concurring in part and dissenting in part:
I respectfully disagree with the majority’s analysis of the constitutional propriety of the police’s conduct in this case. Mr. Quade’s death was tragic, but that tragedy is only compounded by forcing police officers to stand trial when their actions were clearly reasonable. At the very least, they are surely entitled to qualified immunity. My main concern, however, is that the majority’s opinion not only misapplies, but literally wreaks havoc on the Fourth Amendment and the law covering forcible inspection warrants.1
I
A. The majority fails to appreciate the significance of the magistrate’s issuance of a forcible entry inspection warrant. Actually, the City applied for and obtained not one, but two administrative inspection warrants for Mr. Quade’s premises before they set foot in his house.
The first warrant (No. 90-5), properly supported by a declaration from a public health inspector and prepared by a deputy city attorney, was secured from the San Francisco Municipal Court on September 13, 1990. The inspection warrant states:
YOU ARE THEREFORE COMMANDED on September 19, 1990, or as soon thereafter as practicable, but no later than September 28, 1990, between the hours of 8:00 a.m. and 5:00 p.m. to arrange and conduct a complete inspection of the said premises by and through all appropriate inspectors for the City and County of San Francisco, for the purpose of discovering if the subject property complies with the Health, Building, Housing, Plumbing, Electrical, City Planning and Fire Codes, and any other applicable code regulations. Said inspection may not be made by means of forcible entry.
(emphasis added). Three aspects of this court order are noteworthy. First, the City secured the warrant only after receiving public complaints about malodorous sewage and garbage in and about Mr. Quade’s house, sending health inspectors on numerous occasions to his house, and posting multiple notices on his front door. The City even sent a public health nurse on two occasions to evaluate Mr. Quade’s health. He did not respond. The City’s actions failed to abate the problem, and neighbors continued to complain about sewage flowing from Quade’s house onto their property. Second, the warrant and its supporting documentation comply in all respects with the letter of the law. Third, forcible entry, although not requested, was explicitly prohibited. This inspection warrant represents a measured, reasonable, legal response by both the City and the magistrate to months of intransigence by Mr. Quade. Mr. Quade’s intransigence perpetuated a sewage problem that, according to the health inspector, “presented immediate public health problems in the form of possible en-teric and respiratory diseases.”
The City then notified Mr. Quade in writing of the existence of this first warrant and gave him seven days to prepare for an inspection scheduled for the 28th of September. He was told to call the City’s Principal Health Inspector to arrange a different date if the one set by the City was undesirable. The City never received a response.
On September 28, Mr. Quade was either not present or did not answer the door, thwarting the commanded service of the inspection warrant. Dutifully, Inspector Chin returned to the Municipal Court, again accompanied by a deputy city attorney. This *1370time he requested a new inspection warrant authorizing “forcible entry.” He based this request on the owner’s manifest refusal to cooperate with the City and to honor the first inspection warrant. The request by the City for forcible entry was absolutely proper and appropriate. California law specifically provides for such requests: “An inspection pursuant to a warrant shall not be made by means of forcible entry, except ... where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful.” Cal.Civ.Proc.Code § 1822.56 (West 1982).
Consequently, Judge Mallen issued a second inspection warrant (No. 90-6) for Mr. Quade’s premises “commanding a timely search between October 9,1990 and October 16,1990.” The warrant explicitly stated that the commanded inspection “may be made by means of forcible entry.” (emphasis added). This provision is beyond legal reproach. The City then advised Mr. Quade by mail of the existence of this second warrant. A copy of the warrant itself was included in the mailing, and the inspection was set for October 16, 1990. Notwithstanding Mr. Quade’s intransigence, the City continued to respect his privacy.
This is the situation in which the City found itself on October 16, 1990, the day of the fatal shooting. Twice the City had taken its case before a neutral magistrate. The City had incrementally secured not only one but two inspection warrants for Mr. Quade’s premises. A magistrate had ordered that Quade’s privacy interest yield to the public’s legitimate interest in health and safety. After making an adequate showing under the proper statute, the City had been given explicit judicial authority for forcible entry based on reasonable but unsuccessful attempts to serve the first warrant. The second warrant was legally as sound as the first, authorizing the City to breach Mr. Quade’s privacy and inspect the interior of his house.
