United States v. Morgan, 743 F.2d 1158,

15054 FISHER v. CITY OF SAN JOSE

1164 (6th Cir. 1984) (concluding defendant “was placed

under arrest, without the issuance of a warrant, at the moment

the police encircled [his] residence”).

[4] The Al-Azzawy principle, and therefore the Payton war-

rant requirement, necessarily applies, moreover, to in-house

seizures that do not amount to a formal arrest. We have held

that although Fourth Amendment seizures that do not amount

to arrests may be accomplished on reasonable suspicion rather

than probable cause under Terry v. Ohio, 392 U.S. 1, 20

(1968), the special status of in-house seizures recognized in

Payton means that “probable cause is a precondition for any

warrantless entry to seize a person in his home.” LaLonde,

204 F.3d at 954.6 For similar reasons, any in-house seizure

must be subject to the warrant requirement as well, absent an

applicable exception. We agree in this regard with the Sixth

Circuit, which has reasoned as follows:

[L]ike a full-blown arrest, an investigatory detention

is a seizure that is subject to Fourth Amendment

scrutiny. Thus, Payton’s holding that warrantless sei-

zures of persons in their homes violate the Fourth

Amendment, absent exigent circumstances, applies

. . . regardless of whether the officers at issue were

conducting an arrest or an investigatory detention.

United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001)

(citations omitted).

[5] It therefore does not matter for present purposes

whether any seizure of Fisher that occurred before he was

taken into custody at the conclusion of the standoff would

have amounted to an arrest or only to a Terry seizure had the

seizure occurred outside the home. Either way, a warrant was

presumptively required.

6

Fisher concedes that probable cause to believe he committed a crime

existed during the standoff.

FISHER v. CITY OF SAN JOSE 15055

2. Exceptions to the Warrant Requirement

The warrant requirement, however, is not without excep-

tions. Defendants rely in this case on the exigency exception

to the warrant requirement.

[6] The exigency exception can excuse a warrant for an in-

home arrest when probable cause exists and there is a compel-

ling reason for not obtaining a warrant — for example, a

“need to protect an officer or the public from danger, [a] need

to avoid the imminent destruction of evidence, when entry in

‘hot pursuit’ is necessary to prevent a criminal suspect’s

escape, [or a need] to respond to fires or other emergencies.”

United States v. Brooks, 367 F.3d 1128, 1133 n.5 (9th Cir.

2004) (citations omitted), cert. denied, 543 U.S. 1058 (2005).

As the term “exigency” suggests,7 however, such circum-

stances are not alone enough to establish exigency and

thereby to excuse the warrant requirement. Instead, “ ‘[w]hen

an officer undertakes to act as his own magistrate, he ought

to be in a position to justify it by pointing to some real imme-

diate and serious consequences if he postponed action to get

a warrant.’ ” Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)

(quoting McDonald v. United States, 335 U.S. 451, 460

(1948) (Jackson, J., concurring)). Consequently, a situation is

exigent for purposes of permitting an arrest without a warrant

only if a warrant could not be obtained in time to effect the

arrest safely — that is, for present purposes, without causing

a delay dangerous to the officers or to members of the public.

See Michigan v. Tyler, 436 U.S. 499, 509 (1978) (“[A] war-

rantless entry by criminal law enforcement officials may be

legal when there is compelling need for official action and no

time to secure a warrant.” (emphasis added)); United States

v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979) (holding exi-

7

Merriam-Webster’s Collegiate Dictionary defines “exigent” as “requir-

ing immediate aid or action.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

406 (10th ed. 1999) (emphasis added).”

15056 FISHER v. CITY OF SAN JOSE

gent circumstances exist where “a substantial risk of harm to

the persons involved or to the law enforcement process would

arise if the police were to delay a search until a warrant could

be obtained” (emphasis added)).

[7] Inherent in this standard, as the just-quoted italicized

language indicates, are considerations regarding the time

required, as a practical matter, to obtain a warrant. Conse-

quently, where exigency is claimed, we have required “the

government either to attempt, in good faith, to secure a war-

rant or to present evidence explaining why a telephone war-

rant was unavailable or impractical.” United States v. Alvarez,

810 F.2d 879, 883 (9th Cir. 1987) (footnote omitted).

The appropriate moment for assessing whether the require-

ments for the exigency exception are met is the moment at

which any entry to effect an arrest or to conduct a search

occurs. See United States v. Johnson, 256 F.3d 895, 907 (9th

Cir. 2001) (“the critical time for determining whether any exi-

gency exists is the moment the officer makes the warrantless

entry”). Even where exigent circumstances existed to conduct

a search or effect an arrest at some earlier moment, an arrest

warrant will be required as soon as those exigent circum-

stances pass.

In Mincey v. Arizona, 437 U.S. 385 (1978), for example,

the Supreme Court made clear that “a warrantless search must

be ‘strictly circumscribed by the exigencies which justify its

initiation.’ ” Id. at 393. The Court noted that while it was

acceptable for officers arriving at the scene of a homicide to

“make a prompt warrantless search of the area to see if there

are other victims or if a killer is still on the loose,” no exigent

circumstances justified a search of a homicide scene without

a warrant once “all the persons” on the scene had been located

and the suspect arrested. Id. Thus, the warrantless search of

the murder scene a mere ten minutes after all injured parties

were removed and the premises secured violated the Fourth

Amendment. Id. at 388-89, 393; see also Johnson, 256 F.3d

FISHER v. CITY OF SAN JOSE 15057

at 907-08 (holding that, although there might have been exi-

gency had the deputy pursuing the suspect followed him

immediately into the house, there was no exigency by the

time the deputy entered because he waited half an hour for

backup to arrive and returned to the site where he lost the sus-

pect to retrieve his pepper spray container).8

8

The dissent repeatedly maintains that, once exigent circumstances

exist, no further actions to effect a search or seizure ever require a warrant.

See Diss. Op. at 15073, 15075, 15076-77, 15084 (“[n]either our precedent,

nor any other federal case, has ever required officers to obtain a warrant

to justify a seizure after exigent circumstances were legitimately estab-

lished”). As both Mincey and Johnson, discussed above, illustrate, this is

simply not so.

The dissent relies heavily on Michigan v. Tyler, 436 U.S. 499 (1978),

in which the Supreme Court addressed “the applicability of the Fourth and

Fourteenth Amendments to official entries onto fire-damaged premises.”

Id. at 501. The Court held that officials “need no warrant to remain in a

building for a reasonable time to investigate the cause of a blaze” because

“[p]rompt determination of the fire’s origin may be necessary to prevent

its recurrence, as through the detection of continuing dangers such as

faulty wiring” and “[i]mmediate investigation may also be necessary to

preserve evidence from . . . destruction.” Id. at 510. The Court held that

the reentry of officials four hours after the blaze was extinguished was

permissible as part of that “reasonable investigation” because officials

were not required to remain in the building while they were severely ham-

pered by “darkness, steam, and smoke.” Id. at 511.

The dissent’s reliance on Tyler is misplaced. First, Tyler involved an

investigation into the cause of a fire by fire officials, rather than a criminal

investigation by the police. See Michigan v. Clifford, 464 U.S. 287, 291

(1984) (“in Tyler, we restated the Court’s position that administrative

searches generally require warrants”) (emphasis added). Moreover, the

significance of Tyler was substantially limited by Mincey, decided less

than a month later, which makes clear that in the criminal law enforcement

context, exigent circumstances are always assessed at the time of the

search. Second, Tyler addressed a search of a burned-out furniture store,

rather than a home. Id. at 297 (distinguishing Tyler as a case in which the

owners had a lessened privacy interest in their property than would “a

homeowner [who] ha[d] made a reasonable effort to secure his fire-

damaged home”). Lastly, in Tyler the Supreme Court authorized a search

that was a “continuation” of exactly the same activity in which officials

had begun to engage as a result of exigent circumstances; it did not pur-

15058 FISHER v. CITY OF SAN JOSE

[8] Here, none of the officers testified that there was any

attempt to get a warrant at any point during the twelve-hour

standoff, by telephone or otherwise. The City can therefore

prevail only if it satisfactorily demonstrates that exigent cir-

cumstances existed such that a warrant was impractical or

unavailable at the time of any entry into Fisher’s home to

effect his arrest.

