Fisher v. City of San Jose ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN FISHER, 
Plaintiff-Appellee,
and
SANDRA FISHER,
Plaintiff,
v.
CITY OF SAN JOSE, No. 04-16095
Defendant-Appellant,
and
 D.C. No.
CV-01-21192-PVT
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 January 16, 2007
Before: David R. Thompson, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Callahan
465
470 FISHER v. CITY OF SAN JOSE
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.
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
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
alone, the district court ordered the City to pay nominal dam-
ages of one dollar and issued an injunction regarding future
training of police officers. We uphold the district court’s rul-
ing on appeal, as we agree that the failure to obtain a warrant
under the unusual circumstances of this case constituted a
constitutional violation as a matter of law.
FISHER v. CITY OF SAN JOSE 471
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,
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 after Serrano 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.
472 FISHER v. CITY OF SAN JOSE
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 else was inside the apartment.
She also confirmed that Fisher had eighteen rifles in the apart-
ment and had been drinking.
At approximately 3 or 4 a.m., Jan Males, a tactical negotia-
tor, arrived and tried to communicate with Fisher. Unprom-
pted, Fisher informed Males that he had a right to bear arms.
He invited her into his apartment but said he would shoot her
if she did come in. Males considered this statement to be 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 v. CITY OF SAN JOSE 473
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 first arrived.1 At
that point, believing 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.
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
the police began throwing CS gas canisters into Fisher’s
apartment; CS gas causes irritation and burning sensations.
One of the CS gas volleys sent glass flying, cutting 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.
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.
474 FISHER v. CITY OF SAN JOSE
Several of the police officers involved in the first shift
returned to the police station after they left in the morning and
wrote police reports; some of those officers testified that they
had intended to arrest Fisher. All the police officers who were
asked at Fisher’s § 1983 trial whether they attempted to pro-
cure a warrant said no, 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 officers 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
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 of San Jose, the San Jose
Police Department, and several San Jose police officers. They
alleged, among other causes of action (1) that Fisher’s war-
rantless arrest was an unreasonable seizure; and (2) that 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 lia-
ble through the doctrine of respondeat superior for the actions
of its employee police officers also named herein in their indi-
vidual capacity.” After an eight-day jury trial, Fisher filed a
motion for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a), but the court denied the motion.
The court instructed the jury that “[i]t already has been con-
clusively established that if you find that the Defendants
unlawfully arrested Steven Fisher, such arrest was done pur-
FISHER v. CITY OF SAN JOSE 475
suant to the official policy of the City of San Jose and, thus,
that the City is liable for such arrest.” The jury was further
instructed that the arrest was lawful if “the officers ha[d]
probable cause to believe a crime has been committed and
exigent circumstances exist,” and also that “[e]xigent circum-
stances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would
arise if the police were to delay an arrest until a warrant could
be obtained.” The court additionally instructed that a “seizure
or arrest occurs when a police officer or officers, by means of
physical force or show of authority, restrains [sic] the liberty
of a citizen in such a way that a reasonable citizen reasonably
would believe under the circumstances that he or she was not
free to leave.” Finally, the court instructed that “[w]hen a per-
son emerges from his home only because of police coercion,
it is constructive entry and is considered an arrest within the
home.” The jury was not fully instructed, however, about how
to determine when any entry takes place, so as to gauge
whether exigent circumstances existed at all of the pertinent
times. Moreover, as we explain later, the jury was improperly
instructed on the standard for identifying an arrest.
So instructed, the jury found for the defendants on all
claims. Fisher then 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 warrantless 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-
476 FISHER v. CITY OF SAN JOSE
cers [were] present at the Fisher’s apartment complex,” not
one of them was able to seek and obtain 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, for any reason, the court does not grant a motion
for judgment as a matter of law made at the close of
all the evidence [under Rule 50(a)], the court is con-
sidered to have submitted the action to the jury sub-
ject to the court’s later deciding the legal questions
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
“legally sufficient evidentiary basis for a reasonable jury to
find for that party on [an] issue,” and, if not, whether “a claim
or defense . . . cannot under the controlling law be maintained
or defeated without a favorable finding on that issue.” Fed. R.
Civ. P. 50(a). “Sufficient evidence” is “evidence 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-
 FISHER v. CITY OF SAN JOSE 477
trict court’s “judgment is proper 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.” Id.
Although the jury instructions did not fully and properly
cover the question of when the pertinent entry and arrest
occurred, Fisher did not object to the jury instructions. The
City argues that he therefore cannot complain of the jury’s
verdict as if the instructions had been proper, but only on the
ground that on the instructions given, no substantial evidence
supported the verdict. That proposition is not illogical, but it
is incorrect.
True, an “appellant may not challenge on review the cor-
rectness of instructions to which he took no exceptions or
only general exception.” Air-Sea Forwarders, Inc. v. Air Asia
Co., 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 High-
lands 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 fail-
ure 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 opinion) (quoting City of Springfield v.
Kibbe, 480 U.S. 257, 264 (1987) (O’Connor, J., dissenting)
(internal quotation marks omitted).3 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 pre-
serve the . . . issue for appeal, ‘[a]lthough the same legal issue
3
Although Praprotnik was a plurality opinion, we have viewed the
quoted principle as precedential, in light of a later Supreme Court case.
See Air-Sea Forwarders, 880 F.2d at 183 & n.7.
478 FISHER v. CITY OF SAN JOSE
was raised by both those motions and [by] the jury instruc-
tion.” Air-Sea Forwarders, 880 F.2d at 183 (quoting Praprot-
nik, 485 U.S. at 120 (plurality opinion)) (first alteration in
original). We may therefore review the question raised by
Fisher — whether exigent circumstances existed such that a
warrant could not have been obtained before the entry that
effectuated the arrest or the arrest itself — even though the
jury instructions did not fully and properly cover the key
question — essential to deciding the exigency issue — of
when an arrest or entry effectuating an arrest occurs.
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).4 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). It is because “the home is perhaps the most
sacrosanct domain and . . . there, Fourth Amendment interests
are at their strongest,” LaLonde v. County of Riverside, 204
4
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.
FISHER v. CITY OF SAN JOSE 479
F.3d 947, 954 (9th Cir. 2000), that “the Fourth Amendment
has drawn a firm line at the entrance to the house. Absent exi-
gent circumstances, that threshold may not reasonably be
crossed without a warrant.” Payton, 445 U.S. at 590. Police
may, however, arrest a suspect in a public place without a
warrant, assuming they have probable cause to believe that
the suspect has committed a crime. United States v. Watson,
423 U.S. 411, 423-24 (1976).
[2] In determining whether an arrest occurs in-house 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, if the police force a person out of his house
to arrest him, the arrest is deemed to have taken place inside
his home. United States v. Al-Azzawy, 784 F.2d 890, 892-93
(9th Cir. 1985); United States v. Johnson, 626 F.2d at 757. In
Al-Azzawy, for example, 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 trailer.” 784 F.2d at 893.
[3] Although it is possible to seize someone within the
meaning of the Fourth Amendment in a manner that does not
constitute a full-blown arrest, the same principles apply to any
in-house seizure of a person, even one that does not amount
to a full-blown arrest. Here is why: Although Fourth Amend-
ment seizures that do not amount to arrests may be accom-
plished on less than probable cause, Terry v. Ohio, 392 U.S.
1, 20 (1968), we have held, in light of the special status of in-
house seizures recognized in Payton, that “probable cause is
a precondition for any warrantless entry to seize a person in
his home.” LaLonde, 204 F.3d at 954. Thus, whatever the
nature of the seizure, the “less onerous requirements of Terry”
— permitting seizure based on reasonable suspicion rather
480 FISHER v. CITY OF SAN JOSE
than probable cause — cannot be applied to a warrantless
entry to seize a person in his home. Id. For similar reasons,
any in-house seizure must be subject to the warrant require-
ment as well, absent an applicable exception. We agree in this
regard with United States v. Saari, in the Sixth Circuit, which
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.
272 F.3d 804, 809 (6th Cir. 2001) (citations omitted).
[4] 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 to a Terry seizure had the sei-
zure occurred outside the home. Either way, a warrant was
presumptively required prior to entry.
2. Exceptions to the Warrant Requirement
[5] The warrant requirement, however, is not without
exceptions. The exception defendants rely upon here, and the
one explicitly noted in Payton, permits arrests without a war-
rant inside a home when police officers have probable cause
to believe that a crime has been committed5 and exigent cir-
cumstances exist such that a warrant “could not have been
obtained in time.” See United States v. Manfredi, 722 F.2d
519, 522 (9th Cir. 1983). The standard has also been framed
as permitting a warrantless arrest when “a substantial risk of
5
Fisher concedes that probable cause to believe he committed a crime
existed during the standoff.