In my view, the clearly established law at the time of the entry of Mr. Quade’s premises authorized the City under these circumstances to secure the assistance of the police to keep the peace during the service of this forcible entry warrant. Such a proposition would seem to be beyond debate, and I can find no ease indicating to the contrary. What is a police department for if not to keep the peace during the service of a forcible entry warrant?
People v. Tillery, 211 Cal.App.3d 1569, 260 Cal.Rptr. 320 (1989), is a California case embracing this proposition. In Tillery, the building inspectors and the assisting deputy sheriffs had an inspection warrant, but unlike the warrant in this case, it did not authorize forcible entry. When they tried to serve it, they were met with resistance by the landowner. Under those circumstances, the Till-ery court prescribed the following:
[O]nce appellant had explicitly refused to consent to the inspection, the authority to execute the warrant ended. At this point, the officers had no right to force appellant out of his car and back to the gate to open it so the officers could get onto the premises. Under the statutory procedures mandated for administrative inspections, the officers’ only alternative once appellant refused to accept the warrant or to otherwise consent to the inspection of the premises was either to allow appellant to go on his way or to arrest him for willful refusal to permit an inspection lawfully authorized by the warrant, a misdemeanor under section 1822.57. The latter option would have justified the officers’ placing appellant in the patrol ear and taking him to the station for booking on the misdemeanor. To continue the search by any forceful means, however, required another warrant containing a judge’s specific authorization of a forcible entry of the premises.
Id. 260 Cal.Rptr. at 324 (emphasis added). Thus, California law encouraged the City and the police to do exactly what they did— secure a forcible entry inspection warrant and have the police accompany the inspector.
The controlling law clearly also permitted the police to seize and detain, if necessary, the occupant of a house so that a forcible entry inspection warrant could be peacefully served and the house searched, especially when the predicate for the approval of forcible entry is the occupant’s apparent resistance to previous attempts at entry and inspection. As authority for this wholly intqi-*1371tive proposition, I rely on Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595-96, 69 L.Ed.2d 340 (1981): “[F]or Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”
Summers, of course, involved a criminal search warrant which was issued based on a showing of probable cause to believe the residence to be searched contained contraband. This difference raises the question of whether the occupant-detention principle confirmed by the Court in Summers applies only to criminal warrants, or whether it also applies to forcible entry inspection warrants. The answer based on the Court’s reasoning in Summers surely is that the occupant-detention principle applies to both situations. In each case, a
neutral and detached magistrate will have authorized a substantial invasion of the privacy of the persons who reside there. The detention of one of the residents while the premises [are] searched, although admittedly a significant restraint on his liberty, [is] surely less intrusive than the search itself. Furthermore, the type of detention imposed ... is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention.
Id. at 701, 101 S.Ct. at 2593 (footnotes omitted).
Moreover, the Court provided this instructive language in Summers, language that seems equally as applicable to forcible inspection warrants as it does to criminal warrants for contraband:
Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers. Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.
Id. at 702-03, 101 S.Ct. at 2594 (emphasis added) (footnote omitted).
The logic and common sense of the Supreme Court’s statement applies four square to the situation the health inspectors and the officers confronted in this case. The forcible execution of an inspection warrant issued after an occupant has refused entry is precisely the “kind of transaction that may give rise to sudden violence.” Id. at 702, 101 S.Ct. at 2594. Accordingly, “the risk of harm to both the police [and the health inspectors] and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. at 702-03, 101 S.Ct. at 2594. Under the circumstances therefore, the fact that Summers involved a criminal search warrant, whereas the instant case involves a forcible entry inspection warrant, is irrelevant. To hold otherwise would be to be blinded by form over reason and substance. The need-based principle permitting and encouraging the police to keep the peace is sound in both settings.
The police’s withdrawal to a position of safety and call for mental health experts hardly renders their behavior unreasonable. District Judge Jensen’s insight into this situation is correct:
Plaintiff would have the Court conclude that, because the officers retreated rather than entered immediately to ensure the premises were safe for inspection, the officers somehow converted their legal right to enter into an unlawful arrest. Such a decision would encourage police officers to act impulsively to preserve their lawful right of entry, rather than carefully to ensure the safety of the officers, the occupants, and the inspection officials.