3. The Warrant Requirement and Stand-Offs

The City maintains that it met this standard by showing that

there was a seizure of Fisher before 6:30 a.m. and that the exi-

gency standard was met at the time that seizure occurred. We

may — and will — assume that both the City’s premises are

true: that is, that there was a seizure of Fisher in his home in

the early morning hours and that both prongs of the exigency

exception — danger and lack of time to obtain a warrant with-

out risking harm to some person — were met at that time. But

the City’s argument contains an unarticulated assumption —

that the responsibility to obtain a warrant lapses entirely at the

time a seizure first occurs, even if many hours ensue before

the targeted person submits to custody and is formally

port to excuse a situation in which officials change tactics and escalate

their intrusions into an individual’s home in the absence of exigent cir-

cumstances. Tyler, 436 U.S. at 511.

The dissent’s reliance on United States v. Echegoyen, 799 F.2d 1271

(9th Cir. 1986), is similarly misplaced. Echegoyen, while it involved law

enforcement officers, concerned a serious fire hazard. Id. at 1280. More

importantly, in Echegoyen the court specifically held that there was insuf-

ficient time for officers to obtain a warrant because “the delay associated

with obtaining a telephonic warrant would have unduly increased the risk

that the officers reasonably believed to be present.” Id. As the dissent

acknowledges, a second entry was permitted because it was itself “done

to alleviate the exigent circumstances” existent at a moment when delay-

ing to obtain a warrant would be dangerous. Id. at 1280; Diss. Op. at

15078. It therefore cannot stand for the principle that warrantless entries

are permitted even where there is sufficient time to obtain a warrant

safely.

FISHER v. CITY OF SAN JOSE 15059

arrested, and even if the police take steps in the interim period

that further intrude into the surrounded house. That assump-

tion, we conclude, is unwarranted.

[9] We have found no case of this court that directly

addresses whether police must obtain a warrant during a

standoff such as occurred here between the police and a citi-

zen if any initial exigency dissipates before further intrusions

into the home to coerce the targeted individual to submit to

arrest. We conclude, however, from our review of cases from

other circuits involving police standoffs that the Payton war-

rant requirement does not evaporate the moment officers sur-

round a home with weapons and begin to take measures to

induce an individual to leave his home. Rather, officers must

obtain a warrant before any additional intrusions into the

home if the initial exigency dissipates sufficiently to allow the

police to obtain a warrant.9 The initial exigency can dissipate

either because the danger posed by the targeted individual

decreases or because, with the passage of time, resources

become available that allow the police both to maintain safety

and to obtain a warrant.

To explain our conclusion, we begin by noting that in most

of the cases holding that there was an in-home seizure accom-

plished by armed police surrounding the home, the sur-

rounded individual left his home essentially simultaneously

with the in-home seizure as he was ordered to do, and was

then taken into custody by the police. See Al-Azzawy, 784

F.2d at 891; Sharrar, 128 F.3d at 815-16; Maez, 872 F.2d at

1446-47, 1449-50; Morgan, 743 F.2d at 1161. The courts in

these cases had no reason to determine whether any exception

operative at the outset of the action continues to apply if there

9

We need not and do not decide whether a warrant would be required

if armed police surrounded an individual in his home, but during the

standoff made no further intrusions into the home for purposes of effecting

an arrest. In this case, police clearly did intrude into the home after the ini-

tial seizure by throwing CS gas canisters into Fisher’s house.

15060 FISHER v. CITY OF SAN JOSE

is a lengthy standoff between police and the seized person.

Those cases that have discussed prolonged police standoffs,

however, have not treated a seizure as a single event that ends

the moment a residence is surrounded, nor have they viewed

the warrant requirement as lapsing once a seizure of this vari-

ety begins.

In Sharrar, for example, the court analyzed a situation in

which officers surrounded the home of an individual sus-

pected of a crime and then forced him and other occupants

outside at gunpoint. See 128 F.3d, at 814-17. The court noted

that “[t]he police have not satisfactorily explained why, when

the house was completely surrounded by an armed SWAT

team, they could not secure the premises while they went to

procure an arrest warrant.” Id. at 820. The court’s analysis

indicates that even if the initial surrounding of a house with-

out a warrant is justified by exigent circumstances, the war-

rant requirement does not evaporate once police surround the

home, and the police remain obligated to obtain a warrant

once the danger has lessened or resources have become avail-

able such that a warrant could be safely obtained.

The Sixth Circuit in Bing applied this approach in its analy-

sis of a five-hour police standoff. In that case, the police sur-

rounded the home of a man who had fired a weapon in front

of his house in the vicinity of neighborhood children. 456

F.3d at 559. Police “attempt[ed] to force him outside” by

using pepper gas and a flashbang device, and, after approxi-

mately five hours, raided his home and shot him. Id. at 559-

62. In determining whether the police violated Bing’s rights

by effecting a warrantless entry into his home, the Sixth Cir-

cuit first held that “[b]y laying siege to Bing’s house, break-

ing his door and windows, and employing pepper gas, the

police accomplished a . . . Fourth Amendment seizure” sub-

ject to the warrant requirement. Id. at 564. The Sixth Circuit

then proceeded to analyze whether exigent circumstances

existed to excuse the warrant requirement throughout the

period of the standoff, ultimately holding that, under the par-

FISHER v. CITY OF SAN JOSE 15061

ticular circumstances, the “exigency did not terminate due to

the passage of time.” Id. at 565. Bing considered whether exi-

gency existed to justify the lack of a warrant at the time of

each of the warrantless entries into Bing’s home, noting, for

example, that “exigency existed to justify shooting pepper gas

into the house without a warrant.” Id. at 567. The court in

Bing thus necessarily recognized that passage of time during

a standoff can, under some circumstances, lead to an opportu-

nity to obtain a warrant safely that did not exist at the outset,

and that, if such an opportunity appears before further intru-

sions are made to accomplish the final arrest, the warrant

requirement is not excused. Absent such an understanding,

there would have been no reason for the lengthy analysis in

Bing directed at demonstrating that the exigency continued

throughout the course of the standoff, including before each

additional police action designed to force the suspect from his

home. See id. at 565-69.

[10] Bing’s approach is consistent with the Sixth Circuit’s

other standoff cases and with the law of this circuit on exi-

gency. In O’Brien v. City of Grand Rapids, 23 F.3d 940 (6th

Cir. 1994), the Sixth Circuit analyzed a standoff in which the

police, after waiting outside O’Brien’s home for more than six

hours, inserted three small probes without a search warrant.10

Id. at 994. The court did not consider whether exigent circum-

stances existed when the police first surrounded O’Brien’s

home, but did hold that any exigency had dissipated by the

time the probes were inserted because O’Brien “had taken no

action against the officers” for the previous five hours, he was

completely surrounded and could not flee the scene, and he

was “not holding anyone hostage.”11 Id. at 997. Our cases,

10

The dissent notes, correctly, that O’Brien addresses whether and when

a search warrant is required to undertake further intrusions into a home

after it has been surrounded in a standoff, not whether and when an arrest

warrant is required. Diss. Op. at 15083. That distinction does not matter,

however, for present purposes, as the “exigency” concept is the same for

the two types of warrants.

