Fisher v. City of San Jose

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN FISHER, 
Plaintiff-Appellee,
and
SANDRA FISHER,
Plaintiff,
v.
No. 04-16095
CITY OF SAN JOSE,
D.C. No.
Defendant-Appellant,
and
 CV-01-21192-PVT
ORDER AND
CITY OF SAN JOSE POLICE OPINION
DEPARTMENT; OFFICER BOLER;
OFFICER BARNETT; OFFICER CORREA;
OFFICER ESQUIVEL; OFFICER HONDA;
OFFICER KINSWORTHY; OFFICER
O’BRIEN; OFFICER RYAN; OFFICER
NGUYEN,
Defendants.

Appeal from the United States District Court
for the Northern District of California
Patricia V. Trumbull, Magistrate Judge, Presiding
Argued and Submitted
April 5, 2006—San Francisco, California
Filed November 20, 2007
Before: David R. Thompson, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Callahan

15039
 FISHER v. CITY OF SAN JOSE 15043

COUNSEL

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

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

ORDER

The opinion filed on January 16, 2007 is hereby withdrawn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

OPINION

BERZON, Circuit Judge:

Steven Fisher claims constitutional violations stemming
from a twelve-hour standoff at his apartment between him and
a large number of San Jose police officers, at the end of which
he came out of the apartment and submitted to arrest. He sued
the city of San Jose (“the City”) and several officers under 42
15044 FISHER v. CITY OF SAN JOSE
U.S.C. § 1983, contending, among other things, that the arrest
was invalid because the police never obtained or attempted to
obtain a warrant. A jury found for the defendants on all
claims, including a claim for warrantless arrest. Fisher there-
upon filed a renewed motion under Federal Rule of Civil Pro-
cedure 50(b) for judgment as a matter of law on the
warrantless arrest claim. Granting the motion against the City,
the district court ordered the City to pay nominal damages of
one dollar and issued an injunction regarding future training
of police officers. We uphold the district court’s ruling on
appeal, as we agree that the failure to obtain a warrant under
the circumstances of this case constituted a constitutional vio-
lation as a matter of law.

I. Background

A. The Standoff

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

Those events began when, around midnight, Leo Serrano,
a security guard at Fisher’s apartment complex, was walking
near Fisher’s apartment investigating noise complaints regard-
ing Fisher’s upstairs neighbor. Fisher’s apartment is on the
bottom floor of the apartment complex and has a sliding glass
door leading out to an enclosed patio; passers-by can see into
the apartment through the glass door. Noticing Fisher in his
apartment, Serrano motioned for him to come outside and
speak with him. Fisher walked out, carrying the rifle he had
been cleaning when Serrano called to him.

When Serrano asked Fisher about the noise coming from
his upstairs neighbor, Fisher was generally unresponsive,
 FISHER v. CITY OF SAN JOSE 15045
eventually changing the subject to the Second Amendment.
Throughout the short conversation, Fisher held his rifle in var-
ious positions. Whether Fisher pointed the rifle at Serrano is
not clear: At trial, Serrano testified that Fisher did not, but an
officer who had been called to the scene testified at trial that
when he arrived at Fisher’s apartment complex, Serrano told
him that Fisher had pointed the rifle toward him during the
initial encounter. Either way, Serrano suspected that Fisher
was intoxicated and, feeling uncomfortable and frightened in
Fisher’s presence because of the liquor, the gun, and the odd
reaction to Serrano’s questions, left to tell his supervisor
about his interaction with Fisher. The supervisor notified the
police, who responded by sending officers to the scene.

Sergeant Ryan was among the first to arrive, at around 2
a.m. After speaking with Serrano, Ryan approached Fisher’s
patio and attempted to get Fisher’s attention by throwing
small rocks at the sliding glass doors. Fisher came to the door
but, rather than answering Ryan’s questions, spoke in a ram-
bling fashion of his Second Amendment rights. Ryan, too,
believed that Fisher was intoxicated.

After Ryan tried to speak with Fisher, more police officers
began arriving at the scene; eventually, over sixty officers
participated in the standoff. Early on, some officers tele-
phoned Fisher’s apartment. When Fisher’s wife, Sandra,
answered the phone, the officers instructed her to leave the
apartment, which she did. It is not clear whether she put the
phone back on the hook, but it was busy throughout the
remainder of the standoff. When she emerged, Sandra
informed the police that no one other than Fisher was inside
the apartment. She also confirmed that Fisher had eighteen
rifles in the apartment and had been drinking.

At approximately 3 or 4 a.m., Jan Males, a tactical negotia-
tor, arrived and tried to communicate with Fisher. Unprompt-
ed, Fisher informed Males that he had a right to bear arms. He
invited Males into his apartment but said he would shoot her
15046 FISHER v. CITY OF SAN JOSE
if she did come in. Males determined that this statement was
a criminal threat, a felony.

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

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

The MERGE team finished evacuating all residents from
the surrounding apartments at 7:30 a.m. At that point, believ-
ing that Fisher had committed a crime — pointing a rifle at
police officers — the MERGE team focused its efforts on
forcing him out of his apartment to arrest him. Officers used
a bullhorn to ask Fisher to leave his apartment, but did not tell
him he was under arrest. The officers had Fisher’s power
turned off at 8:48 a.m. and then broke the sliding glass doors
so a “throw phone”2 could be tossed through, as Fisher’s
phone remained busy. At 10:52 a.m., the police set off a
“flash-bang” device, designed to get Fisher’s attention and
disorient him briefly. Two hours later, at approximately 1:00
1
The MERGE team was called at 4:45 a.m.
2
A throw phone is a phone encased in a box that also contains an open
microphone.
 FISHER v. CITY OF SAN JOSE 15047
p.m., the police began throwing CS gas canisters into Fisher’s
apartment.3 One of the CS gas volleys sent glass flying, cut-
ting Fisher’s forehead above one eye.

At 2 p.m., the police again attempted to contact Fisher, this
time by bullhorn. They finally achieved telephone contact, via
the throw phone, at 2:13 p.m. Fisher stated at that point that
he was willing to leave his apartment and offered to leave
naked so that the police would not suspect him of carrying a
weapon. When the police told him that this was not necessary,
he said that he would come out in his boxers and socks. The
police approved this plan.

Fisher emerged from his apartment at 2:35 p.m. He initially
followed police instructions, walking in the designated direc-
tion and keeping his hands in the air. Soon, however, he
stopped walking forward. One of the officers thereupon shot
him in the leg with a “sage gun,” which shoots less-than-
lethal rubber bullets. Fisher then lay down on the ground, and
the officers handcuffed him and took him into custody.

Some of the police officers involved in the first shift who
returned to the police station after they left in the morning tes-
tified that they had intended to arrest Fisher. All the police
officers who were asked at Fisher’s § 1983 trial whether they
attempted to procure a warrant said they had not, including
some of those who returned to the station in the morning.
Also, all of the officers who were asked testified that they did
not believe a warrant was necessary. Finally, all of the offi-
cers who were asked testified that they knew that judges are
available twenty-four hours a day to issue warrants.

Fisher was tried for felony violations of California Penal
Code sections 417 and 417.8, which prohibit, in general,
drawing, exhibiting, or using a firearm or deadly weapon
against a peace officer or with the intent to resist or prevent
3
CS gas causes irritation and burning sensations.
15048 FISHER v. CITY OF SAN JOSE
an arrest. The jury deadlocked, and Fisher then pleaded no
contest to a misdemeanor charge of brandishing a firearm in
the presence of a security officer.

B. The Lawsuit

Fisher and his wife sued the City, the San Jose Police
Department, and several San Jose police officers. They
alleged, among other causes of action, that (1) Fisher’s war-
rantless arrest was an unreasonable seizure; and (2) the use of
the sage gun and of the CS gas constituted state law batteries.
The basis for the claim against the City was that it was “either
jointly and severally liable; and/or vicariously liable through
the doctrine of respondeat superior for the actions of its
employee police officers also named herein in their individual
capacity.”

After an eight-day jury trial, Fisher filed a motion for judg-
ment as a matter of law under Federal Rule of Civil Procedure
50(a), but the court denied the motion. The jury then found
for the defendants on all claims. After the jury verdict, Fisher
filed a renewed motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b). The court denied the
motion on all other grounds but granted it as to the warrant-
less arrest claim against the City.

In so ruling, the district court laid out its reasoning in some
detail. Observing that “[t]he very circumstances under which
Steven Fisher w[as] arrested negate any implication that there
was any great exigency in arresting him without securing a
warrant,” the court ruled that, because “between 6:30 a.m. and
the time Fisher was taken into custody at 2:35 p.m., no exi-
gency existed[,] . . . Defendants . . . had ample opportunity
and time to seek a warrant from a neutral and detached ‘mag-
istrate,’ as they were required to do under law.” The court
expressed skepticism as to why, when “well over sixty offi-
cers [were] present at the Fisher’s apartment complex,” not
 FISHER v. CITY OF SAN JOSE 15049
one of them was able to seek a telephone warrant before
Fisher submitted to arrest.

The court awarded one dollar in nominal damages to Fisher
and injunctive relief, ordering the City to train its officers “on
what is required under the Fourth Amendment and the case
law interpreting it lawfully to arrest a suspect in his or her
home and on the procedures for obtaining warrants both in-
person and on the telephone.” The City now appeals, chal-
lenging only the court’s constitutional determination regard-
ing the failure to obtain a warrant.

II. Standard of Review

This appeal arises from the grant of a Rule 50(b) renewed
motion for judgment as a matter of law. That Rule provides:

If the court does not grant a motion for judgment as
a matter of law made [under Rule 50(a)], the court
is considered to have submitted the action to the jury
subject to the court’s later deciding the legal ques-
tions raised by the motion . . . .