Nevertheless, the majority concludes that if the police entered Mr. Quade’s house for the primary purpose of arresting him, their entry was unlawful because they didn’t have an arrest warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), however, does not compel that result. *1372In Payton, the Court held, absent exigent circumstances or any kind of warrant issued by a neutral magistrate, the police may not enter a suspect’s home to make an arrest. The Court based its holding on the principle that “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” Id. at 585, 100 S.Ct. at 1379-80 (quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed.2d 752 (1972)); see also Summers, 452 U.S. at 701, 101 S.Ct. at 2593-94. The arrest warrant serves this goal by “interpos[ing] the magistrate’s determination of probable cause between the zealous officer and the citizen.” Payton, 445 U.S. at 602, 100 S.Ct. at 1388.
Here, the City went twice to a magistrate, securing the authority to forcibly enter and inspect Mr. Quade’s home. No legitimate Fourth Amendment purpose is served by forcing the police to go back, yet a third time, to get an arrest warrant. A neutral and detached magistrate had already determined that the privacy of Quade’s home should be breached — forcibly breached. If “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” the magistrate authorized the invasion of that interest by issuing the forcible entry inspection warrant. Because the police may arrest a felony suspect in a public place without an arrest warrant, the arrest warrant only protects against entry into the home, not arrest. One commentator has concluded, therefore, that “no warrant is needed to arrest if there is another lawful basis for the entry.” See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.1(c), at 585 (2d ed. 1987). I believe the forcible entry inspection warrant unmistakably provided that legal authority.
The majority relies on Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) and United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir.1989), to support its contrary conclusion. Two concerns animated those cases. First, administrative searches or warrants are generally subject to less judicial scrutiny than criminal warrants. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727,1735-36, 18 L.Ed.2d 930 (1967) (“[Hjealth official need [not] show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumen-talities of crime.”). Second, when criminal investigatory motives are present, the scope of administrative searches may be unnecessarily expanded, increasing the privacy intrusion. See $124,570 U.S. Currency, 873 F.2d at 1245-46 (cooperation policy with U.S. Customs may encourage private airport security personnel “to conduct more searches, and more intrusive searches, than if they focus on air safety alone”).
Those concerns are not implicated in this case. To issue the forcible entry inspection warrant, the magistrate had to find that “reasonable attempts to serve a previous warrant have been unsuccessful.” See Cal. Civ.Proc.Code § 1822.56. Thus, the showing necessary for a forcible entry inspection warrant was very similar to the showing necessary for an arrest warrant for refusal to permit an authorized inspection. See id. § 1822.57. In other words, the forcible entry inspection warrant for Quade’s residence, unlike regular inspection warrants, was only issued after a particularized showing that reasonable attempts to serve the previous warrant had been unsuccessful. This procedure forced the magistrate to give special attention to the matter. The heightened judicial scrutiny and individualized showing ensures the forcible entry inspection warrant procedure is more akin to the traditional Fourth Amendment protections of a criminal warrant than the less stringent standards of a regular inspection warrant.
More importantly, even if the police intended to arrest Mr. Quade when they entered the residence, there was no danger that the police would improperly expand the scope of their authorized search. In Clifford, a majority of the Court held that arson investigators, even if authorized to conduct an administrative search into the cause of the fire, violated the Fourth Amendment when they searched the upstairs of the house after discovering that the fire started in the basement. See 464 U.S. at 297-98, 104 S.Ct. at 648-49 (plurality opinion); id. at 300, 104 *1373S.Ct. at 650 (Stevens, J., concurring in the judgment). Once the investigators began searching the upstairs, it became clear that they were searching for evidence of criminal activity, not determining the cause and origin of the fire. According to the Court, a criminal search warrant was therefore required. See id. at 294, 104 S.Ct. at 647. Similarly, in $124-,570 Currency, we expressed concern that airport security might improperly expand weapon searches if they were rewarded for reporting the detection of drugs or large amounts of currency. 873 F.2d at 1245-46.
Here, the forcible entry inspection warrant authorized the City to break down Quade’s door and inspect the entire premises for a variety of health and safety violations. Unlike Clifford and $124,570 U.S. Currency, there was no danger that the police would expand the scope of their authorized search if they intended to arrest Quade. The search for Quade could not be more intrusive than a search for health and safety violations, and the police would still need probable cause to arrest. The majority’s response is “what is lawful if done for administrative purposes becomes unlawful if done for law enforcement purposes.” The majority focuses on the officers’ purpose or intent in entering Mr. Quade’s residence, but ignores the rationale for Clifford and $124,570 U.S. Currency. The officers’ subjective intent is only relevant if it suggests they might expand the scope of the administrative search. An “improper purpose,” by itself, does not constitute a Fourth Amendment violation.