11

Bing is also consistent with Ewolski, in which the Sixth Circuit held

that the Fourth Amendment applies to a police standoff that ultimately

15062 FISHER v. CITY OF SAN JOSE

too, assume that any exigency that exists at the beginning of

a police encounter may, in some circumstances, end as a

result of the passage of time or other factors, triggering a

requirement to obtain a warrant. See, e.g., United States v.

Lindsey, 877 F.2d 777, 782 (9th Cir. 1989) (analyzing

whether exigency had dissipated during a one-hour delay

before arresting defendant in his home).

[11] This approach to exigency analysis during police-

citizen standoffs is consistent with the principles of Payton

and the purposes of the warrant requirement. As discussed

above, Payton is primarily concerned with the prevention of

warrantless entries into a home. To hold that the warrant

requirement ceases to apply in a standoff as soon as police

have surrounded a residence would be to permit officers to

invade the sanctity of the home indefinitely and in new, more

intrusive ways without the oversight of a neutral and detached

magistrate. Such a holding would negate the principle that

officers who act without a magistrate must always be pre-

pared to demonstrate that they could not have safely obtained

a warrant. We therefore conclude that, should exigency dissi-

pate after an individual has been seized by means of police

surrounding his home but before the individual is taken into

custody, officers are required to attempt to obtain a warrant

before they take additional, intrusive steps to effect the arrest.

This is not to say that there is no end to the warrant require-

ment in a standoff situation. Once officers have subdued the

individual and taken him into custody, there is obviously no

further need to obtain a warrant, and the application of the

exigency requirement is tested by the circumstances extant

before that occurred. That is why there is no need to obtain

a warrant where, as in Al-Azzawy, the seizure by surrounding

the house and the taking of the suspect into custody were

ended in a raid of a home. The court did not have occasion to consider in

Ewolski whether the warrant requirement applied to the standoff, nor

whether any such requirement was excused by exigent circumstances.

FISHER v. CITY OF SAN JOSE 15063

essentially simultaneous and there were exigent circumstances

at that time. 784 F.2d at 894 (finding exigency at time defen-

dant was arrested). If, however, an individual remains in his

home for a long period of time despite being surrounded by

armed officers, his liberty has been sufficiently restrained so

as to have been seized, see Ewolski, 287 F.3d at 506, but he

has not yet been brought into police custody or formally

placed under arrest. The police are, of course, unlikely to

cease at that point to attempt to bring the suspect into actual

custody and formally to arrest him. So long as the standoff

continues and the police continue to make entries into the sus-

pect’s home in order to arrest him, the Payton warrant

requirement remains triggered.

As should be evident, the dissent’s suggestion, post at

15073, that we are requiring a retroactive warrant is simply

incorrect. Although a seizure is initially accomplished by sur-

rounding a home, the police in such instances may — as here

— take additional steps that intrude further into the home, and

do not accomplish the formal arrest until the individual sur-

renders. To view this entire sequence of events as a single

police decision made at the outset is both to indulge in a fic-

tion and severely to undermine the warrant requirement. So,

for example, had Fisher refused to come out and had the

police therefore decided forcibly to enter Fisher’s home at

2:30 p.m., that decision and action could not reasonably be

viewed as outside the warrant requirement on the ground that

Fisher had already been seized at home earlier.

B. The Warrant Requirement and Seizure of Fisher

The City contends that Fisher was arrested by 6:30 a.m. —

after the police officers on the scene had surrounded Fisher’s

home, attempted to convince him to come outside to talk, and

positioned a sharpshooter to observe his actions — and that

any warrant requirement applies only to the period before

6:30 a.m. Because there were exigent circumstances until 6:30

a.m., the City argues, the warrant requirement was excused.

15064 FISHER v. CITY OF SAN JOSE

Applying the principles already discussed to the facts in the

record, we conclude that the City’s position is not supported

by legally sufficient evidence.

[12] We do not disagree that Fisher was seized when police

surrounded his home and stationed a sharpshooter to watch

him, or that the warrant requirement applied to this seizure,

absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite

having been seized, it is indisputable that Fisher had not yet

been placed under formal arrest and brought into the custody

of the police. Because Fisher remained in his house, not free

to leave but not in the custody of the police, he continued to

be subjected to entries into his home for the purpose of forc-

ing him outside to arrest him, and the Payton warrant require-

ment continued to apply. As a result, we must ask whether

any exigency that existed at 6:30 a.m. dissipated before police

made further entries into Fisher’s home.12 We conclude that

there was insufficient exigency to justify a warrantless arrest

12

As noted earlier, Alvarez tolls the period of exigency during the offi-

cers’ attempts to obtain a warrant, as warrants cannot be obtained instanta-

neously. 810 F.2d at 883 (holding that the Fourth Amendment “requires

the government either . . . attempt, in good faith, to secure a warrant or

. . . present evidence explaining why a telephone warrant was unavailable

or impractical” (emphasis added) (footnote omitted)). We thus require

only that officers begin to attempt to obtain a warrant when that attempt

becomes feasible, given all the circumstances, while continuing in the

meantime their efforts to maintain the peace and bring the suspect under

control.

We also do not mean to suggest that more than one arrest warrant is

required. Cf. Carlson v. Landon, 342 U.S. 524, 546-47 (1952) (recogniz-

ing that even once an arrest warrant is fully executed, rearrest may be pos-

sible without a new warrant, especially in cases when the detainee has

escaped); United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (“The

fourth amendment’s rules for warrants do not include time limits.”).

Rather, our point is that there were police activities taken after 6:30 a.m.

for which one arrest warrant could have been obtained without a danger-

ous delay, and that a warrant was therefore required.

FISHER v. CITY OF SAN JOSE 15065

of Fisher at least by the time the CS gas canisters13 were

thrown into his home at approximately 1:00 p.m.14

As we have emphasized, to come within the exigency

exception, the City must show both that dangerous circum-

stances existed and that it was infeasible to obtain a warrant

safely. See United States v. Manfredi, 722 F.2d 519, 522-23

(9th Cir. 1984). We have used a nonexhaustive list of factors,

first enunciated in Dorman v. United States, 435 F.2d 385,

392-93 (D.C. Cir. 1970) (en banc), to determine whether dan-

gerous circumstances exist for purposes of the exigency

exception. See United States v. Blake, 632 F.2d 731, 733 (9th

Cir. 1980).15 Those criteria are: (1) “that a grave offense is

involved”; (2) “that the suspect is reasonably believed to be

armed”; (3) that there exists “a clear showing of probable

cause”; (4) that there is “a strong reason to believe that the

suspect is in the premises”; (5) that there is “a likelihood that

the suspect will escape”; and (6) that peaceable entry is made

onto the premises. See Dorman, 435 F.2d at 392-93.

Viewing the evidence in the light most favorable to the

City, it was not unreasonable for the jury to find that the offi-

cers were justified in considering Fisher a danger both to them

and to the public when they first surrounded his home in the

early morning hours. Although no grave offense was

involved, Fisher was armed, was certainly on the premises,

and concedes that there was probable cause to arrest him. He

was also intoxicated and had made at least one threatening

13

Tossing the CS gas canisters into the house was an independent use

of force within the home. Cf. Headwaters Forest Def. v. County of Hum-

boldt, 276 F.3d 1125, 1129-30 (9th Cir. 2002) (holding that reasonable

juror could conclude that use of pepper spray constituted excessive force).

14

Because we conclude that there was no exigency by the time officers

threw the CS gas canisters into Fisher’s home at 1 p.m., we need not con-

sider whether there was exigency at the time of any of the other intrusions

into Fisher’s home.

