FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

STEVEN FISHER,                           
                  Plaintiff-Appellee,
                 and
SANDRA FISHER,
                            Plaintiff,
                v.
CITY OF SAN JOSE,                              No. 04-16095
             Defendant-Appellant,
               and
                                                D.C. No.
                                             CV-01-21192-PVT
CITY OF SAN JOSE POLICE                         OPINION
DEPARTMENT; OFFICER BOLER;
OFFICER BARNETT; OFFICER CORREA;
OFFICER ESQUIVEL; OFFICER HONDA;
OFFICER KINSWORTHY; OFFICER
O’BRIEN; OFFICER RYAN; OFFICER
NGUYEN,
                      Defendants.
                                         
       Appeal from the United States District Court
           for the Northern District of California
     Patricia V. Trumbull, Magistrate Judge, Presiding
                  Argued and Submitted
           June 26, 2008—Pasadena, California
                    Filed March 11, 2009
   Before: Alex Kozinski, Chief Judge, Harry Pregerson,
       Stephen Reinhardt, Diarmuid F. O’Scannlain,
 Pamela Ann Rymer, Sidney R. Thomas, Ronald M. Gould,
  Richard A. Paez, Richard C. Tallman, Jay S. Bybee, and
             N. Randy Smith, Circuit Judges.

                             3135
3136    FISHER v. CITY OF SAN JOSE
       Opinion by Judge Tallman;
         Dissent by Judge Paez;
       Dissent by Judge Reinhardt
                     FISHER v. CITY OF SAN JOSE                  3139
                            COUNSEL

Scott Attaway (argued), Deputy City Attorney, San Jose, Cal-
ifornia, for the defendants-appellants.

Donald E.J. Kilmer, Jr., San Jose, California, for plaintiff-
appellee.


                             OPINION

TALLMAN, Circuit Judge:

   We address the Fourth Amendment’s exigent circum-
stances doctrine in the context of armed standoffs. Steven
Fisher triggered a standoff with San Jose police after he
pointed a rifle at a private security guard who was investigat-
ing loud noises in Fisher’s apartment complex. When the
police arrived at his apartment, a noticeably intoxicated Fisher
pointed one of his eighteen rifles at the officers and threatened
to shoot them. The ensuing standoff lasted more than twelve
hours and ended peacefully when Fisher finally emerged and
allowed himself to be taken into custody. We hold that Fish-
er’s civil rights were not violated when police arrested him
without a warrant.

   Fisher and his wife sued under 42 U.S.C. § 1983 naming
the City of San Jose, its police department, and several of its
officers (collectively, “police”). The suit alleged, among other
claims, that police violated Fisher’s Fourth Amendment right
to be free from unreasonable seizure by arresting him in his
home without a warrant. The case went to trial, and the jury
found that exigent circumstances excused the need for a war-
rant.1 The district court nonetheless granted Fisher’s renewed
  1
   The jury also rejected Fisher’s claim that excessive force was
employed to effect his arrest and found that no custom or policy of the
City of San Jose existed to cover up police handling of armed standoffs
by failing to properly investigate alleged misconduct by the officers
involved.
3140               FISHER v. CITY OF SAN JOSE
motion for judgment as a matter of law, holding that no rea-
sonable jury could have found that there was insufficient time
to obtain a warrant. The police appeal.

   We consider whether sufficient evidence supports the
jury’s verdict. We believe so, and in reaching this conclusion,
we take the opportunity to clarify our jurisprudence relating
to the Fourth Amendment’s application to armed standoffs.
We hold that, during such a standoff, once exigent circum-
stances justify the warrantless seizure of the suspect in his
home, and so long as the police are actively engaged in com-
pleting 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. We therefore reverse the district court
and remand with directions to reinstate the jury’s verdict and
enter judgment in favor of the police.

                               I

                               A

  We recount the evidence in the light most favorable to sup-
port the verdict rendered. See Omega Envtl., Inc. v. Gilbarco,
Inc., 

, 1161 (9th Cir. 1997).

   Fisher began the evening of October 23, 1999, in his apart-
ment, drinking beer, watching the World Series on television,
and cleaning his collection of eighteen bolt-action World War
I and II era rifles. When the game ended, Fisher continued
cleaning his weapons and drinking his way through the two
cases of beer he had purchased earlier that day. From time to
time, Fisher took a break to read from a book entitled The
Second Amendment Primer.

  Fisher lived on the ground floor of the Tradewinds apart-
ment complex in San Jose, California. The living room of his
                   FISHER v. CITY OF SAN JOSE                3141
ground-floor apartment had two sliding glass doors which
opened onto a small patio. The patio, which was surrounded
by a low wall, looked out onto a common lawn area. A person
standing in the common lawn area could look through the
sliding glass doors and into Fisher’s living room.

   At about 1 a.m., Leonel Serrano, a uniformed security
guard employed by Fisher’s apartment complex, was patrol-
ling the grounds of the complex when he heard loud music
coming from the apartment above Fisher’s. Serrano climbed
the stairs and knocked on the door. When he heard no answer,
he descended and called his supervisor, who apparently noti-
fied the police. At some point, Fisher, who was sitting in his
living room working on one of his rifles, glimpsed Serrano
standing in the common lawn area near Fisher’s patio. Fisher
approached Serrano carrying a rifle.

