Fisher v. City of San Jose

THOMPSON, R. Before DAVID BERZON, and MARSHA S. CONSUELO CALLAHAN, Judges. M. Circuit BERZON; Opinion by Judge Dissent Judge CALLAHAN.

BERZON, Judge. Circuit Steven Fisher claims constitutional vio- from a stemming lations twelve-hour him at his between standoff officers, large number San Jose which he came out of the at the end of He apartment and submitted to arrest. (the City) ing the he had city cleaning Jose rifle been San sued called to him. § Serrano officers under 42 U.S.C. several n When Serrano asked Fisher about the things, other that the contending, among invalid because the never arrest was coming upstairs neighbor, noise from his attempted to obtain a warrant. obtained or generally Fisher was unresponsive, even- the defendants on all juryA found for tually changing subject to the Second claims, a claim for warrantless including Throughout Amendment. the short con- thereupon filed a renewed arrest. versation, Fisher held rifle in various motion under Federal Rule of Civil Proce- positions. pointed Whether Fisher the ri- 50(b) judgment as a matter of law dure trial, fle at At Serrano is not clear: Serra- Granting claim. on the warrantless arrest not, no testified that Fisher did but alone, City the dis- against the motion officer who been had called the scene pay trict court ordered the nominal after Serrano testified at trial that when in- damages of one dollar and issued an apartment complex, he arrived junction regarding training future him that pointed Serrano told Fisher had uphold the district court’s officers. We during the rifle toward him the initial en- agree as we ruling appeal, counter. way, Either Serrano suspected a under the un- failure to obtain warrant and, feeling Fisher was intoxicated usual circumstances of this case constitut- frightened uncomfortable and Fisher’s as a matter of ed a constitutional violation presence liquor, gun, because of the the law. and the reaction ques- odd to Serrano’s

tions, supervisor left to tell his about his supervisor interaction with Fisher. The Background I. police, responded by notified the who send- A. The Standoff ing officers to the scene. Saturday, On the afternoon of October Sergeant Ryan among was the first to 23, 1999, bought twelve-packs Fisher two arrive, speaking at around a.m. After in at home for an beer and settled Serrano, Ryan approached with Fisher’s evening watching the World Series and patio attempted get to Fisher’s atten- cleaning ap- rifles from his collection of by throwing sliding tion small rocks at the proximately eighteen World War II-era but, glass Fisher came to the door doors. Both and the guns firearms. the beer answering Ryan’s questions, rather than prominently in the events. figured ensuing spoke rambling a fashion of Second his Amendment, too, rights. Ryan, believed when, began Those events around mid- that Fisher was intoxicated. Serrano, security guard a at night, Leo Fisher, walking Ryan speak with apartment complex, Fisher’s was After tried began arriving at apartment investigating police near more officers the Fisher’s scene; eventually, sixty par- officers complaints regarding up- noise Fisher’s over on, Early in the some neighbor. apartment ticipated stairs Fisher’s is on standoff. apartment. apartment complex telephoned the floor of the officers Fisher’s bottom wife, Sandra, the sliding glass leading and has a door out to When Fisher’s answered instructed her to leave patio; passers-by phone, can see into the officers enclosed did. It is not apartment through glass apartment, the door. the which she put phone back on Noticing apartment, Fisher in his Serrano clear whether she hook, busy throughout it motioned for him to come outside and but was out, she carry- him. walked remainder of the standoff. speak with Fisher When busy. At phone remained as Fisher’s police informed emerged, Sandra a.m., “flash-bang” set police 10:52 off apartment. She inside else was no one device, attention designed get Fisher’s eighteen had that Fisher confirmed also later briefly. him Two hours been and disorient -and had apartment rifles throwing gas canisters began CS police drinking. gas CS causes apartment; into a.m., Males, or 4 Jan approximately At burning sensations. One irritation and arrived tried negotiator, a tactical glass flying, cut- gas volleys sent the CS Unprompted, Fisher. communicate with eye. above one ting Fisher’s forehead right he had informed Males Fisher attempted police again p.m., At her into his He invited arms. to bear Fisher, this time bullhorn. if contact her he would shoot but said apartment contact, telephone finally achieved They considered this in. Males did come she at 2:13 Fisher threat,' phone, p.m. throw felony. via the a criminal to be statement willing that he was point at that stated interaction, throughout from that Aside to leave apartment and offered leave his repeatedly told morning Fisher early police that the naked so would alone, away, me leave “go po- carrying weapon. When him of during peri- Twice me.” don’t bother necessary, him that this lice told Boler, observing the od, who was Officer would come out that he he said street, reported across the from apartment approved and socks. The boxers one of his rifles pointing that Fisher plan. this Males, officers who were the Ryan emerged from his apartment and were to Fisher’s closest initially He followed p.m. Bol- 2:35 in- behind a tree. sheltering themselves structions, designated in di- walking moving that Fisher reported also was er in air. keeping his hands rection and apartment. Despite around his rifles Soon, however, walking for- stopped he and the threat these observations thereupon shot of the officers Males, during those ward. One no officer told Fisher leg “sage gun,” a which him in the with morning hours that he under early was bullets. less-than-lethal rubber shoots arrest. lay ground, on the and Fisher then down seen with a rifle Fisher was last took him handcuffed him and the officers later, 6:30 a.m. A little while approximately custody. into a.m., Emergency at around 7 the Mobile police of the officers involved Several Response Group Equipment and (MERGE) scene, police returned to the station replac- shift team came to the first they morning left in the and wrote first ar- after ing patrol officers who had officers testi- believing police reports; some those point, At that rived.1 that they to arrest Fish- a rifle at fied had intended pointing had committed a crime— who were asked police er. All the officers officers—the MERGE team focused police they § trial at- apart- forcing him out of his Fisher’s its efforts on no, a said tempted procure had him. The officers ment to arrest returned to including some of those who turned off at 8:48 a.m. power Fisher’s Also, morning. all of the so a the station sliding glass broke doors then they who were asked through, tossed testified phone”2 “throw could be officers phone a phone is a encased in box at 4:45 a.m. A team was called throw The MERGE microphone. open contains an also necessary. “[ejxigent circumstances are those a not believe warrant did asked which a risk of harm to the who were substantial Finally, all of the officers persons involved or to the law enforcement they judges knew that are testified police arise if the day process hours a to issue would were twenty-four available delay an a arrest until warrant could be warrants. additionally obtained.” The court instruct- felony tried for violations Fisher was ed that a “seizure when a occurs or sections Penal Code California officers, by phys- officer or means 417.8, general, drawing, prohibit, which authority, ical force or show of restrains deadly or exhibiting, using firearm liberty way of a citizen in such [sic] officer or with the weapon against peace reasonably that a reasonable citizen would prevent an arrest. The intent to resist or believe under the circumstances that he or deadlocked, pleaded then

jury and Fisher Finally, she was not free to leave.” charge of no contest to a misdemeanor person court instructed that “[w]hen presence in the of a brandishing a firearm emerges from his home because security officer. coercion, entry it is constructive is considered an arrest within the home.” B. Lawsuit instructed, however, jury fully was not city sued the of San Fisher and his wife any entry to determine when about how Jose, Department, and the San Jose Police place, gauge takes so whether exi- They al- Jose officers. several San gent existed at all of the circumstances (1) other causes of action leged, among Moreover, as pertinent explain times. warrantless arrest was later, jury improperly instructed seizure; and that the use unreasonable identifying on the standard for an arrest. sage gun gas and of the CS consti- instructed, found for the So state law batteries. The basis tuted claims; on all Fisher then filed defendants it claim was that was against judgment as a mat- liable; a renewed motion jointly severally “either and/or Rule of ter of law under Federal Civil vicariously through the doctrine of liable 50(b). The court denied the Procedure superior for the actions of its respondeat granted it grounds motion on all other but also named herein employee police officers against arrest claim as to the warrantless capacity.” in After an their individual City. trial, jury Fisher filed a motion eight-day a matter of law under judgment

for as ruling, the district court laid out so 50(a), but Federal Rule of Civil Procedure Observing reasoning its some detail. denied the motion. the court very under which circumstances “[t]he any negate arrested jury w[as] Steven Fisher “[i]t The court instructed the any great that there was exi- already conclusively implication established has been securing him arresting without you gency if find that the Defendants unlaw- warrant,” that, Fisher, ruled because the court fully arrested Steven such a.m. and the time Fisher policy to the official “between 6:30 pursuant was done no and, thus, custody p.m., taken into at 2:35 City that the was of San Jose existed[,] ... ... Defendants had jury exigency arrest.” The City is liable for such and time to seek a war- ample opportunity further instructed that the arrest ‘magis- and detached cause rant from a neutral probable if “the officers ha[d] lawful trate,’ they to do under required were a crime has been committed and to believe skepticism as exist,” expressed The court and also that law.” exigent circumstances de novo. Id. judgment as a of law sixty officers matter “well over why, when if “judgment proper is at the The district court’s present [were] able to seek evidence, one of them was complex,” light not construed in the most telephone warrant and obtain nonmoving party, permits favorable to to arrest. Fisher submitted conclusion, only one reasonable contrary jury’s to the ver- conclusion is one dollar nominal awarded The court dict.” Id. injunctive relief damages to Fisher train its officers “on City ordering the not Although the instructions did jury under the Fourth required