15

Dorman explicitly noted that the list of considerations was not com-

prehensive. 435 F.2d at 392.

15066 FISHER v. CITY OF SAN JOSE

comment to an officer.16 Moreover, it was not unreasonable

for the jury to conclude that some level of danger persisted

throughout the duration of the standoff, as Fisher remained

inside his apartment, intoxicated and with access to weapons.

At the same time, the danger of the situation, if it did not

terminate entirely after 6:30 a.m., certainly did not increase,

and to some degree lessened. All nearby residents were evac-

uated at around 7:30 a.m. Furthermore, Fisher was not seen

carrying a rifle for a full seven hours after 6:30 a.m., as the

district court emphasized in granting the Rule 50(b) motion.

During that post-6:30 a.m. period, Fisher took no further

threatening actions, toward the police or anyone else. Nothing

happened after 6:30 a.m. that increased the danger of the situ-

ation.

[13] As to the second prong of the exigency exception —

which requires that “the government . . . show that a warrant

could not have been [safely] obtained in time,” United States

v. Good, 780 F.2d 773, 775 (9th Cir. 1986) — the evidence,

taken in the light most favorable to the government, clearly

shows that there were enough officers working on Fisher’s

case with enough time to obtain a warrant safely before the

police sent the first of the CS gas canisters into Fisher’s apart-

ment. Given the level of danger after 6:30 a.m., which

remained significant but was not increasing, officers had the

resources to begin the warrant process without risking the

safety of officers or the public. Some of the original officers

left the scene at 7 a.m. and returned to the station house,

16

We note that while Fisher’s comment that he would shoot the police

officer if she entered his home was a threat (albeit a conditional one), the

fact that he had earlier discussed his Second Amendment rights while

holding a gun cannot reasonably be construed as a threat. The Second

Amendment — whatever its precise parameters, compare Nordyke v.

King, 319 F.3d 1185 (9th Cir. 2003), with Nordyke v. King, 364 F.3d

1025, 1026 (2004) (Gould, J., dissenting from denial of rehearing en banc)

— concerns, after all, the right to “bear” arms, not the right to use them

to shoot people.

FISHER v. CITY OF SAN JOSE 15067

where they or their colleagues could have initiated warrant

proceedings. By 1 p.m., many officers had been at Fisher’s

apartment complex for several hours; in total, more than 60

officers participated over the course of the standoff between

the police and Fisher. As the District Court noted, “Defen-

dants have offered no explanation, and none exists, as to why

[not] one of these officers was [ ]able to seek and obtain a

telephone warrant or make use of the procedures available

twenty-four hours a day to obtain a warrant from a judge in

person . . . .”

These facts clearly distinguish this case from Bing, a case

that is in some respects quite similar to this one. Bing had

fired his gun in the vicinity of neighborhood children, “police

had been called to Bing’s residence in the past [because] he

previously had fired shots,” neighborhood residents refused to

evacuate thereby increasing the danger, and police had reason

to believe that Bing had fired a shot at police officers before

they raided his apartment. 456 F.3d at 559-62. None of these

factors existed in Fisher’s standoff with police. Moreover, as

far as appears in the Bing opinion, none of the police on the

scene returned to the station during the standoff. The level of

danger in Bing was thus considerably higher than here, while

the officers’ opportunity to obtain an arrest warrant was not

obvious.

This case is also quite different from the Ninth Circuit case

on which Bing relies. Unlike the one-hour delay in searching

a suspect’s house that we considered in Lindsey, 877 F.2d at

782, the time the officers spent outside Fisher’s apartment

complex was not unexpected, caused by lack of additional

assistance, nor, comparatively, short.17 Instead, the standoff in

17

The dissent states that our “position that courts may analyze exigency

after the seizure of a surrounded suspect, without evidence of any facts

that negate the initial exigent circumstance, implicitly overrules Lindsey.”

Diss. Op. at 15075, n.3 (emphasis added). We do not hold, however, that

a warrant is required in a standoff case where nothing has occurred to

15068 FISHER v. CITY OF SAN JOSE

this case is much more similar to that in O’Brien, where, after

an initial confrontation, O’Brien took no aggressive action for

more than five hours, allowing the police an opportunity

safely to obtain a warrant. See 23 F.3d at 997. Indeed,

O’Brien arguably presented a more dangerous situation than

that in this case, because police were aware that O’Brien had

used his weapon in the past to shoot a neighbor in his front

yard. Id. at 993.

[14] The only reasonable conclusion on the record before

us is that, although the situation was not without danger, the

police had sufficient resources and time after probable cause

was established to obtain an arrest warrant before they

intruded into Fisher’s home by tossing in CS gas canisters.

Although our dissenting colleague maintains, quite sensibly,

that the danger created by Fisher’s actions did not completely

disappear until he submitted, she fails entirely to address

whether the police had enough time and manpower to seek a

warrant safely during the extended standoff. Because there

was such an opportunity, the failure to obtain or attempt to

obtain a warrant was unconstitutional.18

IV. Conclusion

Standoffs with barricaded suspects present hard decision-

negate the exigency. Here, in contrast to Lindsey, circumstances did

change so as to cause the exigency to dissipate. Unlike in Lindsey, where

the surrounded suspect was awaiting the return of a drug courier and likely

to become more suspicious, and therefore more dangerous, with every

passing minute, the passage of time at Fisher’s apartment caused the exi-

gency to lessen, as he was not seen with a weapon for at least six hours,

residents were successfully evacuated, and many more officers arrived on

the scene. See Lindsey, 877 F.2d at 782.

18

The dissent speculates that “the officers would appear to be entitled

to qualified immunity.” Dissenting Opinion at 15081, n.9. As no liability

was imposed on the officers, we express no opinion as to whether the offi-

cers in this or a similar case would be entitled to qualified immunity.

FISHER v. CITY OF SAN JOSE 15069

making problems for police, often requiring split-second tacti-

cal determinations. The results can be tragic even when police

behavior is quite reasonable. See, e.g., Ewolski, 287 F.3d at

499 (involving the target of a standoff who shot himself and

his son during the standoff). A warrant may not prevent such

tragic occurrences. But interposing a neutral and detached

magistrate between the police, who are “acting under the

excitement that attends the capture of persons accused of

crime,” United States v. Lefkowitz, 285 U.S. 452, 464 (1932),

and the citizen, who may or may not have committed a

wrong, may, on occasion, bring a useful perspective to the sit-

uation. Id. (“[T]he informed and deliberate determinations of

magistrates empowered to issue warrants as to what searches

and seizures are permissible under the Constitution are to be

preferred over the hurried action of officers and others who

may happen to make arrests.”). The warrant requirement’s

purpose is to permit a third party to evaluate whether the

police should intervene in a situation at all. If not, police

retreat can prevent a potentially dangerous situation from

escalating into a tragic one.

Here, it may well be that a timely application to a magis-

trate would have resulted in issuance of a warrant for Fisher’s

arrest and events would then have proceeded pretty much as

they did. But that is not certain, and is in any event beside the

point. The criminal jury hung on the felony count presented

to it, so it is at least possible that a magistrate would have

thought the police lacked probable cause on the charge for

which he was arrested. More importantly, it is precisely to

require the officers involved to articulate the grounds for

arrest and to obtain the views of a dispassionate magistrate on

the adequacy of those grounds that a warrant is required.

Here, there were plenty of police officers involved and

there was plenty of time to obtain such a warrant. It was

unconstitutional to fail to do so.

AFFIRMED.

15070 FISHER v. CITY OF SAN JOSE

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent.