Fed. R. Civ. P. 50(b). It is thus Rule 50(a) that sets out the
standard for granting Rule 50(b) motions — whether there is
a “legally sufficient evidentiary basis [for a reasonable jury]
to find for that party on [an] issue,” and, if not, whether “a
claim or defense . . . can, under the controlling law, be main-
tained or defeated only with a favorable finding on that
issue.” Fed. R. Civ. P. 50(a). “Sufficient evidence” is “evi-
dence adequate to support the jury’s conclusion, even if it is
also possible to draw a contrary conclusion.” Pavao v. Pagay,
307 F.3d 915, 918 (9th Cir. 2002).

This court reviews the district court’s grant of a renewed
motion for judgment as a matter of law de novo. Id. The dis-
trict court’s “judgment is proper if the evidence, construed in
the light most favorable to the nonmoving party, permits only
15050 FISHER v. CITY OF SAN JOSE
one reasonable conclusion, and that conclusion is contrary to
the jury’s verdict.” Id. Moreover, “when reviewing a motion
for judgment as a matter of law, we apply the law as it should
be, rather than the law as it was read to the jury,” even where
the party failed to object to the instructions. Pincay v.
Andrews, 238 F.3d 1106, 1109 n.4 (9th Cir. 2001).4

4
The City argues, to the contrary, that because Fisher did not object to
the instructions at trial, he can make a Rule 50(b) motion only on the
ground that, on the jury instructions given, no substantial evidence sup-
ported the verdict. This argument is not illogical, but it is incorrect.
True, an “appellant may not challenge on review the correctness of
instructions to which he took no exceptions or only a general exception.”
Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 182 n.5 (9th
Cir. 1989) (quoting Coca Cola Bottling Co. of Black Hills v. Hubbard,
203 F.2d 859, 862 (8th Cir. 1953), and noting the Supreme Court’s
implicit adoption of this principle in Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585 (1985)). But that principle does not foreclose
appellate review of an underlying legal question in the case through a Rule
50(b) motion. “ ‘[T]he failure to object to an instruction does not render
the instruction the “law of the case” for purposes of appellate review of
the denial of a directed verdict or judgment notwithstanding the verdict.’ ”
City of St. Louis v. Praprotnik, 485 U.S. 112, 120 (1988) (plurality opin-
ion) (quoting City of Springfield v. Kibbe, 480 U.S. 257, 264 (1987)
(O’Connor, J., dissenting)). If a party moves under Rule 50 for judgment
as a matter of law both before and after the verdict, as Fisher did, the
motions are “sufficient to preserve the . . . issue for appeal, ‘[a]lthough the
same legal issue was raised by both those motions and [by] the jury
instruction.” Air-Sea Forwarders, 880 F.2d at 183 (quoting Praprotnik,
485 U.S. at 120) (second alteration in original). As the jury instructions
on the warrant issue do not matter to our review of the grant of the Rule
50(b) motion, we do not consider them.
 FISHER v. CITY OF SAN JOSE 15051
III. Warrantless Arrest or Seizure

A. Arrest or Seizure Inside the Home and Exigent
Circumstances

1. The Warrant Requirement

[1] In general, police may not enter a person’s home to
arrest him without obtaining a warrant. See Payton v. New
York, 445 U.S. 573, 589-90 (1980); United States v. Prescott,
581 F.2d 1343, 1350 (9th Cir. 1978).5 Indeed, “[a]t the very
core [of the Fourth Amendment] stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.” Silverman v. United States, 365 U.S.
505, 511 (1961); see also Frunz v. City of Tacoma, 468 F.3d
1141, 1142 (9th Cir. 2006) (“Physical entry into the home is
the ‘chief evil against which the wording of the Fourth
Amendment is directed.’ ” (quoting United States v. U.S. Dis-
trict Court, 407 U.S. 297, 313 (1972)); LaLonde v. County of
Riverside, 204 F.3d 947, 954 (9th Cir. 2000) (noting “the
home is perhaps the most sacrosanct domain and . . . there,
Fourth Amendment interests are at their strongest”). To pro-
tect this right to privacy in the home, the decision as to
whether sufficient probable cause exists to arrest someone at
home cannot be left to police officers:

[Fourth Amendment] protection consists in requiring
that [inferences from the evidence] be drawn by a
5
Although the words of the Fourth Amendment are familiar, it is worth
recalling them before embarking on an exegesis of the warrant require-
ment in the unusual circumstances here presented. The Fourth Amendment
reads:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon prob-
able cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
15052 FISHER v. CITY OF SAN JOSE
neutral and detached magistrate instead of being
judged by the officer engaged in the often competi-
tive enterprise of ferreting out crime. . . . When the
right of privacy must reasonably yield . . . is, as a
rule, to be decided by a judicial officer, not by a
policeman or Government enforcement agent.

Johnson v. United States, 333 U.S. 10, 14 (1948); see also
Steagald v. United States, 451 U.S. 204, 212 (1981) (“The
purpose of a warrant is to allow a neutral judicial officer to
assess whether the police have probable cause to make an
arrest or conduct a search.”). As a result, “the Fourth Amend-
ment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reason-
ably be crossed without a warrant.” Payton, 445 U.S. at 590.

[2] Because the warrant requirement for in-home arrests is
based on an understanding of the sanctity of the home, it is
primarily concerned with entries into a home to effect an
arrest, not with the seizure of the individual. Thus, “the criti-
cal time for determining whether any exigency exists is the
moment the officer makes the warrantless entry.” United
States v. Johnson, 256 F.3d 895, 907 (9th Cir. 2001) (en banc)
(per curiam) (emphasis added). As explained in the Second
Circuit’s opinion upon which Payton relied as “persuasive”:

To be arrested in the home involves not only the
invasion attendant to all arrests but also an invasion
of the sanctity of the home. This is simply too sub-
stantial an invasion to allow without a warrant, at
least in the absence of exigent circumstances, even
when it is accomplished under statutory authority
and when probable cause is clearly present.

United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)
(quoted with approval in Payton, 445 U.S. at 588-89). Indeed,
as the facts of Payton itself illustrate, a warrantless entry
made for purposes of arrest or seizure is constitutionally
 FISHER v. CITY OF SAN JOSE 15053
invalid even if no arrest ensues because the suspect is not
there. See id. at 576-77.

[3] In determining whether an arrest occurs in a home or in
a public place, “it is the location of the arrested person, and
not the arresting agents, that determines whether an arrest
occurs within a home.” United States v. Johnson, 626 F.2d
753, 757 (9th Cir. 1980), aff’d, 457 U.S. 537 (1982). Apply-
ing that concept, every court that has considered the issue,
including our own, has concluded that if the police force a
person out of his house to arrest him, the arrest is deemed to
have taken place inside his home, and the Payton warrant
requirement applies. United States v. Johnson, 626 F.2d at
757. In United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.
1985), for example, “the police had completely surrounded
appellee’s trailer with their weapons drawn and ordered him
through a bullhorn to leave the trailer and drop to his knees.”
Id. at 893. Because the defendant “was in his trailer at the
time he was surrounded by armed officers, and since he did
not voluntarily expose himself to their view or control outside
his trailer but only emerged under circumstances of extreme
coercion, the arrest occurred while he was still inside his trail-
er.” Id.; see also Bing ex rel. Bing v. City of Whitehall, 456
F.3d 555, 564 (6th Cir. 2006) (“By laying siege to Bing’s
house, breaking his door and windows, and employing pepper
gas, the police accomplished . . . a Fourth Amendment sei-
zure.”); Ewolski v. City of Brunswick, 287 F.3d 492, 506 (6th
Cir. 2002) (“[P]olice efforts to force a barricaded individual
out of a home are properly treated as seizures . . . .”); Sharrar
v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (“[W]hen a
SWAT team surrounds a residence with machine guns pointed
at the windows and the persons inside are ordered to leave the
house backwards with their hands raised, an arrest has
undoubtably occurred.”); United States v. Maez, 872 F.2d
1444, 1450 (10th Cir. 1989) (holding that defendant was
arrested in his home when a SWAT team holding rifles sur-
rounded his trailer and asked him to leave his home by means
of a loudspeaker); United States v. Morgan, 743 F.2d 1158,
15054 FISHER v. CITY OF SAN JOSE
1164 (6th Cir. 1984) (concluding defendant “was placed
under arrest, without the issuance of a warrant, at the moment
the police encircled [his] residence”).

[4] The Al-Azzawy principle, and therefore the Payton war-
rant requirement, necessarily applies, moreover, to in-house
seizures that do not amount to a formal arrest. We have held
that although Fourth Amendment seizures that do not amount
to arrests may be accomplished on reasonable suspicion rather
than probable cause under Terry v. Ohio, 392 U.S. 1, 20
(1968), the special status of in-house seizures recognized in
Payton means that “probable cause is a precondition for any
warrantless entry to seize a person in his home.” LaLonde,
204 F.3d at 954.6 For similar reasons, any in-house seizure
must be subject to the warrant requirement as well, absent an
applicable exception. We agree in this regard with the Sixth
Circuit, which has reasoned as follows:

[L]ike a full-blown arrest, an investigatory detention
is a seizure that is subject to Fourth Amendment
scrutiny. Thus, Payton’s holding that warrantless sei-
zures of persons in their homes violate the Fourth
Amendment, absent exigent circumstances, applies
. . . regardless of whether the officers at issue were
conducting an arrest or an investigatory detention.

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

[5] It therefore does not matter for present purposes
whether any seizure of Fisher that occurred before he was
taken into custody at the conclusion of the standoff would
have amounted to an arrest or only to a Terry seizure had the
seizure occurred outside the home. Either way, a warrant was
presumptively required.
6
Fisher concedes that probable cause to believe he committed a crime
existed during the standoff.
 FISHER v. CITY OF SAN JOSE 15055
2. Exceptions to the Warrant Requirement

The warrant requirement, however, is not without excep-
tions. Defendants rely in this case on the exigency exception
to the warrant requirement.