FISHER v. CITY OF SAN JOSE 481
harm to the persons involved or to the law enforcement pro-
cess would arise if the police were to delay a search until a
warrant could be obtained.” United States v. Robertson, 606
F.2d 853, 859 (9th Cir. 1979); see also Michigan v. Tyler, 436
U.S. 499, 509 (1978) (“[A] warrantless entry by criminal law
enforcement officials may be legal when there is compelling
need for official action and no time to secure a warrant.”). We
read these enunciations of the standard to mean that a situa-
tion is exigent for purposes of permitting an arrest without a
warrant if a warrant could not be obtained in time to effectu-
ate the arrest safely — that is, for present purposes, without
causing a delay dangerous to the officers or to members of the
public.6
[6] Inherent in this standard are considerations regarding
the time required, as a practical matter, to obtain a warrant.
Where exigency is claimed, we have required “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.” United States v. Alvarez, 810
F.2d 879, 883 (9th Cir. 1987) (footnote omitted). Here, none
of the officers testified that there was any attempt to get a
warrant at any point during the twelve-hour standoff, by tele-
phone or otherwise. The City can therefore prevail only if it
satisfactorily explains why a warrant was unavailable or
impractical in the time available.
3. Duration of the Warrant Requirement
The City’s explanation on the key question of exigent cir-
cumstances proceeds from the premise that Fisher was under
6
“ ‘[E]xigent circumstances,’ include the need to protect an officer or
the public from danger, the need to avoid the imminent destruction of evi-
dence, when entry in ‘hot pursuit’ is necessary to prevent a criminal sus-
pect’s escape, and 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).
482 FISHER v. CITY OF SAN JOSE
arrest by 6:30 a.m. at the latest, so the showing with regard
to practicality of obtaining a warrant need only cover the
period before then. The City cites Al-Azzawy, which held that
because “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 . . . the
arrest occurred while he was still inside his trailer.” 784 F.2d
at 893. Al-Azzawy also cited, with approval, a statement from
a Sixth Circuit case that the defendant “was placed under
arrest, without the issuance of a warrant, at the moment the
police encircled [his] residence.” Id. at 892 (quoting United
States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984)). The
City’s thesis is that because under Al-Azzawy Fisher was
arrested in his home and because the police had staked out
Fisher’s apartment and begun encouraging him to leave his
apartment by 6:30 a.m, he was arrested by then, and the time
after 6:30 a.m. is irrelevant to the question of whether it was
possible to get a warrant.7
7
Even if we were to assume the City’s timeline as well as its under-
standing that only one, early arrest occurred, it is far from clear that suffi-
cient evidence of exigency existed to justify the failure to obtain a warrant.
Warrants need not always be obtained in person. Federal Rule of Criminal
Procedure 41(d)(3), for example, allows a magistrate to issue a warrant by
telephone if the police comply with certain procedures. The officers testi-
fied to knowledge of these types of procedures. Also, all officers who
were questioned testified that judges are available twenty-four hours a day
to issue warrants. The incident with the security officer occurred around
midnight, Fisher allegedly pointed guns at the police officers from his
apartment beginning around 2:45 a.m., and the asserted criminal threat to
Males took place before 4 a.m. Although it was these events that, accord-
ing to the parties, gave rise to probable cause for the arrest, the govern-
ment has provided no explanation beyond a general claim of exigency as
to why none of the police present tried to get a warrant for Fisher’s arrest
during that early morning period, directly or by contacting police head-
quarters and asking someone else to do it. See United States v. Licata, 761
F.2d 537, 543 (9th Cir. 1985) (“The exigencies must be viewed from the
totality of circumstances known to the officers at the time of the warrant-
less intrusion.”); see also United States v. Lindsey, 877 F.2d 777, 782 (9th
Cir. 1989) (holding that exigent circumstances exception was satisfied
where the police on the scene did not begin the warrant process during the
one hour they were waiting for assistance from reinforcement dealing with
a potentially dangerous situation because “the officers did not know in
advance that the reinforcements would be delayed”).
FISHER v. CITY OF SAN JOSE 483
The pivotal problem with this reasoning is the City’s
unstated premise — that there could be only one arrest giving
rise to the need for a warrant. After examining Al-Azzawy,
post-Al-Azzawy Supreme Court case law, as well as the Pay-
ton line of cases, we conclude that this assumption is incor-
rect. The City’s articulated thesis — that the warrant
requirement necessarily lapsed even though the standoff con-
tinued — is therefore incorrect as well.
We conclude, instead, that the Fourth Amendment’s war-
rant requirement for entering a home to seize or arrest some-
one does not disappear once there has been a single entry,
seizure, or arrest, but continues in effect if there are further
entries for the purpose of seizure or arrest — subject to an
exception if there is an exigency excusing the warrant at the
time of the later entries.
[7] Our analysis proceeds, first, from post-Al-Azzawy
Supreme Court case law that indicates that there can be more
than one seizure or arrest arising from a particular set of cir-
cumstances. See California v. Hodari D., 499 U.S. 621
(1991). Hodari D. concerned a young man who fled at the
sight of police and, while he was being pursued, threw aside
a block of crack cocaine; the police thereafter retrieved the
cocaine and charged Hodari D. in a juvenile proceeding. Until
Hodari D. threw the cocaine, he argued, the officers did not
have even reasonable suspicion to stop and question him. The
question therefore was when Hodari D. was seized — before
or after he tossed the cocaine.
[8] Hodari D. determined that, in general, while a seizure
can be accomplished by “mere grasping or application of
physical force with lawful authority, whether or not it suc-
ceeded in subduing the arrestee,” there is no “continuing
arrest during the period of fugitivity.” Id. at 624-25.8 Thus,
8
In Hodari D., the encounter was in a public place, not in a dwelling,
so no warrant requirement was applicable even if an arrest occurred. See
484 FISHER v. CITY OF SAN JOSE
Hodari D. explained, if an officer places his hands upon a
suspect intending to arrest him but the suspect flees, any
arrest effectuated by the touching does not continue after the
separation of the two. Id. at 625. The necessary corollary of
this analysis is that a suspect once seized by the application
of physical force but not subdued can be seized again, until
he does yield to the officers. A further implication, which we
adopt as a holding, is that the warrant requirement, if other-
wise applicable, applies to later arrests or seizures even if
there was an earlier, unsuccessful arrest or seizure as to which
no warrant requirement was applicable. So, for example, if
Hodari D. had succeeded in evading the police after they
apprehended him on the street and the officers later came to
his house to rearrest him, they would need a warrant to enter
his house unless there was probable cause and an exigency at
that time excusing the warrant requirement.
[9] The second strand in our Fourth Amendment analysis,
derived from Payton, is the principle that “the critical time for
determining whether any exigency exists is the moment the
officer makes the warrantless entry.” United States v. John-
son, 256 F.3d 895, 907 (9th Cir. 2001) (en banc) (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
Watson, 423 U.S. at 423-24. Also, the technical issue in Hodari D. was
whether there was a seizure, not an arrest. See 499 U.S. at 623.
Despite these distinctions, Hodari D. is applicable here, for two reasons.
First, Hodari D. relied heavily on the law of arrest, both common law and
constitutional, emphasizing that “an arrest [is] the quintessential ‘seizure
of the person’ under our Fourth Amendment jurisprudence.” Id. at 624.
Here, we assume, as Hodari D. did, that common law of arrest concepts
apply to seizure of persons that may not meet modern definitions of arrest,
as well as to full-blown arrests. Second, as we have explained, a warrant
is required for in-home seizures short of arrests, as well as for in-home
full-blown arrests, as long as no exception to the warrant requirement
applies.
FISHER v. CITY OF SAN JOSE 485
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). Under
this standard, it is the entry, not the arrest, that most directly
triggers the constitutional concern. Indeed, as the facts of
Payton itself illustrate, a warrantless entry made for purposes
of arrest or seizure is constitutionally invalid even if no arrest
ensues because the suspect is not there. See 445 U.S. at 576-
77.
In sum: (1) there can be more than one arrest or seizure and
therefore more than one entry for the purpose of effecting an
arrest or seizure; and (2) the pertinent time for determining
whether an exigency exists that excuses the need for a warrant
to make an in-house arrest or seizure is the time entry is made
to effectuate that arrest or seizure. Given these two principles,
it does not matter whether the City is correct that the warrant
requirement became operative during the early morning hours
but was excused at the point because there was exigency.
Assuming that much is true — which we do not decide — the
warrant requirement did not terminate at that point, because
(1) there were, after 6:30 a.m., discrete entries for the purpose
of effectuating Fisher’s seizures and arrest that triggered the
warrant requirement under Payton; and (2) there was no exi-
gency at the time of one or more of those discrete entries.