Furthermore, in neither Clifford nor $124,-570 U.S. Currency was any type, of warrant secured. By contrast, the City secured a valid inspection warrant from a neutral magistrate in this case. Because an arrest warrant protects against entry into the home and the forcible inspection warrant already authorized entry, an arrest warrant would serve no purpose.
B. There exists yet another lawful basis for the police’s entry. When Mr. Quade told the officers he was going to get his gun “and use it,” Quade arguably committed several serious felonies in the presence of the police. These additional offenses were not only committed in the presence of the police, but directed at them.
Under the California Penal Code, it is unlawful for anyone to attempt “by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law,” or to “knowingly resistí ], by the use of force or violence such officer in the performance of his duty.” Cal.Penal Code § 69 (West 1988); see id. § 77 (extending same protection to administrative and ministerial officers). Simple refusal to permit an authorized inspection is a misdemeanor, see Cal.Civ.Proc. Code § 1822.57, but section 69 elevates resistance by threat err violence to a felony. It is also a felony to knowingly confront with a firearm a uniformed peace officer performing his or her official duties. Cal.Penal Code § 417(c) (West Supp.1994).2 Furthermore, Mr. Quade stated an intention to immediately commit the felony crime of assault with a deadly weapon. Id. § 245(a)-(b). Again, his targets were the inspectors and the police commanded to serve this warrant.
Thus, Mr. Quade’s resistance and contemporaneous threats of force and violence amounted to the commission of a felony in the presence of the officers as they were serving the warrant, in violation of California Penal Code sections 69 and 77, a felony for which they were entitled, then and there, to make an arrest. Quade’s behavior also gave the police probable cause to immediately arrest him as he attempted to violate sections 245 and 417(c). The police did not have to wait until Quade actually got the gun in his hand before they could react.
Payton does not foreclose the police from entering a house without an arrest warrant *1374when a felony is contemporaneously committed in their presence. In United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976) (emphasis added), the Court, upholding the right to make warrant-less felony arrests in public, stated:
The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable grounds for making the arrest.
In Payton, the Court, distinguishing Watson, observed that the “common-law rule on war-rantless home arrests was not as clear as the rule on arrests in public places.” 445 U.S. at 596, 100 S.Ct. at 1385. The Court noted:
A study of the common law on the question whether a constable had the authority to make warrantless arrests in the home on mere suspicion of a felony — as distinguished from an officer’s right to arrest for a crime committed in his presence — reveals a surprising lack of judicial decisions and a deep divergence among scholars.
Id. at 592, 100 S.Ct. at 1383.3
The present ease is distinguishable from Payton because Mr. Quade committed a felony or felonies in the presence of the officers. In fact, the felonies were directed at the officers. Whether Payton is distinguishable based on the common law of arrest warrants or the existence of exigent circumstances, I do not believe the Fourth Amendment shackles the police from stopping a felony eonduet-
ed in their presence and directed at them. Cf. United States v. Crespo, 834 F.2d 267, 270-71 (2d Cir.1987) (justifying warrantless entry based on threats made against a federal informant in the presence of federal agents), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988).4
C. When Mr. Quade threatened to resort to armed resistance, he confronted the officers with a classical and unmistakable situation involving exigent circumstances, i.e., an immediate armed threat to the safety of the police officers, the health inspectors, Mr. Quade’s immediate neighbors, and the general public by a barricaded and unstable recluse. I disagree completely with the majority’s unsupported and surprising statement that exigent circumstances were not present in this confrontation.
There is no such thing as an armed, encircled suspect who is not a threat. People like Mr. Quade frequently shoot from their homes at police and bystanders. Judge Jensen recognized this truth when he discussed the obvious exigencies of the situation: “It could be argued that the officers would have been remiss in their duties had they not formed a perimeter to contain Quade’s movement, and to remove persons from the area where they could be shot, after Quade threatened armed response.” One of the officers described the situation as follows:
A. As best I can recall, after I explained my reason for being there, that I was a police officer and wanted to come in the house and fix the pipes and he should let *1375us in, he said, “I’m going to get my gun and use it.”