[6] The exigency exception can excuse a warrant for an in-
home arrest when probable cause exists and there is a compel-
ling reason for not obtaining a warrant — for example, a
“need to protect an officer or the public from danger, [a] need
to avoid the imminent destruction of evidence, when entry in
‘hot pursuit’ is necessary to prevent a criminal suspect’s
escape, [or a need] to respond to fires or other emergencies.”
United States v. Brooks, 367 F.3d 1128, 1133 n.5 (9th Cir.
2004) (citations omitted), cert. denied, 543 U.S. 1058 (2005).

As the term “exigency” suggests,7 however, such circum-
stances are not alone enough to establish exigency and
thereby to excuse the warrant requirement. Instead, “ ‘[w]hen
an officer undertakes to act as his own magistrate, he ought
to be in a position to justify it by pointing to some real imme-
diate and serious consequences if he postponed action to get
a warrant.’ ” Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)
(quoting McDonald v. United States, 335 U.S. 451, 460
(1948) (Jackson, J., concurring)). Consequently, a situation is
exigent for purposes of permitting an arrest without a warrant
only if a warrant could not be obtained in time to effect the
arrest safely — that is, for present purposes, without causing
a delay dangerous to the officers or to members of the public.
See Michigan v. Tyler, 436 U.S. 499, 509 (1978) (“[A] war-
rantless entry by criminal law enforcement officials may be
legal when there is compelling need for official action and no
time to secure a warrant.” (emphasis added)); United States
v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979) (holding exi-
7
Merriam-Webster’s Collegiate Dictionary defines “exigent” as “requir-
ing immediate aid or action.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
406 (10th ed. 1999) (emphasis added).”
15056 FISHER v. CITY OF SAN JOSE
gent circumstances exist where “a substantial risk of harm to
the persons involved or to the law enforcement process would
arise if the police were to delay a search until a warrant could
be obtained” (emphasis added)).

[7] Inherent in this standard, as the just-quoted italicized
language indicates, are considerations regarding the time
required, as a practical matter, to obtain a warrant. Conse-
quently, where exigency is claimed, we have required “the
government either to attempt, in good faith, to secure a war-
rant or to present evidence explaining why a telephone war-
rant was unavailable or impractical.” United States v. Alvarez,
810 F.2d 879, 883 (9th Cir. 1987) (footnote omitted).

The appropriate moment for assessing whether the require-
ments for the exigency exception are met is the moment at
which any entry to effect an arrest or to conduct a search
occurs. See United States v. Johnson, 256 F.3d 895, 907 (9th
Cir. 2001) (“the critical time for determining whether any exi-
gency exists is the moment the officer makes the warrantless
entry”). Even where exigent circumstances existed to conduct
a search or effect an arrest at some earlier moment, an arrest
warrant will be required as soon as those exigent circum-
stances pass.

In Mincey v. Arizona, 437 U.S. 385 (1978), for example,
the Supreme Court made clear that “a warrantless search must
be ‘strictly circumscribed by the exigencies which justify its
initiation.’ ” Id. at 393. The Court noted that while it was
acceptable for officers arriving at the scene of a homicide to
“make a prompt warrantless search of the area to see if there
are other victims or if a killer is still on the loose,” no exigent
circumstances justified a search of a homicide scene without
a warrant once “all the persons” on the scene had been located
and the suspect arrested. Id. Thus, the warrantless search of
the murder scene a mere ten minutes after all injured parties
were removed and the premises secured violated the Fourth
Amendment. Id. at 388-89, 393; see also Johnson, 256 F.3d
 FISHER v. CITY OF SAN JOSE 15057
at 907-08 (holding that, although there might have been exi-
gency had the deputy pursuing the suspect followed him
immediately into the house, there was no exigency by the
time the deputy entered because he waited half an hour for
backup to arrive and returned to the site where he lost the sus-
pect to retrieve his pepper spray container).8
8
The dissent repeatedly maintains that, once exigent circumstances
exist, no further actions to effect a search or seizure ever require a warrant.
See Diss. Op. at 15073, 15075, 15076-77, 15084 (“[n]either our precedent,
nor any other federal case, has ever required officers to obtain a warrant
to justify a seizure after exigent circumstances were legitimately estab-
lished”). As both Mincey and Johnson, discussed above, illustrate, this is
simply not so.
The dissent relies heavily on Michigan v. Tyler, 436 U.S. 499 (1978),
in which the Supreme Court addressed “the applicability of the Fourth and
Fourteenth Amendments to official entries onto fire-damaged premises.”
Id. at 501. The Court held that officials “need no warrant to remain in a
building for a reasonable time to investigate the cause of a blaze” because
“[p]rompt determination of the fire’s origin may be necessary to prevent
its recurrence, as through the detection of continuing dangers such as
faulty wiring” and “[i]mmediate investigation may also be necessary to
preserve evidence from . . . destruction.” Id. at 510. The Court held that
the reentry of officials four hours after the blaze was extinguished was
permissible as part of that “reasonable investigation” because officials
were not required to remain in the building while they were severely ham-
pered by “darkness, steam, and smoke.” Id. at 511.
The dissent’s reliance on Tyler is misplaced. First, Tyler involved an
investigation into the cause of a fire by fire officials, rather than a criminal
investigation by the police. See Michigan v. Clifford, 464 U.S. 287, 291
(1984) (“in Tyler, we restated the Court’s position that administrative
searches generally require warrants”) (emphasis added). Moreover, the
significance of Tyler was substantially limited by Mincey, decided less
than a month later, which makes clear that in the criminal law enforcement
context, exigent circumstances are always assessed at the time of the
search. Second, Tyler addressed a search of a burned-out furniture store,
rather than a home. Id. at 297 (distinguishing Tyler as a case in which the
owners had a lessened privacy interest in their property than would “a
homeowner [who] ha[d] made a reasonable effort to secure his fire-
damaged home”). Lastly, in Tyler the Supreme Court authorized a search
that was a “continuation” of exactly the same activity in which officials
had begun to engage as a result of exigent circumstances; it did not pur-
15058 FISHER v. CITY OF SAN JOSE
[8] Here, none of the officers testified that there was any
attempt to get a warrant at any point during the twelve-hour
standoff, by telephone or otherwise. The City can therefore
prevail only if it satisfactorily demonstrates that exigent cir-
cumstances existed such that a warrant was impractical or
unavailable at the time of any entry into Fisher’s home to
effect his arrest.

3. The Warrant Requirement and Stand-Offs

The City maintains that it met this standard by showing that
there was a seizure of Fisher before 6:30 a.m. and that the exi-
gency standard was met at the time that seizure occurred. We
may — and will — assume that both the City’s premises are
true: that is, that there was a seizure of Fisher in his home in
the early morning hours and that both prongs of the exigency
exception — danger and lack of time to obtain a warrant with-
out risking harm to some person — were met at that time. But
the City’s argument contains an unarticulated assumption —
that the responsibility to obtain a warrant lapses entirely at the
time a seizure first occurs, even if many hours ensue before
the targeted person submits to custody and is formally

port to excuse a situation in which officials change tactics and escalate
their intrusions into an individual’s home in the absence of exigent cir-
cumstances. Tyler, 436 U.S. at 511.
The dissent’s reliance on United States v. Echegoyen, 799 F.2d 1271
(9th Cir. 1986), is similarly misplaced. Echegoyen, while it involved law
enforcement officers, concerned a serious fire hazard. Id. at 1280. More
importantly, in Echegoyen the court specifically held that there was insuf-
ficient time for officers to obtain a warrant because “the delay associated
with obtaining a telephonic warrant would have unduly increased the risk
that the officers reasonably believed to be present.” Id. As the dissent
acknowledges, a second entry was permitted because it was itself “done
to alleviate the exigent circumstances” existent at a moment when delay-
ing to obtain a warrant would be dangerous. Id. at 1280; Diss. Op. at
15078. It therefore cannot stand for the principle that warrantless entries
are permitted even where there is sufficient time to obtain a warrant
safely.
 FISHER v. CITY OF SAN JOSE 15059
arrested, and even if the police take steps in the interim period
that further intrude into the surrounded house. That assump-
tion, we conclude, is unwarranted.

[9] We have found no case of this court that directly
addresses whether police must obtain a warrant during a
standoff such as occurred here between the police and a citi-
zen if any initial exigency dissipates before further intrusions
into the home to coerce the targeted individual to submit to
arrest. We conclude, however, from our review of cases from
other circuits involving police standoffs that the Payton war-
rant requirement does not evaporate the moment officers sur-
round a home with weapons and begin to take measures to
induce an individual to leave his home. Rather, officers must
obtain a warrant before any additional intrusions into the
home if the initial exigency dissipates sufficiently to allow the
police to obtain a warrant.9 The initial exigency can dissipate
either because the danger posed by the targeted individual
decreases or because, with the passage of time, resources
become available that allow the police both to maintain safety
and to obtain a warrant.

To explain our conclusion, we begin by noting that in most
of the cases holding that there was an in-home seizure accom-
plished by armed police surrounding the home, the sur-
rounded individual left his home essentially simultaneously
with the in-home seizure as he was ordered to do, and was
then taken into custody by the police. See Al-Azzawy, 784
F.2d at 891; Sharrar, 128 F.3d at 815-16; Maez, 872 F.2d at
1446-47, 1449-50; Morgan, 743 F.2d at 1161. The courts in
these cases had no reason to determine whether any exception
operative at the outset of the action continues to apply if there
9
We need not and do not decide whether a warrant would be required
if armed police surrounded an individual in his home, but during the
standoff made no further intrusions into the home for purposes of effecting
an arrest. In this case, police clearly did intrude into the home after the ini-
tial seizure by throwing CS gas canisters into Fisher’s house.
15060 FISHER v. CITY OF SAN JOSE
is a lengthy standoff between police and the seized person.
Those cases that have discussed prolonged police standoffs,
however, have not treated a seizure as a single event that ends
the moment a residence is surrounded, nor have they viewed
the warrant requirement as lapsing once a seizure of this vari-
ety begins.

