A federal appeals court in San Francisco ruled today that San Jose police did not need a warrant to arrest a man who was intoxicated and brandishing rifles inside his apartment during a 12-hour standoff in 1999.A panel of the 9th U.S. Circuit Court of Appeals ruled by a 6-5 vote that Steven Fisher’s civil rights were not violated when police arrested him without a warrant at the end of the standoff on Oct. 24, 1999.Circuit Judge Richard Tallman wrote that the confrontation was an “uninterrupted, fluid engagement between Fisher and the police” and that emergency circumstances justifying a warrantless arrest continued throughout the event.The 11-judge panel reversed a ruling in which a three-judge panel of the same court ruled by a 2-1 vote in 2007 that police should have obtained an arrest warrant from a court.Fisher had begun the evening before the standoff by drinking beer, watching the World Series on television and cleaning his collection of 18 World War I- and World War II-era rifles.After a security guard inquired about noise coming from the apartment shortly before 2 a.m. on Oct. 24, Fisher pointed a rifle at the guard and soon afterwards threatened and brandished rifles at police officers summoned by the guard. Eventually, more than 60 officers working in two different shifts participated in the effort to get Stevens to surrender. At various points they tried negotiation, used bullhorns, shut off electrical power and fired tear gas canisters into the apartment.The siege ended peacefully when Stevens surrendered at 2:15 p.m. He eventually pleaded no contest to a misdemeanor charge of brandishing a firearm in the presence of a security guard. Stevens and his wife, Sandra Fisher, contended in a federal lawsuit in 2001 that the warrantless arrest violated his constitutional Fourth Amendment right to be free of unreasonable search and seizure. They claimed the exigent, or emergency, circumstances dissipated after 6:30 a.m., the last time that Stevens was seen with a rifle, and that police then had time to obtain an arrest warrant. But the appeals court majority said the emergency circumstances continued so long as police were actively trying to arrest him.Tallman wrote that the 12-hour standoff “was the product of
(Fisher’s) own creation.”The judge wrote, “It is undisputed that Fisher’s criminal acts and his unwillingness to surrender, combined with his bizarre and dangerous conduct, triggered the armed besiegement.”
Judge Stephen Reinhardt said in a dissent signed by four other judges that the majority opinion failed to “respect the historic Fourth Amendment principles that give meaning to the warrant requirement.” Reinhardt said police “had more than enough time and opportunity to procure a warrant” before taking invasive actions such as throwing the tear gas into the apartment.Donald Kilmer, lawyer for the Fishers, said the couple’s lawyers had not yet consulted with them and no decision had been made on whether to appeal to the U.S. Supreme Court. Kilmer said, “We’re disappointed. We think the dissent got it right. It was obviously a close call.”
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