B. Seizures and Arrest of Fisher
Fisher clearly succumbed to police coercion while still at
home when he agreed to come out of his house and submit to
formal arrest. As Fisher’s final arrest thus occurred inside his
home — a determination the City does not contest — a war-
486 FISHER v. CITY OF SAN JOSE
rant was presumptively required to seize him prior to this
arrest.
What is contested is the timing of that arrest, or of any
other seizures. The City argues that Fisher’s only arrest
occurred 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 sharp shooter to
observe his actions. This argument implicitly maintains that
any pertinent entry occurred before then. Applying the princi-
ples already discussed to the evidence presented, we conclude
that the City’s position is not supported by legally sufficient
evidence.
There are, in fact, at least three possible junctures at which
an arrest or seizure of Fisher could have occurred: (1) before
6:30 a.m., when the police had surrounded his house and were
asking him to emerge; (2) when the officers caused force to
be applied to him by tossing in CS canisters; or (3) when, at
the end of the standoff, Fisher submitted to the officers’ show
of authority. As we proceed to explain, assuming an arrest
occurred at the first juncture, as the City posits, we conclude
that seizures occurred at the second and third junctures as
well. Our conclusion that seizures or arrests occurred at those
two junctures derives from standards for determining when
seizures occur that have their roots in Hodari D.
1. Pre-6:30 a.m. seizure or arrest
The City suggests that Fisher was arrested when he was no
longer “free to leave” — which, according to the City, was
when his apartment was surrounded by police officers, that is,
some time before 6:30 a.m. Although the trial court’s instruc-
tions to the jury in this case so stated and many cases do rely
on the “free to leave” standard as necessary to determine
when a seizure, essential to an arrest, has occurred, see, e.g.,
Gilmore v. Gonzales, 435 F.3d 1125, 1137-38 (9th Cir. 2006),
FISHER v. CITY OF SAN JOSE 487
that phraseology is not the most useful one under the present
circumstances.
The problem with the “free to leave” standard as applied to
barricaded suspects is that it does not effectively measure the
degree of intrusion on their liberty worked by the police
actions. Here, for example, Fisher was quite clear that he did
not wish to leave.
[10] The Supreme Court has enunciated in the context of
investigatory stops on buses a slightly modified version of the
“free to leave” test more useful here: A person’s liberty is
restrained to the point of seizure for Fourth Amendment pur-
poses when, “taking into account all of the circumstances sur-
rounding the encounter, the police conduct would ‘have
communicated to a reasonable person that he was not at lib-
erty to ignore the police presence and go about his busi-
ness.’ ” Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting
Michigan v. Chesternut, 486 U.S. 567, 569 (1988) and citing
Hodari D., 499 U.S. at 628); see also United States v. Jacob-
sen, 466 U.S. 109, 113 n.5 (1984) (stating that “the ‘seizure’
of a person within the meaning of the Fourth Amendment [is]
meaningful interference, however brief, with an individual’s
freedom of movement”); United States v. Washington, 387
F.3d 1060, 1068 (9th Cir. 2004) (quoting Bostick, 501 U.S. at
437). As this line of cases recognizes, in most encounters
between police and the citizenry, we presume a person’s
desire in terminating the encounter to be leaving the scene. In
some cases, however, the desire is to stay in place and go
about one’s business, and in those instances the determination
of when a seizure or arrest has occurred focuses on interfer-
ence with those autonomy interests.
[11] The circumstances here are of the latter variety: Fisher
expressed his desire to go about his business at home.9 He
9
In discussing Fisher’s circumstances, we do not hold, as the dissent
suggests, Dissent at 508, that the Bostick test is a subjective one. Rather,
we observe only that Fisher was similarly situated to the bus passenger in
Bostick, whose “freedom of movement was restricted by [his desire to stay
on the bus — ]a factor independent of police conduct.” 501 U.S. at 436.
488 FISHER v. CITY OF SAN JOSE
repeatedly asked the police to leave him alone, withdrawing
from public sight for several hours and attempting to watch
television. Any approach focusing on serious interference
with Fisher’s liberty interest under circumstances such as
these must therefore be framed not as freedom to leave but
freedom to “ignore the police presence and go about his busi-
ness.” Bostick, 501 U.S. at 437 (quoting Chesternut, 486 U.S.
at 569) (internal quotation mark omitted).
[12] The officers made it clear that they did not wish Fisher
to continue to stay alone in his apartment and do what he
pleased, and demanded that he cease his chosen activities and
come outside to talk to them. This demand was not merely
verbal but included throwing rocks at his window, speaking
to him through a bullhorn, turning off his power, tossing a
throw phone through into his home, setting off a “flash-bang”
device, and throwing CS gas canisters into his apartment.
Given this barrage of police threats outside the home and
intrusions of objects and materials into the apartment, a rea-
sonable person certainly would have felt constricted in contin-
uing his daily activities at home.
Nevertheless, the “free to leave” or “free to go about
[one’s] business” standard is not alone determinative in ascer-
taining when an arrest or seizure has occurred, the critical
inquiry in this case.10 Hodari D. held that a common law
arrest or seizure of a person could be accomplished in two
ways: “either physical force . . . or, where that is absent, sub-
mission to the assertion of authority.” 499 U.S. at 626. The
10
We emphasize that nothing in Hodari D. or in this discussion bears
directly on when a suspect is in “custody,” for non-Fourth Amendment
purposes. For purposes of applying Miranda v. Arizona, 384 U.S. 436
(1966), for example, we use a five-part test for evaluating whether some-
one is in custody. See United States v. Hayden, 260 F.3d 1062, 1066 (9th
Cir. 2001) (examining “(1) the language used to summon the individual;
(2) the extent to which the defendant is confronted with evidence of guilt;
(3) the physical surroundings of the interrogation; (4) the duration of the
detention; and (5) the degree of pressure applied to detain the individual”).
FISHER v. CITY OF SAN JOSE 489
Supreme Court has clarified that, contrary to the jury instruc-
tions in this case and to the views expressed by our dissenting
colleague, the “free to leave” — or, in this instance, “free to
go about [one’s] business” — test is “a necessary, but not
sufficient, condition for seizure — or, more precisely, for sei-
zure effected through a ‘show of authority.’ ” Id. at 628. Even
if police officers’ words to a fleeing suspect constituted a
“show of authority,” Hodari D. held, a suspect is not seized
as long as he is not complying with the officers’ “injunction.”
Id. at 629. Fisher did not so comply until well after 6:30 a.m.11
2. Seizures or arrests after 6:30 a.m.
Addressing both modes of seizure that Hodari D. recog-
nized, we conclude that the evidence supports only one rea-
sonable conclusion: that Fisher was seized, in both manners,
during the afternoon hours, even if he was also seized by 6:30
a.m. as the City posits.
a. Use of Force
[13] Under Hodari D., the first method of effectuating a
seizure is through the application of physical force. The force
need not be significant and can count as effectuating an arrest
even if inadequate to gain control of the suspect. “[M]ere
grasping” or “la[ying] . . . hands upon” a suspect is, for exam-
ple, sufficient even if inefficacious. Id. at 624-25.
11
As we discuss later, Hodari D. also announced that seizure — includ-
ing arrest — through application of physical force can occur even though
the force is ineffective in restraining an individual’s liberty. 499 U.S. at
624. Some cases have asserted that a show of force such as occurred here,
when the officers surrounded Fisher’s apartment and placed a police car
on the apartment complex lawn, is tantamount to an application of physi-
cal force under Hodari D. See Ewolski v. City of Brunswick, 287 F.3d 492,
506 (6th Cir. 2002); Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997).
We assume that is so. See note 13, infra. As a result, we do not contradict
Ewolski or create the circuit split that the dissent envisions. Dissent at 510
n.5.
490 FISHER v. CITY OF SAN JOSE
[14] Also, the force used need not involve a direct physical
connection between the officer and the suspect. Rather, a
Fourth Amendment seizure occurs “when there is a govern-
mental termination of freedom of movement through means
intentionally applied,” even if indirectly. Brower v. County of
Inyo, 489 U.S. 593, 596-97 (1989). So, as in Brower, if the
police intentionally set up a situation which will cause force
to be applied to a suspect, such as establishing a roadblock or
firing a gun, they have used force on the suspect. See id. at
598-99 (holding that a seizure occurs when a person is
“stopped by the very instrumentality set in motion or put in
place in order to achieve that result”); Tennessee v. Garner,
471 U.S. 1, 7 (1985) (“[A]pprehension by the use of deadly
force is a seizure. . . .”).