In Sharrar, for example, the court analyzed a situation in
which officers surrounded the home of an individual sus-
pected of a crime and then forced him and other occupants
outside at gunpoint. See 128 F.3d, at 814-17. The court noted
that “[t]he police have not satisfactorily explained why, when
the house was completely surrounded by an armed SWAT
team, they could not secure the premises while they went to
procure an arrest warrant.” Id. at 820. The court’s analysis
indicates that even if the initial surrounding of a house with-
out a warrant is justified by exigent circumstances, the war-
rant requirement does not evaporate once police surround the
home, and the police remain obligated to obtain a warrant
once the danger has lessened or resources have become avail-
able such that a warrant could be safely obtained.

The Sixth Circuit in Bing applied this approach in its analy-
sis of a five-hour police standoff. In that case, the police sur-
rounded the home of a man who had fired a weapon in front
of his house in the vicinity of neighborhood children. 456
F.3d at 559. Police “attempt[ed] to force him outside” by
using pepper gas and a flashbang device, and, after approxi-
mately five hours, raided his home and shot him. Id. at 559-
62. In determining whether the police violated Bing’s rights
by effecting a warrantless entry into his home, the Sixth Cir-
cuit first held that “[b]y laying siege to Bing’s house, break-
ing his door and windows, and employing pepper gas, the
police accomplished a . . . Fourth Amendment seizure” sub-
ject to the warrant requirement. Id. at 564. The Sixth Circuit
then proceeded to analyze whether exigent circumstances
existed to excuse the warrant requirement throughout the
period of the standoff, ultimately holding that, under the par-
 FISHER v. CITY OF SAN JOSE 15061
ticular circumstances, the “exigency did not terminate due to
the passage of time.” Id. at 565. Bing considered whether exi-
gency existed to justify the lack of a warrant at the time of
each of the warrantless entries into Bing’s home, noting, for
example, that “exigency existed to justify shooting pepper gas
into the house without a warrant.” Id. at 567. The court in
Bing thus necessarily recognized that passage of time during
a standoff can, under some circumstances, lead to an opportu-
nity to obtain a warrant safely that did not exist at the outset,
and that, if such an opportunity appears before further intru-
sions are made to accomplish the final arrest, the warrant
requirement is not excused. Absent such an understanding,
there would have been no reason for the lengthy analysis in
Bing directed at demonstrating that the exigency continued
throughout the course of the standoff, including before each
additional police action designed to force the suspect from his
home. See id. at 565-69.

[10] Bing’s approach is consistent with the Sixth Circuit’s
other standoff cases and with the law of this circuit on exi-
gency. In O’Brien v. City of Grand Rapids, 23 F.3d 940 (6th
Cir. 1994), the Sixth Circuit analyzed a standoff in which the
police, after waiting outside O’Brien’s home for more than six
hours, inserted three small probes without a search warrant.10
Id. at 994. The court did not consider whether exigent circum-
stances existed when the police first surrounded O’Brien’s
home, but did hold that any exigency had dissipated by the
time the probes were inserted because O’Brien “had taken no
action against the officers” for the previous five hours, he was
completely surrounded and could not flee the scene, and he
was “not holding anyone hostage.”11 Id. at 997. Our cases,
10
The dissent notes, correctly, that O’Brien addresses whether and when
a search warrant is required to undertake further intrusions into a home
after it has been surrounded in a standoff, not whether and when an arrest
warrant is required. Diss. Op. at 15083. That distinction does not matter,
however, for present purposes, as the “exigency” concept is the same for
the two types of warrants.
11
Bing is also consistent with Ewolski, in which the Sixth Circuit held
that the Fourth Amendment applies to a police standoff that ultimately
15062 FISHER v. CITY OF SAN JOSE
too, assume that any exigency that exists at the beginning of
a police encounter may, in some circumstances, end as a
result of the passage of time or other factors, triggering a
requirement to obtain a warrant. See, e.g., United States v.
Lindsey, 877 F.2d 777, 782 (9th Cir. 1989) (analyzing
whether exigency had dissipated during a one-hour delay
before arresting defendant in his home).

[11] This approach to exigency analysis during police-
citizen standoffs is consistent with the principles of Payton
and the purposes of the warrant requirement. As discussed
above, Payton is primarily concerned with the prevention of
warrantless entries into a home. To hold that the warrant
requirement ceases to apply in a standoff as soon as police
have surrounded a residence would be to permit officers to
invade the sanctity of the home indefinitely and in new, more
intrusive ways without the oversight of a neutral and detached
magistrate. Such a holding would negate the principle that
officers who act without a magistrate must always be pre-
pared to demonstrate that they could not have safely obtained
a warrant. We therefore conclude that, should exigency dissi-
pate after an individual has been seized by means of police
surrounding his home but before the individual is taken into
custody, officers are required to attempt to obtain a warrant
before they take additional, intrusive steps to effect the arrest.
This is not to say that there is no end to the warrant require-
ment in a standoff situation. Once officers have subdued the
individual and taken him into custody, there is obviously no
further need to obtain a warrant, and the application of the
exigency requirement is tested by the circumstances extant
before that occurred. That is why there is no need to obtain
a warrant where, as in Al-Azzawy, the seizure by surrounding
the house and the taking of the suspect into custody were

ended in a raid of a home. The court did not have occasion to consider in
Ewolski whether the warrant requirement applied to the standoff, nor
whether any such requirement was excused by exigent circumstances.
 FISHER v. CITY OF SAN JOSE 15063
essentially simultaneous and there were exigent circumstances
at that time. 784 F.2d at 894 (finding exigency at time defen-
dant was arrested). If, however, an individual remains in his
home for a long period of time despite being surrounded by
armed officers, his liberty has been sufficiently restrained so
as to have been seized, see Ewolski, 287 F.3d at 506, but he
has not yet been brought into police custody or formally
placed under arrest. The police are, of course, unlikely to
cease at that point to attempt to bring the suspect into actual
custody and formally to arrest him. So long as the standoff
continues and the police continue to make entries into the sus-
pect’s home in order to arrest him, the Payton warrant
requirement remains triggered.

As should be evident, the dissent’s suggestion, post at
15073, that we are requiring a retroactive warrant is simply
incorrect. Although a seizure is initially accomplished by sur-
rounding a home, the police in such instances may — as here
— take additional steps that intrude further into the home, and
do not accomplish the formal arrest until the individual sur-
renders. To view this entire sequence of events as a single
police decision made at the outset is both to indulge in a fic-
tion and severely to undermine the warrant requirement. So,
for example, had Fisher refused to come out and had the
police therefore decided forcibly to enter Fisher’s home at
2:30 p.m., that decision and action could not reasonably be
viewed as outside the warrant requirement on the ground that
Fisher had already been seized at home earlier.

B. The Warrant Requirement and Seizure of Fisher

The City contends that Fisher was arrested by 6:30 a.m. —
after the police officers on the scene had surrounded Fisher’s
home, attempted to convince him to come outside to talk, and
positioned a sharpshooter to observe his actions — and that
any warrant requirement applies only to the period before
6:30 a.m. Because there were exigent circumstances until 6:30
a.m., the City argues, the warrant requirement was excused.
15064 FISHER v. CITY OF SAN JOSE
Applying the principles already discussed to the facts in the
record, we conclude that the City’s position is not supported
by legally sufficient evidence.

[12] We do not disagree that Fisher was seized when police
surrounded his home and stationed a sharpshooter to watch
him, or that the warrant requirement applied to this seizure,
absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite
having been seized, it is indisputable that Fisher had not yet
been placed under formal arrest and brought into the custody
of the police. Because Fisher remained in his house, not free
to leave but not in the custody of the police, he continued to
be subjected to entries into his home for the purpose of forc-
ing him outside to arrest him, and the Payton warrant require-
ment continued to apply. As a result, we must ask whether
any exigency that existed at 6:30 a.m. dissipated before police
made further entries into Fisher’s home.12 We conclude that
there was insufficient exigency to justify a warrantless arrest
12
As noted earlier, Alvarez tolls the period of exigency during the offi-
cers’ attempts to obtain a warrant, as warrants cannot be obtained instanta-
neously. 810 F.2d at 883 (holding that the Fourth Amendment “requires
the government either . . . attempt, in good faith, to secure a warrant or
. . . present evidence explaining why a telephone warrant was unavailable
or impractical” (emphasis added) (footnote omitted)). We thus require
only that officers begin to attempt to obtain a warrant when that attempt
becomes feasible, given all the circumstances, while continuing in the
meantime their efforts to maintain the peace and bring the suspect under
control.
We also do not mean to suggest that more than one arrest warrant is
required. Cf. Carlson v. Landon, 342 U.S. 524, 546-47 (1952) (recogniz-
ing that even once an arrest warrant is fully executed, rearrest may be pos-
sible without a new warrant, especially in cases when the detainee has
escaped); United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (“The
fourth amendment’s rules for warrants do not include time limits.”).
Rather, our point is that there were police activities taken after 6:30 a.m.
for which one arrest warrant could have been obtained without a danger-
ous delay, and that a warrant was therefore required.
 FISHER v. CITY OF SAN JOSE 15065
of Fisher at least by the time the CS gas canisters13 were
thrown into his home at approximately 1:00 p.m.14

As we have emphasized, to come within the exigency
exception, the City must show both that dangerous circum-
stances existed and that it was infeasible to obtain a warrant
safely. See United States v. Manfredi, 722 F.2d 519, 522-23
(9th Cir. 1984). We have used a nonexhaustive list of factors,
first enunciated in Dorman v. United States, 435 F.2d 385,
392-93 (D.C. Cir. 1970) (en banc), to determine whether dan-
gerous circumstances exist for purposes of the exigency
exception. See United States v. Blake, 632 F.2d 731, 733 (9th
Cir. 1980).15 Those criteria are: (1) “that a grave offense is
involved”; (2) “that the suspect is reasonably believed to be
armed”; (3) that there exists “a clear showing of probable
cause”; (4) that there is “a strong reason to believe that the
suspect is in the premises”; (5) that there is “a likelihood that
the suspect will escape”; and (6) that peaceable entry is made
onto the premises. See Dorman, 435 F.2d at 392-93.