what is question fully properly cover interpreting case law and the entry and arrest oc- pertinent when the in his or her arrest a lawfully it curred, object jury did obtaining for procedures and on home City argues that he instructions. on the tele- in-person and both warrants complain jury’s therefore cannot challeng- appeals, phone.” The now if the had been verdict as instructions determi- court’s constitutional ing only the ground that on the proper, but on the failure to obtain regarding nation evidence given, instructions no substantial warrant. That supported proposition the verdict. Review II. Standard illogical, it is incorrect. but grant from the of a appeal This arises True, may not chal “appellant an 50(b) judgment for renewed motion Rule lenge on the correctness of instruc review provides: That Rule as a matter of law. exceptions tions to which he no took reason, If, court does not For only general exception.” Air-Sea as a matter grant judgment a motion for Co., warders, Inc. Air Asia all the evi- made at close of of law (9th Cir.1989) (quoting 182 n. 5 Coca 50(a) ], the court is dence Rule [under Bottling Black Hills v. Hub Cola Co. the action considered have submitted Cir.1953) bard, jury subject to the court’s later adop by noting Supreme implicit Court’s deciding legal questions raised Skiing principle Aspen the motion. tion of this Co. Corp., 472 Aspen Highlands Skiing 50(a) 50(b). It is thus Rule Fed.R.Civ.P. (1985)). 585, 105 L.Ed.2d 467 granting that sets out the standard principle appel But that not foreclose does 50(b) there is “le Rule motions—whether underlying legal question late review anof gally evidentiary basis for a rea sufficient 50(b) through in the case a Rule motion. party [an] sonable to find for issue,” and, not, object if “a claim or failure to instruction “[T]he controlling ... cannot under the defense does not render the instruction the ‘law of a law be maintained defeated without purposes appellate the case’ for of review finding on that issue.” Fed. favorable judg denial of a verdict or directed 50(a). evidence” is R.Civ.P. “Sufficient notwithstanding City the verdict.” ment adequate support jury’s “evidence 112, v. 485 St. Louis U.S. Praprotnik, conclusion, if possible even it is also 915, 120, 108 S.Ct. L.Ed.2d 107 99 contrary a Pavao v. draw conclusion.” Spring (plurality opinion) (quoting (9th Cir.2002). 915, 918 Pagay, 307 F.3d Kibbe, 257, 264, 107 v. 480 U.S. S.Ct. field (1987) (O’Connor, J., 1114, 94 L.Ed.2d 293 This court reviews the district (internal dissenting)) quotation for marks grant court’s of a renewed motion

1057 States, 505, 511, 679, omitted).3 365 5 under Rule 50 U.S. 81 S.Ct. party If a moves (1961). It L.Ed.2d 734 is because “the both as a matter law judgment perhaps home is the most sacrosanct do- verdict, did, after the as before and there, main ... Fourth and preserve are “sufficient the motions strongest,” interests are their LaLonde ‘[although the appeal, same ... issue for Riverside, 947, County 204 F.3d 954 mo by raised both those legal issue was ” (9th Cir.2000), that “the Fourth Amend- [by] jury instruction.’ Air- tions and a ment has drawn firm line at the entrance Forwarders, (quoting F.2d at 183 Sea 880 exigent to the house. Absent circum- 120, 108 S.Ct. 915 Praprotnik, 485 U.S. stances, may reasonably threshold (first origi opinion)) alteration (plurality Payton, a warrant.” be crossed without nal). ques may therefore review the We 590, 445 U.S. at 100 S.Ct. 1371. Police by exigent Fisher —whether tion raised however, may, public a in a arrest that a warrant circumstances existed such warrant, place assuming they without a not have been obtained before could probable have cause to believe that entry that effectuated the arrest or the suspect has committed a crime. United though instruc arrest itself—even Watson, 411, 423-24, States v. 423 U.S. cover the fully properly tions did not (1976). 820, S.Ct. 46 L.Ed.2d 598 the ex key deciding question—essential entry when an arrest or igency issue—of determining In whether an ar effectuating an arrest occurs. or in “it public place, rest occurs in-house person, is the location of the arrested III. Arrest or Seizure Warrantless arresting agents, not the that determines an arrest Inside the Home whether occurs within home.” A. Arrest or Seizure Johnson, 753, Exigent States v. United Circumstances (9th Cir.1980), aff'd, Requirement 1. The Warrant (1982). Apply 73 L.Ed.2d may general, police In not enter ing concept, per if the force arrest him without person’s home to him, son out of his house arrest New obtaining Payton a warrant. See place to have taken in is deemed York, 573, 589-90, home. v. Al-Az side his United States (1980); (9th Cir.1985); States v. 63 L.Ed.2d United zawy, 784 F.2d 892-93 Prescott, Johnson, Cir. F.2d at 757. States v. United 1978).4 Indeed, very Al-Azzawy, example, [of core the defendant “[a]t of a right stands the in his trailer at the time he was Amendment] Fourth “was officers, he man to retreat into his own home and armed and since surrounded their govern voluntarily expose did not himself to there be free from unreasonable control outside his trailer but intrusion.” v. United view or mental Silverman presented. The Fourth Amend- Although Praprotnik plurality opinion, was a stances here principle prece ment reads: quoted have viewed dential, light Supreme of a later Court right people to be secure in their Forwarders, 880 F.2d at case. See Air-Sea effects, houses, papers, against persons, 183 & n. 7. seizures, shall searches and unreasonable violated, shall is- not be and no Warrants cause, sue, Although probable supported 4. the words of the Fourth Amend- upon but familiar, affirmation, recalling particularly de- are it is worth them ment Oath or searched, embarking exegesis scribing place to be and the on an of the war- before things persons or to be seized. requirement in the unusual circum- rant present does not matter for It therefore circumstances of extreme under emerged coercion, occurred while he was arrest seizure of Fisher purposes his trailer.” inside still taken into occurred he was that at the conclusion of the standoff custody possible it to seize Although is an arrest or to a have amounted to would the Fourth meaning of within someone occurred Terry had the seizure seizure manner that does not in a Amendment way, a warrant outside the home. Either arrest, the same full-blown a constitute prior entry. presumptively required any in-house seizure apply principles not amount to that does one person, a even why: is Al Here arrest. a full-blown Exceptions Re- to the Warrant seizures that Fourth

though quirement may accom arrests be amount to do not cause, requirement, The warrant Terry probable than plished on less 1868, 1, 20, however, Ohio, exceptions. 88 S.Ct. not without is v. (1968), held, in light have here, L.Ed.2d 889 rely upon defendants exception of in-house seizures status special Payton, permits noted in explicitly the one Payton, “probable cause recognized in a home arrests without a warrant inside entry any warrantless precondition is a for probable officers have cause to LaLonde, in his home.” person to seize a a crime committed5 has been believe Thus, the na whatever 204 F.3d at 954. exigent circumstances exist such seizure, re the “less onerous ture of the a “could not have been obtained warrant permitting seizure quirements Terry ” — Manfredi, v. time.” See United States than suspicion rather based on reasonable (9th Cir.1983). 519, 522 The stan F.2d to a applied be probable cause—cannot permitting also been framed as a dard has person entry warrantless to seize warrantless arrest when “a substantial risk reasons, any in- For home. Id. similar involved or to the persons of harm to the subject to the war house seizure must be process would arise if the law enforcement well, appli absent an requirement rant delay were to a search until war regard in this exception. agree cable We v. rant could be obtained.” United States Saari, in the with Sixth United States (9th Robertson, Cir. Circuit, as follows: which reasoned 1979); Michigan Tyler, also see arrest, investiga- an a full-blown [L]ike 56 L.Ed.2d subject is a seizure that is tory detention (“[A] entry by crim warrantless Thus, scrutiny. to Fourth Amendment may legal inal enforcement officials be law holding that warrantless Payton’s sei- compelling need for official when there in their homes violate persons zures warrant.”). no action and time secure Amendment, exigent absent the Fourth read these enunciations of the stan circumstances, We ... applies regardless exigent at issue were con- dard to mean a situation is whether the officers investigatory or an ducting an arrest without a purposes permitting detention. if could not be obtained a warrant Cir.2001) (citations safely— to effectuate the arrest time omitted). is, without caus- present purposes, probable cause to be- standoff. 5. Fisher concedes that during existed lieve he committed crime

1059 showing regard practicality to to the officers or to with ob delay dangerous ing a public.6 only members a need cover the taining peri warrant cites Al-Az od before then. The standard are consider- Inherent this zawy, police which held that “the because a time as regarding required, ations matter, a warrant. completely appellee’s to obtain had surrounded trail practical claimed, we have re- exigency is Where weapons er with their drawn and ordered attempt, to government either quired “the him through a bullhorn to leave the trailer warrant, faith, or to to secure good ... drop to his knees the arrest oc why a tele- explaining evidence present curred while he was still inside his trailer.” imprac- or phone warrant was unavailable Al-Azzawy cited, 784 F.2d at 893. also Alvarez, F.2d tical.” United States 810 from a approval, with statement Sixth (footnote omitted). (9th Cir.1987) 879, 883 case that the defendant “was Circuit Here, the officers testified none of arrest, placed under without the issuance any attempt get a warrant there was warrant, police of a at the moment standoff, the twelve-hour any point during Id. encircled residence.” 892 [his] City can or otherwise. The by telephone Morgan, States v. United (quoting satisfactorily if it prevail only therefore (6th Cir.1984)). 1158, F.2d or explains why a warrant unavailable City’s thesis is that because under Al- impractical the time available. Azzawy Fisher was arrested in his home Require- Duration of the Warrant police and because the had staked out ment begun encouraging a.m., by him to his apartment leave 6:30 he key ques- on the City’s explanation then, by was arrested and the time after proceeds exigent tion of circumstances question a.m. irrelevant 6:30 is was under premise that Fisher from latest, possible get so the whether it was a warrant.7 arrest 6:30 a.m. at the " circumstances,’ security ‘[E]xigent include the with the officer occurred around midnight, allegedly pointed guns public at the protect an or the from need to officer apartment beginning from danger, de officers the need to avoid the imminent a.m., evidence, and the asserted entry pur around 2:45 criminal in 'hot struction of place 4 a.m. Al threat to Males took necessary prevent a criminal sus suit’ that, though according it was these events respond pect’s escape, and to to fires or other Brooks, gave probable parties, cause for the rise emergencies.” United States v. arrest, government provided expla (9th Cir.2004) (citations has no 5n. exigency denied, beyond general omitted), nation claim cert. get why police present (2005). none of the tried to 160 L.Ed.2d 783 early during a warrant for Fisher’s arrest morning directly by contacting po City’s period, to assume the time- 7. Even if were understanding headquarters asking else to lice someone line as well as its Licata, one, occurred, early See United States v. it is far from clear do it. (9th Cir.1985) ("The exigencies must exigency existed to that sufficient evidence of totality of circumstances justify failure to obtain a warrant. War- be viewed from the the war always person. known to the officers at the time of rants need not be obtained in 41(d)(3), intrusion.”); see also United States v. Procedure rantless Federal Rule of Criminal 1989) Lindsey, Cir. example, magistrate allows a to issue exception comply (holding exigent by telephone circumstances if on the scene procedures. The officers testi- was satisfied where with certain during knowledge types proce- begin process the warrant of these did not fied to Also, they, waiting questioned were for assistance who were one hour dures. all officers dealing potentially twenty-four with a judges are available from testified that reinforcement dangerous officers did day situation because "the hours a to issue warrants. The incident the officers did not have even rea- reasoning argued, with this problem pivotal The him. suspicion stop question there premise sonable unstated City’s is the —that Hodari giving arrest rise to therefore was when question one could be Al- examining After tossed D. or after he a warrant. was seized—before need for Supreme Court post-Al-Azzawy Azzawy, the cocaine. Payton line of law, as the as well case that, general, Hodari D. determined assumption is that this cases, we conclude accomplished by can be while seizure thesis— City’s articulated