Applying these standards, we conclude that whether or not
the show of official force that occurred before 6:30 a.m. can
be considered equivalent to the application of physical force
for purposes of effectuating a seizure, there was no basis in
the evidence for the jury to conclude that any such seizure
was the only one that occurred. Rather, Fisher continued to go
about his business in his apartment.12 His doing so was equiv-
alent to the escape envisioned by Hodari D.: Like a fugitive
who flees after application of physical force sufficient to con-
stitute a seizure, as long as he remained in his apartment,
Fisher was not under complete police control, despite
attempts to bring him into such control. For that reason,
Fisher remained subject to seizure or arrest — and related
entries into his home — after the arrival of the MERGE team
12
Fisher’s location is critical to our conclusion. As Bostick recognized,
“escape” or “freedom,” which may generally require an explicit showing
of physical flight, takes on a different meaning in a confined location, such
as one’s home, in which there are compelling reasons — unrelated to
police action — for an individual to remain. 501 U.S. at 435-36. Contrary
to the dissent’s suggestion, however, we do not hold that merely disap-
pearing from view constitutes an escape of the sort discussed in Hodari
D. See Dissent at 511-12.
FISHER v. CITY OF SAN JOSE 491
even if he had been seized earlier, just as would an individual
shot by the police who continued to flee thereafter.
[15] After the MERGE team arrived, the officers threw sev-
eral volleys of CS gas canisters into Fisher’s house. The gas
was intended to reach Fisher’s orifices and interfere with his
ability to function and did so. Intentionally exposing Fisher to
toxic substances is an application of physical force for Fourth
Amendment purposes. See Headwaters Forest Def. v. County
of Humboldt, 240 F.3d 1185, 1198-1200 (9th Cir.), vacated
and remanded, 534 U.S. 801 (2001), aff’d on remand, 276
F.3d 1125 (9th Cir. 2002); LaLonde, 204 F.3d at 960-61.
Thus, after the MERGE team arrived and Boler and Ryan left
at 7 a.m., the officers applied physical force to Fisher on more
than one occasion, which, under Hodari D., constituted seiz-
ing him on each such occasion.
b. Show of Authority
Alternatively, the police arrested Fisher at the end of the
standoff, when he ultimately submitted to their show of
authority by agreeing while still in his house to be placed
under arrest.
The City insists that Al-Azzawy controls this case, because
it deemed an arrest to have occurred when the police encircled
the suspect’s dwelling, thereby showing authority. Al-Azzawy,
784 F.2d at 892-94. Al-Azzawy and the cases it relies upon
concern people who emerged from their dwelling shortly after
a show of authority by police, so that the submission by
emerging occurred essentially at the same time as the initial
show of authority.13
13
In addition to its emphasis on the officers’ show of authority, Al-
Azzawy also refers to “the officers’ show of force.” 784 F.2d at 893. So
Al-Azzawy can be read, alternatively, to assert that armed, intrusive police
actions such as those used in that case and this one outside the suspect’s
house constitute an application of physical force even though no physical
substance actually touches the suspect, as in Brower. The Sixth Circuit in
Ewolski similarly held that there was an “application of physical force”
when “the police surrounded the house and paraded an armored vehicle in
front of the [suspect’s] house.” 287 F.3d at 506.
492 FISHER v. CITY OF SAN JOSE
This case presents a contrasting set of circumstances:
Fisher did not succumb to the show of authority until over
twelve hours had passed after the first attempt to contact him,
and after several intrusive techniques had been used in addi-
tion to the initial show of authority. Fisher therefore cannot be
said to have submitted to the officers’ show of authority until
at least 2:13 p.m., when he began speaking to the police over
the throw phone.
[16] As Hodari D. emphasizes, when a seizure is effectu-
ated through a show of authority rather than through any sort
of application of physical force, there is no seizure until there
is a submission to authority by the suspect; assertion of
authority alone by the police is not enough. 499 U.S. at 629.
After Hodari D., the officers’ show of authority and the “loca-
tion of the arrested person,” Johnson, 626 F.2d at 757, at the
time of that show of authority remain significant under the
Fourth Amendment, but it is the suspect’s actions in response
to the show of authority that controls the timing of a seizure
when the seizure is not accomplished through the use of phys-
ical force.
[17] Following Hodari D., we conclude that there was no
evidence establishing that Fisher was arrested pursuant to the
officers’ show of authority until he submitted to that show of
authority by agreeing to emerge from his home and then
doing so. Even after the MERGE team applied physical force
by tossing in CS gas canisters, Fisher attempted to ignore the
police, generally refusing to speak with them and declining to
come out of his home. The rocks thrown at his window, the
flash-bang device, and the bullhorn failed to convince him to
leave. The police began sending CS gas canisters into his
apartment at 1 p.m. After two rounds of CS gas canisters,
approximately six volleys in total, caused glass to shatter into
his face as well as making it hard for him to breathe and see,
Fisher finally agreed to submit to police authority by leaving
his house at 2:35 p.m. At that point, the jury could only rea-
sonably conclude, Fisher was seized — indeed, arrested —
FISHER v. CITY OF SAN JOSE 493
even though he had also been seized earlier through the appli-
cation of physical force that failed to bring him within com-
plete police control.
C. Entries to Effect Fisher’s Seizure or Arrest After
6:30 a.m.
Our holdings that Fisher was seized both when he was
physically affected by the CS gas canisters tossed into his
home and when he submitted to the officers’ show of author-
ity by agreeing at the end of the standoff to accede to police
demands to come out of his home are not, however, the end
of our inquiry.
As described above, under Payton, the warrant requirement
is triggered by the officers’ entry into the home for the pur-
pose of seizing someone rather than by the seizure itself, so
the timing of entry for purposes of effectuating an arrest or
seizure is what matters. Payton’s focus on the entry into the
home as the critical constitutional factor leads to two other
corollary principles central to this case: First, as this circuit
and the only other one to address the question squarely have
held, the Payton warrant requirement applies to situations in
which officers force a suspect out of his home to arrest him,
because “[o]therwise, arresting officers could avoid illegal
‘entry’ into a home simply by remaining outside the doorway
and controlling the movements of suspects within through the
use of weapons that greatly extend the ‘reach’ of the arresting
officers.” Johnson, 626 F.2d at 757; accord Morgan, 743 F.2d
at 1164. Consequently, in a standoff situation such as this one,
any seizure takes place inside the home for Payton purposes
as opposed to outside of it, because the police officers,
through their coercive action, constructively enter into a per-
son’s home and force him outside, to be taken into custody.
See Al-Azzawy, 784 F.2d at 893 & n.1 (holding that “Payton
[is] applicable . . . because . . . surrounding the house and
ordering the suspect out [is] a ‘constructive entry,’ and
494 FISHER v. CITY OF SAN JOSE
because the suspect emerged from the house only because of
police coercion”); Morgan, 743 F.2d at 1164.
Second, even if exigent circumstances existed at the time
officers make an initial warrantless entry, such an entry does
not excuse the officers from the warrant requirement if the
arrest happens after a second, discrete entry and the exigency
dissipates before then. Cf. United States v. Hackett, 638 F.2d
1179, 1185-86 (9th Cir. 1980) (considering whether the exi-
gency had dissipated between the warrantless entry into the
suspect’s garage and the warrantless entry into the suspect’s
house). Just as, under our understanding of Hodari D. the
warrant requirement remains applicable to later seizures after
an unsuccessful one, absent exigency, an entry pursuant to a
warrant exception does not excuse all further warrantless
entries for purposes of effectuating an arrest.
[18] Putting these principles together, we hold that the Pay-
ton in-house warrant requirement in a standoff situation is
triggered each time police take an action that (1) either itself
constitutes a seizure or is designed to force a suspect from his
home to submit to police authority; and (2) is sufficient to
constitute an entry. Here, the officers coercively intruded into
Fisher’s apartment in an effort to force him to emerge after
6:30 a.m., and before he finally did emerge at 2:35 p.m. Dur-
ing that period, the police used CS gas, bullhorns, a flash-
bang device, and a throw phone with an open microphone to
prod him. Tossing in the CS gas was itself a seizure of Fisher
at home, as we have already explained, and therefore neces-
sarily an entry, and lobbing in the throw phone, with its open
microphone, was also an entry. See Kyllo v. U.S., 533 U.S. 27
(2001) (comparing sense-enhancing technology used to obtain
information about a home’s interior to physical intrusion for
Fourth Amendment purposes); Silverman, 365 U.S. at 509-11
(holding that it was a physical intrusion to extend a micro-
FISHER v. CITY OF SAN JOSE 495
phone into a house). Thus, each action triggered the warrant
requirement.14
For each of these intrusions sufficient to trigger Payton, the
officers were required to have a warrant or establish circum-
stances excusing the warrant requirement. As the officers in
this case never obtained a warrant, the City must demonstrate
that, at the time of each entry, exigent circumstances existed
such that a warrant could not have safely been obtained prior
to the entry.15
In sum, at least some of the tactics the MERGE team used
after it arrived were sufficiently coercive and intrusive to con-
stitute entries into Fisher’s home for the purpose of effectuat-
ing an arrest. Some of these tactics, indeed, involved actual,
physical intrusion into Fisher’s home, and may be best
regarded as actual rather than constructive entries. Absent exi-
gency, a warrant was required before those actions were taken.16
14
We need not decide whether other actions, not involving physical
objects thrown into Fisher’s apartment, constituted entries under Al-
Azzawy.