   Serrano asked Fisher if he knew his upstairs neighbors and
whether they were home. Rather than answering Serrano’s
questions, Fisher asked Serrano why he wanted to know that
information, and told Serrano that he should not meddle in
other people’s affairs.

   When Serrano informed Fisher that the police had already
been called on account of the noise, Fisher’s tone became
aggressive. He began ranting about the Second Amendment,
and that, in Fisher’s view, it guaranteed the right to bear arms
and to defend oneself and one’s property. Although Serrano
was not close enough to smell alcohol on Fisher’s breath, Ser-
rano nevertheless believed Fisher to be drunk based on his
slurred speech, his decision to embark on an unprovoked
exposition on the Second Amendment, and his bizarre and
unresponsive answers to Serrano’s questions. For example,
Fisher first described his upstairs neighbors as nice people,
later as vampires, then as nice people again.

   As Fisher became more agitated, he shifted the position of
the rifle such that it was pointing either at Serrano or in Serra-
3142                  FISHER v. CITY OF SAN JOSE
no’s direction.2 Serrano, fearing for his safety, quickly left the
area in front of Fisher’s apartment and reported the confronta-
tion to his supervisor, who placed another call to the police,
this time describing a “suspicious person with a weapon.”
Eight officers were initially dispatched to the Tradewinds
apartment complex.

   Patrol Sergeant Laurence Ryan, who arrived at 1:50 a.m.,
was first on the scene. After hearing Serrano describe his
encounter with Fisher, Sergeant Ryan assigned the other
responding officers to take up positions around Fisher’s apart-
ment in order to form a containment perimeter. The officers
concealed themselves so as not to become easy targets in the
event that Fisher began shooting.

   Sergeant Ryan then attempted to get Fisher’s attention, first
by calling his name, then by throwing small rocks at his slid-
ing glass doors. Fisher eventually emerged onto his patio. Ser-
geant Ryan explained to Fisher why the police had been
called. Fisher, still noticeably intoxicated, lapsed into a ram-
bling, belligerent diatribe about his Second Amendment
rights, and threatened to shoot Sergeant Ryan if he came on
or near Fisher’s property. Fisher also told Sergeant Ryan
about the eighteen guns inside his apartment. After about ten
minutes of yelling at Sergeant Ryan, Fisher retreated inside.

   Fisher’s threats, combined with his intoxication, his guns,
and his generally irrational behavior prompted Sergeant Ryan
to call for additional help. As more officers arrived, they con-
tinued to secure the perimeter around Fisher’s apartment and
to remove his neighbors from any lines of fire. Ultimately,
  2
    The testimony on this point is somewhat conflicted. According to one
San Jose police officer who later participated in the standoff, Serrano
informed him that Fisher had pointed his rifle at Serrano. At trial, Serrano
testified that when Fisher became more agitated, he shifted the position of
the weapon; whereas at the start of the conversation it was pointing at the
ground, Fisher pointed it vertically when he became upset and began to
gesture with it.
                   FISHER v. CITY OF SAN JOSE              3143
more than sixty San Jose officers were deployed in the stand-
off.

   Sergeant Ryan attempted to re-establish contact with Fisher
by calling his apartment. His wife, Sandra Fisher, answered
the phone and agreed to come outside. She told Sergeant
Ryan that Fisher now was alone in the apartment, that he had
eighteen rifles, and that he was extremely intoxicated.

   Officer Derrick Boler was one of the San Jose police offi-
cers forming the perimeter around Fisher’s house. He was
positioned across the street from Fisher’s apartment behind a
parked car, where he remained for about four and one-half
hours as the standoff progressed until he was relieved. At
about 2:25 a.m., Officer Boler witnessed Fisher loading car-
tridges into what he believed to be at least one large caliber
rifle, and then Fisher was seen pacing through his apartment
holding the loaded weapon. Fisher was also seen loading sev-
eral other magazines with ammunition, and strategically plac-
ing his guns around his apartment. Throughout the standoff,
Officer Boler heard Fisher shouting at police, using phrases
such as “I have guns. I will use them,” and “Leave me the
fuck alone. I don’t believe in your laws.” Officer Boler also
witnessed Fisher drinking more beer as the standoff prog-
ressed.

   Between 3:15 and 3:20 a.m., Officer Jan Males, a tactical
negotiator, arrived on the scene and tried unsuccessfully to
start a dialogue with Fisher, who continued going on about his
right to bear arms and vowing never to relinquish his weap-
ons. At one point, Fisher invited Officer Males into his apart-
ment, but then stated he would shoot or kill her if she entered.
Officer Males testified that she believed Fisher’s statements
to be a criminal threat and a felony offense under the Califor-
nia Penal Code. During these attempts at conversation with
Fisher, Officer Boler saw Fisher pointing a gun at Officer
Males and Sergeant Ryan, who had taken cover behind a tree.
Fisher was last seen holding a rifle at about 6:30 a.m.
3144                 FISHER v. CITY OF SAN JOSE
   At 7:00 a.m., the San Jose Police Department’s Mobile
Emergency Response Group and Equipment (“MERGE”) unit
assumed tactical control of the police effort to end the stand-
off. Members of the MERGE team replaced most of the patrol
officers who had maintained the inner perimeter since the
inception of the incident. Some of the departing patrol officers
returned to the police station to fill out police incident reports.

