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Fisher v. City of San Jose

March 11, 2009


Appeal from the United States District Court for the Northern District of California Patricia V. Trumbull, Magistrate Judge, Presiding. D.C. No. CV-01-21192-PVT.

The opinion of the court was delivered by: Tallman, Circuit Judge



Argued and Submitted June 26, 2008 -- Pasadena, California

Before: Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Diarmuid F. O'Scannlain, Pamela Ann Rymer, Sidney R. Thomas, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Jay S. Bybee, and N. Randy Smith, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge Paez; Dissent by Judge Reinhardt

We address the Fourth Amendment's exigent circumstances doctrine in the context of armed standoffs. Steven Fisher triggered a standoff with San Jose police after he pointed a rifle at a private security guard who was investigating loud noises in Fisher's apartment complex. When the police arrived at his apartment, a noticeably intoxicated Fisher pointed one of his eighteen rifles at the officers and threatened to shoot them. The ensuing standoff lasted more than twelve hours and ended peacefully when Fisher finally emerged and allowed himself to be taken into custody. We hold that Fish-er's civil rights were not violated when police arrested him without a warrant.

Fisher and his wife sued under 42 U.S.C. § 1983 naming the City of San Jose, its police department, and several of its officers (collectively, "police"). The suit alleged, among other claims, that police violated Fisher's Fourth Amendment right to be free from unreasonable seizure by arresting him in his home without a warrant. The case went to trial, and the jury found that exigent circumstances excused the need for a warrant.*fn1 The district court nonetheless granted Fisher's renewed motion for judgment as a matter of law, holding that no reasonable jury could have found that there was insufficient time to obtain a warrant. The police appeal.

We consider whether sufficient evidence supports the jury's verdict. We believe so, and in reaching this conclusion, we take the opportunity to clarify our jurisprudence relating to the Fourth Amendment's application to armed standoffs. We hold that, during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody. We therefore reverse the district court and remand with directions to reinstate the jury's verdict and enter judgment in favor of the police.



We recount the evidence in the light most favorable to support the verdict rendered. See Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997).

Fisher began the evening of October 23, 1999, in his apartment, drinking beer, watching the World Series on television, and cleaning his collection of eighteen bolt-action World War I and II era rifles. When the game ended, Fisher continued cleaning his weapons and drinking his way through the two cases of beer he had purchased earlier that day. From time to time, Fisher took a break to read from a book entitled The Second Amendment Primer.

Fisher lived on the ground floor of the Tradewinds apartment complex in San Jose, California. The living room of his ground-floor apartment had two sliding glass doors which opened onto a small patio. The patio, which was surrounded by a low wall, looked out onto a common lawn area. A person standing in the common lawn area could look through the sliding glass doors and into Fisher's living room.

At about 1 a.m., Leonel Serrano, a uniformed security guard employed by Fisher's apartment complex, was patrolling the grounds of the complex when he heard loud music coming from the apartment above Fisher's. Serrano climbed the stairs and knocked on the door. When he heard no answer, he descended and called his supervisor, who apparently notified the police. At some point, Fisher, who was sitting in his living room working on one of his rifles, glimpsed Serrano standing in the common lawn area near Fisher's patio. Fisher approached Serrano carrying a rifle.

Serrano asked Fisher if he knew his upstairs neighbors and whether they were home. Rather than answering Serrano's questions, Fisher asked Serrano why he wanted to know that information, and told Serrano that he should not meddle in other people's affairs.

When Serrano informed Fisher that the police had already been called on account of the noise, Fisher's tone became aggressive. He began ranting about the Second Amendment, and that, in Fisher's view, it guaranteed the right to bear arms and to defend oneself and one's property. Although Serrano was not close enough to smell alcohol on Fisher's breath, Serrano nevertheless believed Fisher to be drunk based on his slurred speech, his decision to embark on an unprovoked exposition on the Second Amendment, and his bizarre and unresponsive answers to Serrano's questions. For example, Fisher first described his upstairs neighbors as nice people, later as vampires, then as nice people again.

As Fisher became more agitated, he shifted the position of the rifle such that it was pointing either at Serrano or in Serrano's direction.*fn2 Serrano, fearing for his safety, quickly left the area in front of Fisher's apartment and reported the confrontation to his supervisor, who placed another call to the police, this time describing a "suspicious person with a weapon." Eight officers were initially dispatched to the Tradewinds apartment complex.