Q. What was your understanding who he was going to use it on?
A. Well, certainly anybody who entered the house or anybody who was in front of the house.
Q. Then what happened?
A. And I believed him, and I retreated.
Q. Then what did you do?
A. I went down and I informed Officer Gough of the conversation, and I decided that we needed more help, specialized help.
Q. Okay. So what did you do?
A. We contacted — Officer Gough I believe contacted Headquarters by radio and asked for tactical units and negotiations units.
Q. Would you explain, please, why the threat of a gun would be enough to consider the person in the house for a 5150 [mental health] evaluation?
A. Because he may shoot himself, he may shoot a police officer, he may shoot anybody in the community.
Q. And that isn’t even taking into account the debris in the house.
A. That is correct.
Q. What happened next?
A. We closed off the street so pedestrians wouldn’t walk in front of the house and cars would not drive by, and we waited for the specialized units to come and assist us.
To argue that the threatened introduction by Mr. Quade of a firearm into these urban circumstances doesn’t create an exigency is to ignore late twentieth century reality.
The exigent circumstances Mr. Quade created and the dangerous felony behavior he displayed gave the police an additional justification for their response to this precarious situation. In Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967), the Court held that exigent circumstances justified warrantless entry into a house to search for an armed robbery suspect and weapons because delay would endanger lives of officers and citizens. See also United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976) (warrantless search justified by exigent circumstances); 2 LaFave, supra, § 6.1(f), at 600-02 (exigent circumstances justifying warrantless entry should be determined “by distinguishing the truly ‘planned’ arrest from the arrest which is made in the course of an ongoing investigation in the field”). Based on exigent circumstances, the police here had the authority to do exactly what they did — go into the house and arrest Mr. Quade.
The Second Circuit’s decision in United States v. Crespo, 834 F.2d 267 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988), is right on point. In that case, federal agents concealed themselves while an informant went to defendant’s door. The informant asked the defendant why he had been threatening her. The defendant responded: “I have nothing to do with you, but my people will deal with you.” Id. at 269. Believing a crime had been committed in their presence, the agents broke into defendant’s residence and arrested him without a warrant. The Second Circuit upheld the warrantless entry based on exigent circumstances. The court noted: (1) defendant committed a serious offense by threatening a federal informant; (2) the agents reasonably believed defendant might be armed; (3) the agents had probable cause to believe the defendant committed a crime because he committed it in their presence; and (4) the agents knew defendant was in the residence because they observed him retreat into his apartment. Id. at 270-71. Because the same factors are present in this ease, I would follow Crespo and hold that exigent circumstances existed.
I also note that the California Penal Code provides:
Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the *1376resistance or threatened resistance of the person being arrested; nor shall such officer ... lose his right to self-defense by the use of reasonable force to effect the arrest ... or to overcome resistance.
Cal.Penal Code § 835a (West 1985) (emphasis added).
Because the police officers in this ease had a forcible entry warrant and were met with the threat of armed resistance and behavior patently creating exigent circumstances, Payton is inapposite and yields to Warden v. Hayden and United States v. Crespo.
The majority asserts that the officers “wisely eschewed” the exigency argument because it was not supported by the facts. The majority relies on Captain Hettrich’s alleged statement that Mr. Quade wasn’t “necessarily dangerous” and that the decision to enter the home was motivated, at least in part, by a desire to not keep traffic blocked all day. First, whether or not the officers subjectively believed exigent circumstances existed is irrelevant. We must determine objectively whether exigent circumstances existed. Cf. Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983) (“[T]he fact that the officers did not believe there was probable cause ... would not foreclose the State from justifying [defendant’s] custody by proving probable cause-”). Second, the majority’s reliance on Captain Hettrich’s alleged statement is troubling. The statement was not before the district court when it granted summary judgment on the unlawful entry issue. The statement was only quoted in a Supplemental Brief and Trial Memorandum filed after the district court ruled on plaintiffs Payton claim. Apparently, the statement is taken from a videotape of Captain Hettrich’s press briefing. I think it is highly improper to reject the existence of exigent circumstances based on the subjective impressions of one officer whose statements are not properly before this court.