   Over the next several hours, the MERGE team tried several
methods to establish communication with Fisher and resolve
the standoff: they used bullhorns and other voice magnifying
equipment; they shut off the electrical power; they drove an
armored vehicle with its siren activated onto the grass in front
of his patio; and they threw a “throw phone”3 onto the patio.
When those techniques failed to induce Fisher to surrender,
the MERGE unit detonated a flash-bang device, and, on two
occasions, they shot canisters of tear gas into his apartment.
Nothing worked to dislodge Fisher from his home.

   The standoff entered its final stage at about 2:15 p.m., more
than twelve hours after it had begun. Fisher spoke by phone
for several minutes with a tactical negotiator, and finally
agreed to leave his apartment. He was told to walk toward the
officers with his hands above his head, then to lie on the
ground. He initially took several steps but suddenly stopped
and turned back toward his apartment. At that point, a mem-
ber of the MERGE unit shot Fisher in the leg with a non-
lethal rubber bullet. Fisher then surrendered and was finally
taken into police custody. It was undisputed at trial that no
attempt was made at any point during the standoff to obtain
an arrest warrant.

  Fisher was tried for felony violations of California Penal
Code sections 417 and 417.8, which punish, in general, draw-
ing, exhibiting, or using a firearm or deadly weapon against
  3
   A “throw phone” is a phone encased in a box that also contains an open
microphone.
                   FISHER v. CITY OF SAN JOSE              3145
a peace officer with the intent to resist or prevent arrest. The
criminal jury deadlocked, and Fisher ultimately pleaded no
contest to a misdemeanor charge of brandishing a firearm in
the presence of a security guard.

                               B

   Fisher and his wife subsequently filed an action under 42
U.S.C. § 1983 against the City of San Jose, its police depart-
ment, and many of the officers involved in the standoff. The
civil rights complaint alleged, inter alia, that police violated
Fisher’s Fourth Amendment right to be free from unreason-
able seizure based on their failure to obtain an arrest warrant
before effecting his full physical arrest and on the alleged use
of excessive force to effectuate that arrest.

   The case was tried to a civil jury. After the presentation of
all of the evidence, Fisher moved for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a). His motion
was denied, and the jury returned a verdict in favor of the
police on all claims. Fisher then renewed his motion for judg-
ment as a matter of law pursuant to Federal Rule of Civil Pro-
cedure 50(b). The district court granted the motion as to
Fisher’s warrantless arrest claim, and denied the motion on
the balance of Fisher’s claims. The district court ordered the
City to pay Fisher one dollar in nominal damages and to train
its officers “on what is required under the Fourth Amendment
and the case law interpreting it lawfully to arrest a suspect in
his or her home and on the procedures for obtaining warrants
both in-person and on the telephone.”

   The police appealed the district court’s ruling. On January
16, 2007, a three-judge panel of our court affirmed, with one
judge dissenting. Fisher v. City of San Jose, 

(9th Cir. 2007). On November 20, 2007, that opinion was
withdrawn and replaced by an amended opinion, which again,
by a two-to-one margin, affirmed the district court. Fisher v.
City of San Jose, 

(9th Cir. 2007). On March 14,
3146               FISHER v. CITY OF SAN JOSE
2008, we ordered the case to be reheard en banc, and vacated
the decision of the three-judge panel. We now reverse.

                               II

   We review de novo the district court’s decision to grant
Fisher’s renewed motion for judgment as a matter of law. See
Johnson v. Paradise Valley Unified Sch. Dist., 

,
1226-27 (9th Cir. 2001). The question we must answer is
whether, construing the evidence in the light most favorable
to the police, the jury’s defense verdict was supported by sub-
stantial evidence. 

“Substantial evidence means
‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’ ” Transgo, Inc. v. Ajac
Transmission Parts Corp., 

, 1014 (9th Cir.
1985) (quoting Consol. Edison Co. v. NLRB, 

,
229 (1938)). In making this determination, we must take care
not to substitute our view of the evidence for that of the jury.

.

   “[W]hen reviewing a motion for judgment as a matter of
law, we apply the law as it should be, rather than the law as
it was read to the jury,” even if the party did not object to the
jury instructions. Pincay v. Andrews, 

, 1109 n.4
(9th Cir. 2001) (citing Air-Sea Forwarders, Inc. v. Air Asia
Co., 

, 181-83 (9th Cir. 1989)).

                               III

                               A

   In order to frame the precise issue before us, we begin by
noting several important legal issues about which the parties
are in agreement. First, the police concede that even though
Fisher was technically taken into custody outside his apart-
ment, he was, for legal purposes, seized inside his home, and,
as such, the burden is on the police to show either that they
obtained a warrant or that some exception to the warrant
                  FISHER v. CITY OF SAN JOSE              3147
requirement excused officers from getting one. See United
States v. Al-Azzawy, 

, 893 (9th Cir. 1986) (hold-
ing that the suspect was effectively arrested when police sur-
rounded his trailer “with their weapons drawn and ordered
him through a bullhorn to leave the trailer and drop to his
knees”); United States v. Johnson, 

, 757 (9th Cir.
1980), aff’d, 

(1982). Here, the police assert that
exigent circumstances justified Fisher’s warrantless seizure.