incorrect. The physical grasping application “mere or necessarily requirement that the warrant authority, or not with lawful whether force standoff contin though the lapsed even arrestee,” subduing it succeeded in incorrect well. therefore as ued—is “continuing during there is no instead, conclude, 624-25, at period fugitivity.” We Id. requirement Thus, Amendment’s warrant if explained, Fourth Hodari D. S.Ct. 1547.8 or arrest a home to seize entering upon suspect for his hands places an officer disappear once there has does not someone intending suspect to arrest him but the seizure, arrest, entry, or but single been flees, touch- any arrest effectuated further if there are continues in effect ing separation not continue after the does or ar of seizure purpose entries for the 1547. of the two. Id. if there is an rest-subject exception to an necessary analysis is corollary of this warrant at the time exigency excusing the by the applica- that a once seized the later entries. can physical tion of force but not subdued again, yield until he does be seized first, post- analysis proceeds, Our from implication, A further which we officers. law that Al-Azzawy Supreme Court case adopt holding, as a is that one there can be more than indicates that applicable, ap- if requirement, otherwise arising particular from a seizure or arrest arrests or seizures even if plies later set of See circumstances. California earlier, unsuccessful arrest there was D., 621, 111 S.Ct. Hodari require- as to which no warrant (1991). seizure D. con 113 L.Ed.2d 690 Hodari So, example, if applicable. ment was sight young cerned a man who fled at evading D. had succeeded in Hodari and, pursued, being while he was him cocaine; they apprehended after on the of crack threw aside block street and the officers later came to his cocaine and police thereafter retrieved the him, they would need a juvenile proceed D. in a house rearrest charged Hodari cocaine, to enter his house unless there ing. Hodari D. threw the he warrant Until constitutional, emphasizing that the reinforcements common law and know in advance delayed”). quintessential would be "an arrest 'seizure [is] person' under our Fourth D., public Hodari encounter was in a jurisprudence.” Id. at 111 S.Ct. 1547. place, dwelling, not in a so no warrant re- Here, assume, did, as Hodari D. that com- quirement applicable was if an arrest even concepts apply law of arrest to seizure of mon 423-24, Watson, 423 U.S. at occurred. See persons may not modern meet definitions Also, 96 S.Ct. 820. the technical issue arrest, as well as to full-blown arrests. seizure, D. was a Hodari there Second, explained, we have a warrant as not an arrest. See 499 U.S. at arrests, required for in-home seizures short of arrests, as well as in-home full-blown as distinctions, ap- Despite Hodari D. is these long exception require- to the warrant no First, here, plicable for two reasons. Hodari applies. ment arrest, heavily D. relied on the law of both probable exigency cause and an hours but was excused at the point be- that time excusing require- the warrant cause there exigency. Assuming that ment. much is true —which we do not decide— did not terminate requirement the warrant The second strand in our Fourth (1) at point, were, because there after Pay- analysis, derived from a.m., 6:30 discrete for purpose entries ton, principle is the that “the critical time of effectuating Fisher’s seizures and arrest determining any exigency for ex triggered the requirement warrant ists is the moment the officer makes the (2) Payton; under and there was no exi- entry.” United States v. warrantless gency at the time of one or more of those Johnson, (9th Cir.2001) 895, discrete entries. banc) added). (en (emphasis explained As opinion in the Circuit’s upon Second which B. and Seizures Arrest of Fisher

Payton “persuasive”: relied as To arrested in the home be involves not clearly Fisher succumbed to coer- only the invasion attendant to all arrests cion while still at agreed home when he an sanctity but also invasion of the come out of his house and submit to formal simply home. This is too substantial arrest. As Fisher’s final arrest thus oc- warrant, an invasion to allow without a curred inside his home—a determination exigent at least the absence of circum- City does not contest—a warrant was stances, even when it is accomplished presumptively required prior to seize him statutory authority under and when to this arrest. clearly probable present. cause is What is contested is the timing of that Reed, United States v. 412, arrest, or other City seizures. The (2d Cir.1978) (quoted approval with argues that Fisher’s arrest occurred

Payton, 588-89, at U.S. a.m., by 6:30 after the officers on the 1371). standard, it Under this is the en- home, scene had surrounded Fisher’s at- arrest, try, not directly trig- that most tempted to him convince to come outside Indeed, gers the constitutional concern. talk, positioned and a sharp shooter to Payton illustrate, as the facts itself his argument observe actions. This im- entry warrantless made purposes plicitly any pertinent entry maintains that constitutionally arrest or seizure is invalid Applying prin- occurred before then. even if no arrest ensues because the sus- ciples already discussed to the evidence is not there. See pect 576-77, at presented, City’s po- we conclude that the 100 S.Ct. 1371. supported by legally sition is not sufficient (1) In sum: can there be more than one evidence. or arrest seizure and therefore more than entry are, fact, one purpose effecting for the an There at possible least three (2) seizure; arrest or pertinent junctures which arrest or seizure of (1) determining time for whether an exigency Fisher could have occurred: a.m., exists excuses the need for a warrant 6:30 when the had surrounded to make an in-house arrest or seizure is his house and him asking emerge; were (2) entry the time is made to effectuate that when the officers caused force to be arrest or princi- applied canisters; seizure. Given these two to him tossing CS (3) ples, when, standoff, it does not matter whether the or at the end of the correct that the requirement be- the officers’ show of submitted operative during early came morning authority. proceed explain, As as- liberty ignore police presence first not at occurred at suming an ” Florida go about business.’ City posits, we conclude juncture, as 437, 2382, Bostick, 111 S.Ct. 501 U.S. at the second occurred that seizures (1991) Michigan (quoting L.Ed.2d 389 Our conclusion 115 as well. junctures third Chesternut, 108 S.Ct. occurred at those 486 U.S. arrests that seizures citing from standards 100 L.Ed.2d derives junctures two D., that have seizures occur determining when Hodari Jacobsen, 1547); D. v. see also States in Hodari United their roots 1652, 109, 5,n. 80 466 U.S. S.Ct. a.m. seizure or Pre-6:30 (1984) (stating that “the ‘sei L.Ed.2d 85 meaning of the person ar- zure’ of a within the that Fisher was City suggests The meaningful inter longer [is] no “free Fourth he was rested when ference, brief, City, was with an individual’s which, according to the however leave”— movement”); by was surrounded United States freedom apartment his 1060, officers, is, time before Washington, some Cir. police 2004) Bostick, 437, the trial court’s instruc- at Although (quoting 6:30 a.m. 2382). case so stated and recog in this line of cases tions As this leave” rely nizes, on the “free to many police cases do in most encounters between necessary to determine when citizenry, person’s as a presume standard and the we arrest, seizure, has oc- to an terminating a essential the encounter to be desire Gonzales, see, curred, cases, e.g., Gilmore In leaving the scene. some howev (9th Cir.2006), 1125, er, 1137-38 stay place go is to and the desire the most useful one business, is not phraseology about one’s and those instanc circumstances. present under the of when a seizure or es the determination arrest has occurred focuses on interfer the “free to leave” problem with autonomy ence with those interests. suspects to barricaded applied standard as effectively measure the is that it does not The circumstances here are of the latter liberty on their worked degree of intrusion variety: expressed go his desire to Here, example, by police actions. repeated at home.9 He about his business clear that he did not quite Fisher was alone, ly police asked the to leave him wish to leave. withdrawing public sight from for several attempting television. has enunciat hours watch Supreme Court stops Any approach focusing on serious interfer investigatory ed in the context of liberty modified version of the ence with Fisher’s interest under slightly buses A these there test more here: circumstances such as must “free to leave” useful not as freedom to leave but person’s liberty point is restrained to the fore be framed “ignore police presence pur for Fourth Amendment freedom seizure Bostick, when, “taking go into account all of the about his business.” poses Chesternut, encounter, (quoting at surrounding the S.Ct. 2382 circumstances 1975) (internal conduct would ‘have communi 486 U.S. omitted). quotation mark person cated to a reasonable he was circumstances, discussing "freedom of movement was restricted Fisher's do whose hold, suggests, as the Dissent at dissent stay factor [his ]a desire to on the bus— subjective one. that the Bostick test is independent conduct.” 501 U.S. at Rather, we observe that Fisher was simi- 436, 111 S.Ct. 2382. Bostick, larly passenger in situated to the bus The officers it they made clear that or, did “free to instance, in this “free leave”— not wish Fisher to continue to stay alone go about [one’s] business” —test is “a his pleased, do what he necessary, but not sufficient, condition for and demanded that he cease his chosen or, more precisely, for seizure ef seizure — ” activities and come outside to talk to them. fected through a ‘show of authority.’ Id. This demand merely was not verbal but 111 S.Ct. 1547. Even if police included throwing window, rocks at his officers’ words to a fleeing suspect consti speaking bullhorn, him through turn- tuted a “show of authority,” D. Hodañ ing off power, tossing phone throw held, a suspect is not seized long as he through home, into his setting off a “flash- is not complying with the “injunc officers’ device, bang” throwing gas CS canis- tion.” Id. at 111 S.Ct. 1547. Fisher apartment. ters into his Given this bar- did not comply so until well after 6:30 rage threats outside the home a.m.11 objects

and intrusions of and materials into the 2. apartment, a Seizures reasonable or person arrests after 6:30 a.m. certainly would have felt constricted Addressing both modes of seizure continuing daily his activities at home. that Hodari D. recognized, we conclude supports evidence