Therefore, I conclude it is impossible to claim, as does the majority, that under these circumstances the Constitution of the United States required the police to withdraw when Mr. Quade said he was arming himself and to secure an arrest warrant before they could go into his house to arrest him and conduct the authorized inspection. It takes many hours to secure an arrest warrant. The fanciful idea that somehow a magistrate might have diffused this situation is thoroughly unrealistic. Based on over 20 years of securing arrest warrants, I cannot conceive of a magistrate taking over this emergency and withholding an arrest warrant. Such foolhardy action would only extend the exigency and delay its resolution.
D. The police officers had a forcible entry inspection warrant. Mr. Quade committed felonies in their presence. Mr. Quade’s threatened armed resistance endangered the officers, the general public, and Quade himself. Separately, each of those facts probably authorized the entry into Mr. Quade’s home without an arrest warrant. Together, their combined force is irrefutable.
I defy the majority to declare what legitimate Fourth Amendment purpose is served by their holding that was not already served when the magistrate authorized a forcible entry and inspection of Mr. Quade’s home. All the law I can find indicates that what the City did was not only within the limits of permissible behavior, but followed the prescriptive requirements of the Supreme Court and the Constitution in all material respects. Retreating to the chambers of a magistrate for a third time and securing an arrest warrant would not have altered Mr. Quade’s behavior one whit. If the police had returned with an arrest warrant, Mr. Quade would still have been waiting for them, with his gun.
Not only was it not clearly established that the police could not do what they did, but indeed, the law was solidly on their side. In my judgment, the law is so clearly on their side that we do not even reach the question of qualified immunity on this issue.5 When *1377measured by the appropriate standards, the defendants’ conduct was perfectly constitutional.
II
It follows from my conclusion that because the police’s entry into Mr. Quade’s home was lawful and reasonable, the force they used when he pointed his gun at them was reasonable as a matter of law. The majority discounts the danger posed by an armed, urban, barricaded recluse threatening to shoot police and city inspectors. This claim is, with all respect to my colleagues, monumentally mistaken. Anyone who has ever been involved in such a situation knows how dangerous it is. If my colleagues and I were in the area, we would run like blazes for cover when Mr. Quade mentioned a firearm, or certainly hide behind something bulletproof. Surely my colleagues wouldn’t suggest everybody should have just gone away and left Mr. Quade alone. Would we blithely walk up to Mr. Quade’s door to serve the arrest warrant the majority says should have been secured? Of course not. The situation was terribly precarious. We judges don’t go out to serve the warrants we order executed. We ask the police to do it for us. Telling the police that this situation was not dangerous would be laughable if it were not so deadly serious.
Both the majority and the plaintiff concede that once Mr. Quade pointed his gun at the police and pulled the trigger, the officers acted reasonably by shooting Quade in self-defense. In fact, the police showed tremendous self-restraint after they entered Quade’s home. Quade pointed the gun at the police and panned it back and forth across the officers’ faces. The police responded by ordering Quade repeatedly to drop the gun. Quade then said, “I told you I was going to use it.” Still, the police held their fire. In fact, the police did not shoot Quade until he pulled the trigger twice!
The unchallenged declaration of the lieutenant in charge of San Francisco Police Department’s Tactical Squad is dispositive on this issue:
The San Francisco Police Department’s standing order on the use of force indicates that we could have shot Quade as soon as he pointed the gun at us and became a threat to the officers. We were risking our lives by not firing immediately, but we did not want to shoot him. Once he pulled the trigger, he gave us no choice.
So, if the shooting itself is not unreasonable, where’s the excessive force? The majority says “[t]he force which was applied must be balanced against the need for that force.” To make that determination, the majority again mistakenly applies a subjective analysis, asserting that the officers’ purpose for entering Mr. Quade’s residence somehow determines whether the force was reasonable. But according to Graham, v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872-73, 104 L.Ed.2d 443 (1989) (internal quotations omitted), “the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”
The entry was either lawful or unlawful; I think it was, the majority thinks it wasn’t. Once inside the house, however, the police certainly did not violate the Constitution by defending themselves when Quade pulled the trigger of his revolver. Deploying a SWAT team when Mr. Quade threatened to shoot a police officer certainly seems reasonable. I just don’t see an excessive force claim separate from the unlawful entry claim.. Does the majority really want to take issue with the particular tactics used by the police to enter Quade’s home? Should we decide how many hours of negotiations must take place before the police can disarm an armed, mentally unstable recluse? Should we determine tactical methods of entry?