Patrol Sergeant Laurence Ryan, who arrived at 1:50 a.m., was first on the scene. After hearing Serrano describe his encounter with Fisher, Sergeant Ryan assigned the other responding officers to take up positions around Fisher's apartment in order to form a containment perimeter. The officers concealed themselves so as not to become easy targets in the event that Fisher began shooting.

Sergeant Ryan then attempted to get Fisher's attention, first by calling his name, then by throwing small rocks at his sliding glass doors. Fisher eventually emerged onto his patio. Sergeant Ryan explained to Fisher why the police had been called. Fisher, still noticeably intoxicated, lapsed into a rambling, belligerent diatribe about his Second Amendment rights, and threatened to shoot Sergeant Ryan if he came on or near Fisher's property. Fisher also told Sergeant Ryan about the eighteen guns inside his apartment. After about ten minutes of yelling at Sergeant Ryan, Fisher retreated inside.

Fisher's threats, combined with his intoxication, his guns, and his generally irrational behavior prompted Sergeant Ryan to call for additional help. As more officers arrived, they continued to secure the perimeter around Fisher's apartment and to remove his neighbors from any lines of fire. Ultimately, more than sixty San Jose officers were deployed in the standoff.

Sergeant Ryan attempted to re-establish contact with Fisher by calling his apartment. His wife, Sandra Fisher, answered the phone and agreed to come outside. She told Sergeant Ryan that Fisher now was alone in the apartment, that he had eighteen rifles, and that he was extremely intoxicated.

Officer Derrick Boler was one of the San Jose police officers forming the perimeter around Fisher's house. He was positioned across the street from Fisher's apartment behind a parked car, where he remained for about four and one-half hours as the standoff progressed until he was relieved. At about 2:25 a.m., Officer Boler witnessed Fisher loading cartridges into what he believed to be at least one large caliber rifle, and then Fisher was seen pacing through his apartment holding the loaded weapon. Fisher was also seen loading several other magazines with ammunition, and strategically placing his guns around his apartment. Throughout the standoff, Officer Boler heard Fisher shouting at police, using phrases such as "I have guns. I will use them," and "Leave me the fuck alone. I don't believe in your laws." Officer Boler also witnessed Fisher drinking more beer as the standoff progressed.

Between 3:15 and 3:20 a.m., Officer Jan Males, a tactical negotiator, arrived on the scene and tried unsuccessfully to start a dialogue with Fisher, who continued going on about his right to bear arms and vowing never to relinquish his weapons. At one point, Fisher invited Officer Males into his apartment, but then stated he would shoot or kill her if she entered. Officer Males testified that she believed Fisher's statements to be a criminal threat and a felony offense under the California Penal Code. During these attempts at conversation with Fisher, Officer Boler saw Fisher pointing a gun at Officer Males and Sergeant Ryan, who had taken cover behind a tree. Fisher was last seen holding a rifle at about 6:30 a.m.

At 7:00 a.m., the San Jose Police Department's Mobile Emergency Response Group and Equipment ("MERGE") unit assumed tactical control of the police effort to end the standoff. Members of the MERGE team replaced most of the patrol officers who had maintained the inner perimeter since the inception of the incident. Some of the departing patrol officers returned to the police station to fill out police incident reports.

Over the next several hours, the MERGE team tried several methods to establish communication with Fisher and resolve the standoff: they used bullhorns and other voice magnifying equipment; they shut off the electrical power; they drove an armored vehicle with its siren activated onto the grass in front of his patio; and they threw a "throw phone"*fn3 onto the patio. When those techniques failed to induce Fisher to surrender, the MERGE unit detonated a flash-bang device, and, on two occasions, they shot canisters of tear gas into his apartment. Nothing worked to dislodge Fisher from his home.

The standoff entered its final stage at about 2:15 p.m., more than twelve hours after it had begun. Fisher spoke by phone for several minutes with a tactical negotiator, and finally agreed to leave his apartment. He was told to walk toward the officers with his hands above his head, then to lie on the ground. He initially took several steps but suddenly stopped and turned back toward his apartment. At that point, a member of the MERGE unit shot Fisher in the leg with a non-lethal rubber bullet. Fisher then surrendered and was finally taken into police custody. It was undisputed at trial that no attempt was made at any point during the standoff to obtain an arrest warrant.