Nevertheless, one rea the “free to leave” sonable conclusion: that Fisher was or “free to go about business” stan [one’s] seized, manners, in both during the after dard is not alone determinative in ascer hours, noon even if he was by also seized taining when an arrest or seizure has oc 6:30 a.m. the City posits. as curred, the inquiry critical in this case.10 Hodari D. held that a common law arrest a. Use Force of or seizure of a person could be accom

plished in ways: two “either physical D., force Under Hodari the first method of or, ... absent, where that is to effectuating submission a seizure is through the appli- the assertion of authority.” 499 at U.S. cation of physical force. The force need 626, 111 S.Ct. 1547. Supreme Court significant not be and can count as effectu- that, has clarified contrary ating an arrest even if inadequate gain instructions in this case and to the views control suspect. grasping” “[M]ere expressed by our dissenting colleague, the or ... “la[ying] upon” is, hands suspect a emphasize 10. We nothing through D. or application physical Hodari of force can oc- in this directly bears discussion a when though cur even the force is ineffective in “custody,” is in for non-Fourth restraining liberty. an individual’s 499 U.S. purposes. purposes Amendment ap- For of 624, 111 S.Ct. 1547. Some cases have Arizona, plying 436, Miranda v. 86 asserted a show of force such as occurred 1602, (1966), S.Ct. 16 694 L.Ed.2d for exam- here, the officers when surrounded Fisher’s ple, five-part we use a evaluating test for placed and car on the custody. whether someone is in See United lawn, apartment complex is tantamount to an 1062, Hayden, States v. 260 F.3d 1066 application physical of force under Hodari D. Cir.2001) "(1) (examining the language used Brunswick, See v. Ewolski of individual; (2) to summon the extent 492, (6th Cir.2002); 506 Felsing, Sharrar v. which the defendant is confronted evi- with (3d Cir.1997). (3) We guilt; assume dence physical of surroundings result, (4) interrogation; that is See of the detention; so. note As a duration of the infra. degree pressure do not ap- of contradict Ewolski or create circuit plied individual”). to detain the split that the dissent envisions. Dissent 1075 n. 5. later, weAs discuss Hodari D. an- also nounced that including arrest— seizure— into such control. bring him tempts inefficacious. if even sufficient example, subject reason, remained For 624-25, 111 S.Ct. Id. at arrest&emdash;and entries related or seizure in need not used Also, force home&emdash;after arrival his into between connection physical a direct volve seized been if he had even team MERGE Rather, a suspect. and the officer shot an individual earlier, just as would occurs “when seizure Amendment Fourth to flee thereafter. continued who termination governmental ais there in means through movement

freedom ar team MERGE After the indirectly. if even applied,” tentionally volleys of rived, several the officers threw Inyo, 489 County Brower house. into canisters gas CS L.Ed.2d 596-97, orifices reach Fisher’s intended to gas Brower, if (1989). So, as ability to function with interfere will which a situation up set intentionally exposing Fisher Intentionally did so. suspect, such to a applied to be force cause application is an toxic substances firing gun, a roadblock establishing pur for Fourth physical force See suspect. on the force they have used Forest Headwaters poses. See Def. (holding 598-99, id. at Humboldt, 1198-1 County of “stopped person occurs seizure remanded, 534 (9th Cir.), vacated in motion instrumentality set very by the 1 L.Ed.2d U.S. to achieve in order in put place or remand, (2001), on aff'd Garner, 471 U.S. result”); Tennessee LaLonde, F.3d at 960-61. Cir.2002); 1694, 85 L.Ed.2d 7, 105 S.Ct. team arrived Thus, the MERGE after deadly of the use by (“[A]pprehension a.m., officers at 7 Ryan left Boler ”). is a force seizure.... more to Fisher force physical applied standards, we conclude these Applying D., occasion, which, Hodari under one than of official the show or not occa such him on seizing each constituted a.m. be can 6:30 that occurred force sion. of application equivalent considered effectuating of purposes physical force Authority b. Show of in the evi- seizure, no basis there conclude jury to for the dence Fisher police arrested Alternatively, the that oc- only one was the seizure such standoff, ulti- when he end of at the go Rather, to continued Fisher curred. of authori- to their show mately submitted His apartment.12 his his about business to be in his still house while by agreeing ty envi- escape to equivalent doing so was arrest. placed under fugitive who Like D.: by sioned Hodari con- Al-Azzawy insists suf- physical force of application flees after an arrest case, deemed it because this seizure, trols long as he ficient to constitute encircled police to have occurred Fisher apartment, remained in thereby showing dwelling, suspect’s control, at- despite complete under 435-36, to remain. individual to our conclu- critical location is 12. Fisher's Contrary to the dissent’s "escape” recognized, As Bostick sion. "freedom,” require however, an may generally which we do not hold suggestion, flight, on a takes showing explicit physical of an constitutes disappearing from view merely location, such meaning a confined different D. Sec in Hodari discussed escape the sort home, compelling are there in which one's as reasons&emdash;unrelated at 1076-77. Dissent action&emdash;for authority. Al-Azzawy, 784 F.2d at 892- show authority cers’ until he submitted Al-Azzawy and the to that cases it relies show of authority by agreeing to upon people emerge concern from emerged who from his home and then doing so. Even after dwelling shortly their after a show of au- MERGE team applied physical by force thority by police, tossing so that by gas the submission CS canis- ters, Fisher emerging attempted to essentially ignore occurred at the the police, same generally refusing speak as the initial authority.13 time show of with them and declining to come out of his home. The presents This case a contrasting set of window, rocks thrown at his the flash-bang circumstances: Fisher did not succumb to device, and the bullhorn failed to convince authority the show of until over twelve him leave. The police began sending passed hours had after the attempt first gas CS canisters into his apartment at 1 him, contact and after several intrusive p.m. After two gas canisters, rounds of CS techniques had been used in addition to approximately volleys total, six caused the initial show of authority. Fisher glass to shatter into his face as well as therefore cannot be said to have stibmitted making it hard for see, him to breathe and to the officers’ show of authority until at finally agreed to submit to police least 2:13 p.m., when he began speaking to authority by leaving his p.m. house at 2:35 the police phone. over the throw point, At that could reason- emphasizes, As Hodari D. when a ably conclude, indeed, Fisher was seized— seizure is effectuated through a show though arrested —even he had also been authority rather than through any sort of seized earlier through application application force, physical there physical is no force that failed bring him seizure until there ais complete police submission to au within control.

thority by the suspect; assertion of au C. Entries Effect Fisher’s Seizure thority alone the is not enough. or Arrest 6:30 a.m. After at 111 S.Ct. 1547. After D., Hodari the officers’ show of authority holdings Our that Fisher was seized and the “location of person,” the arrested both when he physically affected Johnson, 626 F.2d at gas at the the time of CS canisters tossed into his home authority show of remain and when significant he submitted to the officers’ Amendment, under the Fourth show of authority by but it agreeing is the at the end in suspect’s response actions of the standoff to police to the accede to show of demands authority not, that controls come out of his timing however, the home are of a the end of our inquiry. seizure when the seizure is not accom plished through the physical use of force. above, As described under Pay- D.,

Following ton, Hodari we conclude that the warrant requirement is triggered there was no evidence establishing that by the entry officers’ into the home for the Fisher was pursuant arrested ojfi- purpose seizing of someone rather than by 13. emphasis In addition to its physical on the officers’ actually substance touches the sus- authority, Al-Azzawy show of also refers to pect, as in Brower. The Sixth in Circuit “the officers’ show of force.” 784 F.2d at similarly Ewolski "ap- held that there was an read, Al-Azzawy So can be alternative- plication physical of police force" "the armed, ly, to police assert that intrusive ac- paraded surrounded the house and an ar- such tions as those used that case and this mored [suspect’s] vehicle in front of the suspect’s outside one the house constitute an house.” 287 F.3d at 506. application physical of though force even no the entry into the warrantless entry garage for timing of itself, so the seizure

the un house). as, our under Just suspect’s sei arrest or effectuating an of purposes re warrant D. the Hodari derstanding of focus Payton’s matters. is what zure sei to later applicable remains the critical home as quirement the entry into one, absent cor unsuccessful other an to two leads zures after factor constitutional First, ato warrant entry pursuant case: an to this exigency, central ollary principles war further one all only other excuse does not exception circuit as this held, have of effectuat squarely purposes question entries rantless address applies requirement an arrest. Payton ing suspect force which officers situations together, principles Putting these him, because home to of out in-house warrant Payton that the hold we could avoid arresting officers “[Otherwise, trig situation in a standoff requirement re simply by home into a ‘entry’ illegal an action police take time each gered and control doorway maining outside isor a seizure (1) constitutes itself either suspects within ling the movements home from his suspect to force a designed greatly weapons use through the (2) is authority; and police submit offi arresting ‘reach’ extend Here, entry. an to constitute sufficient 757; accord Johnson, cers.” Fish into coercively intruded officers Consequently, F.2d at Morgan, 743 him to to force effort an er’s one, any as this such situation in a standoff he final a.m., and before 6:30 after emerge home inside place takes seizure During p.m. at 2:35 emerge ly did to outside opposed as Payton purposes bullhorns, a gas, CS used period, officers, through it, because with device, phone and a throw flash-bang constructively enter action, coercive their Tossing him. prod microphone open an out him and force home person’s into of Fisher a seizure itself gas was in the CS Al- custody. See into side, taken to be explained, home, already have (holding n. 1&893 F.2d at Azzawy, 784 lobbing entry, and necessarily an therefore ... because applicable “Payton [is] micro open with its phone, the throw ordering house surrounding the ... Kyllo entry. See also phone, entry,’ ‘constructive [is] out suspect 2038, 150 U.S., from the emerged and because sense-en (comparing L.Ed.2d coercion”); only because house to informa used obtain technology hancing F.2d at Morgan, physical to interior a home’s about tion exigent circum Second, if even pur Fourth Amendment intrusion make time officers existed the stances 509-11, Silverman, poses); an en entry, such warrantless an initial physical a that it was (holding the from the officers not excuse try does into a microphone a to extend intrusion hap if arrest the requirement warrant the triggered house). Thus, action each second, entry discrete after a pens requirement.14 warrant then. dissipates exigency Cf. intrusions sufficient For of these each Hackett, 638 F.2d v. States United required were officers Payton, the trigger Cir.1980) (9th (considering wheth 1185-86 circum- or establish a have warrant dissipated between had exigency er requirement. the warrant excusing suspect’s stances entry into the warrantless under entries actions, constituted apartment, other whether not decide We need Al-Azzawy. into objects thrown involving physical As the officers this case thrown, never obtained ters were so the failure to obtain a warrant, a that, must demonstrate warrant before then is not excusable. at the entry, exigent time of each circum- We have used a nonexhaustive list stances existed such that a warrant could of criteria first enunciated in Dorman v. safely have prior been obtained States, United 392-93 entry.15 (D.C.Cir.1970) (en banc), to determine sum, at least some of the tactics the whether circumstances meet danger MERGE team used after it arrived were prong ousness of the exigency require sufficiently coercive and intrusive to con- ment. Blake, See United States v. stitute entries into Fisher’s home for the (9th Cir.1980).17 Those cri purpose of effectuating an arrest. Some of (1) teria are: grave offense is in tactics, indeed, these actual, phys- involved (2) volved; suspect is reasonably ical home, intrusion into Fisher’s and may armed; (3) believed to be there exists a be regarded best as actual rather than clear showing (4) probable cause; constructive entries. exigency, Absent there is a strong reason to believe the required warrant was before those actions suspect (5) is in premises; that there is were taken.16 a likelihood that escape; will peaceable entry is made onto Exigency