Viewing the evidence in the light most favorable to the
City, it was not unreasonable for the jury to find that the offi-
cers were justified in considering Fisher a danger both to them
and to the public when they first surrounded his home in the
early morning hours. Although no grave offense was
involved, Fisher was armed, was certainly on the premises,
and concedes that there was probable cause to arrest him. He
was also intoxicated and had made at least one threatening
13
Tossing the CS gas canisters into the house was an independent use
of force within the home. Cf. Headwaters Forest Def. v. County of Hum-
boldt, 276 F.3d 1125, 1129-30 (9th Cir. 2002) (holding that reasonable
juror could conclude that use of pepper spray constituted excessive force).
14
Because we conclude that there was no exigency by the time officers
threw the CS gas canisters into Fisher’s home at 1 p.m., we need not con-
sider whether there was exigency at the time of any of the other intrusions
into Fisher’s home.
15
Dorman explicitly noted that the list of considerations was not com-
prehensive. 435 F.2d at 392.
15066 FISHER v. CITY OF SAN JOSE
comment to an officer.16 Moreover, it was not unreasonable
for the jury to conclude that some level of danger persisted
throughout the duration of the standoff, as Fisher remained
inside his apartment, intoxicated and with access to weapons.

At the same time, the danger of the situation, if it did not
terminate entirely after 6:30 a.m., certainly did not increase,
and to some degree lessened. All nearby residents were evac-
uated at around 7:30 a.m. Furthermore, Fisher was not seen
carrying a rifle for a full seven hours after 6:30 a.m., as the
district court emphasized in granting the Rule 50(b) motion.
During that post-6:30 a.m. period, Fisher took no further
threatening actions, toward the police or anyone else. Nothing
happened after 6:30 a.m. that increased the danger of the situ-
ation.

[13] As to the second prong of the exigency exception —
which requires that “the government . . . show that a warrant
could not have been [safely] obtained in time,” United States
v. Good, 780 F.2d 773, 775 (9th Cir. 1986) — the evidence,
taken in the light most favorable to the government, clearly
shows that there were enough officers working on Fisher’s
case with enough time to obtain a warrant safely before the
police sent the first of the CS gas canisters into Fisher’s apart-
ment. Given the level of danger after 6:30 a.m., which
remained significant but was not increasing, officers had the
resources to begin the warrant process without risking the
safety of officers or the public. Some of the original officers
left the scene at 7 a.m. and returned to the station house,
16
We note that while Fisher’s comment that he would shoot the police
officer if she entered his home was a threat (albeit a conditional one), the
fact that he had earlier discussed his Second Amendment rights while
holding a gun cannot reasonably be construed as a threat. The Second
Amendment — whatever its precise parameters, compare Nordyke v.
King, 319 F.3d 1185 (9th Cir. 2003), with Nordyke v. King, 364 F.3d
1025, 1026 (2004) (Gould, J., dissenting from denial of rehearing en banc)
— concerns, after all, the right to “bear” arms, not the right to use them
to shoot people.
 FISHER v. CITY OF SAN JOSE 15067
where they or their colleagues could have initiated warrant
proceedings. By 1 p.m., many officers had been at Fisher’s
apartment complex for several hours; in total, more than 60
officers participated over the course of the standoff between
the police and Fisher. As the District Court noted, “Defen-
dants have offered no explanation, and none exists, as to why
[not] one of these officers was [ ]able to seek and obtain a
telephone warrant or make use of the procedures available
twenty-four hours a day to obtain a warrant from a judge in
person . . . .”

These facts clearly distinguish this case from Bing, a case
that is in some respects quite similar to this one. Bing had
fired his gun in the vicinity of neighborhood children, “police
had been called to Bing’s residence in the past [because] he
previously had fired shots,” neighborhood residents refused to
evacuate thereby increasing the danger, and police had reason
to believe that Bing had fired a shot at police officers before
they raided his apartment. 456 F.3d at 559-62. None of these
factors existed in Fisher’s standoff with police. Moreover, as
far as appears in the Bing opinion, none of the police on the
scene returned to the station during the standoff. The level of
danger in Bing was thus considerably higher than here, while
the officers’ opportunity to obtain an arrest warrant was not
obvious.

This case is also quite different from the Ninth Circuit case
on which Bing relies. Unlike the one-hour delay in searching
a suspect’s house that we considered in Lindsey, 877 F.2d at
782, the time the officers spent outside Fisher’s apartment
complex was not unexpected, caused by lack of additional
assistance, nor, comparatively, short.17 Instead, the standoff in
17
The dissent states that our “position that courts may analyze exigency
after the seizure of a surrounded suspect, without evidence of any facts
that negate the initial exigent circumstance, implicitly overrules Lindsey.”
Diss. Op. at 15075, n.3 (emphasis added). We do not hold, however, that
a warrant is required in a standoff case where nothing has occurred to
15068 FISHER v. CITY OF SAN JOSE
this case is much more similar to that in O’Brien, where, after
an initial confrontation, O’Brien took no aggressive action for
more than five hours, allowing the police an opportunity
safely to obtain a warrant. See 23 F.3d at 997. Indeed,
O’Brien arguably presented a more dangerous situation than
that in this case, because police were aware that O’Brien had
used his weapon in the past to shoot a neighbor in his front
yard. Id. at 993.

[14] The only reasonable conclusion on the record before
us is that, although the situation was not without danger, the
police had sufficient resources and time after probable cause
was established to obtain an arrest warrant before they
intruded into Fisher’s home by tossing in CS gas canisters.
Although our dissenting colleague maintains, quite sensibly,
that the danger created by Fisher’s actions did not completely
disappear until he submitted, she fails entirely to address
whether the police had enough time and manpower to seek a
warrant safely during the extended standoff. Because there
was such an opportunity, the failure to obtain or attempt to
obtain a warrant was unconstitutional.18

IV. Conclusion

Standoffs with barricaded suspects present hard decision-

negate the exigency. Here, in contrast to Lindsey, circumstances did
change so as to cause the exigency to dissipate. Unlike in Lindsey, where
the surrounded suspect was awaiting the return of a drug courier and likely
to become more suspicious, and therefore more dangerous, with every
passing minute, the passage of time at Fisher’s apartment caused the exi-
gency to lessen, as he was not seen with a weapon for at least six hours,
residents were successfully evacuated, and many more officers arrived on
the scene. See Lindsey, 877 F.2d at 782.
18
The dissent speculates that “the officers would appear to be entitled
to qualified immunity.” Dissenting Opinion at 15081, n.9. As no liability
was imposed on the officers, we express no opinion as to whether the offi-
cers in this or a similar case would be entitled to qualified immunity.
 FISHER v. CITY OF SAN JOSE 15069
making problems for police, often requiring split-second tacti-
cal determinations. The results can be tragic even when police
behavior is quite reasonable. See, e.g., Ewolski, 287 F.3d at
499 (involving the target of a standoff who shot himself and
his son during the standoff). A warrant may not prevent such
tragic occurrences. But interposing a neutral and detached
magistrate between the police, who are “acting under the
excitement that attends the capture of persons accused of
crime,” United States v. Lefkowitz, 285 U.S. 452, 464 (1932),
and the citizen, who may or may not have committed a
wrong, may, on occasion, bring a useful perspective to the sit-
uation. Id. (“[T]he informed and deliberate determinations of
magistrates empowered to issue warrants as to what searches
and seizures are permissible under the Constitution are to be
preferred over the hurried action of officers and others who
may happen to make arrests.”). The warrant requirement’s
purpose is to permit a third party to evaluate whether the
police should intervene in a situation at all. If not, police
retreat can prevent a potentially dangerous situation from
escalating into a tragic one.

Here, it may well be that a timely application to a magis-
trate would have resulted in issuance of a warrant for Fisher’s
arrest and events would then have proceeded pretty much as
they did. But that is not certain, and is in any event beside the
point. The criminal jury hung on the felony count presented
to it, so it is at least possible that a magistrate would have
thought the police lacked probable cause on the charge for
which he was arrested. More importantly, it is precisely to
require the officers involved to articulate the grounds for
arrest and to obtain the views of a dispassionate magistrate on
the adequacy of those grounds that a warrant is required.

Here, there were plenty of police officers involved and
there was plenty of time to obtain such a warrant. It was
unconstitutional to fail to do so.

AFFIRMED.
15070 FISHER v. CITY OF SAN JOSE
CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent.

What we have here is a very dangerous situation that was
resolved safely for all concerned — Fisher, the public, and the
police — because of good police work. Nevertheless, the
majority penalizes the police by announcing a new warrant
requirement and imposing liability upon them for failing to
obtain a telephonic arrest warrant in the midst of a police
standoff that could have turned deadly at any moment.1 After
reviewing all the facts and receiving proper instructions on
the law, twelve jurors unanimously found that the police had
handled the situation lawfully. We should accept the wisdom
of the jurors’ decision.

As judges, we should not arm-chair quarterback a crisis
from the safety of our chambers. Such post-game analysis is
disconnected from reality and leads to the puzzling determina-
tion in this case that San Jose police officers need training
despite the jury’s finding that they did nothing wrong. The
police handled the situation in exemplary fashion and in full
compliance with the law. Exigent circumstances excused the
warrantless arrest, and the exigent circumstances continued
until the police completed that arrest when Fisher surren-
dered. I would reverse the district court’s grant of Fisher’s
Federal Rule of Civil Procedure 50(b) motion and restore the
jury’s verdict because the verdict was supported by substan-
tial evidence.