What we have here is a very dangerous situation that was

resolved safely for all concerned — Fisher, the public, and the

police — because of good police work. Nevertheless, the

majority penalizes the police by announcing a new warrant

requirement and imposing liability upon them for failing to

obtain a telephonic arrest warrant in the midst of a police

standoff that could have turned deadly at any moment.1 After

reviewing all the facts and receiving proper instructions on

the law, twelve jurors unanimously found that the police had

handled the situation lawfully. We should accept the wisdom

of the jurors’ decision.

As judges, we should not arm-chair quarterback a crisis

from the safety of our chambers. Such post-game analysis is

disconnected from reality and leads to the puzzling determina-

tion in this case that San Jose police officers need training

despite the jury’s finding that they did nothing wrong. The

police handled the situation in exemplary fashion and in full

compliance with the law. Exigent circumstances excused the

warrantless arrest, and the exigent circumstances continued

until the police completed that arrest when Fisher surren-

dered. I would reverse the district court’s grant of Fisher’s

Federal Rule of Civil Procedure 50(b) motion and restore the

jury’s verdict because the verdict was supported by substan-

tial evidence.

A renewed motion for judgment as a matter of law pursuant

1

Our precedents acknowledge that “[a] telephonic warrant may not be

obtained simply by calling a magistrate. Among other things, a ‘duplicate

original warrant’ must be prepared in writing and read to the magistrate

verbatim.” United States v. Manfredi, 722 F.2d 519, 523 (9th Cir. 1983).

Furthermore, we have concluded that it is “not a simple procedure.”

United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986).

FISHER v. CITY OF SAN JOSE 15071

to Fed. R. Civ. P. 50(b) is properly granted “if the evidence,

construed in the light most favorable to the nonmoving party,

permits only one reasonable conclusion, and that conclusion

is contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d

915, 918 (9th Cir. 2002). “A jury’s verdict must be upheld if

it is supported by substantial evidence, which is evidence ade-

quate to support the jury’s conclusion, even if it is also possi-

ble to draw a contrary conclusion.” Id. Indeed, we may not

substitute our view of the evidence for that of the jury. Id. The

majority simply disregards this standard.

The majority now assumes that the San Jose Police Depart-

ment seized Fisher for purposes of the Fourth Amendment

before 6:30 a.m., when they began surrounding his apartment,

and that exigent circumstances existed at the time of this sei-

zure. After acknowledging that there is no case addressing

whether the police must obtain a warrant if any initial exi-

gency dissipates during the standoff, the majority proceeds to

conclude that officers must obtain a warrant during the stand-

off to justify additional intrusions into the home if the initial

exigency dissipates. The majority concludes that the exigent

circumstances dissipated in this case because of the lack of

activity or communication from Mr. Fisher, despite the fact

that he still had access to guns, was still acting irrationally,

and a jury’s conclusion that exigent circumstances existed.

The majority cites cases suggesting that officers may need to

get a search warrant to conduct additional intrusions into the

home to justify imposing a requirement that officers obtain an

arrest warrant when no further seizure occurs. The only con-

clusion supported by case law and consistent with common

sense, however, is that once a suspect is seized in his home,

and there are actually exigent circumstances to justify the

arrest, then there is no need to obtain an arrest warrant

because there is no additional seizure requiring a warrant.

Law enforcement activity to complete the initial seizure in the

home is a continuation of the intrusion or seizure in the home,

and it does not require an additional arrest warrant.

15072 FISHER v. CITY OF SAN JOSE

FACTS

The following facts emerge from the record. Fisher was

drinking and cleaning 18 guns in his apartment. A security

guard at his apartment complex called the police when Fish-

er’s behavior became menacing. The police arrived shortly

after midnight. Fisher was unresponsive for the most part, but

insisted on talking about his Second Amendment rights. At

approximately 3:00 – 4:00 a.m., Officer Jan Males, a tactical

negotiator, arrived. Fisher told her that he had a right to bear

arms. He also invited her into his apartment but threatened to

shoot her if she came in. Officer Males considered this to be

a criminal threat — a felony.

Throughout the morning, officers observed Fisher through

the windows of his apartment walking around with a rifle in

his hand, and more than once, aiming the rifle out of the

apartment in the general direction of the officers. Officer

Boler testified that he saw Fisher point one of his rifles

toward Sergeant Ryan and Officer Males twice between 2:45

a.m. and 4:00 a.m. and that he was moving his rifles around

his apartment. At 6:23 a.m., Fisher was seen again with a

rifle, apparently loading it.

At 7:00 a.m., the department’s Mobile Emergency

Response Group (MERGE) took control of the scene, and the

officers who originally responded to the scene left. By 7:30

a.m., the police had evacuated all of the apartments in Fish-

er’s building. One occupant, whose front door was near Fish-

er’s residence, was evacuated by cutting a hole in her

apartment wall that allowed her to leave through a neighbor-

ing apartment instead of walking across the front of Fisher’s

apartment. At 8:48 a.m., the police turned off the power in

Fisher’s apartment in an attempt to force him out. They also

broke his sliding glass door and tossed in a “throw phone” so

that they could communicate with Fisher because his phone

line was busy. At 10:52 a.m., the police set off a “flash-bang”

device to get Fisher’s attention and briefly disorient him. At

FISHER v. CITY OF SAN JOSE 15073

1:00 p.m., police began throwing gas canisters into the apart-

ment, to no avail. Finally, at 2:13 p.m., police established tele-

phone contact with Fisher via the throw phone and he agreed

to leave the apartment unarmed. The police then took him into

custody.

DISCUSSION

A warrantless search does not violate the Fourth Amend-

ment where officers have probable cause to believe that a

crime has been committed, and there are exigent circum-

stances such that a warrant could not have been obtained

without causing a dangerous delay. Manfredi, 722 F.2d at

522. Fisher concedes that officers had probable cause, and the

majority now gives credit to the jury’s finding that there were

exigent circumstances when the officers seized Fisher by sur-

rounding his house and showing force. The majority, how-

ever, determines that it was “not unreasonable” for the jury to

find that the officers were justified in arresting Fisher in his

home and that it was “not unreasonable” for the jury to con-

clude that the danger persisted throughout the standoff.2 (Maj.

Op. at 15065.) Yet the majority concludes that the exigency

somehow lessened to the point where some sort of post-hoc

or retroactive warrant was required, despite the lack of any

sort of intervening Fourth Amendment search or seizure. Nei-

ther our precedent, nor any other federal case, has ever

required officers to obtain a warrant to justify a seizure after

exigent circumstances were legitimately established. Yet the

district court, and now the majority, saw fit to overrule the

jury’s verdict.

2

The majority’s acknowledgment that the facts do not compel a single

perspective is a concession that there is not only one reasonable conclu-

sion that is contrary to the jury’s verdict. Accordingly, we are not at lib-

erty to disturb the verdict. Pavao, 307 F.3d at 918.

15074 FISHER v. CITY OF SAN JOSE

A. Once exigent circumstances exist to justify the

warrantless seizure, a warrant is not required unless there

is another seizure.

Although the government must “show that a warrant could

not have been obtained in time” when attempting to establish

exigent circumstances, once exigent circumstances exist, the

warrantless seizure is justified. Good, 780 F.2d at 775. This

is because a showing of exigent circumstances “overcome[s]

the presumption of unreasonableness that attaches to all war-

rantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750

(1984). Exigent circumstances are determined at the time of

the arrest or search. See Cardwell v. Lewis, 417 U.S. 583,

595-96 (1974) (“The exigency may arise at any time, and the

fact that the police might have obtained a warrant earlier does

not negate the possibility of a current situation’s necessitating

prompt police action.”). In the context of searches, the

Supreme Court has stated, “we know of no case or principle

that suggests that the right to search on probable cause and the

reasonableness of seizing a car under exigent circumstances

are foreclosed if a warrant was not obtained at the first practi-

cable moment.” Id. at 595.