D. at the of the Time En- premises. Dorman, See 435 F.2d at tries Here, 392-93. the Dorman sug factors gest no clear armed, result: Fisher was he The pivotal question, consequent cause, concedes probable and he was defi ly, becomes any all or nitely premises; on the grave but no of entries for purpose arresting or case, fense was involved in this he was not seizing Fisher occurred at a time likely to escape, and the entry was not exigency passed- is, had when it —-that peaceable. would have possible been attempt obtain a causing warrant without a danger was not specifically in- —which delay. ous conclude We there was factors, structed the Dorman but had insufficient evidence of such exigency for before it evidence each of concerning some time before the gas first CS canis- them —must have determined that suffi- earlier, 15.As noted period tolled suggest Alvarez 16. We do not mean to that more than exigency during attempts one required. officers' warrant was Carlson Cf. London, warrant, 524, 546-47, obtain as warrants cannot be ob- (1952) (even 96 L.Ed. 547 once an arrest instantaneously. tained 810 F.2d at 883 executed, fully may rearrest be (holding government that “the either ... at- warrant, possible especially without new faith, tempt, good warrant, to secure a cases when the detainee has escaped); United present ... explaining why evidence a tele- Martin, States Cir. phone impracti- warrant was unavailable or 2005) ("The fourth amendment’s rules for added)). (emphasis Thus, cal” we are not limits.”). warrants do not include time Rath commanding that officers leave the scene of a er, point our is that police there were activi exigency standoff once the disappeared. has ties taken 6:30 a.m. for which one arrest after Instead, require only they begin that warrant could been have obtained without a attempt a obtain warrant when that at- dangerous delay required. and was feasible, tempt given becomes the all circum- stances, continuing while in the meantime explicitly 17. Dorman noted that the list of their efforts peace bring to maintain the and comprehensive. considerations was 435 the control. under F.2d at 392. Fisher’s working on enough officers were existed at circumstances dangerous ciently a warrant case, time obtain enough was with that the arrest it found point, as some of the CS the first sent police is rea- the a before determination Such unlawful. light apartment. the Fisher’s in into gas the canisters Viewing evidence sonable. officers City, the favorable most seen a.m., had been Fisher Before considering in justified certainly were officers, action the the a rifle at pointing and to themselves both danger a Fisher cause probable as upon providing relied rambling intoxicated, He was public. the of the some At least later arrest. for the car- rights, his Second about worst of the observed who had officers it at pointing and sometimes a rifle rying a.m. the scene left behavior Fisher’s with tinkering repeatedly officers, house, where to the station and returned rifles, making threat- more seventeen initi- have colleagues could their they or certainly not a He was ening comments. By p.m., proceedings. ated warrant remain on to counted be could who man apart- Fisher’s been at had many officers a.m. as after 6:80 is true That peaceful. There, hours. several complex for ment as before. well warrant too, have initiated could officers however, requires more Exigency, a warrant Such by telephone. proceedings circumstances dangerous the than in effected the entries have covered would States See United contemplates. Dorman final the seizures the afternoon Cir.1986) 773, 775 Good, F.2d thereafter. however, alone, (“Exigent circumstances must government as insufficient are seizing a delay in the one-hour Unlike not have could a warrant show also in considered that we house suspect’s time.”).18 It is not beenfsafely] obtained officers faced delay the Lindsey, that, exigency issue determinative was neither complex “continued to City argues, of additional by lack unexpected, caused danger threat an imminent present See nor, short. assistance, comparatively, community despite the officers and Indeed, here there F.2d at 782. period a seen for not been that he had fact opportu- and more considerably more time danger degree of Although the of time.” there was a than nity to obtain warrant a warrant to whether directly related Alvarez, we concluded in which obtained'&emdash;such that the have could been sought warrant. have police should circumstances, dangerous more Alvarez, potentially awas safely obtain a there can likely less in a drug their dealer compromising dangerous without armed warrant cannot duties&emdash;danger suspected alone room, peacekeeping hotel whom purpose entry justify a warrantless increasingly suspicious growing Instead, re we effectuating an arrest. deal. drug from had not returned agents [separately] “government quire that determined, however, in such that even We could not demonstrate[] circumstances, could the officers serious Manfredi, time.” have been obtained telephonic war- attempted to obtain have F.2d at hours to two ninety minutes rant See agents returned. showing. Here, no such there is at 881-83. there shows that undisputedly evidence enter, and compelling need to danger or other Good, “exigent the term use 18. Unlike time. (b) inability warrant in (a) to obtain a both encompass circumstances” We thus conclude that on the record capture persons crime,” accused of us, reasonable conclusion is United States v. Lefkowitz, 285 that although the situation certainly re- 52 S.Ct. 76 L.Ed. (1932), dangerous, mained there was sufficient po- citizen, and the who may or may not have lice presence and sufficient time after committed may, wrong, occasion, probable cause was established that an bring a useful perspective to the situa- arrest warrant could been (“[T]he have obtained tion. Id. informed and deliberate well before one or more of the entries that determinations of magistrates empowered led to Fisher’s seizure. Although our dis- to issue warrants as to what searches and senting colleague maintains, quite sensibly, seizures permissible are under the Consti- that the danger created by Fisher’s action tution are to be preferred over the hur- did dissipate until succumbed, he she ried action of officers and others who fails entirely to address the second prong may happen to arrests.”); make see also inquiry the police had States, Johnson v. United —whether 10, 14, enough time manpower to seek a war- 92 L.Ed. 436 (noting rant during the extended standoff and be- that the Fourth “protection Amendment’s fore one or more of the successive entries. consists requiring that those inferences Because there such opportunity, the by be drawn a neutral and detached mag- failure to obtain a warrant after- early istrate instead of being judged by the of- noon—before 1 p.m. at very latest— ficer engaged the often competitive en- was unconstitutional.19 terprise crime”). of ferreting out requirement’s goal is permit

IV. Conclusion third party to evaluate whether the police should be intervening into a situation at Standoffs with barricaded suspects not, all. If police retreat prevent can an present hard decisionmaking problems for awkward situation from escalating into a police, often requiring split-second tactical dangerous one. determinations. The results can be tragic even when the police behavior is for Here, may it well be that a timely appli- most part quite See, reasonable. e.g., cation to a magistrate would have resulted Ewolski, 287 499 (involving the in issuance of a warrant for Fisher’s arrest object of a standoff who shot himself and and events would then proceeded have standoff). son during the A warrant pretty much as they did. But that is not may not prevent such tragic certain, occurrences. in any is event beside the But interposing a neutral detached point. The criminal hung on the felo- magistrate between the police, who are ny it, count presented to so it is at least “acting under the excitement that attends possible that magistrate would have Contrary assertion, to the dissent's entry Dissent very entries. The Ninth Circuit case upon 1078-79 & Bing n. we do which dispute relies holding that dan- gerous supporting exigency Sixth circumstances Circuit's conclusion Bing in Estate exception time, can continue for some Whitehall, Lind- (6th Cir.2006), 456 F.3d 555 sey, emphasized, so stating: finding "A danger that a to officers exists and continues exigent circumstances, however, does not end throughout a standoff outside the home of an inquiry. our exigent Since circumstances im- armed individual. prece- Under our circuit’s ply that there insufficient time to obtain a dents, however, that is not the end of the warrant, government must show that a inquiry. We must also consider whether the warrant, including telephonic warrant, could, matter, practical as a have ob- could not have been obtained time.” tained a effecting warrant before the final F.2d at 782. I law. with the compliance in full and cause probable lacked police the