Fisher was tried for felony violations of California Penal Code sections 417 and 417.8, which punish, in general, drawing, exhibiting, or using a firearm or deadly weapon against a peace officer with the intent to resist or prevent arrest. The criminal jury deadlocked, and Fisher ultimately pleaded no contest to a misdemeanor charge of brandishing a firearm in the presence of a security guard.


Fisher and his wife subsequently filed an action under 42 U.S.C. § 1983 against the City of San Jose, its police department, and many of the officers involved in the standoff. The civil rights complaint alleged, inter alia, that police violated Fisher's Fourth Amendment right to be free from unreasonable seizure based on their failure to obtain an arrest warrant before effecting his full physical arrest and on the alleged use of excessive force to effectuate that arrest.

The case was tried to a civil jury. After the presentation of all of the evidence, Fisher moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). His motion was denied, and the jury returned a verdict in favor of the police on all claims. Fisher then renewed his motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). The district court granted the motion as to Fisher's warrantless arrest claim, and denied the motion on the balance of Fisher's claims. The district court ordered the City to pay Fisher one dollar in nominal damages and 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 police appealed the district court's ruling. On January 16, 2007, a three-judge panel of our court affirmed, with one judge dissenting. Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. 2007). On November 20, 2007, that opinion was withdrawn and replaced by an amended opinion, which again, by a two-to-one margin, affirmed the district court. Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). On March 14, 2008, we ordered the case to be reheard en banc, and vacated the decision of the three-judge panel. We now reverse.


We review de novo the district court's decision to grant Fisher's renewed motion for judgment as a matter of law. See Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1226-27 (9th Cir. 2001). The question we must answer is whether, construing the evidence in the light most favorable to the police, the jury's defense verdict was supported by substantial evidence. Id. at 1227. "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir. 1985) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In making this determination, we must take care not to substitute our view of the evidence for that of the jury. Johnson, 251 F.3d at 1227.

"[W]hen 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 if the party did not object to the jury instructions. Pincay v. Andrews, 238 F.3d 1106, 1109 n.4 (9th Cir. 2001) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 181-83 (9th Cir. 1989)).



In order to frame the precise issue before us, we begin by noting several important legal issues about which the parties are in agreement. First, the police concede that even though Fisher was technically taken into custody outside his apartment, he was, for legal purposes, seized inside his home, and, as such, the burden is on the police to show either that they obtained a warrant or that some exception to the warrant requirement excused officers from getting one. See United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1986) (holding that the suspect was effectively arrested when police surrounded his trailer "with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees"); United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980), aff'd, 457 U.S. 537 (1982). Here, the police assert that exigent circumstances justified Fisher's warrantless seizure.

Second, Fisher concedes that there was probable cause to arrest him. The civil jury was presented with several possible crimes Fisher may have committed, and, by concluding that Fisher's warrantless arrest was justified, the jury necessarily found that a reasonable police officer would have had probable cause to believe Fisher committed at least one of those crimes. See Bailey v. Newland, 263 F.3d 1022, 1032 (9th Cir. 2001) ("It is clearly established Federal law that the warrantless search of a dwelling must be supported by probable cause and the existence of exigent circumstances." (citing Payton v. New York, 445 U.S. 573, 587-90 (1980))). Ample evidence existed to establish probable cause that Fisher had violated California Penal Code section 417(c) (drawing or exhibiting a loaded or unloaded gun in the presence of a police officer in a rude, angry, or threatening manner) and California Penal Code section 422 (willfully threatening to commit a crime which will result in death or great bodily injury). Officer Boler saw Fisher pointing his gun at Officer Males and Sergeant Ryan. The testimony of several officers establishes that Fisher threatened to shoot Officer Males if she approached his apartment, and his personal arsenal gave Fisher the present ability to make good on those threats. Fisher was obviously intoxicated at the beginning of the standoff and he consumed more alcohol as it progressed. His behavior and irrational statements gave the police further cause for concern that Fisher might be mentally unbalanced and unpredictable.

Third, Fisher concedes that exigent circumstances existed to arrest him before 6:30 a.m., the last time he was seen holding a gun. Exigent circumstances are defined to include "those circumstances that would cause a reasonable person to believe that entry . . . was necessary 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. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc), cert. denied, 469 U.S. 824 (1984)). Before that time, Fisher was seen pointing a rifle at Officer Males and Sergeant Ryan, loading his rifles, and arranging them strategically throughout his ...

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