Fisher
Fisher v. City of San Jose
Opinion
dissent Opinion
Callahan, J.
dissenting:
I respectfully dissent.
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 penalizes the police by announcing a new warrant requirement *969 and imposing liability upon them for failing to obtain a telephonic arrest warrant in the midst of a police standoff that could have turned deadly at any moment. 1 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.
As judges, we should not arm-chair quarterback a crisis from the safety of our chambers. Such post-game analysis is disconnected from reality and leads to the puzzling determination in this case that San Jose police officers need training despite the jury’s finding that they did nothing wrong. The police handled the situation in exemplary fashion and in full compliance with the law. Exigent circumstances excused the warrantless arrest, and the exigent circumstances continued until the police completed that arrest when Fisher…
lead Opinion
Berzon, J.
Opinion by Judge BERZON; Dissent by Judge CALLAHAN.
ORDER
The opinion filed on January 16, 2007 is hereby withdrawn and replaced by this concurrently filed opinion. The pending petition for rehearing en banc is denied as moot. The parties may file new petitions for rehearing.
OPINION
Steven Fisher claims constitutional violations stemming from a twelve-hour standoff at his apartment between him and a large number of San Jose police officers, at the end of which he came out of the apartment and submitted to arrest. He sued the city of San Jose (“the City”) and several officers under 42 U.S.C. § 1983 , contending, among other things, that the arrest was invalid because the police never obtained or attempted to obtain a warrant. A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court’s ruling…
Opinion
Before: DAVID R. THOMPSON, MARSHA S. BERZON, and CONSUELO M. CALLAHAN, Circuit Judges.
Opinion by Judge BERZON; Dissent by Judge CALLAHAN.
The opinion filed on January 16, 2007 is hereby withdrawn and replaced by this concurrently filed opinion. The pending petition for rehearing en banc is denied as moot. The parties may file new petitions for rehearing.
BERZON, Circuit Judge:
Steven Fisher claims constitutional violations stemming from a twelve-hour standoff at his apartment between him and a large number of San Jose police officers, at the end of which he came out of the apartment and submitted to arrest. He sued the city of San Jose ("the City") and several officers under 42 U.S.C. § 1983 , contending, among other things, that the arrest was invalid because the police never obtained or attempted to obtain a warrant. A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City, the district court ordered the City to pay nominal damages of one dollar and issued an…