thought of grant court’s the district would reverse arrested. he was for which charge on the 50(b) and restore motion require FRCP to precisely it is importantly, More the verdict jury’s verdict because to articulate involved the officers evidence. by the views substantial supported to obtain for grounds ade- on the magistrate dispassionate aof aas judgment for motion A renewed a warrant is that grounds of those quacy 50(b) is to FRCP pursuant law matter of required. evidence, con “if the granted properly offi- police of Here, plenty there were to the most favorable light in the strued of plenty there was involved reason cers one permits nonmoving party, obtain several hours—to least time—at is con conclusion, conclusion and that able to unconstitutional It was a warrant. such v. Pa Pavao jury’s verdict.” trary Cir.2002). to do so. (9th fail “A 915, 918 gay, sup if it is upheld must be jury’s verdict AFFIRMED. evidence, is which by substantial ported dissenting: CALLAHAN, Judge, Circuit jury’s support adequate evidence conclusion, it is also possible if even respectfully I dissent. Indeed, contrary Id. conclusion.” a draw dangerous very ais we have here What of the our view may not substitute we safely for all resolved that was situation Id. jury. evidence po- and the Fisher, public, concerned— standard. disregards this majority simply Never- work. good police lice—because to micro- majority undertakes theless, addition, majority concludes In worse, police for browbeat seized manage, Department or Jose Police the San telephonic warrant a Amend- failing obtain of the Fourth purposes that could standoff junctures”: the midst “possible three ment at After moment.1 deadly surrounding have a.m., began turned they 6:30 receiving prop- reviewing all the facts p.m., 1:00 apartment; approximately law, jurors twelve er instructions by the CS affected physically when he han- police had that the unanimously found p.m., canisters, alternatively at 2:35 gas lawfully. should We situation dled the show the officers’ when he submitted jurors’ decision. wisdom accept the police demands submitting to by authority This con- apartment. of his come out arm-chair should not judges, we As conclu- unworkable fusing, impractical, and safety of our from the a crisis quarterback interpre- on an unreasonable sion based dis- analysis is post-game chambers. Such decision Supreme Court’s tation of the reality and leads from connected 621, D., 499 U.S. v. Hodari determination, in this case inappropriate California 628-29, 113 L.Ed.2d 111 S.Ct. training officers need Jose that San to decide logical leap requires they finding that did jury’s despite the in his person that a surrounded view, my wrong. nothing Fourth purposes “escapes” for fashion exemplary the situation handled Furthermore, Cir.1983). acknowledge tele- “[a] precedents 1. Our simple "a it is simply may concluded not be obtained have phonic warrant Good, things, Among other calling magistrate. States procedure.” United pre- denied, be original (9th Cir.) must 'duplicate warrant' cert. magistrate writing (1986). read to the pared 89 L.Ed.2d Manfredi, 722 States United verbatim.” by disappearing from view or front apartment. a.m., Amendment of Fisher’s At 8:48 bullhorns, canisters, ignoring police CS throw the power turned off the in Fisher’s the armed officers phones, apartment and surround- in an attempt to force him out. ing apartment. They his also broke sliding glass his door and tossed in a phone” “throw so they

FACTS could communicate with Fisher because phone his line busy. a.m., At following facts 10:52 emerge from the rec- police set off a “flash-bang” drinking ord. Fisher was device to cleaning 18 get Fisher’s attention and guns apartment. briefly A disorient security guard his him. At p.m., police 1:00 apartment began complex police throwing his called the gas canisters into apartment, when Fisher’s behavior became to no menacing. Finally, avail. p.m., at 2:13 shortly police arrived midnight. after estab- lished telephone Fisher was contact with Fisher unresponsive part, for the most via phone throw agreed but he talking insisted on about his leave Second apartment unarmed. The rights. At then approximately him a.m., custody. took into Males, 3:00-4:00 Officer Jan a tactical negotiator, arrived. Fisher told her that right

he DISCUSSION had to bear arms. He also invited her into apartment, his but threat- A warrantless search does not violate ened shoot her if she came in. Officer the Fourth Amendment where officers Males considered this to be a criminal probable have cause believe that a crime felony. threat —a committed, has been and there are exigent

Throughout night, officers observed circumstances such that a warrant could through the windows of apart- his not have been causing obtained without ment walking around with a rifle dangerous delay. United States v. Man hand, once, and more than aiming the rifle Cir.1983). fredi, 722 F.2d out apartment of the in the general di- Fisher concedes that probable officers had rection of the officers. Officer Boler testi- cause; the issue is exigent cir fied that point he saw Fisher one of his cumstances City’s excused the failure to Sergeant Ryan rifles toward and Officer obtain a warrant arresting him. Males twice between 2:45 a.m. and 4:00 inquiry first, This requires us to determine a.m., moving and that he was his rifles occurred, when the warrantless arrest a.m., apartment. around his At 6:23 Fish- second, whether there exigent were cir er again rifle, was seen with a apparently cumstances the time of the arrest loading it. excuse the failure to obtain a warrant. Our consideration of these issues on their a.m.,

At 7:00 department’s Mobile merits complicated by majority’s (MERGE) Emergency Response Group unnecessary, in my opinion, incorrect scene, took control of the and the officers analysis of the instructions. originally responded who to the scene left. a.m.,

By 7:30 had evacuated all A. Instructional Error. apartments in Fisher’s building. occupant, One whose front door object was near “Failure to instruction residence, was evacuated cut- right waives the of review.” Affordable ting apartment Fresno, hole in her Corp. wall that Hous. Dev. (9th Cir.2006). allowed her to through neighboring leave The Ninth walking instead of across the Circuit adequacy does review the evidence, discarding all evi- by substantial does party where given instructions jury is that the to Fisher & favorable v. Lewis Clark dence Bird object. See not (9th believe, drawing all Cir. 1015, 1022-23 to required not College, matter, that City we note of the (“As in favor 2002) initial inferences an reasonable to the instructions that object jury not on instructions did Bird of San Jose —not Accordingly, court. by complete, the district but given only not correct were of the adequacy during not review object do to to failed that Fisher given.”). that were Valley instructions v. Paradise trial. See Johnson Dist., 1227- F.3d 251 School acknowledges Fisher that majority The Unified Cir.2001) (9th of re- (stating standard jury instructions object to the to failed a Rule grants court the district view where arrest, nonethe- of but concerning the law motion.). district argue proceeds it less incomplete were jury instructions court’s Rule Civil Federal The Arrest. inadequate. B. may party “no states that Procedure the war- majority concludes The or the giving failure as error the assign arrest oc- purposes of seizure for rantless party ob- unless instruction give an the CS p.m., when at 1:00 curred either jury retires

jects thereto apart- into were thrown canisters verdict, distinctly the stating consider its ment, p.m., when Fisher came or at 2:35 grounds and the objected to matter Citing United apartment.2 his out of on majority’s insistence objection.” (9th Al-Azzawy, 784 F.2d 890 States in- jury criticizing the considering, and Cir.1985), that the arrest argues Cir- contrary to the Ninth is structions clearly much earlier under exi- occurred 51.” “enforcer Rule as an cuit’s role circumstances, be- police first when gent (9th Gross, F.2d Hammer encourage Fisher to using tactics to gan Cir.1991). by the refusing to By abide his home.3 leave that, object party fails where principle instruction, Al-Azzawy “review majority suggests this court must case, under sufficiency of the evidence claim in that distinguished can because [a] be instruction,” majority controlling dwelling from his suspect emerged principles to undermine bedrock authority by police, threatens after a show soon review of of our limiting scope hours for several did not whereas Ko- Serv. v. Eastman Image Tech. trials. attempts to force him began after Cir.1997) Co., 1195, 1206 dak majority, To the apartment. his out of concerning argument (refusing to consider an significant, because this distinction failing by party waived jury instruction the force or requires physical either arrest object.). authority. to the assertion submission D., 499 U.S. at v. Hodari Citing case should remain The focus this California 624-25, majority con- supported verdict was jury’s whether the the defendant Al-Azzawy that because held the offi- court found 2. The district at the time he was sur- during trailer this in his home "was in his cers seized Fisher officers, he did and since armed contrary about Any rounded conclusions encounter. voluntarily expose to their view himself ap- arrest specifically the occurred when ' trailer, only emerged but fact-finding, outside appellate es- control proaches improper coercion, the extreme circumstances of obligation all under light make pecially our still inside his while he was jury’s occurred arrest favor of inferences in reasonable Id. at 893. trailer.” verdict. that Fisher was not until pect eludes arrested is not free to leave his or her dwell- police. he submitted to the ing: [Wjhether an Hodari, has occurred the issue was whether the de- pends upon objective, an subjective,

defendant had been seized within the evaluation of what a meaning person of the Fourth innocent of a crime would dropped thought time he a brick of cocaine have of the situa- tion, given running he saw officer toward him. 499 all of the factors involved. 623, at Ultimately, U.S. S.Ct. 1547. When an arrest has depends occurred Supreme each upon Court determined that there case an evaluation of all the was no seizure under these Never- surrounding facts. Primary circumstances. theless, the Court made clear: among these is a determination of whether or not the defendant was free person has been ‘seized’ within

“[A] to choose terminating between or con- meaning of the Fourth Amendment tinuing the encounter with if, the law en- in view of all the circumstances forcement officers.... incident, surrounding the a reasonable person would have believed that he was From a review of all of the circum- not free to leave.” surrounding stances the encounter be- appellant] tween 627-28, [the and the 1547, special quoting S.Ct. agents, we Mendenhall, appellant’s find 544, United States 446 U.S. occurred 554, (1980). as he stood within his home at 100 S.Ct. 64 L.Ed.2d 497 the doorway of his D. home and was first require subjective Hodari does not sub by agents confronted guns with their authority mission to police purposes for extremely drawn.... It is seizure, doubtful that a Fourth Amendment as the ma [appellant] would have believed that he jority suggests, nor any require is there was free to leave at time or to physical ment that place submission take request the officers to leave after the immediately following authority a show of initial A person, encounter. reasonable by Instead, police. it stands for the unre circumstances, under those would have proposition markable that pursuit alone is thought he was under arrest. an authority insufficient show of to consti D., tute an arrest. Hodari 499 U.S. at 892-893, Al-Azzawy, 784 F.2d at citing 629, 111 S.Ct. 1547. importantly, More Johnson, United States v. Hodari D. reiterated that the test for (9th Cir.1980), 755-56 aff'd on other when someone is seized for the purposes of grounds, 457 U.S. objective the Fourth Amendment is an (1982). L.Ed.2d 202 See also United Therefore, jurors one. twelve pre were Patterson, States sumably able to determine when “a rea Cir.1981) (citation omitted) (“Whether an person sonable would have believed that ‘depends arrest has occurred on all of the Mendenhall, was not free to leave.” he circumstances, surrounding including the 554, 100 446 U.S. at S.Ct. 1870. extent that freedom of movement is cur Al-Azzawy and the cases cited therein tailed and the degree type of force or make no mention passed of how much time authority used to effectuate the ... stop.’ police’s authority whether, between the show of question and The is under all of the physical circumstances, submission of the defendant. ‘a person reasonable would ”). Al-Azzawy, Indeed, 784 F.2d at 891. Al conclude he was under arrest.’ This is -Azzawy holds that an objective arrest occurs at the question standard. The is that police time make clear that the sus- whether a reasonable person would believe standoffs, the standard armed under the to leave free was or she