   Second, Fisher concedes that there was probable cause to
arrest him. The civil jury was presented with several possible
crimes Fisher may have committed, and, by concluding that
Fisher’s warrantless arrest was justified, the jury necessarily
found that a reasonable police officer would have had proba-
ble cause to believe Fisher committed at least one of those
crimes. See Bailey v. Newland, 

, 1032 (9th Cir.
2001) (“It is clearly established Federal law that the warrant-
less search of a dwelling must be supported by probable cause
and the existence of exigent circumstances.” (citing Payton v.
New York, 

, 587-90 (1980))). Ample evidence
existed to establish probable cause that Fisher had violated
California Penal Code section 417(c) (drawing or exhibiting
a loaded or unloaded gun in the presence of a police officer
in a rude, angry, or threatening manner) and California Penal
Code section 422 (willfully threatening to commit a crime
which will result in death or great bodily injury). Officer
Boler saw Fisher pointing his gun at Officer Males and Ser-
geant Ryan. The testimony of several officers establishes that
Fisher threatened to shoot Officer Males if she approached his
apartment, and his personal arsenal gave Fisher the present
ability to make good on those threats. Fisher was obviously
intoxicated at the beginning of the standoff and he consumed
more alcohol as it progressed. His behavior and irrational
statements gave the police further cause for concern that
Fisher might be mentally unbalanced and unpredictable.

   Third, Fisher concedes that exigent circumstances existed
to arrest him before 6:30 a.m., the last time he was seen hold-
3148                  FISHER v. CITY OF SAN JOSE
ing a gun. Exigent circumstances are defined to include “those
circumstances that would cause a reasonable person to believe
that entry . . . was necessary to prevent physical harm to the
officers or other persons, the destruction of relevant evidence,
the escape of the suspect, or some other consequence improp-
erly frustrating legitimate law enforcement efforts.” United
States v. Lindsey, 

, 780 (9th Cir. 1989) (quoting
United States v. McConney, 

, 1199 (9th Cir.
1984) (en banc), cert. denied, 

(1984)). Before
that time, Fisher was seen pointing a rifle at Officer Males
and Sergeant Ryan, loading his rifles, and arranging them
strategically throughout his apartment to repel any entry the
police might have attempted. Fisher does not dispute that up
until 6:30 a.m., police could have lawfully entered his apart-
ment, using force if necessary, to complete the arrest.

                                    B

  We now turn to the points on which the parties do not
agree. According to Fisher, the only reasonable conclusion
supported by the evidence is that the exigency that existed
before 6:30 a.m. dissipated after that time, thus rendering his
continued seizure and the completion of his arrest unreason-
able under the Fourth Amendment.4 Implicit in Fisher’s argu-
  4
    Judge Paez, in dissent, argues that Fisher was not legally seized until
about 6:30 a.m. when the MERGE team arrived on the scene, thereby
altering the moment at which we should review exigency. Paez Dissent at
3168-70. This innovative view of Fisher’s case conflicts with Fisher’s own
theory on appeal and, in any event, is contradicted by overwhelming evi-
dence, which we construe in the light most favorable to support the jury
verdict. Therefore, we reject it.
   Without reciting in greater detail the events of the early morning hours
of October 24, a reasonable jury could readily conclude that Fisher knew
the reasons for and the extent of the police presence. But see 

(asserting that “there is nothing in the evidence that shows that Fisher was
aware of their presence”). He made repeated threats to shoot the officers
surrounding his apartment and communicated with a tactical negotiator,
Officer Males, before threatening to shoot her, too. Fisher was observed
                       FISHER v. CITY OF SAN JOSE                        3149
ment is the following premise: in an armed standoff, once a
suspect is seized by virtue of being surrounded and ordered to
surrender, the passage of time may operate to liberate that
suspect, re-kindle the arrest warrant requirement, and require
police to assess with each passing minute whether the circum-
stances remain exigent.

   We reject this premise. Not only does it buckle under the
weight of Supreme Court caselaw and that of our own circuit,
but it further complicates the already complex and dangerous
process of safely resolving armed standoffs, without provid-
ing any meaningful Fourth Amendment protection. We con-
clude 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.

                                      1

   In Michigan v. Tyler, 

(1978), a fire chief
arrived at the scene of a suspicious blaze just as firefighters
finished extinguishing it. He entered the gutted building and
tried to determine the cause of the fire. 

After
determining that an arsonist may have started the conflagra-

loading his arsenal of weapons with ammunition, strategically placing
rifles around the apartment, and pointing one of them out the window at
officers on the scene. It is also significant that Fisher’s wife never returned
to the residence after being coaxed outside by police.
   Under these circumstances, a reasonable person would not believe that
his freedom remained unimpaired, especially after engaging in such
aggressive conduct toward the police officers surrounding his apartment.
See United States v. Washington, 

, 769-71 (9th Cir. 2007).
The delusional beliefs of a severely intoxicated Fisher are legally irrele-
vant to determining the point of seizure as a matter of law. An objective
view of the facts compels the conclusion that Fisher was seized much ear-
lier that morning, well before 6:30 a.m. Fisher was as a matter of law
under constructive arrest.
3150               FISHER v. CITY OF SAN JOSE
tion, the chief called a police detective to the scene, who
arrived one and one-half hours later. 

