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Laura L. Scarry | From the August 2009 Issue Thursday, August 13, 2009

Standoffs

Members of a SWAT unit attempt to throw a black box into a second floor apartment window during a standoff in Midlothian. Standoffs

FEATURED IN INVESTIGATION

• The Phone as Evidence
• On the Spot Detection
• Investigations: 10 Things Not to Do
• New Jersey Officers Being Investigated for Rap Videos
• Proof Positive
• San Diego Policeman Investigated over Hair-Pulling
• Emerging Drug Trends

This should sound familiar: Dispatched to investigate a report of a noise complaint, police officers find themselves faced with an individual who is impaired by either drugs and/or alcohol, or a mental illness; who is armed; and who has retreated into their residence, refusing to come outside despite lawful police requests. In sum, officers are confronted with an “armed, barricaded subject.”

Law enforcement would normally set up a perimeter of responding officers to contain the barricaded individual and, depending on the responding agency’s resources, request a specialized team to assist. They may also try to communicate with the barricaded individual. Much of this activity takes place carefully and swiftly. But then, although officers remain alert, there may be a lull in activity. This individual may be sleeping, refusing to communicate or simply “waiting it out.” In other words, the “emergency” that created the need for immediate response has temp­orarily subsided. 

These seemingly innocuous pauses in activity give the impression that officers are permitted to let their guard down. Perhaps the respite presents an opportunity for some officers who have been on scene for several hours to grab a snack, water or a much-needed bathroom break. It might even be an occasion to develop additional strategies to bring the subject out peacefully. 

Does the break in action mean that responding law enforcement officers must obtain an arrest warrant to arrest the subject in his home? After all, the so-called “exigency” is no longer there, right? This was the issue presented in  Fisher v. City of San Jose et al. [1]</< P>

Fisher v. San Jose
On Oct. 23, 1999, Steven Fisher purchased two 12-packs of beer in preparation for an evening of watching the World Series while cleaning rifles from his collection of 18 bolt-action World War I and II era firearms. After the game ended, Fisher continued to clean his weapons while taking periodic breaks to read a book titled, The Second Amendment Primer.

Around 1 a.m., a security guard at Fisher’s apartment complex was investigating loud music coming from a residence above Fisher’s apartment. Fisher, who lived on the ground floor, exited the sliding glass door from his living room onto the patio after seeing the security officer. Fisher, carrying a rifle, approached the security guard.

The security officer asked Fisher if the residents upstairs were home. Instead of responding to the question, Fisher asked why he needed to know this information and rambled on about the Second Amendment. The guard suspected that Fisher was intoxicated and noticed that Fisher was becoming more agitated. During this short conversation, Fisher shifted the position of his rifle so that it was either pointing at the guard or in his direction. The guard quickly left and reported the incident to his supervisor, who, in turn, notified police.

At around 2 a.m., a sergeant who had responded to the scene, tried to get Fisher’s attention by throwing rocks at the sliding glass doors leading to Fisher’s apartment. Fisher emerged from the apartment and, again, rambled on about his Second Amendment rights. He also threatened to shoot the sergeant if he came on or near Fisher’s property, informing him that he had 18 guns in his residence. Fisher then retreated inside.

The sergeant called for assistance. Law enforcement set up a perimeter, and neighbors who were in any lines of fire were removed from the scene. The sergeant called Fisher’s apartment. Fisher’s wife answered and agreed to come outside. She confirmed that Fisher was extremely intoxicated and that he had 18 rifles in the house.

As the standoff progressed, Fisher could be seen loading ammunition into several magazines and cartridges into rifles. He was also seen strategically placing his weapons around his apartment. Meanwhile, he continued to consume his beer.

A negotiator attempted to communicate with Fisher. At one point, he invited the negotiator into his apartment, but then told her he would shoot or kill her if she entered. He also told the police, “I have guns. I will use them,” and “Leave me the f*** alone. I don’t believe in your laws.” Fisher was last seen holding a rifle at around 6:30 a.m.

At 7 a.m., the San Jose Police Department’s (SJPD) Mobile Emergency Response Group and Equipment unit (MERGE) responded and took control of the scene. Throughout the next several hours, MERGE made several attempts to communicate with Fisher: They used bullhorns, shut off electrical power, drove an armed vehicle with its siren activated on the lawn in front of Fisher’s patio and threw a “throw phone” onto the patio. After those techniques failed, MERGE used a flash-bang device and shot canisters of tear gas into the apartment. But Fisher stayed put.

At about 2:15 p.m., after speaking with a negotiator, Fisher agreed to exit his apartment. The agreement was to have Fisher walk toward the officers with his hands above his head and then lie on the ground. Fisher took several steps out of his apartment, but then hesitated and turned around. At that point, Fisher was shot in the leg with a less lethal rubber bullet and taken into custody.

Note: At no time did any member of the SJPD attempt to obtain an arrest warrant for Fisher’s arrest.

Fisher was charged with felonies, but at his criminal trial, the jury deadlocked. Ultimately, Fisher pleaded no contest to a misdemeanor charge of brandishing a firearm in the presence of a security guard.

Eventually, Fisher and his wife filed a federal civil rights lawsuit against the City of San Jose, the SJPD and the officers involved in the standoff. The complaint alleged, among other things, that the police violated his rights under the Fourth Amendment to be free from an unreasonable seizure based on the officers’ failure to obtain an arrest warrant before Fisher was physically arrested and on the purported use of excessive force to effectuate that arrest.

