Metropolitan News-Enterprise


Wednesday, January 17, 2007


Page 1


Ninth Circuit Faults Police for Throwing Gas Canisters Into Home


By Kenneth Ofgang, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld a magistrate judge’s ruling that San Jose police used excessive force as a matter of law by throwing gas canisters into a man’s home in order to force him to come out to submit to arrest.

The city, which won a defense verdict on all of Steven Fisher’s claims, appealed after Magistrate Judge Patricia V. Trumbull granted judgment as a matter of law on Fisher’s claim that he had been subjected to an unreasonable warrantless arrest. Turnbull ordered that the city pay a dollar in damages, and issued an injunction requiring changes in the city’s training of its officers.

Police, according to trial testimony, came to the apartment complex where Fisher lived after a security guard reported that he was armed and intoxicated, and had responded strangely to the guard’s questions about noises coming from another apartment.

A police sergeant tried to talk Fisher out of the apartment, but he just spoke in a rambling fashion about Second Amendment rights. It was later established that he was drinking beer that night while watching television and cleaning some of the 18 guns he owns.

Hours-Long Standoff

Fisher eventually became involved in a standoff with more than 60 officers. A tactical negotiator came to the scene and tried to talk him out, but Fisher was unmoved and told her he would shoot her if she came in.

He repeatedly told police to go away and leave him alone.

After several hours, police had Fisher’s power shut off, then two hours later set of a “flash-bang” device in an effort to disorient him. Two hours later they began throwing CS gas canisters, sending glass flying and causing Fisher to suffer a cut to his forehead.

He eventually emerged, unarmed, and was shot in the leg with a “sage gun” firing rubber bullets before being taken into custody. He was charged with exhibiting a firearm against a police officer, which is a felony, but the jury deadlocked and he pled no contest to a misdemeanor charge of brandishing a firearm in the presence of a security officer.

Judge Marsha Berzon, writing for the Ninth Circuit, explained that even if exigent circumstances would have justified Fisher’s arrest at an earlier time, the throwing of the gas canisters and the subsequent show of force used to induce Fisher to leave the house and submit to arrest were discreet “entries” for Fourth Amendment purposes.

‘Entries’ Unreasonable

Those entries were unreasonable, the judge concluded, because the police had sufficient time and sufficient manpower to seek a warrant.

Senior Judge David Thompson concurred, but Judge Consuelo Callahan dissented.

Callahan argued:

“What we have here is a very dangerous situation that was resolved safely for all concerned — Fisher, the public, and the police — because of good police work. Nevertheless, the majority undertakes to micro-manage, or worse, browbeat the police for failing to obtain a telephonic warrant in the midst of a police standoff that could have turned deadly at any moment. After reviewing all the facts and receiving proper instructions on the law, twelve jurors unanimously found that the police had handled the situation lawfully. We should accept the wisdom of the jurors’ decision.”

Berzon responded that while Callahan argued “quite sensibly” that Fisher had created a dangerous situation that “did not dissipate until he succumbed,” that did not excuse the police from the requirement of seeking a warrant absent a showing that they lacked the time or the personnel to do so.

The case is Fisher v. City of San Jose, 04-16095.


Copyright 2007, Metropolitan News Company