A renewed motion for judgment as a matter of law pursuant
1
Our precedents acknowledge that “[a] telephonic warrant may not be
obtained simply by calling a magistrate. Among other things, a ‘duplicate
original warrant’ must be prepared in writing and read to the magistrate
verbatim.” United States v. Manfredi, 722 F.2d 519, 523 (9th Cir. 1983).
Furthermore, we have concluded that it is “not a simple procedure.”
United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986).
 FISHER v. CITY OF SAN JOSE 15071
to Fed. R. Civ. P. 50(b) is properly granted “if the evidence,
construed in the light most favorable to the nonmoving party,
permits only one reasonable conclusion, and that conclusion
is contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d
915, 918 (9th Cir. 2002). “A jury’s verdict must be upheld if
it is supported by substantial evidence, which is evidence ade-
quate to support the jury’s conclusion, even if it is also possi-
ble to draw a contrary conclusion.” Id. Indeed, we may not
substitute our view of the evidence for that of the jury. Id. The
majority simply disregards this standard.

The majority now assumes that the San Jose Police Depart-
ment seized Fisher for purposes of the Fourth Amendment
before 6:30 a.m., when they began surrounding his apartment,
and that exigent circumstances existed at the time of this sei-
zure. After acknowledging that there is no case addressing
whether the police must obtain a warrant if any initial exi-
gency dissipates during the standoff, the majority proceeds to
conclude that officers must obtain a warrant during the stand-
off to justify additional intrusions into the home if the initial
exigency dissipates. The majority concludes that the exigent
circumstances dissipated in this case because of the lack of
activity or communication from Mr. Fisher, despite the fact
that he still had access to guns, was still acting irrationally,
and a jury’s conclusion that exigent circumstances existed.
The majority cites cases suggesting that officers may need to
get a search warrant to conduct additional intrusions into the
home to justify imposing a requirement that officers obtain an
arrest warrant when no further seizure occurs. The only con-
clusion supported by case law and consistent with common
sense, however, is that once a suspect is seized in his home,
and there are actually exigent circumstances to justify the
arrest, then there is no need to obtain an arrest warrant
because there is no additional seizure requiring a warrant.
Law enforcement activity to complete the initial seizure in the
home is a continuation of the intrusion or seizure in the home,
and it does not require an additional arrest warrant.
15072 FISHER v. CITY OF SAN JOSE
FACTS

The following facts emerge from the record. Fisher was
drinking and cleaning 18 guns in his apartment. A security
guard at his apartment complex called the police when Fish-
er’s behavior became menacing. The police arrived shortly
after midnight. Fisher was unresponsive for the most part, but
insisted on talking about his Second Amendment rights. At
approximately 3:00 – 4:00 a.m., Officer Jan Males, a tactical
negotiator, arrived. Fisher told her that he had a right to bear
arms. He also invited her into his apartment but threatened to
shoot her if she came in. Officer Males considered this to be
a criminal threat — a felony.

Throughout the morning, officers observed Fisher through
the windows of his apartment walking around with a rifle in
his hand, and more than once, aiming the rifle out of the
apartment in the general direction of the officers. Officer
Boler testified that he saw Fisher point one of his rifles
toward Sergeant Ryan and Officer Males twice between 2:45
a.m. and 4:00 a.m. and that he was moving his rifles around
his apartment. At 6:23 a.m., Fisher was seen again with a
rifle, apparently loading it.

At 7:00 a.m., the department’s Mobile Emergency
Response Group (MERGE) took control of the scene, and the
officers who originally responded to the scene left. By 7:30
a.m., the police had evacuated all of the apartments in Fish-
er’s building. One occupant, whose front door was near Fish-
er’s residence, was evacuated by cutting a hole in her
apartment wall that allowed her to leave through a neighbor-
ing apartment instead of walking across the front of Fisher’s
apartment. At 8:48 a.m., the police turned off the power in
Fisher’s apartment in an attempt to force him out. They also
broke his sliding glass door and tossed in a “throw phone” so
that they could communicate with Fisher because his phone
line was busy. At 10:52 a.m., the police set off a “flash-bang”
device to get Fisher’s attention and briefly disorient him. At
 FISHER v. CITY OF SAN JOSE 15073
1:00 p.m., police began throwing gas canisters into the apart-
ment, to no avail. Finally, at 2:13 p.m., police established tele-
phone contact with Fisher via the throw phone and he agreed
to leave the apartment unarmed. The police then took him into
custody.

DISCUSSION

A warrantless search does not violate the Fourth Amend-
ment where officers have probable cause to believe that a
crime has been committed, and there are exigent circum-
stances such that a warrant could not have been obtained
without causing a dangerous delay. Manfredi, 722 F.2d at
522. Fisher concedes that officers had probable cause, and the
majority now gives credit to the jury’s finding that there were
exigent circumstances when the officers seized Fisher by sur-
rounding his house and showing force. The majority, how-
ever, determines that it was “not unreasonable” for the jury to
find that the officers were justified in arresting Fisher in his
home and that it was “not unreasonable” for the jury to con-
clude that the danger persisted throughout the standoff.2 (Maj.
Op. at 15065.) Yet the majority concludes that the exigency
somehow lessened to the point where some sort of post-hoc
or retroactive warrant was required, despite the lack of any
sort of intervening Fourth Amendment search or seizure. Nei-
ther our precedent, nor any other federal case, has ever
required officers to obtain a warrant to justify a seizure after
exigent circumstances were legitimately established. Yet the
district court, and now the majority, saw fit to overrule the
jury’s verdict.

2
The majority’s acknowledgment that the facts do not compel a single
perspective is a concession that there is not only one reasonable conclu-
sion that is contrary to the jury’s verdict. Accordingly, we are not at lib-
erty to disturb the verdict. Pavao, 307 F.3d at 918.
15074 FISHER v. CITY OF SAN JOSE
A. Once exigent circumstances exist to justify the
warrantless seizure, a warrant is not required unless there
is another seizure.

Although the government must “show that a warrant could
not have been obtained in time” when attempting to establish
exigent circumstances, once exigent circumstances exist, the
warrantless seizure is justified. Good, 780 F.2d at 775. This
is because a showing of exigent circumstances “overcome[s]
the presumption of unreasonableness that attaches to all war-
rantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750
(1984). Exigent circumstances are determined at the time of
the arrest or search. See Cardwell v. Lewis, 417 U.S. 583,
595-96 (1974) (“The exigency may arise at any time, and the
fact that the police might have obtained a warrant earlier does
not negate the possibility of a current situation’s necessitating
prompt police action.”). In the context of searches, the
Supreme Court has stated, “we know of no case or principle
that suggests that the right to search on probable cause and the
reasonableness of seizing a car under exigent circumstances
are foreclosed if a warrant was not obtained at the first practi-
cable moment.” Id. at 595.

Exigent circumstances are “those circumstances that would
cause a reasonable person to believe that entry . . . was neces-
sary to prevent physical harm to the officers or other persons,
the destruction of relevant evidence, the escape of the suspect,
or some other consequence improperly frustrating legitimate
law enforcement efforts.” United States v. Brooks, 367 F.3d
1128, 1135 (9th Cir. 2004) (quoting United States v. McCon-
ney, 728 F.2d 1195, 1199 (9th Cir. 1984)). “The exigencies
must be viewed from the totality of circumstances known to
the officers at the time of the warrantless intrusion.” United
States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). As the
Supreme Court recognized in Brigham City v. Stuart, “[t]he
role of a peace officer includes preventing violence and
restoring order, not simply rendering first aid to casualties.”
___ U.S. ___, 126 S. Ct. 1943, 1949 (2006).
 FISHER v. CITY OF SAN JOSE 15075
The majority acknowledges that the pertinent time to deter-
mine whether an exigency exists is at the time that the arrest
is effectuated, but then proceeds to ignore that principle to
hold that, during armed standoffs, officers must obtain a war-
rant to justify a seizure that has already happened under exi-
gent circumstances. The Fourth Amendment simply does not
require after-the-fact warrants to justify events that already
occurred under exigent circumstances. That is the entire point
of exigent circumstances — they justify a Fourth Amendment
event, in this case the seizure of Fisher in his home.3 Unless
there is another Fourth Amendment event, there is no reason
to obtain a warrant to justify an arrest that has already
occurred and will continue until the arrest is complete.4 See
United States v. Snyder, 852 F.2d 471, 473-74 (9th Cir. 1988)
(finding acts incident to a valid arrest did not constitute addi-
tional arrests); United States v. Wulferdinger, 782 F.2d 1473,
1477 (9th Cir. 1986) (refusing to reach other questions once
probable cause and exigent circumstances were found).

B. A standoff is a continuation of the original seizure
justified by exigent circumstances.

There is no case law that supports the idea that officers
must obtain warrants to justify searches or seizures that have
3
In United States v. Lindsey, 877 F.2d 777, 782-83 (9th Cir. 1989), we
concluded that it was improper to evaluate exigent circumstances after the
warrantless entry, and that a one-hour delay while officers waited for
backup “did not dissipate the exigency.” The majority’s position that
courts may analyze exigency after the seizure of a surrounded suspect,
without evidence of any facts that negate the initial exigent circumstance,
attempts to implicitly overrule Lindsey.
4
The majority’s analysis addresses additional intrusions, as opposed to
the arrest. We cannot decide issues concerning searches or seizures of
property because the Constitution “limits our role to resolving the ‘[c]ases’
and ‘[c]ontroversies’ before us”; therefore “we decide only the case at
hand.” Hein v. Freedom from Religion Found., Inc., ___ U.S. ___, 127
S. Ct. 2553, 2572 (2007). As a result, we are limited to reviewing only the
warrantless arrest.
15076 FISHER v. CITY OF SAN JOSE
already begun under exigent circumstances while the search
or seizure is in progress. Of course, exigent circumstances
must truly exist before the officers undertake the search or
seizure in order to justify the Fourth Amendment event.5 Also,
officers must show that it was impractical or impossible to
obtain a warrant before the search or seizure in question in
order to show exigent circumstances.6 See e.g., United States
v. Echegoyen, 799 F.2d 1271, 1279 (9th Cir. 1986); Good,
780 F.2d at 775; Manfredi, 722 F.2d at 523.

