Metropolitan News-Enterprise


Thursday, March 12, 2009


Page 1


Court Says Police Justified in Warrantless Arrest After Standoff




The Ninth U.S. Circuit Court of Appeals yesterday overturned a magistrate judge’s ruling that San Jose police violated an apartment dweller’s civil rights by forcing him out with tear gas and arresting him without a warrant following a 12-hour standoff.

In a 6-5 en banc decision, on rehearing of a panel ruling to the contrary, the court reinstated a jury verdict in favor of the city.

Judge Richard Tallman, writing for the court, said officers acted reasonably after Steven Fisher precipitated the standoff by holing up with 18 rifles, two cases of beer, and a book called The Second Amendment Primer  and threatening to shoot a police tactical negotiator if she entered. Security guards at the complex said they called police after Fisher became agitated when one of the guards came to the apartment in response to a noise complaint.

Single Episode

Tallman—joined by Judges Diarmuid F. O’Scannlain, Pamela Ann Rymer, Ronald M. Gould, Jay S. Bybee, and N. Randy Smith—concluded that the entire standoff had to be viewed as a single episode for Fourth Amendment purposes.

“We conclude that once exigent circumstances and probable cause justified Fisher’s seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later,” the judge said.

The three-judge panel’s view, that exigent circumstances may dissipate over time, permitting police or prosecuters the opportunity to seek a warrant without danger to the public or the officers on the scene, “further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection,” Tallman wrote.

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 gun ownership rights.

Fisher eventually became involved in a standoff with more than 60 officers. 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.

Dissenting Judges

Judge Stephen Reinhardt, joined by Chief Judge Alex Kozinski and Judges Harry Pregerson, Sidney Thomas, and Richard A. Paez, argued in dissent that police should have sought a warrant “before escalating their initial interference with Fisher’s Fourth Amendment rights.”

The Fourth Amendment, he argued, was violated because the police had sufficient time and sufficient manpower to seek a warrant.

“Although more than 60 officers participated in the standoff, no officer sought a warrant at any point during the 12 hours in which the incident transpired. Some of the officers who first responded to the incident left the scene at 7 a.m,”—the standoff ended after 2 p.m.—“and returned to the police station; these officers, for example, could easily have prepared a warrant application and sought a magistrate’s approval, without adversely affecting the police activities at the standoff in any way,” Reinhardt wrote.

Paez, joined by Reinhardt, Pregerson, and Thomas, noted in a separate dissent that prosecutors in Santa Clara County are available 24 hours a day to assist the police in obtaining warrants, that a magistrate is available at all hours to issue warrants, and that California law authorizes the issuance of arrest warrants based on telephonic application, with follow-up by fax or email.

Knowing that, Paez argued, officers should have sought a warrant for Fisher’s arrest between 2 a.m., when the standoff began, and 6:30 a.m., when the police constructively “seized” Fisher by established a perimeter around the residence, so that he was not free to leave.

In a footnote, Tallman called Paez’s view “innovative” but in conflict with evidence from which ‘a reasonable jury could readily conclude that Fisher knew the reasons for and the extent of the police presence” at the beginning of the standoff.

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


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