Exigent circumstances are “those circumstances that would

cause a reasonable person to believe that entry . . . was neces-

sary to prevent physical harm to the officers or other persons,

the destruction of relevant evidence, the escape of the suspect,

or some other consequence improperly frustrating legitimate

law enforcement efforts.” United States v. Brooks, 367 F.3d

1128, 1135 (9th Cir. 2004) (quoting United States v. McCon-

ney, 728 F.2d 1195, 1199 (9th Cir. 1984)). “The exigencies

must be viewed from the totality of circumstances known to

the officers at the time of the warrantless intrusion.” United

States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). As the

Supreme Court recognized in Brigham City v. Stuart, “[t]he

role of a peace officer includes preventing violence and

restoring order, not simply rendering first aid to casualties.”

___ U.S. ___, 126 S. Ct. 1943, 1949 (2006).

FISHER v. CITY OF SAN JOSE 15075

The majority acknowledges that the pertinent time to deter-

mine whether an exigency exists is at the time that the arrest

is effectuated, but then proceeds to ignore that principle to

hold that, during armed standoffs, officers must obtain a war-

rant to justify a seizure that has already happened under exi-

gent circumstances. The Fourth Amendment simply does not

require after-the-fact warrants to justify events that already

occurred under exigent circumstances. That is the entire point

of exigent circumstances — they justify a Fourth Amendment

event, in this case the seizure of Fisher in his home.3 Unless

there is another Fourth Amendment event, there is no reason

to obtain a warrant to justify an arrest that has already

occurred and will continue until the arrest is complete.4 See

United States v. Snyder, 852 F.2d 471, 473-74 (9th Cir. 1988)

(finding acts incident to a valid arrest did not constitute addi-

tional arrests); United States v. Wulferdinger, 782 F.2d 1473,

1477 (9th Cir. 1986) (refusing to reach other questions once

probable cause and exigent circumstances were found).

B. A standoff is a continuation of the original seizure

justified by exigent circumstances.

There is no case law that supports the idea that officers

must obtain warrants to justify searches or seizures that have

3

In United States v. Lindsey, 877 F.2d 777, 782-83 (9th Cir. 1989), we

concluded that it was improper to evaluate exigent circumstances after the

warrantless entry, and that a one-hour delay while officers waited for

backup “did not dissipate the exigency.” The majority’s position that

courts may analyze exigency after the seizure of a surrounded suspect,

without evidence of any facts that negate the initial exigent circumstance,

attempts to implicitly overrule Lindsey.

4

The majority’s analysis addresses additional intrusions, as opposed to

the arrest. We cannot decide issues concerning searches or seizures of

property because the Constitution “limits our role to resolving the ‘[c]ases’

and ‘[c]ontroversies’ before us”; therefore “we decide only the case at

hand.” Hein v. Freedom from Religion Found., Inc., ___ U.S. ___, 127

S. Ct. 2553, 2572 (2007). As a result, we are limited to reviewing only the

warrantless arrest.

15076 FISHER v. CITY OF SAN JOSE

already begun under exigent circumstances while the search

or seizure is in progress. Of course, exigent circumstances

must truly exist before the officers undertake the search or

seizure in order to justify the Fourth Amendment event.5 Also,

officers must show that it was impractical or impossible to

obtain a warrant before the search or seizure in question in

order to show exigent circumstances.6 See e.g., United States

v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir. 1986); Good,

780 F.2d at 775; Manfredi, 722 F.2d at 523.

There is no support, however, for the idea that, after exi-

gent circumstances have been established and the officers

lawfully arrest a person in his or her home, the officers must

then go and obtain an arrest warrant to retroactively justify an

arrest. Our court has condemned obtaining post-hoc or retro-

active warrants as “alien to the Fourth Amendment warrant

and reasonableness requirements.”7 United States v. Allard,

634 F.2d 1182, 1187 (9th Cir. 1980) (Allard II). Indeed, in

every case where exigent circumstances justified an initial

intrusion, the exigency “dissipated” in some manner —

whether because the suspect is arrested after a hot pursuit, the

premises are secured to prevent an escape or destruction of

evidence, or a danger to the public is neutralized. We have

5

As a result, cases such as Sharrar v. Felsing, 128 F.3d 810, 820 (9th

Cir. 1997), where there was insufficient evidence that exigent circum-

stances existed as a matter of law at the time of arrest to support summary

judgment are distinguishable. To the extent that Sharrar considered exi-

gent circumstances to be a jury question, the jury here explicitly found that

exigent circumstances existed.

6

Under the majority’s reasoning, a clever attorney can now argue that

the fact that the officers obtained an arrest warrant at some point shows

that they could have obtained a warrant, thus defeating the initial exi-

gency. We should not subject officers to this type of “damned if you do,

damned if you don’t” approach to liability.

7

In United States v. Allard, 600 F.2d 1301, 1304 (9th Cir. 1979)

(“Allard I”), we stated that later obtained warrants “could not retroactively

authorize the entry.” Yet the majority now insists that officers must obtain

a warrant to justify an arrest that has already occurred and that officers are

simply seeking to complete.

FISHER v. CITY OF SAN JOSE 15077

never required the officers to, after the fact, go back and

obtain a warrant to justify the initial lawful intrusion. This is

because once exigent circumstances excuse the initial intru-

sion, officers are allowed to continue with activities until the

intrusion — in this case the arrest of Fisher — is complete.

The Supreme Court has held that once an arrest is justified

by exigent circumstances, no warrant is required so long as

the seizure continues. Michigan v. Tyler, 436 U.S. 499, 510-

11 (1978) (concluding that a search that was “an actual con-

tinuation” of an intrusion justified by exigent circumstances

did not require a further warrant); United States v.

McLaughlin, 525 F.2d 517, 521 (9th Cir. 1975) (once an exi-

gency exists, officers are allowed to enter a home to arrest

suspects and secure the premises without a warrant). In Michi-

gan v. Tyler, the Supreme Court found that firefighters, as

well as arson inspectors and a detective, could enter a home

without a warrant because the exigent circumstances created

by a fire justified the warrantless intrusion. 436 U.S. at 509.

The Supreme Court specifically rejected the Michigan

Supreme Court’s “holding that the exigency justifying a war-

rantless entry to fight a fire ends, and the need to get a warrant

begins, with the dousing of the last flame.” Id. at 509-10. The

Court concluded that restricting the range of activities

excused by the exigency to extinguishing the fire was “unreal-

istically narrow.” Id. at 510.

In Tyler, the fire chief, a detective, and some investigators

left the scene at approximately 4:00 a.m., when the fire was

extinguished. Id. at 502. They returned later that morning

after the sun came up and conducted additional investigation

without consent or a warrant for the entries or seizure of evi-

dence. Id. The Supreme Court found that although the fire

chief, the detective, and other personnel left the scene, their

entries “were no more than an actual continuation of the first,

and the lack of a warrant thus did not invalidate the resulting

seizure of evidence.” Id. at 511. Therefore, if the initial war-

rantless event was justified by exigent circumstances, actions

15078 FISHER v. CITY OF SAN JOSE

that are continuations of that event are also excused. If leav-

ing the scene for a brief period of time constitutes a continua-

tion, then a continuous police standoff certainly is an actual

continuation of the initial arrest.