There is no support, however, for the idea that, after exi-
gent circumstances have been established and the officers
lawfully arrest a person in his or her home, the officers must
then go and obtain an arrest warrant to retroactively justify an
arrest. Our court has condemned obtaining post-hoc or retro-
active warrants as “alien to the Fourth Amendment warrant
and reasonableness requirements.”7 United States v. Allard,
634 F.2d 1182, 1187 (9th Cir. 1980) (Allard II). Indeed, in
every case where exigent circumstances justified an initial
intrusion, the exigency “dissipated” in some manner —
whether because the suspect is arrested after a hot pursuit, the
premises are secured to prevent an escape or destruction of
evidence, or a danger to the public is neutralized. We have
5
As a result, cases such as Sharrar v. Felsing, 128 F.3d 810, 820 (9th
Cir. 1997), where there was insufficient evidence that exigent circum-
stances existed as a matter of law at the time of arrest to support summary
judgment are distinguishable. To the extent that Sharrar considered exi-
gent circumstances to be a jury question, the jury here explicitly found that
exigent circumstances existed.
6
Under the majority’s reasoning, a clever attorney can now argue that
the fact that the officers obtained an arrest warrant at some point shows
that they could have obtained a warrant, thus defeating the initial exi-
gency. We should not subject officers to this type of “damned if you do,
damned if you don’t” approach to liability.
7
In United States v. Allard, 600 F.2d 1301, 1304 (9th Cir. 1979)
(“Allard I”), we stated that later obtained warrants “could not retroactively
authorize the entry.” Yet the majority now insists that officers must obtain
a warrant to justify an arrest that has already occurred and that officers are
simply seeking to complete.
 FISHER v. CITY OF SAN JOSE 15077
never required the officers to, after the fact, go back and
obtain a warrant to justify the initial lawful intrusion. This is
because once exigent circumstances excuse the initial intru-
sion, officers are allowed to continue with activities until the
intrusion — in this case the arrest of Fisher — is complete.

The Supreme Court has held that once an arrest is justified
by exigent circumstances, no warrant is required so long as
the seizure continues. Michigan v. Tyler, 436 U.S. 499, 510-
11 (1978) (concluding that a search that was “an actual con-
tinuation” of an intrusion justified by exigent circumstances
did not require a further warrant); United States v.
McLaughlin, 525 F.2d 517, 521 (9th Cir. 1975) (once an exi-
gency exists, officers are allowed to enter a home to arrest
suspects and secure the premises without a warrant). In Michi-
gan v. Tyler, the Supreme Court found that firefighters, as
well as arson inspectors and a detective, could enter a home
without a warrant because the exigent circumstances created
by a fire justified the warrantless intrusion. 436 U.S. at 509.
The Supreme Court specifically rejected the Michigan
Supreme Court’s “holding that the exigency justifying a war-
rantless entry to fight a fire ends, and the need to get a warrant
begins, with the dousing of the last flame.” Id. at 509-10. The
Court concluded that restricting the range of activities
excused by the exigency to extinguishing the fire was “unreal-
istically narrow.” Id. at 510.

In Tyler, the fire chief, a detective, and some investigators
left the scene at approximately 4:00 a.m., when the fire was
extinguished. Id. at 502. They returned later that morning
after the sun came up and conducted additional investigation
without consent or a warrant for the entries or seizure of evi-
dence. Id. The Supreme Court found that although the fire
chief, the detective, and other personnel left the scene, their
entries “were no more than an actual continuation of the first,
and the lack of a warrant thus did not invalidate the resulting
seizure of evidence.” Id. at 511. Therefore, if the initial war-
rantless event was justified by exigent circumstances, actions
15078 FISHER v. CITY OF SAN JOSE
that are continuations of that event are also excused. If leav-
ing the scene for a brief period of time constitutes a continua-
tion, then a continuous police standoff certainly is an actual
continuation of the initial arrest.

In United States v. Echegoyen, 799 F.2d at 1280, we came
to the same conclusion in the context of a warrantless arrest
followed by a search by narcotics detectives. After smelling
ether, a flammable substance, in the air and determining that
there was possibly a serious fire hazard posed by the ether,
deputies entered a house and arrested its occupants without a
warrant. Id. at 1274. With the suspects in custody, the depu-
ties and a firefighter re-entered the home, turned off the gas
burners on a stove, opened the windows, and inspected the
residence. Id. During their inspection, the deputies saw drug
processing equipment, chemicals, and white powder that was
later revealed to be cocaine. Id.

We concluded that the initial entry into the house and arrest
of the residents was justified by exigent circumstances. Id. at
1279-80. Then we decided that “the subsequent entry by the
narcotics detectives is also as [sic] valid as a continuation of
the initial lawful entry.” Id. at 1280 (citing Tyler). After sum-
marizing Tyler, we held that “this second entry was merely a
continuation of the initial lawful entry because both were
done to alleviate the exigent circumstances.” Id. As a result,
we affirmed the denial of a motion to suppress evidence seen
by the narcotics detectives. Id.

Pursuant to Tyler and Echegoyen, the initial warrantless
seizure of Fisher inside his home was excused by exigent cir-
cumstances. Even assuming that the exigency somehow dissi-
pated, the police activities during the standoff to complete the
seizure are simply a continuation of the initial lawful seizure.
Efforts to communicate with the barricaded suspect, deter-
mine his well being, and even to force a conclusion to the
standoff are all activities “done to alleviate the exigent cir-
cumstances,” that is, to neutralize the threat that Fisher posed
 FISHER v. CITY OF SAN JOSE 15079
to the neighborhood by completing the seizure. Echegoyen,
799 F.2d at 1280. Armed standoffs are essentially continua-
tions of arrests that are begun under exigent circumstances.
Without an intervening event, such as an actual escape or the
officers abandoning their siege followed by another attempt to
arrest the suspect or search the premises, there is no new
Fourth Amendment event that requires a warrant.

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

The majority acknowledges that there is “no case of this
court that directly addresses whether police must obtain a
warrant during a standoff such as occurred here” and then
proceeds to carve out a new Fourth Amendment requirement
using slivers of dicta and ignoring Supreme Court precedent.

The majority attempts to build its argument for a warrant
requirement during an ongoing standoff upon Mincey v. Ari-
zona, 437 U.S. 385, 390-93 (1978), a case where the Supreme
Court rejected a murder scene exception to the general war-
rant requirement. Mincey, however, did not invalidate the
continuation of the initial entry into the home to arrest a sus-
pect, to investigate the welfare of the undercover officer after
shots were fired, or to look for more victims. Id. at 388. The
Supreme Court expressly acknowledged that the activities in
continuation of the initial intrusion were already completed
when the homicide detectives entered the scene to search for
evidence. Id. at 388-89, 93 (noting that the sweep of Mincey’s
apartment for victims and other occupants and securing the
scene was separate from the four-day search for evidence that
followed). To distinguish Tyler, the Supreme Court stated that
“it simply cannot be contended that this search was justified
by any emergency threatening life or limb.”

What is clear from the Supreme Court’s discussion in
Mincey is that a warrantless search must be related to, or a
continuation of activity excused by, the exigent circumstances
and that there is no per se exception for particularly grave
15080 FISHER v. CITY OF SAN JOSE
crimes. Id. at 393-94. Our case simply does not involve a sub-
sequent entry to search for evidence of a crime. Rather, the
issue is only whether an arrest warrant was necessary to seize
Mr. Fisher in his home. The arrest was not completed, how-
ever, until the officers had physical custody of Mr. Fisher or
he submitted to the show of authority and surrendered. See
California v. Hodari D., 499 U.S. 621, 626 (1991) (stating
that a completed “arrest requires either physical force” or
“submission to the assertion of authority.”). We must not lose
sight of the fact that Mr. Fisher is contesting his warrantless
arrest, not a separate or subsequent search.

In an attempt to further bolster its position, the majority
reads United States v. Alvarez, 810 F.2d 879, 883 (9th Cir.
1987), to support an argument that we require a good-faith
effort to obtain a warrant in every case where the government
claims exigent circumstances. Alvarez is factually distinguish-
able because the exigent circumstance claimed in Alvarez was
that the police feared a suspect in another location might
become suspicious if there was additional delay before deliv-
ery of a large amount of cocaine. Id. at 880. Furthermore, the
holding in Alvarez was that exigent circumstances did not
exist that could excuse the absence of, or failure to obtain, an
arrest warrant at the time the arrest occurred. See id. at 881,
882 (reviewing “a conclusion of exigent circumstances” de
novo and concluding that “[t]he agent’s actions in this case
were thus fundamentally inconsistent with any true exigen-
cy.”).

In this case, the majority acknowledges that at the time the
officers surrounded Fisher’s house, exigent circumstances
excused the need to obtain an arrest warrant to seize Fisher in
his home. The dicta from Alvarez quoted by the majority does
not require that law enforcement make a good-faith effort to
seek a warrant when exigent circumstances actually existed to
excuse the absence of a warrant.8 Id. at 883. Rather, the pas-
8
The full passage from Alvarez reads:
The government argues that obtaining a telephone warrant is not
 FISHER v. CITY OF SAN JOSE 15081
sage stands for the unremarkable proposition that the govern-
ment must either present sufficient evidence of exigent
circumstances or have some other justification for not obtain-
ing a warrant at the time of an arrest.9 Id.

