Sunday, March 15, 2009

Case o' The Week: Fish-er Cut Bait on the Fourth? Ninth Guts Warrant Requirement for Exigency Cases

Writing for the majority in a very disappointing en banc decision, Judge Tallman (right) holds that a situation creating exigent circumstances -- once underway and if still on-going -- obviates the need for an arrest warrant, even if there is ample time and opportunity to get the warrant. Fisher v. City of San Jose, No. 04-16095,__ F.3d __, 2009 WL 606132 (9th Cir. March 11, 2009) (en banc), decision available here. A divisive opinion that arguably parts way with longstanding Fourth Amendment jurisprudence, and that sparks two forceful dissents.

Players: Decision by Judge Tallman, dissents by Judges Paez and Reinhardt.

Facts: Fisher, drunk, confronted a security guard with a rifle in his apartment complex. Id. at *1. The situation devolved until over sixty San Jose police officers were involved. Id. at *2. Rambling Second Amendment diatribes, Fisher threatened police from inside his apartment and loaded over a dozen rifles stashed in strategic locations. Id. He was last seen holding a rifle at 6:30 am. Id. at *3.

A stand-off developed, until at 2:15 p.m. twelve hours after the event began – Fisher began to surrender. He was shot with a rubber bullet when he hesitated. Id.

When he sued San Jose and the cops in a § 1983 action, the federal court granted his Rule 50(b) motion, awarded him a buck, and ordered Fourth Amendment training on the theory that the cops had time to get an arrest warrant, and didn’t. Id.

The civil defendants appealed. San Jose and the cops conceded that Fisher was “seized” within the apartment, and Fisher conceded that at 6:30 am (when he last brandished a gun) an exigency existed that justified his warrantless arrest. Id. at *5.

A three-judge panel of the Ninth affirmed the district court’s award (twice); the case went en banc.

Issue(s): “[I]n an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender, [may] the passage of time . . . operate to liberate that suspect, re-kindle the arrest warrant requirement, and require police to assess with each passing minute whether the circumstances remain exigent [?]” Id. at *6.

Held: We hold that, during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody.Id. at *1.

Of Note: In a tempered and persuasive dissent, Judge Paez observes that the majority has flatly ignored the second part of the exigency rule: that an exigency exists, “and that there was no time to obtain a warrant before taking action to alleviate the exigencies.” Id. at *14 (emphasis in original). The cops had Fisher pinned down for at least eight hours since the 6:30 exigency, some had gone back to their station, and there was a D.A. and magistrate on call who could have processed an arrest warrant. Id. at *17. In Judge Paez's view, the majority decision “undermines, rather than clarifies, our Fourth Amendment jurisprudence.” Id.

In a less-tempered, but equally persuasive, dissent, Judge Reinhardt (joined by Chief Judge Kozinski and Judges Pregerson, Thomas, and Paez) challenges the majority’s characterization of controlling authority: “The majority may wish the law were different, but we must apply it as it is, and the law as of today limits warrantless intrusions into the home for the purposes of a search or seizure to instances in which exigent circumstances exist - that is, circumstances in which the police do not have time to procure a warrant.” Id. at *22.

How to Use: The dissenters are right: this is a disturbing decision that veers radically from Fourth Amendment precedent. Making matters worse, Judge Tallman makes little effort to limit this dramatic new Fourth Amendment rule to the extraordinary circumstances of this case. Fisher guts 50% of the exigency analysis; the focus, now, must apparently be on whether an actual exigency existed.

Maybe the majority’s phrase in its holding,“so long as the police are actively engaged in completing his arrest,” gives us a little hope for distinction – but this is a faint ember from which to flame an argument.

For Further Reading: This opinion is an example of the “classic 9th U.S. Circuit Court of Appeals contretemps,” opined the Recorder’s Dan Levine. See article here. John Wesley Hall, Jr., over at Fourth, gets it right: “This is another example of hard cases make bad law.” See article here.

Image of Judge Richard Tallman from

Steven Kalar, Senior Litigator N.D. Cal. Federal Public Defender. Website at


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Anonymous Anonymous said...

I argued this case for Mr. Fisher. Thinking of petitioning for SCOTUS cert. Comments?

Tuesday, March 17, 2009 2:13:00 PM  

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