The detective
searched the building for several minutes but could not com-
plete his search due to lingering smoke and steam. 

morning, the fire chief returned to the scene with an
assistant fire chief, and, together with the police detective,
they scoured the building and collected evidence of the fire’s
origin. 

neither consent nor a warrant for any of
these searches or seizures. 

Court upheld the warrantless searches and
seizures. The Tyler Court rejected as “unrealistically narrow”
the Michigan Supreme Court’s conclusion that the exigency
which justified the initial entry ends “with the dousing of the
last flame.” 

The Court reasoned that the return of
fire officials and the police detective the following morning
was justified because it was “no more than an actual continua-
tion” of the initial entry. 

In other words, although
the return to the crime scene may not, by itself, have satisfied
the exigency requirement, the return was justified because it
was simply a natural continuation of a legally justified event.

   Although Tyler did not involve the search of a home, our
own caselaw has applied Tyler in such a context. In United
States v. Echegoyen, 

(9th Cir. 1986), police
officers responded to a call of a strange smell emanating from
a house. One officer determined the smell to be ether, a flam-
mable gas sometimes used to process cocaine. 

The officers entered the house without a warrant and arrested
several suspects, one of whom was the defendant. 

the officers, joined by a firefighter, re-entered
the house to eliminate the fire hazard and inspect the resi-
dence. 

cocaine and drug processing
equipment. 

and firefighters then left the resi-
dence and requested that narcotics agents be sent to the scene
to take over the investigation. 

agents arrived,
they entered the home again, looked around, and left to obtain
a warrant. 

CITY OF SAN JOSE                       3151
   We upheld the legality of all three warrantless entries. As
in Tyler, the first entries were justified by exigent circum-
stances. The subsequent entry by narcotics officers after the
threat of fire had been diffused and after the house had been
cleared of all occupants—akin to the subsequent entry the
next day in Tyler—was justified as a continuation of the ini-
tial lawful entry and exigency. 

(“Consequently,
this . . . entry was merely a continuation of the initial entry
because both were done to alleviate the exigent circum-
stances.”).

   [1] Applying Tyler and Echegoyen to the present case, we
conclude that when Fisher was seized at the beginning of the
standoff, the officers were not required to periodically reas-
sess whether the exigency persisted throughout the standoff
because the standoff was “no more than an actual continua-
tion” of the initial seizure. As in Echegoyen, the entirety of
the standoff was “done to alleviate the exigent circumstances”
that precipitated it. See Bing ex rel. Bing v. City of Whitehall,

, 565 (6th Cir. 2006) (“Exigent circumstances
terminate when the factors creating the exigency are negated.”).5
Moreover, the exigent circumstances that precipitated the ini-
tial seizure did not materially change from the beginning of
the standoff to the end.

  [2] This armed standoff was a single Fourth Amendment
event, a continuous process of formalizing Fisher’s arrest that
   5
     Fisher relies principally on United States v. Alvarez, 

(9th
Cir. 1987). There, police effected the warrantless arrest of a suspected
drug smuggler in his hotel room after receiving a tip from a co-
conspirator. 

Police later argued that exigent circumstances
excused the need for a warrant. 

based on the fact that
more than ninety minutes had elapsed between the time the police
received the tip and the time they made the arrest. 

In con-
trast, in the present case, it is undisputed that exigent circumstances
existed to seize Fisher. Our task is to decide whether, in an armed stand-
off, the mere passage of time may act to liberate a lawfully seized suspect,
thereby re-triggering the warrant requirement.
3152               FISHER v. CITY OF SAN JOSE
began in the early morning hours of October 24. The police
maintained a secure perimeter around Fisher’s apartment, and
Fisher refused to surrender. Fisher threatened the officers
shortly after they arrived, and retained full control of his eigh-
teen guns and ammunition until the end. The entire standoff
was an uninterrupted, fluid engagement between Fisher and
the police. See 

in an armed standoff, “the
exigency did not terminate due to the passage of time because
Bing was at all times dangerous” (citing 

)).

   [3] The mere fact that Fisher was not seen with a weapon
after 6:30 a.m. is not the sort of break in the action that would
effectively terminate the first seizure and mark the beginning
of a second. Just as a seizure begins when a reasonable per-
son, based on the totality of the circumstances, “would have
believed that he was not free to leave,” United States v. Men-
denhall, 

, 554 (1980); accord Michigan v. Ches-
ternut, 

, 573 (1988), a seizure does not end until
a reasonable person would feel at liberty to leave. Fisher did
not escape from the scene, nor did police withdraw or aban-
don their efforts to take him into full physical custody. In
sum, no event of Fourth Amendment significance occurred
that would re-trigger the warrant requirement and compel the
police to inquire as to whether exigent circumstances still
existed.