In United States v. Echegoyen, 799 F.2d at 1280, we came

to the same conclusion in the context of a warrantless arrest

followed by a search by narcotics detectives. After smelling

ether, a flammable substance, in the air and determining that

there was possibly a serious fire hazard posed by the ether,

deputies entered a house and arrested its occupants without a

warrant. Id. at 1274. With the suspects in custody, the depu-

ties and a firefighter re-entered the home, turned off the gas

burners on a stove, opened the windows, and inspected the

residence. Id. During their inspection, the deputies saw drug

processing equipment, chemicals, and white powder that was

later revealed to be cocaine. Id.

We concluded that the initial entry into the house and arrest

of the residents was justified by exigent circumstances. Id. at

1279-80. Then we decided that “the subsequent entry by the

narcotics detectives is also as [sic] valid as a continuation of

the initial lawful entry.” Id. at 1280 (citing Tyler). After sum-

marizing Tyler, we held that “this second entry was merely a

continuation of the initial lawful entry because both were

done to alleviate the exigent circumstances.” Id. As a result,

we affirmed the denial of a motion to suppress evidence seen

by the narcotics detectives. Id.

Pursuant to Tyler and Echegoyen, the initial warrantless

seizure of Fisher inside his home was excused by exigent cir-

cumstances. Even assuming that the exigency somehow dissi-

pated, the police activities during the standoff to complete the

seizure are simply a continuation of the initial lawful seizure.

Efforts to communicate with the barricaded suspect, deter-

mine his well being, and even to force a conclusion to the

standoff are all activities “done to alleviate the exigent cir-

cumstances,” that is, to neutralize the threat that Fisher posed

FISHER v. CITY OF SAN JOSE 15079

to the neighborhood by completing the seizure. Echegoyen,

799 F.2d at 1280. Armed standoffs are essentially continua-

tions of arrests that are begun under exigent circumstances.

Without an intervening event, such as an actual escape or the

officers abandoning their siege followed by another attempt to

arrest the suspect or search the premises, there is no new

Fourth Amendment event that requires a warrant.

C. Case law is contrary to the majority’s position.

The majority acknowledges that there is “no case of this

court that directly addresses whether police must obtain a

warrant during a standoff such as occurred here” and then

proceeds to carve out a new Fourth Amendment requirement

using slivers of dicta and ignoring Supreme Court precedent.

The majority attempts to build its argument for a warrant

requirement during an ongoing standoff upon Mincey v. Ari-

zona, 437 U.S. 385, 390-93 (1978), a case where the Supreme

Court rejected a murder scene exception to the general war-

rant requirement. Mincey, however, did not invalidate the

continuation of the initial entry into the home to arrest a sus-

pect, to investigate the welfare of the undercover officer after

shots were fired, or to look for more victims. Id. at 388. The

Supreme Court expressly acknowledged that the activities in

continuation of the initial intrusion were already completed

when the homicide detectives entered the scene to search for

evidence. Id. at 388-89, 93 (noting that the sweep of Mincey’s

apartment for victims and other occupants and securing the

scene was separate from the four-day search for evidence that

followed). To distinguish Tyler, the Supreme Court stated that

“it simply cannot be contended that this search was justified

by any emergency threatening life or limb.”

What is clear from the Supreme Court’s discussion in

Mincey is that a warrantless search must be related to, or a

continuation of activity excused by, the exigent circumstances

and that there is no per se exception for particularly grave

15080 FISHER v. CITY OF SAN JOSE

crimes. Id. at 393-94. Our case simply does not involve a sub-

sequent entry to search for evidence of a crime. Rather, the

issue is only whether an arrest warrant was necessary to seize

Mr. Fisher in his home. The arrest was not completed, how-

ever, until the officers had physical custody of Mr. Fisher or

he submitted to the show of authority and surrendered. See

California v. Hodari D., 499 U.S. 621, 626 (1991) (stating

that a completed “arrest requires either physical force” or

“submission to the assertion of authority.”). We must not lose

sight of the fact that Mr. Fisher is contesting his warrantless

arrest, not a separate or subsequent search.

In an attempt to further bolster its position, the majority

reads United States v. Alvarez, 810 F.2d 879, 883 (9th Cir.

1987), to support an argument that we require a good-faith

effort to obtain a warrant in every case where the government

claims exigent circumstances. Alvarez is factually distinguish-

able because the exigent circumstance claimed in Alvarez was

that the police feared a suspect in another location might

become suspicious if there was additional delay before deliv-

ery of a large amount of cocaine. Id. at 880. Furthermore, the

holding in Alvarez was that exigent circumstances did not

exist that could excuse the absence of, or failure to obtain, an

arrest warrant at the time the arrest occurred. See id. at 881,

882 (reviewing “a conclusion of exigent circumstances” de

novo and concluding that “[t]he agent’s actions in this case

were thus fundamentally inconsistent with any true exigen-

cy.”).

In this case, the majority acknowledges that at the time the

officers surrounded Fisher’s house, exigent circumstances

excused the need to obtain an arrest warrant to seize Fisher in

his home. The dicta from Alvarez quoted by the majority does

not require that law enforcement make a good-faith effort to

seek a warrant when exigent circumstances actually existed to

excuse the absence of a warrant.8 Id. at 883. Rather, the pas-

8

The full passage from Alvarez reads:

The government argues that obtaining a telephone warrant is not

FISHER v. CITY OF SAN JOSE 15081

sage stands for the unremarkable proposition that the govern-

ment must either present sufficient evidence of exigent

circumstances or have some other justification for not obtain-

ing a warrant at the time of an arrest.9 Id.

The majority also turns the Sixth Circuit’s decision in

Estate of Bing v. City of Whitehall, 456 F.3d 555 (6th Cir.

2006), on its head by interpreting its dicta to state that exigent

circumstances may dissipate sufficiently to somehow require

a warrant. Bing simply concludes “that exigency did not ter-

minate due to the passage of time or the police’s actions.” Id.

at 565. Specifically, the Sixth Circuit noted that, “[t]he pas-

sage of time did not terminate the exigency because the tick-

ing of the clock did nothing to cut off Bing’s access to his

gun, or cure him of his willingness to fire it, or move to safety

the people nearby who refused to evacuate.” Id. Noting that

the police had to take time to gather intelligence, wait for

backup, and execute their plan, the Sixth Circuit concluded

that these acts “did not terminate the exigency.” Id. Further-

more, the Sixth Circuit decided that “the gathering of infor-

mation by police, even in the face of immediate danger, does

not negate a dangerous exigency.”10 Id. at 566. In addition, the

an easy task, and it points to our decision in United States v.

Good, 780 F.2d at 775. But our decision here does not invariably

require the government to have a telephone warrant before it

moves in on a dangerous suspect. It simply requires the govern-

ment either to attempt, in good faith, to secure a warrant or to

present evidence explaining why a telephone warrant was

unavailable or impractical.

810 F.2d at 883.

9

Because the majority announces a new warrant requirement for armed

standoffs when exigent circumstances clearly exist and continue until the

end of the standoff, the officers would appear to be entitled to qualified

immunity. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 757

(1995) (noting that officers were not liable on qualified immunity grounds

when a court declares an arrest unconstitutional for the first time).

10

The Supreme Court has stated, “[t]he Fourth Amendment does not

require police officers to delay in the course of an investigation if to do

15082 FISHER v. CITY OF SAN JOSE

Sixth Circuit in Bing analyzed the use of alternative means —

using pepper gas and a bag phone - for resolving the standoff

and found that they did not negate the exigency. Id. at 566-69.

Thus, Bing stands for the common-sense proposition that if

exigent circumstances exist at the beginning of an armed

standoff, that exigency continues throughout the standoff until

it is resolved.