The majority also turns the Sixth Circuit’s decision in
Estate of Bing v. City of Whitehall, 456 F.3d 555 (6th Cir.
2006), on its head by interpreting its dicta to state that exigent
circumstances may dissipate sufficiently to somehow require
a warrant. Bing simply concludes “that exigency did not ter-
minate due to the passage of time or the police’s actions.” Id.
at 565. Specifically, the Sixth Circuit noted that, “[t]he pas-
sage of time did not terminate the exigency because the tick-
ing of the clock did nothing to cut off Bing’s access to his
gun, or cure him of his willingness to fire it, or move to safety
the people nearby who refused to evacuate.” Id. Noting that
the police had to take time to gather intelligence, wait for
backup, and execute their plan, the Sixth Circuit concluded
that these acts “did not terminate the exigency.” Id. Further-
more, the Sixth Circuit decided that “the gathering of infor-
mation by police, even in the face of immediate danger, does
not negate a dangerous exigency.”10 Id. at 566. In addition, the

an easy task, and it points to our decision in United States v.
Good, 780 F.2d at 775. But our decision here does not invariably
require the government to have a telephone warrant before it
moves in on a dangerous suspect. It simply requires the govern-
ment either to attempt, in good faith, to secure a warrant or to
present evidence explaining why a telephone warrant was
unavailable or impractical.
810 F.2d at 883.
9
Because the majority announces a new warrant requirement for armed
standoffs when exigent circumstances clearly exist and continue until the
end of the standoff, the officers would appear to be entitled to qualified
immunity. See Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 757
(1995) (noting that officers were not liable on qualified immunity grounds
when a court declares an arrest unconstitutional for the first time).
10
The Supreme Court has stated, “[t]he Fourth Amendment does not
require police officers to delay in the course of an investigation if to do
15082 FISHER v. CITY OF SAN JOSE
Sixth Circuit in Bing analyzed the use of alternative means —
using pepper gas and a bag phone - for resolving the standoff
and found that they did not negate the exigency. Id. at 566-69.
Thus, Bing stands for the common-sense proposition that if
exigent circumstances exist at the beginning of an armed
standoff, that exigency continues throughout the standoff until
it is resolved.

The majority’s attempt to infer through negative implica-
tion that the Sixth Circuit intended to micro-manage situations
by imposing a blow-by-blow exigent circumstances analysis
for every activity that is a part of an armed standoff stretches
Bing beyond its logical limits. The Sixth Circuit’s own lan-
guage explains that:

It cannot be that an immediate-danger exigency
could have existed only when the police reasonably
felt forced to raid the house. If this standard were
generally applicable, any time the police methodi-
cally increase the pressure on a barricaded gunman
to force his exit, without invading, a rational juror
may on that basis find no immediate danger. This
position is not compelled by the Fourth Amendment.

Id. at 567. The Sixth Circuit recognized in Bing that the type
of step-by-step exigency analysis advocated by the majority
would lead to absurd consequences such as a finding that
there was no exigency unless the officers subjectively feel
compelled to forcibly raid a home. Officers must be allowed
to “methodically increase the pressure on a barricaded gun-
man to force his exit, without invading,” because not only is

so would gravely endanger their lives or the lives of others.” Warden v.
Hayden, 387 U.S. 294, 298-99 (1967). We have also recognized this prin-
ciple in the context of exigent circumstances. See Ortiz-Sandoval v.
Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (concluding delay by police
for investigation did not negate exigent circumstances); Bailey v. New-
land, 263 F.3d 1022, 1033 (9th Cir. 2001) (same).
 FISHER v. CITY OF SAN JOSE 15083
it reasonable, but gradual pressure, negotiations, and other
tactics short of immediate invasion are likely to lead to a
peaceful result such as the one in this case. Id.

The majority’s decision cannot be squared with the Sixth
Circuit’s decision in Bing and thus, creates a clear circuit split
on how to analyze exigent circumstances in an armed stand-
off. If the Sixth Circuit can reasonably conclude that the exi-
gency that created the need for officers to surround the home
of an irrational, possibly intoxicated, armed gunman was not
negated over the course of a five-hour standoff or the use of
pepper gas and a bag phone, then why is it impossible for the
jury in this case to reasonably reach the same conclusion?

The majority’s reliance on the Sixth Circuit’s decision in
O’Brien v. City of Grand Rapids, 23 F.3d 990, 993-94 (6th
Cir. 1994), is also misplaced. First, the court in O’Brien held
that there was no exigency to support the use of search
probes. Id. at 997-98. Second, O’Brien concerned probable
cause to search and seize the house, not probable cause to
arrest.11 Id. at 995. The majority confuses the issue presented
of whether or not Fisher’s arrest was excused by exigent cir-
cumstances with whether further intrusions could be deemed
searches that might require a warrant. The result is an opinion
that would essentially force officers to either get judicial
approval of every tactical decision designed to bring a peace-
ful resolution to an armed standoff or to abandon an armed
standoff.

D. The wisdom of the jury should not be disturbed.

The twelve jurors in this case, however, saw this case dif-
11
Indeed, Fisher only contests his seizure by the officers in his home;
he did not contest any search-related issues. As such, any issues concern-
ing searches are not before us and may not be decided. See Steagald v.
United States, 451 U.S. 204, 212-13 (1981) (explaining differences
between probable cause for arrest and probable cause to search).
15084 FISHER v. CITY OF SAN JOSE
ferently. They appear to have reasonably found that between
the early morning hours and 2:35 p.m. the officers reasonably
believed that Fisher still had access to guns, was still irratio-
nal, or was still intoxicated.12 Nothing in the record negates
the exigency created by Fisher when he had 18 loaded fire-
arms, threatened others, pointed his rifle at police, was intoxi-
cated, and acted irrationally. These circumstances provided
the officers with ample grounds to be seriously concerned
about their own safety as well as the safety of the public, par-
ticularly because the events took place in an apartment com-
plex. Construing the evidence and the jury’s verdict in the
light most favorable to the City, as we are required to do, it
cannot be said that the jury was unreasonable in concluding
that there were exigent circumstances justifying the City’s
failure to obtain a warrant before arresting Fisher and that the
exigent circumstances continued throughout the standoff.

CONCLUSION

Armed standoffs are fluid and dangerous situations that are
stressful, tense, and require difficult decisions to resolve
peacefully. Not all of them result in the peaceful surrender of
the suspect. See Bing, 456 F.3d at 562 (officer shot suspect);
Ewolski v. City of Brunswick, 287 F.3d 492, 499-500 (6th Cir.
2002) (mentally disturbed, armed, and dangerous father shot
his son and himself). At any time, a standoff can end peace-
fully, or it can explode into violence. Sometimes, hostages are
involved. Armed standoffs always require difficult, complex,
and stressful tactical decisions that attempt to balance the
safety of all involved.

It is vital for the courts to provide clear guidelines to law
enforcement that allow them to manage armed standoffs with-
out the fear that, at some undetermined point, they will be
12
The majority, not content to second-guess this jury, also speculates
about what the jury in Fisher’s criminal trial thought. (Maj. Op. at 15068-
69.) Such speculation is improper.
 FISHER v. CITY OF SAN JOSE 15085
subject to liability. Under the majority’s decision, it is impos-
sible to determine when the officers become liable. For exam-
ple, if Mr. Fisher surrendered while officers were seeking a
warrant, according to the majority opinion, the officers would
be liable for failing to obtain an arrest warrant earlier. Is the
cut-off point after an hour, ninety minutes, during the first
phone call, when the suspect disappears from view for more
than five minutes, if the suspect demands a pizza, or when
there is a shift change? Armed standoffs present officers with
a multitude of variables, situations, and often irrational acts
by the suspect that require the exercise of reasoned judgment
that the courts cannot, and should not, attempt to manage.

Imposing a requirement that officers must, at some arbi-
trary and undefined point in an armed standoff, seek an arrest
warrant is contrary to our precedent holding that exigency is
established at the time of arrest and continues until negated by
some new act or fact. See Lindsey, 877 F.2d at 781-82 (con-
cluding circumstances outside of the officers’ control did not
dissipate the exigency). Furthermore, imposing additional
warrant requirements on the use of pepper gas, throw phones,
and alternatives to deadly force would not serve the Fourth
Amendment’s purpose of preventing unreasonable searches
and seizures. Instead, it will create unnecessary confusion and
uncertainty about the law and may endanger the public, the
police, and even the suspect.

The Supreme Court in Tyler, and our own court in Eche-
goyen recognized that once exigent circumstances justify an
initial intrusion into the home, the officers are allowed to take
all reasonable steps necessary to complete that intrusion with-
out obtaining a warrant. Applying this simple principle to this
case, officers are allowed to conduct a standoff and take steps
to complete an initial warrantless arrest that is excused by exi-
gent circumstances without obtaining a warrant. Because we
consider a person arrested in his home once the police sur-
round the home and confine a suspect to the home, and
because that arrest is not complete until the officers obtain
15086 FISHER v. CITY OF SAN JOSE
physical custody of the suspect or the suspect submits to their
authority, an armed standoff is simply a continuation of the
initial arrest, and officers should be free to take all necessary
steps to complete the arrest.

The jurors in this case determined that exigent circum-
stances justified the initial arrest and reached an eminently
reasonable conclusion — that the San Jose Police Department
should be commended for handling this dangerous situation
properly and ultimately bringing about a peaceful resolution.
The Sixth Circuit in Bing analyzed similar facts and reached
the same conclusion as the jury in this case. Making all infer-
ences in favor of the verdict, the jury’s conclusion was sup-
ported by substantial evidence and was a reasonable
interpretation of the facts. Accordingly, the district court
should not have denied Fisher’s motion for judgment notwith-
standing the verdict.

For these reasons, I would reverse the district court’s grant
of Fisher’s renewed motion for judgment as a matter of law
and reinstate the jury’s verdict.