Such a posture converts members of the judicial branch of government into tactical managers of the police. The court did its job by ordering Mr. Quade’s privacy to yield. It was then the police’s job to effectuate an entry on behalf of the health inspectors. Judge Kozinski harbors a view of the magis*1378trate/peace officer relationship that is not only unrealistic, but inappropriate. As a practical matter, we judges are ill-equipped (although sometimes we don’t think so) to make tactical decisions, especially when weapons are involved and lives are at stake. Anyone who has ever spent time in the field understands how foolhardy it would be for judges, or even prosecutors, to attempt to tell the police how to flush out an armed, barricaded subject. Experienced peace officers understand the necessity of resolving such a situation as quickly as feasible. Leaving Mr. Quade alone would create not only an unacceptable danger for anyone who must then approach his house, it would also continue to put Mr. Quade in danger of injuring himself. The majority may be prepared to second-guess these tough decisions. I am not.
Ironically, the plaintiff says the police should have used tear gas or police dogs to discharge their quarry from his home. I didn’t know we used tear gas and police dogs to attack people who are not dangerous. Moreover, in other cases in our circuit, we’re told that police dogs constitute deadly forcé.
CONCLUSION
The majority’s opinion leaves the law in disarray. In my view, the holdings of this case are at war with (1) Supreme Court and circuit precedents, (2) the Fourth Amendment’s standard of reasonableness, (3) the law of qualified immunity, and (4) our responsibility as judges to maintain a body of law upon which executive branch members can rely in doing their work.
If I were a police officer, I might reconsider my calling with this kind of misunderstanding of my job and inconsistent messages from the court. As I read this record, it requires summary judgment for the defendants, across the board. Thus, I respectfully dissent.
. Because I believe the police officers acted rea-ssonably and constitutionally, I obviously concur with the majority's rejection of municipal liability.
. Under California law, a felony statute may be used to prosecute an individual even though a special misdemeanor statute covers similar conduct, if the felony statute contains additional elements. See People v. Robertson, 223 Cal.App.3d 1277, 273 Cal.Rptr. 209, 211-12 (1990); People v. Weltsch, 84 Cal.App.3d 959, 149 Cal. Rptr. 112, 113-14 (1978); People v. Hathaway, 27 Cal.App.3d 586, 103 Cal.Rptr. 638, 641 (1972); People v. Firestine, 268 Cal.App.2d 533, 74 Cal.Rptr. 168, 173-74 (1968); People v. Jones, 228 Cal.App.2d 74, 39 Cal.Rptr. 302, 307 (1964); see also People v. Bertoldo, 77 Cal.App.3d 627, 143 Cal.Rptr. 675, 678-79 (1978).
. Blackstone makes the following distinction:
Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to arrest the felon, on pain of fine and imprisonment, if he escapes through the negligence of the stands-by. And they may justify breaking open doors upon following such felon.... Upon probable suspicion a private person may arrest the felon, or other person so suspected. But he cannot justify breaking open doors to do it....
4 William Blackstone, Commentaries *293. This distinction survives today under the doctrine of “hot pursuit." See United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976).
. The majority contends Quade’s commission of a felony in the presence of a police officer is "without legal significance.” The majority argues that exigency is the only exception recognized by Payton. But in both Payton and Watson, the Supreme Court relied heavily on the common-law rules of arrest to shed light on what the Framers of the Fourth Amendment meant by the term “reasonable.” If the common law recognized a right to arrest for a felony contemporaneously committed in the officer's presence, then this case is more like Watson, where the Court allowed warrantless arrest, than Payton.
The majority also misconstrues my argument by extending it to all undercover cases. My claim, however, is narrower: the police may enter without an arrest warrant if a felony is contemporaneously committed in their presence.
. The majority believes the law "clearly established" the need for the police to secure an arrest warrant before entering Mr. Quade's home, despite the fact that two of the four federal judges who have considered the issue would rule that an arrest warrant was not required. I suppose police officers on the beat are required to have a *1377better appreciation of Fourth Amendment jurisprudence than Judge Jensen and I.