15
As noted earlier, Alvarez tolled 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 government either . . . attempt,
in good faith, to secure a warrant, or . . . present evidence explaining why
a telephone warrant was unavailable or impractical” (emphasis added)).
Thus, we are not commanding that officers leave the scene of a standoff
once the exigency has disappeared. Instead, we require only that they
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.
16
We do not mean to suggest that more than one arrest warrant was
required. Cf. Carlson v. Landon, 342 U.S. 524, 546-47 (1952) (even once
an arrest warrant is fully executed, rearrest may be possible 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 war-
rant could have been obtained without a dangerous delay and was
required.
496 FISHER v. CITY OF SAN JOSE
D. Exigency at the Time of the Entries
The pivotal question, consequently, becomes whether any
or all of the entries for the purpose of arresting or seizing
Fisher occurred at a time when any exigency had passed —
that is, when it would have been possible to attempt to obtain
a warrant without causing a dangerous delay. We conclude
that there was insufficient evidence of such exigency for some
time before the first CS gas canisters were thrown, so the fail-
ure to obtain a warrant before then is not excusable.
We have used a nonexhaustive list of criteria first enunci-
ated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.
Cir. 1970) (en banc), to determine whether circumstances
meet the dangerousness prong of the exigency requirement.
See United States v. Blake, 632 F.2d 731, 733 (9th Cir. 1980).17
Those criteria are: (1) that a grave offense is involved; (2) that
the suspect is reasonably believed to be armed; (3) there exists
a clear showing of probable cause; (4) that there is a strong
reason to believe the suspect is in the premises; (5) that there
is a likelihood that the suspect will escape; and (6) that peace-
able entry is made onto the premises. See Dorman, 435 F.2d
at 392-93. Here, the Dorman factors suggest no clear result:
Fisher was armed, he concedes probable cause, and he was
definitely on the premises; but no grave offense was involved
in this case, he was not likely to escape, and the entry was not
peaceable.
The jury — which was not specifically instructed on the
Dorman factors, but had before it evidence concerning each
of them — must have determined that sufficiently dangerous
circumstances existed at some point, as it found that the arrest
was not unlawful. Such a determination is reasonable. View-
ing the evidence in the light most favorable to the City, the
officers were certainly justified in considering Fisher a danger
17
Dorman explicitly noted that the list of considerations was not com-
prehensive. 435 F.2d at 392.
FISHER v. CITY OF SAN JOSE 497
both to themselves and to the public. He was intoxicated, ram-
bling about his Second Amendment rights, carrying a rifle and
sometimes pointing it at police officers, tinkering repeatedly
with seventeen more rifles, and making threatening com-
ments. He was certainly not a man who could be counted on
to remain peaceful. That is true after 6:30 a.m. as well as
before.
Exigency, however, requires more than the dangerous cir-
cumstances that Dorman contemplates. See United States v.
Good, 780 F.2d 773, 775 (9th Cir. 1986) (“Exigent circum-
stances alone, however, are insufficient as the government
must also show that a warrant could not have been [safely]
obtained in time.”).18 It is not determinative of the exigency
issue that, as the City argues, Fisher “continued to present an
imminent threat of danger to the officers and the community
despite the fact that he had not been seen for a period of
time.” Although the degree of danger is directly related to
whether a warrant could have been obtained — such that the
more dangerous the circumstances, the less likely the police
can safely obtain a warrant without compromising their
peacekeeping duties — danger alone cannot justify a warrant-
less entry for the purpose of effectuating an arrest. Instead, we
require that the “government [separately] demonstrate[ ] that
a warrant could not have been obtained in time.” Manfredi,
722 F.2d at 522.
Here, there is no such showing. The evidence undisputedly
shows that there were enough officers working on Fisher’s
case, with enough time to obtain a warrant before the police
sent the first of the CS gas canisters into Fisher’s apartment.
Before 7 a.m., Fisher had been seen pointing a rifle at the
officers, the action relied upon as providing probable cause
18
Unlike Good, we use the term “exigent circumstances” to encompass
both (a) the danger or other compelling need to enter, and (b) the inability
to obtain a warrant in time.
498 FISHER v. CITY OF SAN JOSE
for the later arrest. At least some of the officers who had
observed the worst of Fisher’s behavior left the scene at 7
a.m. and returned to the station house, where they or their col-
leagues could have initiated warrant proceedings. By 1 p.m.,
many officers had been at Fisher’s apartment complex for
several hours. There, too, officers could have initiated warrant
proceedings by telephone. Such a warrant would have cov-
ered the entries effected in the afternoon and the seizures and
final arrest thereafter.
[20] Unlike the one-hour delay in seizing a suspect’s house
that we considered in Lindsey, the delay the officers faced at
Fisher’s apartment complex was neither unexpected, caused
by lack of additional assistance, nor, comparatively, short. See
877 F.2d at 782. Indeed, here there was considerably more
time and more opportunity to obtain a warrant than there was
in Alvarez, in which we concluded that the police should have
sought a warrant.
In Alvarez, there was a potentially armed and dangerous
drug dealer in a hotel room, whom police suspected was
growing increasingly suspicious that his agents had not
returned from a drug deal. We determined, however, that even
in such serious circumstances, the officers could have
attempted to obtain a telephonic warrant in the ninety minutes
to two hours before the agents returned. See 810 F.2d at 881-
83.
[21] We thus conclude that on the record before us, the
only reasonable conclusion is that although the situation cer-
tainly remained dangerous, there was sufficient police pres-
ence and sufficient time after probable cause was established
that an arrest warrant could have been obtained well before
one or more of the entries that led to Fisher’s seizure.
Although our dissenting colleague maintains, quite sensibly,
that the danger created by Fisher’s action did not dissipate
until he succumbed, she fails entirely to address the second
prong of the inquiry — whether the police had enough time
FISHER v. CITY OF SAN JOSE 499
and manpower to seek a warrant during the extended standoff
and before one or more of the successive entries. Because
there was such opportunity, the failure to obtain a warrant by
early afternoon — before 1 p.m. at the very latest — was uncon-
stitutional.19
IV. Conclusion
Standoffs with barricaded suspects present hard decision-
making problems for police, often requiring split-second tacti-
cal determinations. The results can be tragic even when the
police behavior is for the most part quite reasonable. See, e.g.,
Ewolski, 287 F.3d at 499 (involving the object 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 per-
sons 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 perspec-
tive to the situation. Id. (“[T]he informed and deliberate deter-
minations of magistrates empowered to issue warrants as to
what searches and seizures are permissible under the Consti-
tution are to be preferred over the hurried action of officers
and others who may happen to make arrests.”); see also John-
19
Contrary to the dissent’s assertion, Dissent at 516-17 & n.9, we do not
dispute the Sixth Circuit’s conclusion in Estate of Bing v. City of White-
hall, 456 F.3d 555 (6th Cir. 2006), that a danger to officers exists and con-
tinues throughout a standoff outside the home of an armed individual.
Under our circuit’s precedents, however, that is not the end of the inquiry.
We must also consider whether the police could, as a practical matter,
have obtained a warrant before effecting the final entry or entries. The
very Ninth Circuit case upon which Bing relies in holding that dangerous
circumstances supporting an exigency exception can continue for some
time, Lindsey, so emphasized, stating: “A finding of exigent circum-
stances, however, does not end our inquiry. Since exigent circumstances
imply that there is insufficient time to obtain a warrant, the government
must show that a warrant, including a telephonic warrant, could not have
been obtained in time.” 877 F.2d at 782.
500 FISHER v. CITY OF SAN JOSE
son v. United States, 333 U.S. 10, 14 (1948) (noting that the
Fourth Amendment’s “protection consists in requiring that
those inferences be drawn by a neutral and detached magis-
trate instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime”). The war-
rant requirement’s goal is to permit a third party to evaluate
whether the police should be intervening into a situation at all.
