509 F.3d 952 (9th Cir. 2007), 04-16095, Fisher v. City of San Jose

Docket Nº:04-16095.
Citation:509 F.3d 952
Party Name:Steven FISHER, Plaintiff-Appellee, and Sandra Fisher, Plaintiff, v. CITY OF SAN JOSE, Defendant-Appellant, and City of San Jose Police Opinion Department; Officer Boler; Officer Barnett; Officer Correa; Officer Esquivel; Officer Honda; Officer Kinsworthy; Officer O'Brien; Officer Ryan; Officer Nguyen, Defendants.
Case Date:November 20, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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509 F.3d 952 (9th Cir. 2007)

Steven FISHER, Plaintiff-Appellee,


Sandra Fisher, Plaintiff,


CITY OF SAN JOSE, Defendant-Appellant,


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.

No. 04-16095.

United States Court of Appeals, Ninth Circuit.

November 20, 2007

Argued and Submitted April 5, 2006.

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[Copyrighted Material Omitted]

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Clifford S. Greenberg, Senior Deputy City Attorney, San Jose, CA, for defendant-appellant City of San Jose.

Donald E.J. Kilmer, Jr., San Jose, CA, for plaintiff-appellee Steven Fisher.

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

Before: David R. Thompson, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge BERZON; Dissent by Judge CALLAHAN.


The opinion filed on January 16, 2007 is hereby withdrawn and replaced by this concurrently filed opinion. The pending petition for rehearing en banc is denied as moot. The parties may file new petitions for rehearing.


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 Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court's ruling on appeal, as we agree that the failure to obtain a warrant under the circumstances of this case constituted a constitutional violation as a matter of law.

I. Background

A. The Standoff

On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events.

Those events began when, around midnight, Leo Serrano, a security guard at Fisher's apartment complex, was walking near Fisher's apartment investigating noise complaints regarding 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

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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 various positions. Whether Fisher pointed the rifle at Serrano is not clear: At trial, Serrano testified that Fisher did not, but an officer who had been called to the scene testified at trial that when he arrived at Fisher's apartment complex, Serrano told him that Fisher had pointed the rifle toward him during the initial encounter. Either way, Serrano suspected that Fisher was intoxicated and, feeling uncomfortable and frightened in Fisher's presence because of the liquor, the gun, and the odd reaction to Serrano's questions, left to tell his supervisor about his interaction with Fisher. The supervisor notified the police, who responded by sending officers to the scene.

Sergeant Ryan was among the first to arrive, at around 2 a.m. After speaking with Serrano, Ryan approached Fisher's patio and attempted to get Fisher's attention by throwing small rocks at the sliding glass doors. Fisher came to the door but, rather than answering Ryan's questions, spoke in a rambling 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 telephoned Fisher's apartment. When Fisher's wife, Sandra, answered the phone, the officers instructed her to leave the apartment, which she did. It is not clear whether she put the phone back on the hook, but it was busy throughout the remainder of the standoff. When she emerged, Sandra informed the police that no one other than Fisher was inside the apartment. She also confirmed that Fisher had eighteen rifles in the apartment and had been drinking.

At approximately 3 or 4 a.m., Jan Males, a tactical negotiator, arrived and tried to communicate with Fisher. Unprompted, Fisher informed Males that he had a right to bear arms. He invited Males into his apartment but said he would shoot her if she did come in. Males determined that this statement was a criminal threat, a felony.

Aside from that interaction, throughout the early morning Fisher repeatedly told the police to "go away, leave me alone, and don't bother me." Twice during that period, Officer Boler, who was observing the apartment from across the street, reported that Fisher was pointing one of his rifles at Ryan and Males, who were the officers closest to Fisher's apartment and were sheltering themselves behind a tree. Boler also reported that Fisher was moving the rifles around his apartment. Despite these observations and the threat to Males, no officer told Fisher during those early morning hours that he was under arrest.

Fisher was last seen with a rifle at approximately 6:30 a.m. A little while later, at around 7 a.m., the Mobile Emergency Response Group and Equipment ("MERGE") team came to the scene, replacing the patrol officers who had arrived first.1Some of the replaced patrol officers returned to the station house to write police reports about the incident.

The MERGE team finished evacuating all residents from the surrounding apartments

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at 7:30 a.m. 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. Officers used a bullhorn to ask Fisher to leave his apartment, but did not tell him he was under arrest. The officers had Fisher's power turned off at 8:48 a.m. and then broke the sliding glass doors so a "throw phone"2 could be tossed through, as Fisher's phone remained busy. At 10:52 a.m., the police set off a "flash-bang" device, designed to get Fisher's attention and disorient him briefly. Two hours later, at approximately 1:00 p.m., the police began throwing CS gas canisters into Fisher's apartment.3 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 direction and keeping his hands in the air. Soon, however, he stopped walking forward. One of the officers thereupon shot him in the leg with a "sage gun," which shoots less-than-lethal rubber bullets. Fisher then lay down on the ground, and the officers handcuffed him and took him into custody.

Some of the police officers involved in the first shift who returned to the police station after they left in the morning testified that they had intended to arrest Fisher. All the police officers who were asked at Fisher's § 1983 trial whether they attempted to procure a warrant said they had not, including some of those who returned to the station in the morning. Also, all of the officers who were asked testified that they did not believe a warrant was necessary. Finally, all of the 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, the San Jose Police Department, and several San Jose police officers. They alleged, among other causes of action, that (1) Fisher's warrantless arrest was an unreasonable seizure; and (2) the use of the sage gun and of the CS gas constituted state law batteries. The basis for the claim against the City was that it was "either jointly and severally liable; and/or vicariously liable through the doctrine of respondeat superior for the actions of its employee police officers also named herein in their individual capacity."

After an eight-day jury trial, Fisher filed a motion for judgment as a...

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