that he to leave” feels “free D., Hodari circumstances. person standard longer a reasonable no Al-Azzawy, 784 1547; 627-28, decide, subjective may but jury F.2d at 892-93. reaction suspect’s on the standard based acknowledges, this majority As the officers, and by armed being surrounded when court used the district the standard and exit guns his lay down being told to the law regarding it instructed majority per- finds it apartment. his standard changed the has Nothing arrest. quite clear that “Fisher suasive Al- we decided arrest between leave,” that Fisher not wish he did majority states today. Azzawy and go about business a desire expressed Court’s Supreme relying on the much majority ig- only does the Not at home. when, is seized person definition state- repeated Court’s Supreme nore all of circum account “taking into objective one is an that the standard ments encounter, po the the surrounding stances by the reasonable determined may be that communicated ‘have would lice conduct ignores position their jury, but on a people at that he was person a reasonable that standoffs reality armed practical the and presence the ignore liberty to ”4 irra- involve suspects often barricaded and Bos Florida v. business.’ his go about decidedly unreason- tional, and desperate, 2382, 437, tick, 429, 111 S.Ct. 501 U.S. people. able (1991) Michigan v. (quoting L.Ed.2d 569, 567, Chesternut, S.Ct. 486 U.S. analysis of the majority’s misguided The (1988) citing and 1975, 100 L.Ed.2d 565 state of on Fisher’s facts concentrates 628, D., at 111 S.Ct. 499 U.S. Hodari mountain of actions, the ignoring mind the 1547). majority now faults the Yet the jury about the evidence using instructing jury the for court district apartment surrounding the team MERGE Terry v. directly from taken language guns at Fish- blaring, pointing with sirens 1868, Ohio, 1, 19 n. 392 U.S. through out er, to come telling Fisher Mendenhall, L.Ed.2d bullhorn, phone, and tossing in a throw majority The 100 S.Ct. 1870. Fisher informing of using other means in jury improperly the was states that surrounded, that he he was that identifying for the standard structed on Here, the peacefully. surrender should new what the arrest, it fails to yet state a.m., evac- at around 7:00 arrived MERGE should regarding jury instruction a.m., and shut building at 7:30 the uated new, comprehensive be, more or suggest A reason- power at 8:48 a.m. off Fisher’s satisfy new its that would jury instruction or she that he conclude person able could standard. terminat- free choose between with the the continuing encounter announcing ing to be appears majority officers when MERGE enforcement law: law in Fourth principle a new byit arrived, be certain but would suspects that, of barricaded in context test that the for establishes meaning "Mendenhall gives much majority too 4. The objec- authority' is an of a 'show existence as used his business” phrase "go about perceived the citizen one: not whether change tive language did not Bostick. This being to restrict his one, ordered simply a he subjective but inquiry into movement, officer's whether the words but objective standard restatement conveyed to a have actions would used in Supreme Court detention D., person.” Hodari explicitly Supreme Court reasonable Mendenhall. concluded D. and Bostick in Hodari discussed was shut off. power Construing time ical force” or “submission to an assertion light the evidence most favorable to authority.” Id. at 111 S.Ct. 1547 Pavao, City, 307 F.3d at it would (emphasis original). Applying prin- this perfectly jury have been reasonable facts, ciple to the the Court concluded that to conclude that the arrest occurred when no seizure occurs while the is flee- apartment. surrounded Fisher’s ing from a authority. 628-29, show of Id. at have, people jury The twelve on the could 111 S.Ct. 1547. and in case certainly this did conclude that Hodari D. fleeing concerned in public, this behavior constituted the arrest. The streets, however, on public not a situation majority points no evidence that shows person where a is surrounded in their own that this is an interpretation unreasonable 622-23, home. See id. at 111 S.Ct. 1547 Supreme facts under Court or our (discussing facts the case—that Hodari precedent, any court’s or that other inter- began D. fleeing from the sight, officers on pretation compelled by would have been object tossed an later determined to be implied jury new or instructions. cocaine, crack and then the officer tackled Escape. C. D.). Hodari The majority’s interpretation of Hodari D. to mean that escaped conceding After could have by remaining in found that the contradicts Department San Jose Police principle that a person is purposes seized Fisher for the seized when “in a.m., view of all Fourth Amendment before the 6:30 the circumstances surround incident, majority ing raised the question the of whether or person reasonable escaped not he purposes for the of would have the believed that he was not free Fourth Mendenhall, Amendment and concluded that he to leave.”5 446 U.S. majority had. The reasons that Fisher 100 Logically, S.Ct. 1870. majority’s the “escaped” by disappearing from view and conclusion jurisprudence overturns our out, therefore, refusing to come in holding person that a is seized in his or order to again, seize Fisher the officers her purposes home for the of the Fourth warrant, had to secure an arrest or addi- Amendment when the officers make a tional arrest Nothing warrants. in the convey show force sufficient to to a D., Supreme Court’s decision in Hodari person reasonable that he is under arrest upon by relied majority the for this odd and not free to leave his home or dwelling. proposition, compels this result. Al-Azzawy, See 784 F.2d at (affirming 893 the district D., filing suspect court’s that the

In Supreme Hodari Court dis- was arrested inside his cussed the residence where question narrow defendant) “the had authority completely ap show of surrounded (pursuing the pellee’s person. weapons alone seizes the trailer with their at 625- drawn 26, 111 Supreme S.Ct. 1547. The and ordered him through Court a bullhorn to knees.”). stated that an requires arrest “either phys- leave the trailer and drop to his rejected argument 5. The escape Sixth Circuit this in tion of in the context barricaded or Brunswick, concluding Ewolski v. suspects unnecessary that surrounded creates an surrounding parading split authority, house and an ar- inter-circuit without mored compelling vehicle in front of the were house “an reason. See Kelton Arms Condo. Co., application physical intentional force and Ass’n v. Homestead Ins. authority (9th Cir.2003) (“we show of made with the intent of decline to create a acquiring physical split compelling control.'' 287 F.3d circuit unless there is a rea- (6th Cir.2002). so.”). majority’s interpreta- son to do the Su- complies with reasonable, My interpretation better, view, more my courts that admonition Court’s preme pur for the of submission interpretation purposes enforcement law “consider the sus surrounded or of barricaded poses as the time well by stop served by re be submits person pects is pur- those reasonably to effectuate needed in the remaining or maining barricaded Sharpe, 470 U.S. States poses.” United consistent interpretation home. This 84 L.Ed.2d 675, 685, 105 S.Ct. AUAzzawy and precedent our own with “common (1985). the same applies It also Al- circuits. See in other the decisions experience” ordinary human Ewolski, 893; sense F.2d Azzawy, 784 applied jury presumably 506; States also United see F.3d at Therefore, I con- Cir.1989) (10 case. Id. in this facts Maez, arrested when clude that Fisher cases.). (collecting it apartment and his is, surrounded officers there accepted that has situation a reasonable readily apparent became or effect, only peaceful one outcome—his This to leave. was not free that he person if the sus Only surrender. her eventual a.m. on 6:30 time around occurred some po successfully evades flees pect that Fisher I also conclude or other October leaving house lice blockade purposes escape not did and eludes surrounded building Amendment, offi- and that Fourth custo physical them into to take attempts required are standoffs es cers involved said to have suspect be dy, may the every time the an arrest nec to obtain becomes arrest warrant caped Because from subject disappears view. essary. had officers Fisher conceded every time suspect escapes say To they him probable cause view even public from he or she retreats remaining apartment, surrounded he or she is know that the officers though circum- exigent issue is whether surrounded, creates an building and in the seizure between the stances continued enforcement nightmare for law analytical custody of physical took the officers rob- may a bank example, agencies. For Louisiana, 536 U.S. Kirk v. Fisher. See “escape” bank suspect trapped bery 2458, 637-38, L.Ed.2d 635, 122 153 S.Ct. by ducking majority’s analysis under the (2002) ex- regarding (requiring finding 599 counter, the to requiring the behind analysis complete igent circumstances sur- continue an to obtain arrest search.). arrest and of a warrantless taking building or rounding the the situation?6 steps to resolve further Exigent D. Circumstances. per- majority’s analysis, does the Under cir- “those are Exigent circumstances or she moves “escape” every time he son a reasonable would cause officers, cumstances that out of to another room view ... neces- entry to believe person drapes or blinds? or closes the Silverman, "spike mike” officers used the impose a warrant also refuse to I would neigh heating duct from the into a inserted to utilize "throw requirement on efforts building conversations. boring to listen in on barricaded sus- phone” communicate with to 506-07, Silverman, 81 S.Ct. U.S. at majority, Kyllo 365 v. pects. The cases cited the good- 2038, is a U.S., 27, phone, the With a throw intrusion U.S. 150 533 U.S., barricad the (2001) faith effort communicate with to and Silverman v. 365 L.Ed.2d 94 679, plainly about suspect, ed who is informed S.Ct. U.S. L.Ed.2d phone back phone, is free to toss the eavesdrop suspects on involved efforts knowledge. particular, the officers. without their sary prevent physical harm to the offi jury The was instructed that “[ejxigent cers or other persons, destruction of circumstances are those which a sub- evidence, relevant the escape of the stantial risk of harm sus to the in- persons pect, or volved or to consequence some other the law improper enforcement process would arise if ly frustrating legitimate were to delay law enforcement arrest until a warrant could Brooks, concerns.” v. be obtained.” United States Although jury verdict (9th form Cir.2004). did not “The exi require the jury make a separate find- gencies must totality be viewed from the ing exigent circumstances, jury im- circumstances known to the officers at the plicitly found exigency sufficient to excuse time of the warrantless intrusion.” United the warrantless arrest when it returned a Licata, States v. 761 F.2d defense verdict. Cir.1985). As Supreme recog Court Stuart, in Brigham City nized In an “[t]he effort jury’s undermine the peace role of a determination, officer preventing majority includes latches onto order, violence States, Dorman v. restoring not simply United — (D.C.Cir.1970) (en rendering banc), first aid 392-93 and con- casualties.” —, cludes 1943, 1949, 164 because the Dorman factors do L.Ed.2d 650 not (2006). compel one clear result as to majority acknowledges that there was sufficient exigency at the time of pertinent time to determine whether arrest, erred when it implicit- an exigency exists is the time that the ly found exigency. sufficient But see effectuated, arrest is but then proceeds to States Snyder, United ignore principle. (9th Cir.1988) 473-74 (finding acts incident granted district court Fisher’s Rule to a valid did not arrest constitute addi- 50(b) motion because it found that there arrests). tional exigent were no circumstances between The majority’s acknowledgment that the 6:30 a.m. and p.m. 2:35 Mr. Fisher because facts do compel one clear result is an was not seen during noted, this time. As express concession that there is not the jury reasonably could have concluded one reasonable conclusion that contrary occurred when the jury’s verdict. Accordingly, judges MERGE team surrounded liberty are to disturb the verdict. and Fisher became aware he was sur- Pavao, 307 Moreover, F.3d at 918. rounded. Regardless, majority the pre- majority significantly understates the sumes to substitute its own version of the of gravity the circumstances. Officers ob- evidence for jury’s determinations, the served, wife, and were told Fisher’s announces that the arrest not occur did that Fisher drinking heavily while p.m. until 1:00 or time, later. At that the cleaning guns Indeed, some 18 and rifles. concludes, majority there exigent no were to drinking admitted an entire thus, circumstances and the warrantless twelve-pack of during beer evening. the arrest was invalid. Alternatively, the ma- guns Fisher moved the his apart- around jority suggests that even if the arrest oc- throughout ment the night, pointed a rifle earlier, curred surrounded general in the direction of officers more apartment, Fisher’s “it is far from clear once, occasions, than and on two aimed that sufficient exigency explain to existed directly officers, at two one of whom he the failure to a obtain warrant.” I dis- threatened to if accepted shoot she his agree, jury. as did the invitation to apartment. enter his He was public danger and immediate speak efforts to officers’