                                2

   [4] Fisher’s own criminal behavior caused the exigency that
excused the Fourth Amendment warrant requirement to which
he was otherwise entitled for an in-home arrest. Even Fisher
admits that when he pointed his gun at the officers and threat-
ened to shoot them, the police were, at that moment, entitled
to enter his home, using force if necessary, to complete his
arrest. Fisher offers no support for the proposition that, after
officers lawfully seized him in his home, they nevertheless
were required to subsequently seek and obtain a warrant
                     FISHER v. CITY OF SAN JOSE                     3153
before taking him into full custody. We see no reason to
depart from Tyler and Echegoyen in this case. Quite to the
contrary, we find the reasoning especially compelling in con-
nection with armed standoff situations.

                                    a

   [5] Requiring 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.6 We do not see what a neutral and
detached magistrate would have added in helping to peace-
fully effect Fisher’s arrest.

   Fisher is unable to clearly define what the Fourth Amend-
ment allegedly required (or should require) the police to ask
of the magistrate judge in the instant case. There is no support
for the position that, after Fisher had been lawfully seized in
his apartment, the Fourth Amendment required the police to
retroactively justify the arrest to a magistrate judge by asking
for an arrest warrant that had in effect already been executed.
In fact, asking the magistrate judge to determine whether
probable cause justified the initial seizure when police first
surrounded Fisher’s residence or justifies his continued sei-
zure amounts to the retroactive warrant practice that we have
  6
   Under California Penal Code section 836, a police officer may arrest
without a warrant a person the officer has probable cause to believe has
committed a felony. Cal. Penal Code § 836(a). The only question here is
whether a warrant was required to arrest Fisher in his home when Fisher
was engaged in ongoing felonies and resisting a lawful arrest by taking up
arms and refusing to surrender.
3154                   FISHER v. CITY OF SAN JOSE
condemned. See United States v. Allard, 

, 1187
(9th Cir. 1980) (observing that “post hoc justifications [for
searches and seizures] are alien to the Fourth Amendment
warrant and reasonableness requirements”).7

   In addition, Fisher’s dissipation theory would have serious
consequences beyond simply forcing police to engage in the
empty gesture of obtaining a warrant in the midst of a danger-
ous and volatile standoff. It would introduce yet another ele-
ment of uncertainty into the already complex and dangerous
calculus confronting law enforcement in armed standoff situa-
tions. At minimum, the officers on the scene would be unable
to devote their full attention to the actual threat and to ensur-
ing public safety. Police would be forced to ponder with each
  7
     In his dissent, Judge Reinhardt clarifies that, under his theory, the mag-
istrate judge would treat the warrant application in these circumstances no
differently than any other warrant application. Reinhardt Dissent at 3185
n.10. He then reasons that this does not amount to retroactive warrant
practice because the magistrate would review probable cause not to justify
the seizure itself, but to authorize subsequent tactical initiatives to take the
armed suspect into full custody. 

Such analytical parsing makes
little sense and is contrary to clearly established law. In fact, the dissent’s
reasoning is itself inconsistent. See, e.g., 

(noting that once offi-
cers had time to thereafter secure a warrant the continuing seizure of
Fisher necessitated the approval of a magistrate). This is not some kind of
constitutional game. It is a recognition that the law permits police action
in emergencies to protect us all when prior judicial approval is impractical
and amounts to nothing more than second-guessing tactical decisions
made in the heat of arrest.
   Further, the dissent’s proposed warrant application, when coupled with
the erroneous notion that each entry into a residence constitutes a wholly
distinct Fourth Amendment intrusion requiring either a warrant or inde-
pendent exigent circumstances, as discussed infra, would perversely create
a safe harbor period for armed suspects barricaded in their homes. Armed
not only with weapons but also with the knowledge that, as long as they
refrained from more openly hostile behavior, law enforcement could do
nothing beyond containment without securing a warrant, suspects would
reap a tactical advantage in standoff situations. Fisher, for instance, used
his time during the incident to load and strategically place weapons around
his home to frustrate anticipated forcible entry by officers.
                   FISHER v. CITY OF SAN JOSE              3155
passing moment whether the exigency justifying the warrant-
less arrest that existed at the start of the standoff had suffi-
ciently dissipated such that they must immediately divert one
or more officers from the task of resolving the standoff to the
time-consuming project of obtaining a warrant. As we have
recognized, “[o]btaining a telephonic warrant is not a simple
procedure; among other things, a duplicate original warrant
must be prepared in writing and read to the magistrate verba-
tim. The only step that is saved is the trip to the magistrate’s
office.” United States v. Good, 

, 775 (9th Cir.
1986) (internal quotation marks and brackets omitted).

   The imposition of such an amorphous dissipation element
would also needlessly restrict law enforcement’s ability to
quickly and effectively adjust tactics based on the evolving
events on the scene, placing lives in danger. Officers would
second-guess themselves, particularly because the ultimate
decision whether the exigency had sufficiently dissipated—
and, in turn, whether the warrant requirement had resurrected
—would be made months if not years later by a jury or a
judge from the confines of a courtroom, far removed from the
stresses of the armed standoff. We are hard pressed to see any
public benefit should overly cautious officers pass up a clear
opportunity to peacefully resolve a dangerous situation that
might present itself in the midst of a pending, but not yet
approved, warrant request. Nor do we see the logic in condon-
ing a scheme that exposes police to civil liability when, as
here, they elect to methodically respond to dangerous stand-
offs, but affords officers greater protection from liability if
they hastily force entry with guns blazing. Placing immediacy
at odds with prudence and discretion benefits no one.