The majority’s attempt to infer through negative implica-

tion that the Sixth Circuit intended to micro-manage situations

by imposing a blow-by-blow exigent circumstances analysis

for every activity that is a part of an armed standoff stretches

Bing beyond its logical limits. The Sixth Circuit’s own lan-

guage explains that:

It cannot be that an immediate-danger exigency

could have existed only when the police reasonably

felt forced to raid the house. If this standard were

generally applicable, any time the police methodi-

cally increase the pressure on a barricaded gunman

to force his exit, without invading, a rational juror

may on that basis find no immediate danger. This

position is not compelled by the Fourth Amendment.

Id. at 567. The Sixth Circuit recognized in Bing that the type

of step-by-step exigency analysis advocated by the majority

would lead to absurd consequences such as a finding that

there was no exigency unless the officers subjectively feel

compelled to forcibly raid a home. Officers must be allowed

to “methodically increase the pressure on a barricaded gun-

man to force his exit, without invading,” because not only is

so would gravely endanger their lives or the lives of others.” Warden v.

Hayden, 387 U.S. 294, 298-99 (1967). We have also recognized this prin-

ciple in the context of exigent circumstances. See Ortiz-Sandoval v.

Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (concluding delay by police

for investigation did not negate exigent circumstances); Bailey v. New-

land, 263 F.3d 1022, 1033 (9th Cir. 2001) (same).

FISHER v. CITY OF SAN JOSE 15083

it reasonable, but gradual pressure, negotiations, and other

tactics short of immediate invasion are likely to lead to a

peaceful result such as the one in this case. Id.

The majority’s decision cannot be squared with the Sixth

Circuit’s decision in Bing and thus, creates a clear circuit split

on how to analyze exigent circumstances in an armed stand-

off. If the Sixth Circuit can reasonably conclude that the exi-

gency that created the need for officers to surround the home

of an irrational, possibly intoxicated, armed gunman was not

negated over the course of a five-hour standoff or the use of

pepper gas and a bag phone, then why is it impossible for the

jury in this case to reasonably reach the same conclusion?

The majority’s reliance on the Sixth Circuit’s decision in

O’Brien v. City of Grand Rapids, 23 F.3d 990, 993-94 (6th

Cir. 1994), is also misplaced. First, the court in O’Brien held

that there was no exigency to support the use of search

probes. Id. at 997-98. Second, O’Brien concerned probable

cause to search and seize the house, not probable cause to

arrest.11 Id. at 995. The majority confuses the issue presented

of whether or not Fisher’s arrest was excused by exigent cir-

cumstances with whether further intrusions could be deemed

searches that might require a warrant. The result is an opinion

that would essentially force officers to either get judicial

approval of every tactical decision designed to bring a peace-

ful resolution to an armed standoff or to abandon an armed

standoff.

D. The wisdom of the jury should not be disturbed.

The twelve jurors in this case, however, saw this case dif-

11

Indeed, Fisher only contests his seizure by the officers in his home;

he did not contest any search-related issues. As such, any issues concern-

ing searches are not before us and may not be decided. See Steagald v.

United States, 451 U.S. 204, 212-13 (1981) (explaining differences

between probable cause for arrest and probable cause to search).

15084 FISHER v. CITY OF SAN JOSE

ferently. They appear to have reasonably found that between

the early morning hours and 2:35 p.m. the officers reasonably

believed that Fisher still had access to guns, was still irratio-

nal, or was still intoxicated.12 Nothing in the record negates

the exigency created by Fisher when he had 18 loaded fire-

arms, threatened others, pointed his rifle at police, was intoxi-

cated, and acted irrationally. These circumstances provided

the officers with ample grounds to be seriously concerned

about their own safety as well as the safety of the public, par-

ticularly because the events took place in an apartment com-

plex. Construing the evidence and the jury’s verdict in the

light most favorable to the City, as we are required to do, it

cannot be said that the jury was unreasonable in concluding

that there were exigent circumstances justifying the City’s

failure to obtain a warrant before arresting Fisher and that the

exigent circumstances continued throughout the standoff.

CONCLUSION

Armed standoffs are fluid and dangerous situations that are

stressful, tense, and require difficult decisions to resolve

peacefully. Not all of them result in the peaceful surrender of

the suspect. See Bing, 456 F.3d at 562 (officer shot suspect);

Ewolski v. City of Brunswick, 287 F.3d 492, 499-500 (6th Cir.

2002) (mentally disturbed, armed, and dangerous father shot

his son and himself). At any time, a standoff can end peace-

fully, or it can explode into violence. Sometimes, hostages are

involved. Armed standoffs always require difficult, complex,

and stressful tactical decisions that attempt to balance the

safety of all involved.

It is vital for the courts to provide clear guidelines to law

enforcement that allow them to manage armed standoffs with-

out the fear that, at some undetermined point, they will be

12

The majority, not content to second-guess this jury, also speculates

about what the jury in Fisher’s criminal trial thought. (Maj. Op. at 15068-

69.) Such speculation is improper.

FISHER v. CITY OF SAN JOSE 15085

subject to liability. Under the majority’s decision, it is impos-

sible to determine when the officers become liable. For exam-

ple, if Mr. Fisher surrendered while officers were seeking a

warrant, according to the majority opinion, the officers would

be liable for failing to obtain an arrest warrant earlier. Is the

cut-off point after an hour, ninety minutes, during the first

phone call, when the suspect disappears from view for more

than five minutes, if the suspect demands a pizza, or when

there is a shift change? Armed standoffs present officers with

a multitude of variables, situations, and often irrational acts

by the suspect that require the exercise of reasoned judgment

that the courts cannot, and should not, attempt to manage.

Imposing a requirement that officers must, at some arbi-

trary and undefined point in an armed standoff, seek an arrest

warrant is contrary to our precedent holding that exigency is

established at the time of arrest and continues until negated by

some new act or fact. See Lindsey, 877 F.2d at 781-82 (con-

cluding circumstances outside of the officers’ control did not

dissipate the exigency). Furthermore, imposing additional

warrant requirements on the use of pepper gas, throw phones,

and alternatives to deadly force would not serve the Fourth

Amendment’s purpose of preventing unreasonable searches

and seizures. Instead, it will create unnecessary confusion and

uncertainty about the law and may endanger the public, the

police, and even the suspect.

The Supreme Court in Tyler, and our own court in Eche-

goyen recognized that once exigent circumstances justify an

initial intrusion into the home, the officers are allowed to take

all reasonable steps necessary to complete that intrusion with-

out obtaining a warrant. Applying this simple principle to this

case, officers are allowed to conduct a standoff and take steps

to complete an initial warrantless arrest that is excused by exi-

gent circumstances without obtaining a warrant. Because we

consider a person arrested in his home once the police sur-

round the home and confine a suspect to the home, and

because that arrest is not complete until the officers obtain

15086 FISHER v. CITY OF SAN JOSE

physical custody of the suspect or the suspect submits to their

authority, an armed standoff is simply a continuation of the

initial arrest, and officers should be free to take all necessary

steps to complete the arrest.

The jurors in this case determined that exigent circum-

stances justified the initial arrest and reached an eminently

reasonable conclusion — that the San Jose Police Department

should be commended for handling this dangerous situation

properly and ultimately bringing about a peaceful resolution.

The Sixth Circuit in Bing analyzed similar facts and reached

the same conclusion as the jury in this case. Making all infer-

ences in favor of the verdict, the jury’s conclusion was sup-

ported by substantial evidence and was a reasonable

interpretation of the facts. Accordingly, the district court

should not have denied Fisher’s motion for judgment notwith-

standing the verdict.

For these reasons, I would reverse the district court’s grant

of Fisher’s renewed motion for judgment as a matter of law

and reinstate the jury’s verdict.