non-responsive to officers. the ramble him, than to about other with arms. to right bear Second by the ma- quoted of dicta passage The evidently jurors felt, the Officers that requirement a support not jority does the threat to posed a that Fisher agreed, effort good-faith make a law enforcement and the public the security of safety and they claim an every time a warrant to seek officers. the warrant.7 excuses exigent circumstance Rather, passage quoted the Id. at 883. heavily on Unit- relies majority also The proposition the unremarkable stands (9th Alvarez, ed States present suffi- must government Cir.1987) that we argument an support or exigent circumstances evidence cient a war- effort obtain good-faith a require a obtaining justification for not other some government every where case rant circumstances do not exigent if warrant Alvarez exigent circumstances. claims Id. exist.8 the exi- because factually distinguishable Circuit, Bing in Estate Sixth in Alvarez claimed circumstance gent Whitehall, strikingly analyzed a another feared that the stand- involving an armed situation if there similar suspicious might become location unstable, intoxicated an delivery possibly off with delay before was additional did not exigency and decided “that person Fur- Id. at 880. of cocaine. amount large of time or passage due to terminate thermore, in Alvarez was holding 555, 565 456 F.3d actions.” police’s did exist exigent circumstances Cir.2006). (6th Cir- the Sixth Specifically, of, or failure excuse absence could time that, did passage “[t]he cuit noted obtain, warrant. See id. an arrest exigency because terminate the exigent conclusion of (reviewing “a nothing to cut clock off ticking of the did concluding novo and de circumstances” cure him of his gun, to his or Bing’s access were actions this case agent’s that “[t]he it, safety move to to fire any willingness with fundamentally inconsistent thus to evacuate.”9 nearby who refused case, people brand- In this exigency.”). true had to take time Noting that the Id. by threats accompanied ishing of firearms backup, and intelligence, gather wait officers, drinking, and against Circuit con- plan, Sixth their all a real execute created Fisher’s erratic behavior standoff, may have been officers entitled passage from reads: 7. The full Alvarez immunity. qualified obtaining argues government task, easy telephone is not warrant Circuit, States v. points decision in United ironically, it to our cited this Sixth 9.The Good, decision at 775. But our Lindsey, States v. opinion in United court's govern- invariably require does not here Cir.1989), where 782-83 it telephone to have a ment improper to it was evalu- concluded suspect. simply dangerous It moves in exigent after the warrant- circumstances ate good government attempt, in requires to the delay while entry, and that a one-hour less faith, present or a warrant to secure dissipate backup “did not waited for officers why telephone war- explaining evidence majority the district exigency.” and the impractical. rant was unavailable may analyze exi- position that courts court's 883. a surrounded sus- gency the seizure of after view, Because, majority negate my any the an- facts pect, 8. without evidence of circumstance, requirement implicitly warrant exigent nounces new the initial exigent circumstances armed standoffs Lindsey. overrules the end of the clearly continue until exist and safety acts “did not terminate as the public, particularly eluded that these the Furthermore, exigency.” the Id. the Sixth since the took in an place apart- events in- gathering decided that “the complex. Construing Circuit ment the evidence by police, even the face of light formation City, most favorable to the as we danger, negate a dan- do, immediate does required are it cannot be said that gerous exigency.”10 Id. 566. addi- jury was in concluding unreasonable tion, Bing in Estate Sixth Circuit exigent that there were circumstances that the use of analyzed alternative means— justified the City’s failure to obtain war- using pepper gas bag phone and a rant arresting Fisher around 6:30 —for standoff, they and found that resolving a.m., and that exigent circumstances negate exigency. did not Id. at 566— continued throughout the standoff. Armed are danger- standoffs fluid and majority’s decision creates a clear tense, stressful, ous situations that are and split analyze

circuit exigent how require difficult peace- decisions resolve standoff, circumstances an armed be- fully. all of them peace- Not result in the cause it cannot be reconciled with the Ewolski, ful suspect. surrender of the See Bing. Sixth Circuit’s decision in Estate disturbed, 287 F.3d at (mentally 499-500 reasonably If the can Sixth Circuit con- armed, dangerous father shot his son exigency clude that that created the himself.). time, At a standoff can need for officers to surround the home of end, or explode it can into violence. Some- irrational, intoxicated, possibly armed times, hostages Imposing are involved. gunman negated was over the course must, requirement that officers at some pepper of a five-hour standoff or the use of arbitrary point and undefined in an armed gas bag why and a phone, impos- then is it standoff, seek an arrest warrant is con- reasonably sible for a reach the trary precedent to our concluding that exi- same conclusion? gency is established at the time of arrest negated by and continues until some new jurors in

The twelve this case could have act or Lindsey, fact. See 877 F.2d at 781- reasonably found there was no evi- (concluding circumstances outside of the dence that sometime between 6:30 a.m. dissipate officers’ control did not the exi- p.m., and 2:35 the officers knew that Fish- Furthermore, gency.). imposing addition- longer er no had to guns, access was no al irrational, requirements on the use of longer longer or was no intoxi- pepper gas, phones, throw and alternatives nothing cated. There is in the record that deadly during force armed affirmatively negates standoffs exigency created firearms, would not by Fisher serve Fourth Amendment’s when he had 18 loaded others, purpose preventing pointed po- threatened his rifle at unreasonable seizures, lice, intoxicated, searches and would create unnec- acting irra- tionally. circumstances, law, essary may Under these offi- confusion about the ample grounds seriously ultimately endanger cers had to be public, police, safety concerned about their own as well suspect. and even the stated, Supreme principle exigent As Court has this ''[t]he in the context of cir- Clarke, require police Fourth Amendment does not cumstances. See Ortiz-Sandoval delay investiga- Cir.2003) (denying officers to in the course of an gravely endanger if corpus delay by police tion to do so would their habeas where for in- Hay- vestigation lives or negate exigent the lives of others.” Warden v. did not circum- den, 294, 298-99, stances); Newland, Bailey v. (1967). (9th Cir.2001) (same). recognized L.Ed.2d 782 We have also Plaintiff-Appellant, Af-Cap Inc., CONCLUSION v. a verdict reached in this case jurors The sufficiently supported that was Congo, Republic Defendant- The under entirely proper evidence, but Appellee, precedents. our own Court Supreme v. reached addition, in this case jurors Corporation; Chevron Texaco Chevron conclusion—that eminently reasonable Energy Inc.; Chevron be Texaco Global should Department Police Jose the San Inc., Petroleum Overseas dangerous Texaco handling this commended Third-party-defendants-Appellees. ultimately bringing properly, situation resolution. The Sixth peaceful about Inc., Af-Cap Plaintiff-counter- facts, reached Circuit, analyzing similar defendant-Appellant, jury in Estate as the conclusion the same Lindsey precedents own Bing. Our v. in accord with Al-Azzawy are Limited; (Congo) Chevron Overseas Making all infer decision. Circuit’s Sixth (Congo) Limit International Chevron verdict, jury’s of the in favor ences Company Limit ed; Gulf Oil Cabinda interpretation a reasonable conclusion Congo, ed; Republic Defen The facts, by substantial supported dants-Appellees, Therefore, district court evidence. judgment granted have should Corporation; Texaco Chevron Chevron notwithstanding the verdict. Inc.; Energy Chevron Texaco Global Inc., De Petroleum Texaco Overseas reasons, I reverse would For these fendants-counter-claimants-Appel renewed grant of Fisher’s district court’s lees. of law judgment as a matter motion for jury’s verdict. and reinstate Inc., Plaintiff-Appellant, Af-Cap

v. Congo, Republic Defendant- Appellee, INC., Plaintiff-counter- AF-CAP Corporation; Texaco Chevron Chevron defendant-Appellant, Inc.; Energy Chevron Texaco Global Inc., Petroleum Texaco Overseas Third-party-defendants-Appellees. (CONGO) OVERSEAS CHEVRON LIMITED; Chevron International 04-16388, 04-16387, 04- Nos. Limited; (Congo) Gulf Oil Cabinda 16788 and 04-16810. Limited; Republic of Company Appeals, United States Court Congo, Defendants-Appellees, Ninth Circuit. Corporation; Texaco Chevron Chevron April Argued and Submitted Inc.; Energy Chevron Texaco Global Filed Jan. Inc., De Texaco Overseas Petroleum fendants-counter-claimants-Appel

lees.

Case Details

Case Name: Fisher v. City of San Jose

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 16, 2007

Citation: 475 F.3d 1049

Docket Number: 04-16095

Court Abbreviation: 9th Cir.