   Finally, to rule in Fisher’s favor would reward his recalci-
trance. We reject the notion that trained officers, who put
themselves in harm’s way when handling a dangerous armed
standoff, essentially increase the constitutional rights of sus-
pects who, by their actions, both provoke and prolong the
need for continuing police action. To adopt his novel Fourth
3156               FISHER v. CITY OF SAN JOSE
Amendment theory encourages other suspects to barricade
themselves in their residences, fortify their positions, and
resist full arrest as the mere passage of time would serve as
fodder for a suppression motion at the ensuing criminal trial
or, as here, for a civil rights action seeking money damages
from the police. The direct and foreseeable consequence will
be prolonged standoffs, better equipped assailants, and height-
ened risk to all involved. The suggestion that imposing a war-
rant requirement on police already engaged in an armed
standoff will diminish the risk to public safety, see, e.g., Rein-
hardt Dissent at 3186-87, defies common sense.

   [6] In sum, we adhere to the established principle that once
there is a lawful warrantless seizure of a suspect based on
probable cause and exigent circumstances, no constitutionally
mandated role remains for the magistrate judge. A court can
certainly later examine the officers’ actions in connection
with challenges to the basis for probable cause, and discharge
the defendant from criminal prosecution if evidence is lack-
ing. 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 reason-
able role for a judicial officer under the Fourth Amendment.

                                b

   Judge Reinhardt, in dissent, speculates that the creation of
a mid-standoff warrant requirement would “help[ ] ensure that
high-stakes standoffs occur only when legally proper”
because a mid-event review by a magistrate might allow a
standoff to terminate peacefully before police escalate their
efforts. 

Such optimism is unfounded and, in any
event, alien to the Fourth Amendment. Fisher’s armed stand-
off, like all armed standoffs, did not miraculously arise.
Rather, the incident at issue was a product of his own creation
and persisted at his sole discretion. It is undisputed that Fish-
er’s criminal acts and his unwillingness to surrender, com-
                       FISHER v. CITY OF SAN JOSE                       3157
bined with his bizarre and dangerous conduct, triggered the
armed besiegement. As the jury properly concluded on the
evidence introduced at trial, his warrantless seizure was law-
fully based on probable cause and exigent circumstances. His
actions throughout were anything but peaceful.

   The dissent does not recognize that we are dealing with an
unrestrained, armed suspect who poses a continuing public
safety risk—not a compliant arrestee or innocent homeowner.8
We are respectful of the sanctity of one’s home but disagree
with the notion that police are constitutionally required to
withdraw from an active armed standoff, leaving neighbors to
deal with an unstable and well-armed suspect. After all, police
are sworn to resolve dangerous situations by restoring the
peace. Brigham City v. Stuart, 

, 406 (2006)
(“The role of a peace officer includes preventing violence and
restoring order, not simply rendering first aid to casualties.”).
Furthermore, threatening to shoot police officers constitutes
separate criminal behavior that establishes probable cause for
arrest independent of the initial offense. Under these circum-
stances, due to the suspect’s dangerous actions in resistance
to arrest, the constitutional balance must be resolved by
approving police efforts to neutralize the substantial threat
   8
     In arguing for an expansion of the magistrate judge’s role, the dissent
discards the undisputed facts of this case and instead cites to a “conceiv-
able” situation where officers learn that “the person in a residence is not
the person who committed the offense in question and is not armed or dan-
gerous.” Reinhardt Dissent at 3187. This hypothetical has nothing to do
with this disposition and is, at any rate, a complete non sequitur. If proba-
ble cause is lacking, an arrest cannot occur and a previously seized suspect
must be released. See United States v. Ortiz-Hernandez, 

, 574
(9th Cir. 2005). If peace officers overstep their authority and violate a sus-
pect’s rights, the law holds them accountable. The mere potential for a the-
oretical scenario, especially one that bears no resemblance to the actual
circumstances of the case before us, combined with the dissent’s skepti-
cism regarding officers’ willingness to follow the law, hardly justifies re-
writing the Constitution and creating an unprecedented warrant require-
ment.
3158               FISHER v. CITY OF SAN JOSE
arising from the armed standoff. The Fourth Amendment does
not grant amnesty. But the dissent’s theory would.

   Judge Reinhardt decries interferences with Fisher’s Fourth
Amendment rights when police “hurled a throw phone, a
flash-bang device, and tear gas onto [his] property, forced him
from his home, [and] shot him with ‘less-than-lethal’ rubber
bullets.” Reinhardt Dissent at 3173. He argues that, in armed
standoff situations, a magistrate judge would provide an inde-
pendent evaluation of the justifications for escalating and
increasingly invasive Fourth Amendment intrusions. This
position, which condones the continued warrantless seizure of
Fisher but not the methods used to detach him from his heav-
ily armed lair, comes close to suggesting the magistrate judge
should review tactics police employ to effectuate full arrest.
We are aware of no authority establishing the need to approve
or pre-authorize tactical decisions made by police during an
armed standoff, whether or not residential. This radical view
espouses the need for an entirely new warrant application and
a substantial expansion of a magistrate’s role in Fourth
Amendment jurisprudence to assume tactical responsibility
for what force may be employed to dislodge Fisher. No case
has ever gone so far. The task of managing armed standoffs
is best left to those trained to handle them. Indeed, the Consti-
tution does not envision judges assuming the role of incident
commander in determining how best to resolve a standoff.