If not, police retreat can prevent an awkward situation from
escalating into a dangerous 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 — at least several hours — to obtain
such a warrant. It was unconstitutional to fail to do so.
AFFIRMED.
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 undertakes to micro-manage, or worse, browbeat the
FISHER v. CITY OF SAN JOSE 501
police for failing to obtain a telephonic 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 inappropriate deter-
mination, in this case that San Jose police officers need train-
ing despite the jury’s finding that they did nothing wrong. In
my view, the police handled the situation in exemplary fash-
ion and in full compliance with the law. I would reverse the
district court’s grant of Fisher’s FRCP 50(b) motion and
restore the jury’s verdict because the verdict was supported by
substantial evidence.
A renewed motion for judgment as a matter of law pursuant
to FRCP 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 con-
trary 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 adequate
to support the jury’s conclusion, even if it is also possible to
draw a contrary conclusion.” Id. Indeed, we may not substi-
tute our view of the evidence for that of the jury. Id. The
majority simply disregards this standard.
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.) cert. denied, 475 U.S.
1111 (1986).
502 FISHER v. CITY OF SAN JOSE
In addition, the majority concludes that the San Jose Police
Department seized Fisher for purposes of the Fourth Amend-
ment at three “possible junctures”: before 6:30 a.m., when
they began surrounding his apartment; at approximately 1:00
p.m., when he was physically affected by the CS gas canis-
ters, or alternatively at 2:35 p.m., when he submitted to the
officers’ show of authority by submitting to police demands
to come out of his apartment. This confusing, impractical, and
unworkable conclusion is based on an unreasonable interpre-
tation of the Supreme Court’s decision in California v. Hodari
D., 499 U.S. 621, 628-29 (1991) that requires a logical leap
to decide that a person surrounded in his apartment “escapes”
for the purposes of the Fourth Amendment by disappearing
from view or ignoring the bullhorns, CS canisters, throw
phones, and the armed officers surrounding his apartment.
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 night, 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 apart-
ment in the general direction of the officers. Officer Boler tes-
tified 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
FISHER v. CITY OF SAN JOSE 503
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
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. United States v. Manfredi,
722 F.2d 519, 522 (9th Cir. 1983). Fisher concedes that offi-
cers had probable cause; the issue is whether exigent circum-
stances excused the City’s failure to obtain a warrant before
arresting him. This inquiry requires us to determine first,
when the warrantless arrest occurred, and second, whether
there were exigent circumstances at the time of the arrest to
excuse the failure to obtain a warrant. Our consideration of
these issues on their merits is complicated by the majority’s
504 FISHER v. CITY OF SAN JOSE
unnecessary, and in my opinion, incorrect analysis of the jury
instructions.
A. Instructional Error.
“Failure to object to an instruction waives the right of
review.” Affordable Hous. Dev. Corp. v. City of Fresno, 433
F.3d 1182, 1196 (9th Cir. 2006). The Ninth Circuit does not
review the adequacy of instructions given where the party
does not object. See Bird v. Lewis & Clark College, 303 F.3d
1015, 1022-23 (9th Cir. 2002) (“As an initial matter, we note
that Bird did not object to the instructions given by the district
court. Accordingly, we do not review the adequacy of the
instructions that were given.”).
The majority acknowledges that Fisher failed to object to
the jury instructions concerning the law of arrest, but nonethe-
less it proceeds to argue that the district court’s jury instruc-
tions were incomplete and inadequate. Federal Rule of Civil
Procedure 51 states that “no party may assign as error the giv-
ing or the failure to give an instruction unless that party
objects thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the
objection.” The majority’s insistence on considering, and crit-
icizing the jury instructions is contrary to the Ninth Circuit’s
role as an “enforcer of Rule 51.” Hammer v. Gross, 932 F.2d
842, 847 (9th Cir. 1991). By refusing to abide by the principle
that, where a party fails to object to the instruction, this court
must “review [a] sufficiency of the evidence claim under the
controlling instruction,” the majority threatens to undermine
bedrock principles limiting the scope of our review of jury tri-
als. Image Tech. Serv. v. Eastman Kodak Co., 125 F.3d 1195,
1206 (9th Cir. 1997) (refusing to consider argument concern-
ing jury instruction the party waived by failing to object.).
The focus in this case should remain on whether the jury’s
verdict was supported by substantial evidence, discarding all
evidence favorable to Fisher that the jury is not required to
FISHER v. CITY OF SAN JOSE 505
believe, and drawing all reasonable inferences in favor of the
City of San Jose - not on jury instructions that were not only
correct and complete, but that Fisher failed to object to during
the trial. See Johnson v. Paradise Valley Unified School Dist.,
251 F.3d 1222, 1227-28 (9th Cir. 2001) (stating standard of
review where the district court grants a Rule 50 motion.).
B. The Arrest.
The majority concludes that the warrantless seizure for pur-
poses of arrest occurred either at 1:00 p.m., when the CS can-
isters were thrown into Fisher’s apartment, or at 2:35 p.m.,
when Fisher came out of his apartment.2 Citing United States
v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985), the City argues
that the arrest occurred much earlier under clearly exigent cir-
cumstances, when police first began using tactics to encour-
age Fisher to leave his home.3
The majority suggests that Al-Azzawy can be distinguished
because in that case, the suspect emerged from his dwelling
soon after a show of authority by police, whereas Fisher did
not for several hours after police began attempts to force him
out of his apartment. To the majority, this distinction is signif-
icant, because an arrest requires either physical force or sub-
mission to the assertion of authority. Citing California v.
Hodari D., 499 U.S. at 624-25, the majority concludes that
Fisher was not arrested until he submitted to the police.
2
The district court found only that the officers seized Fisher in his home
during this encounter. Any contrary conclusions about when specifically
the arrest occurred approaches improper appellate fact-finding, especially
in light of our obligation to make all reasonable inferences in favor of the
jury’s verdict.
3
Al-Azzawy held that 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 trailer.” Id. at 893.
506 FISHER v. CITY OF SAN JOSE
In Hodari, the issue was whether the defendant had been
seized within the meaning of the Fourth Amendment at the
time he dropped a brick of cocaine when he saw an officer
running toward him. 499 U.S. at 623. Ultimately, the Supreme
Court determined that there was no seizure under these facts.
Nevertheless, the Court made clear:
“[A] person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the cir-
cumstances surrounding the incident, a reasonable
person would have believed that he was not free to
leave.”
499 U.S. at 627-28, quoting United States v. Mendenhall, 446
U.S. 544, 554 (1980). Hodari D. does not require subjective
submission to police authority for purposes of a Fourth
Amendment seizure, as the majority suggests, nor is there any
requirement that physical submission take place immediately
following a show of authority by police. Instead, it stands for
the unremarkable proposition that pursuit alone is an insuffi-
cient show of authority to constitute an arrest. Hodari D., 499
U.S. at 629. More importantly, Hodari D. reiterated that the
test for when someone is seized for the purposes of the Fourth
Amendment is an objective one. Therefore, twelve jurors
were presumably able to determine when “a reasonable per-
son would have believed that he was not free to leave.” Men-
denhall, 446 U.S. at 554.
Al-Azzawy and the cases cited therein make no mention of
how much time passed between the police’s show of authority
and the physical submission of the defendant. Al-Azzawy, 784
F.2d at 891. Indeed, Al-Azzawy holds that an arrest occurs at
the time that police make clear that the suspect is not free to
leave his or her dwelling:
[W]hether an arrest has occurred depends upon an
objective, not subjective, evaluation of what a person
innocent of a crime would have thought of the situa-
FISHER v. CITY OF SAN JOSE 507
tion, given all of the factors involved. When an
arrest has occurred depends in each case upon an
evaluation of all the surrounding circumstances. Pri-
mary among these is a determination of whether or
not the defendant was free to choose between termi-
nating or continuing the encounter with the law
enforcement officers. . . .
From a review of all of the circumstances surround-
ing the encounter between [the appellant] and the
special agents, we find that appellant’s arrest
occurred as he stood within his home at the doorway
of his home and was first confronted by the agents
with their guns drawn. . . . It is extremely doubtful
that [appellant] would have believed that he was free
to leave at any time or to request the officers to leave
after the initial encounter. A reasonable person,
under those circumstances, would have thought he
was under arrest.
Al-Azzawy, 784 F.2d at 892-893, citing United States v. John-
son, 626 F.2d 753, 755-56 (9th Cir. 1980), aff’d on other
grounds, 457 U.S. 537 (1982). See also United States v. Pat-
terson, 648 F.2d 625, 632 (9th Cir. 1981) (citation omitted)
(“Whether an arrest has occurred ‘depends on all of the sur-
rounding circumstances, including the extent that freedom of
movement is curtailed and the degree and type of force or
authority used to effectuate the stop.’ . . . The question is
whether, under all of the circumstances, ‘a reasonable person
would conclude he was under arrest.’ ”). This is an objective
standard. The question is whether a reasonable person would
believe that he or she was free to leave under the circum-
stances. Hodari D., 499 U.S. at 627-28; Al-Azzawy, 784 F.2d
at 892-93.
