Fisher v. City of San Jose

• Citation: 558 F.3d 1069
• Decision Date: 11 March 2009
• Docket Number: No. 04-16095.,04-16095.
• Parties: Steven FISHER, Plaintiff-Appellee, and Sandra Fisher, Plaintiff, v. CITY OF SAN JOSE, Defendant-Appellant, and City of San Jose Police Department; Officer Boler; Officer Barnett; Officer Correa; Officer Esquivel; Officer Honda; Officer Kinsworthy; Officer O'Brien; Officer Ryan; Officer Nguyen, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

558 F.3d 1069

Steven FISHER, Plaintiff-Appellee, and Sandra Fisher, Plaintiff, v. CITY OF SAN JOSE, Defendant-Appellant, and City of San Jose Police 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.

Argued and Submitted June 26, 2008.

Filed March 11, 2009.

Scott Attaway (argued), Deputy City Attorney, San Jose, CA, for the defendants-appellants.

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

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

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, SIDNEY R. THOMAS, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JAY S. BYBEE, and N. RANDY SMITH, Circuit Judges.

TALLMAN, Circuit Judge:

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

Fisher and his wife sued under 42 U.S.C. § 1983 naming the City of San Jose, its police department, and several of its officers (collectively, "police"). The suit alleged, among other claims, that police violated Fisher's Fourth Amendment right to be free from unreasonable seizure by arresting him in his home without a warrant. The case went to trial, and the jury found that exigent circumstances excused the need for a warrant.¹ The district court nonetheless granted Fisher's renewed motion for judgment as a matter of law, holding that no reasonable jury could have found that there was insufficient time to obtain a warrant. The police appeal.

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

I

A

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

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

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

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

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

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

As Fisher became more agitated, he shifted the position of the rifle such that it was pointing either at Serrano or in Serrano's direction.² Serrano, fearing for his safety, quickly left the area in front of Fisher's apartment and reported the confrontation to his supervisor, who placed another call to the police, this time describing a "suspicious person with a weapon." Eight officers were initially dispatched to the Tradewinds apartment complex.

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

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

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

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

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

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

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

Over the next several hours, the MERGE team tried several methods to establish communication with Fisher and resolve the...