The case was tried before a jury, and the jury returned a verdict in favor of the police on each of the claims. However, Fisher made a motion for judgment as a matter of law (JMOL).[2] The district court granted the motion on Fisher’s warrantless arrest claim only, and ordered the city to pay Fisher $1 in nominal damages. The court also ordered that the city train its officers on Fourth Amendment law regarding arrests of suspects in their homes.

The police appealed the district court ruling to the Ninth Circuit Court of Appeals, which upheld the ruling. Eventually, the case was reheard by the Ninth Circuit Court of Appeals en banc. [3]

The Issue
Fisher and the police agreed on several legal aspects of the case. First, they agreed that although Fisher was taken into physical custody outside of his home, he was legally seized inside his home. As such, the burden was on the police to demonstrate either 1) they obtained an arrest warrant or 2) there was an exception to the warrant requirement that excused the police from getting one. In this particular case, the police argued that “exigent circumstances” existed.

Second, the parties agreed that there was probable cause to arrest Fisher under California law. Finally, they agreed that exigent circumstances existed to arrest Fisher prior to 6:30 a.m., the last time he was seen holding a gun. As such, the police could have lawfully entered Fisher’s apartment and used force if necessary to effectuate his arrest.

The issue to be decided by the en banc appellate court was whether the police were required to obtain an arrest warrant before taking Fisher into full physical arrest several hours after exigent circumstances and probable cause justified Fisher’s seizure. According to Fisher, a suspect is “seized” in an armed standoff by virtue of being surrounded by the police and ordered to surrender. The passage of time may operate to “free” the suspect and revive the requirement for an arrest warrant, thus requiring the police to reassess whether the circumstances remain exigent.[4] The en banc appellate court correctly disagreed.

The En Banc Decision
The en banc appellate court concluded that “when Fisher was seized at the beginning of the standoff, the officers were not required to periodically reassess whether the exigency persisted throughout the standoff because the standoff was ‘no more than an actual continuation’ of the initial seizure.”[5] In fact, the entirety of the standoff was “done to alleviate the exigent circumstances that precipitated it.”[6] Another factor noted by the appellate court: “the exigent circumstances that precipitated the initial seizure did not materially change from the beginning of the standoff to the end.”[7]

The facts demonstrated that the armed standoff was a single, uninterrupted, fluid Fourth Amendment engagement between Fisher and the police, a continuous process of formalizing Fisher’s arrest that began in the early morning hours.[8] The appellate court stated that it was of no consequence that Fisher wasn’t seen with a weapon after 6:30 a.m. According to the court, this “is not the sort of break in the action that would effectively terminate the first seizure and mark the beginning of a second.”[9] The court noted that Fisher didn’t escape from the house, nor did the police withdraw from the scene or abandon their efforts to arrest Fisher. As such, there was no significant event that would “re-trigger the warrant requirement and compel the police to inquire as to whether exigent circumstances still existed.”[10]

The en banc court went on to assert that “requiring the police in this type of siege environment to obtain an arrest warrant for Fisher, a person who is already under arrest but not yet in full physical custody, serves no practical purpose. Given that police had ample probable cause to arrest Fisher for felonies committed in their presence, any warrant obtained by the police would have merely authorized them to do exactly what they were already doing, and indeed, exactly what they were already authorized to do: surround Fisher’s home and attempt to neutralize the threat that he posed by arresting him.”[11]

According to the court, once police have probable cause to arrest, and there exist exigent circumstances in situations involving armed barricaded subjects, “no constitutionally mandated role remains for the magistrate judge. A court can certainly later examine the officer’s actions in connection with challenges to the basis for probable cause, and discharge the defendant from criminal prosecution if evidence is lacking. A civil rights suit may be pursued for using excessive force. But suggesting that a magistrate judge should be telling police in the middle of the standoff that they must withdraw or what tactics are permissible does not strike us as a reasonable role for a judicial officer under the Fourth Amendment.”[12]

“The task of managing armed standoffs is best left to those trained to handle them. Indeed, the Constitution does not envision judges assuming the role of incident commander in determining how best to resolve a standoff.”[13]

Finally, requiring officers to obtain a warrant in the middle of an armed standoff would present an “unreasonable legal obstacle of questionable value that only encourages the kind of judicial second-guessing the Supreme Court has repeatedly condemned.”[14] Citing to Graham v. Connor, the court reiterated that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”[15]

The Bottom Line
In sum, the Fisher court held that the mere passage of time doesn’t resuscitate the need for a formal warrant during a continuing armed standoff when the requirement for a warrant was initially excused by exigent circumstances.[16] In other words, if there’s no “break” in the standoff, such as the suspect escaping and then retreating back into his home or police officers leaving the scene and then returning, the standoff is considered to be a “continuing, fluid” event. As such, there’s no need for police to attempt to obtain an arrest warrant. On the other hand, if there is such a “break” and there are no exigent circumstances or other exceptions to the warrant requirement, police officers should contact a judge for the purpose of obtaining an arrest warrant.         

References

1. 558 F.3d 1069 (9th Cir. 2009)
2. JMOL is decided by the standard of whether a reasonable jury could find in favor of the party opposing the JMOL motion. If there’s no evidence to support a reasonable conclusion for the opposing party, judgment is entered by the court and the case is over.
3. French for “by the full court” or “in the bench.” It refers to when all the members of an appellate court hear an argument.
4. Fisher, 558 F.3d at 1076
5. Id. at 1077
6. Citing United States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986) and Bing ex rel. Bing v. City of Whitehall, 456 F.3d 555 (6th Cir. 2006)
7. Fisher, 558 F.3d at 1077
8. Id.
9. Id. at 1077-78
10. Id. at 1078
11. Id.
12. Id. at 1080
13. Id. at 1081
14. Id.
15. Id.
16. Id. at 1084