As the majority acknowledges, this was the standard the
district court used when it instructed the jury regarding the
law of arrest. Nothing has changed the standard for arrest
508 FISHER v. CITY OF SAN JOSE
between when we decided Al-Azzawy and today. The majority
states as much by relying on the Supreme Court’s definition
that a person is seized when, “taking into account all of the
circumstances surrounding the encounter, the police conduct
would ‘have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about
his business.’ ”4 Florida v. Bostick, 501 U.S. 429, 437 (1991)
(quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)
and citing Hodari D., 499 U.S. at 628). Yet the majority now
faults the district court for instructing the jury using language
taken directly from Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)
and Mendenhall, 446 U.S. at 554. The majority states that the
jury was improperly instructed on the standard for identifying
an arrest, yet it fails to state what the new jury instruction
regarding arrest should be, or suggest a new, more compre-
hensive jury instruction that would satisfy its new standard.
The majority appears to be announcing a new principle in
Fourth Amendment law: that, in the context of barricaded sus-
pects or armed standoffs, the standard for whether the suspect
feels “free to leave” is no longer a reasonable person standard
that a jury may decide, but a subjective standard based on the
suspect’s reaction to being surrounded by armed officers, and
being told to lay down his 18 guns and exit his apartment. The
majority finds it persuasive that “Fisher was quite clear that
he did not wish to leave,” and that Fisher expressed a desire
to go about his business at home. Not only does the majority
ignore the Supreme Court’s repeated statements that the stan-
dard is an objective one that may be determined by the rea-
4
The majority gives too much meaning to the phrase “go about his busi-
ness” as used in Bostick. This language did not change the inquiry into a
subjective one, but is simply a restatement of the objective standard for a
detention that the Supreme Court used in Mendenhall. The Supreme Court
explicitly discussed Bostick in Hodari D. and concluded that “Mendenhall
establishes that the test for existence of a ‘show of authority’ is an objec-
tive one: not whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer’s words and actions would
have conveyed that to a reasonable person.” Hodari D., 499 U.S. at 628.
FISHER v. CITY OF SAN JOSE 509
sonable people on a jury, but their position ignores the
practical reality that armed standoffs and barricaded suspects
often involve irrational, desperate, and decidedly unreason-
able people.
The majority’s misguided analysis of the facts concentrates
on Fisher’s state of mind and actions, ignoring the mountain
of evidence before the jury about the MERGE team surround-
ing the apartment with sirens blaring, pointing guns at Fisher,
telling Fisher to come out through a bullhorn, tossing in a
throw phone, and using other means of informing Fisher that
he was surrounded, and that he should surrender peacefully.
Here, the MERGE arrived at around 7:00 a.m., evacuated the
building at 7:30 a.m., and shut off Fisher’s power at 8:48 a.m.
A reasonable person could conclude that he or she was not
free to choose between terminating or continuing the encoun-
ter with the law enforcement officers when MERGE arrived,
but would be certain of it by the time the power was shut off.
Construing the evidence in the light most favorable to the
City, Pavao, 307 F.3d at 918, it would have been perfectly
reasonable for the jury to conclude that the arrest occurred
when the police surrounded Fisher’s apartment. The twelve
people on the jury could have, and in this case certainly did
conclude that this behavior constituted the arrest. The major-
ity points to no evidence that shows that this is an unreason-
able interpretation of the facts under Supreme Court or our
court’s precedent, or that any other interpretation would have
been compelled by any new or implied jury instructions.
C. Escape.
After conceding that the jury could have found that the San
Jose Police Department seized Fisher for the purposes of the
Fourth Amendment before 6:30 a.m., the majority raised the
question of whether or not he escaped for the purposes of the
Fourth Amendment and concluded that he had. The majority
reasons that Fisher “escaped” by disappearing from view and
refusing to come out, and therefore, in order to seize Fisher
510 FISHER v. CITY OF SAN JOSE
again, the officers had to secure an arrest warrant, or addi-
tional arrest warrants. Nothing in the Supreme Court’s deci-
sion in Hodari D., relied upon by the majority for this odd
proposition, compels this result.
In Hodari D., the Supreme Court discussed the narrow
question whether a show of authority (pursuing the defendant)
alone seizes the person. 499 U.S. at 625-26. The Supreme
Court stated that an arrest requires “either physical force” or
“submission to an assertion of authority.” Id. at 626 (emphasis
in original). Applying this principle to the facts, the Court
concluded that no seizure occurs while the suspect is fleeing
from a show of authority. Id. at 628-29.
Hodari D. concerned fleeing in public, on public streets,
however, not a situation where a person is surrounded in their
own home. See id. at 622-23 (discussing facts in the case —
that Hodari D. began fleeing from the officers on sight, tossed
an object later determined to be crack cocaine, and then the
officer tackled Hodari D.). The majority’s interpretation of
Hodari D. to mean that Fisher escaped by remaining in his
apartment contradicts the principle that a person is seized
when “in view of all the circumstances surrounding the inci-
dent, a reasonable person would have believed that he was not
free to leave.”5 Mendenhall, 446 U.S. at 554. Logically, the
majority’s conclusion overturns our jurisprudence holding
that a person is seized in his or her home for the purposes of
the Fourth Amendment when the officers make a show of
5
The Sixth Circuit rejected this argument in Ewolski v. City of Bruns-
wick, concluding that surrounding the house and parading an armored
vehicle in front of the house were “an intentional application of physical
force and show of authority made with the intent of acquiring physical
control.” 287 F.3d 492, 506 (6th Cir. 2002). The majority’s interpretation
of escape in the context of barricaded or surrounded suspects creates an
unnecessary inter-circuit split of authority, without any compelling reason.
See Kelton Arms Condo. Ass’n v. Homestead Ins. Co., 346 F.3d 1190,
1192 (9th Cir. 2003) (“we decline to create a circuit split unless there is
a compelling reason to do so.”).
FISHER v. CITY OF SAN JOSE 511
force sufficient to convey to a reasonable person that he is
under arrest and not free to leave his home or dwelling. See
Al-Azzawy, 784 F.2d at 893 (affirming the district court’s fil-
ing that the suspect was arrested inside his residence where
“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.”).
In my view, the better, more reasonable, interpretation of
submission for the purposes of barricaded or surrounded sus-
pects is that the person submits by remaining barricaded or
remaining in the home. This interpretation is consistent with
our own precedent in Al-Azzawy and the decisions in other
circuits. See Al-Azzawy, 784 F.2d at 893; Ewolski, 287 F.3d
at 506; see also United States v. Maez, 872 F.2d 1444, 1450
(10 Cir. 1989) (collecting cases.). The suspect in that situation
has accepted that there is, in effect, only one peaceful out-
come — his or her eventual surrender. Only if the suspect
flees and successfully evades the police blockade by leaving
the house or other building the police surrounded and eludes
attempts to take them into physical custody, may the suspect
be said to have escaped and an arrest warrant becomes neces-
sary.
To say that a suspect escapes every time he or she retreats
from public view even though the officers know that he or she
is in the building and surrounded, creates an analytical night-
mare for law enforcement agencies. For example, may a bank
robbery suspect trapped in a bank “escape” under the majori-
ty’s analysis by ducking behind the counter, requiring the
police to obtain an arrest warrant to continue surrounding the
building or before taking any further steps to resolve the situa-
tion?6 Under the majority’s analysis, does a person “escape”
6
I would also refuse to impose a warrant requirement on efforts to uti-
lize a “throw phone” to communicate with barricaded suspects. The cases
cited by the majority, Kyllo v. U.S., 533 U.S. 27 (2001) and Silverman v.
U.S., 365 U.S. 505 (1961) involved efforts to eavesdrop on suspects with-
512 FISHER v. CITY OF SAN JOSE
every time he or she moves to another room out of view of
the officers, or closes the drapes or blinds?
My interpretation complies with the Supreme Court’s
admonition that courts “consider the law enforcement pur-
poses to be served by the stop as well as the time reasonably
needed to effectuate those purposes.” United States v. Sharpe,
470 U.S. 675, 685 (1985). It also applies the same “common
sense and ordinary human experience” that the jury presum-
ably applied to the facts in this case. Id. Therefore, I conclude
that Fisher was arrested when the officers surrounded his
apartment and it became readily apparent to a reasonable per-
son that he was not free to leave. This occurred some time
around 6:30 a.m. on October 24. I also conclude that Fisher
did not escape for the purposes of the Fourth Amendment,
and that police officers involved in standoffs are not required
to obtain an arrest warrant every time the subject disappears
from view. Because Fisher conceded that the officers had
probable cause to arrest him when they surrounded his apart-
ment, the remaining issue is whether or not exigent circum-
stances continued between the seizure and when the officers
took physical custody of Fisher. See Kirk v. Louisiana, 536
U.S. 635, 637-38 (2002) (requiring finding regarding exigent
circumstances for complete analysis of a warrantless arrest
and search.).
D. Exigent Circumstances.
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,
out their knowledge. In particular, in Silverman, the officers used a “spike
mike” inserted into a heating duct from the neighboring building to listen
in on conversations. Silverman, 365 U.S. at 506-07. With a throw phone,
the intrusion is a good-faith effort to communicate with the barricaded
suspect, who is plainly informed about the phone, and is free to toss the
phone back to the officers.
FISHER v. CITY OF SAN JOSE 513
the destruction of relevant evidence, the escape of the suspect,
or some other consequence improperly frustrating legitimate
law enforcement concerns.” United States v. Brooks, 367 F.3d
1128, 1135 (9th Cir. 2004). “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 recog-
nized 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). The majority acknowledges that the perti-
nent time to determine whether an exigency exists is at the
time that the arrest is effectuated, but then proceeds to ignore
that principle.
The district court granted Fisher’s Rule 50(b) motion
because it found that there were no exigent circumstances
between 6:30 a.m. and 2:35 p.m. because Mr. Fisher was not
seen during this time. As noted, the jury reasonably could
have concluded that the arrest occurred when the MERGE
team surrounded the apartment and Fisher became aware he
was surrounded. Regardless, the majority presumes to substi-
tute its own version of the evidence for the jury’s determina-
tions, and announces that the arrest did not occur until 1:00
p.m. or later. At that time, the majority concludes, there were
no exigent circumstances and thus, the warrantless arrest was
invalid. Alternatively, the majority suggests that even if the
arrest occurred earlier, when police surrounded Fisher’s apart-
ment, “it is far from clear that sufficient exigency existed to
explain the failure to obtain a warrant.” I disagree, as did the
jury.
The jury was instructed that “[e]xigent circumstances are
those in which a substantial risk of harm to the persons
involved or to the law enforcement process would arise if the
police were to delay an arrest until a warrant could be
obtained.” Although the jury verdict form did not require the
jury to make a separate finding on exigent circumstances, the
514 FISHER v. CITY OF SAN JOSE
jury implicitly found sufficient exigency to excuse the war-
rantless arrest when it returned a defense verdict.
In an effort to undermine the jury’s determination, the
majority latches onto Dorman v. United States, 435 F.2d 385,
392-93 (D.C. Cir. 1970) (en banc), and concludes that
because the Dorman factors do not compel one clear result as
to whether there was sufficient exigency at the time of the
arrest, the jury erred when it implicitly found sufficient exi-
gency. But see United States v. Snyder, 852 F.2d 471, 473-74
(9th Cir. 1988) (finding acts incident to a valid arrest did not
constitute additional arrests).
The majority’s acknowledgment that the facts do not com-
pel one clear result is an express concession that there is not
only one reasonable conclusion that is contrary to the jury’s
verdict. Accordingly, judges are not at liberty to disturb the
verdict. Pavao, 307 F.3d at 918. Moreover, the majority sig-
nificantly understates the gravity of the circumstances. Offi-
cers observed, and were told by Fisher’s wife, that Fisher was
drinking heavily while cleaning some 18 guns and rifles.
Indeed, Fisher admitted to drinking an entire twelve-pack of
beer during the evening. Fisher moved the guns around his
apartment throughout the night, pointed a rifle in the general
direction of officers more than once, and on two occasions,
aimed directly at two officers, one of whom he threatened to
shoot if she accepted his invitation to enter his apartment. He
was non-responsive to officers’ efforts to speak with him,
other than to ramble about his Second Amendment right to
bear arms. Officers felt, and the jurors evidently agreed, that
Fisher posed a threat to the safety and security of the public
and the officers.
The majority also relies heavily on United States v. Alva-
rez, 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 distinguishable because the exigent cir-
FISHER v. CITY OF SAN JOSE 515
cumstance claimed in Alvarez was that the police feared a sus-
pect in another location might become suspicious if there was
additional delay before delivery of a large amount of cocaine.
Id. at 880. Furthermore, the holding in Alvarez was that exi-
gent circumstances did not exist that could excuse the absence
of, or failure to obtain, an arrest warrant. 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 exigency.”). In
this case, the brandishing of firearms accompanied by threats
against the officers, Fisher’s drinking, and Fisher’s erratic
behavior all created a real and immediate danger to the public
and the officers.
The passage of dicta quoted by the majority does not sup-
port a requirement that law enforcement make a good-faith
effort to seek a warrant every time they claim an exigent cir-
cumstance excuses the warrant.7 Id. at 883. Rather, the quoted
passage stands for the unremarkable proposition that the gov-
ernment must present sufficient evidence of exigent circum-
stances or some other justification for not obtaining a warrant
if exigent circumstances do not exist.8 Id.
7
The full passage from Alvarez reads:
The government argues that obtaining a telephone warrant is not
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 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.
8
Because, in my view, the majority announces a new warrant require-
ment for armed standoffs when exigent circumstances clearly exist and
continue until the end of the standoff, the officers may have been entitled
to qualified immunity.
516 FISHER v. CITY OF SAN JOSE
The Sixth Circuit, in Estate of Bing v. City of Whitehall,
analyzed a strikingly similar situation involving an armed
standoff with an unstable, possibly intoxicated person and
decided “that exigency did not terminate due to the passage
of time or the police’s actions.” 456 F.3d 555, 565 (6th Cir.
2006). 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.”9 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
Sixth Circuit in Estate of 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.
The majority’s decision creates a clear circuit split on how
to analyze the exigent circumstances in an armed standoff,
9
The Sixth Circuit, ironically, cited to this court’s opinion in United
States v. Lindsey, 877 F.2d 777, 782-83 (9th Cir. 1989), where we con-
cluded 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 and the district
court’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, implicitly overrules Lindsey.
10
As 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
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) (denying habeas corpus
where delay by police for investigation did not negate exigent circum-
stances); Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir. 2001) (same).
FISHER v. CITY OF SAN JOSE 517
because it cannot be reconciled with the Sixth Circuit’s deci-
sion in Estate of Bing. If the Sixth Circuit can reasonably con-
clude that the exigency 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 a jury to reasonably reach the same con-
clusion?
The twelve jurors in this case could have reasonably found
that there was no evidence that sometime between 6:30 a.m.
and 2:35 p.m., the officers knew that Fisher no longer had
access to guns, was no longer irrational, or was no longer
intoxicated. There is nothing in the record that affirmatively
negates the exigency created by Fisher when he had 18 loaded
firearms, threatened others, pointed his rifle at police, was
intoxicated, and was acting irrationally. Under these circum-
stances, officers had ample grounds to be seriously concerned
about their own safety as well as the safety of the public, par-
ticularly since the events took place in an apartment complex.
Construing the evidence 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 cir-
cumstances that justified the City’s failure to obtain a warrant
before arresting Fisher around 6:30 a.m., and that the exigent
circumstances continued throughout the standoff.
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 Ewolski, 287 F.3d at 499-500 (mentally dis-
turbed, armed, and dangerous father shot his son and him-
self.). At any time, a standoff can end, or it can explode into
violence. Sometimes, hostages are involved. Imposing a
requirement that officers must, at some arbitrary and unde-
fined point in an armed standoff, seek an arrest warrant is
contrary to our precedent concluding that exigency is estab-
lished at the time of arrest and continues until negated by
518 FISHER v. CITY OF SAN JOSE
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 during armed standoffs would
not serve the Fourth Amendment’s purpose of preventing
unreasonable searches and seizures, would create unnecessary
confusion about the law, and may ultimately endanger the
public, the police, and even the suspect.
CONCLUSION
The jurors in this case reached a verdict that was not only
sufficiently supported by the evidence, but entirely proper
under Supreme Court and our own precedents. In addition, the
jurors in this case 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, ana-
lyzing similar facts, reached the same conclusion as the jury
in Estate of Bing. Our own precedents in Lindsey and Al-
Azzawy are in accord with the Sixth Circuit’s decision. Mak-
ing all inferences in favor of the verdict, the jury’s conclusion
was a reasonable interpretation of the facts, and supported by
substantial evidence. Therefore, the district court should not
have granted Fisher judgment notwithstanding 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.