   Simply put, imposing an ongoing warrant requirement upon
officers engaged in an armed standoff creates an unprece-
dented hurdle to apprehending armed suspects and resolving
an existing dangerous situation. It would not serve the public
good, as the dissent reasons. Rather, it would impede swift
resolution of dangerous circumstances by erecting an unrea-
sonable legal obstacle of questionable value that only encour-
ages the kind of judicial second-guessing the Supreme Court
has repeatedly condemned. “Reasonableness” remains the
touchstone under the Fourth Amendment. Pennsylvania v.
Mimms, 

, 108-09 (1977). As the Court tren-
                   FISHER v. CITY OF SAN JOSE               3159
chantly observed in Graham v. Connor, 

(1989),
“[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.” 

accord Saucier v. Katz,

, 204-05 (2001); County of Sacramento v. Lewis,

, 853 (1998).

                               C

   We turn to the dissent’s contention that the warrant require-
ment was resurrected at approximately 7 a.m. when the first
responding officers returned to the station house after the
MERGE team arrived to relieve them, and that each attempt
thereafter to dislodge Fisher from his fortification was a dis-
tinct intrusion upon Fisher’s Fourth Amendment rights. Rein-
hardt Dissent at 3175; accord Paez Dissent at 3168 n.1. This
argument, which departs significantly from Fisher’s dissipa-
tion theory, fails at its inception. The presence of exigent cir-
cumstances at the time of the warrantless seizure is
undisputed in this case. The subsequent passage of time,
which includes consideration of what officers might have
done thereafter, is legally irrelevant with respect to the war-
rant requirement. See United States v. Licata, 

,
543 (9th Cir. 1985) (noting that exigent circumstances are
viewed from the totality of the circumstances known to offi-
cers at the time of the warrantless action).

   Fundamental to the dissent’s theory is the flawed presump-
tion that each entry constitutes a legally distinct Fourth
Amendment intrusion that required either a warrant or inde-
pendent exigent circumstances at the moment such entry
occurs. Reinhardt Dissent at 3176. While the police concede
that sometime after returning to the station house officers
could have obtained a warrant to arrest the already-seized
Fisher, it does not follow that police were therefore constitu-
tionally required to do so. The Supreme Court has never inti-
mated such a rigid rule; nor have we. See United States v.
3160               FISHER v. CITY OF SAN JOSE
Turvin, 

, 1103 (9th Cir. 2008) (“The Supreme
Court has ‘consistently eschewed bright-line rules [in the
Fourth Amendment context], instead emphasizing the fact-
specific nature of the reasonableness inquiry.’ ” (quoting Ohio
v. Robinette, 

, 39 (1996))).

   We agree that the home is perhaps the most sacrosanct
domain, where one’s Fourth Amendment interests are at their
zenith. See LaLonde v. County of Riverside, 

,
954 (9th Cir. 2000). But that general principle does not legiti-
mize the dissent’s extreme position that each and every entry
by police into a suspect’s home, in whatever form and regard-
less of the surrounding circumstances, amounts to “a violation
of the sanctity and privacy of a suspect’s home [and therefore]
intrudes separately upon the suspect’s Fourth Amendment
rights.” Reinhardt Dissent at 3176. The law is quite clearly
otherwise. See, e.g., 

. The Fourth
Amendment, by its very language, protects “[t]he right of the
people to be secure in their . . . houses . . . against unreason-
able searches and seizures.” U.S. Const. amend. IV. It does
not, however, protect a person’s right to purposefully use his
residence as a safe house for ongoing criminal conduct or as
an impediment to lawful police action. A suspect, for
instance, cannot defeat a lawful warrantless arrest with police
in hot pursuit by seeking sanctuary in his home. See, e.g.,
United States v. Santana, 

, 43 (1976). Similarly,
Fisher cannot undermine his lawful warrantless arrest—nor
can he increase his constitutional protections—by hiding
within the four walls of his residence, readying his arsenal as
a means to resist officers’ reasonable efforts to take him into
full physical custody.

  Tyler and Echegoyen are controlling here. Judge Rein-
hardt’s attempt to confine the application of this precedent to
public safety concerns arising from fire hazards is neither per-
suasive nor sensible. See Reinhardt Dissent at 3181 (“Because
Echegoyen, like Tyler, involved an entry responding to the
public safety risks created by a fire hazard, that case, like
                   FISHER v. CITY OF SAN JOSE                3161
Tyler, is entirely irrelevant here.”). We see no material differ-
ence between the substantial public dangers posed by the exi-
gent situations—for example, an explosive fire hazard of a
chemical substance used to process drugs, on the one hand,
and an intoxicated and unpredictable gunman barricaded in a
multi-unit apartment complex, on the other. Such a distinction
makes little sense in the Fourth Amendment context. Indeed,
the exigency arising from Fisher’s death threats and weapons
arsenal seems considerably more potent than a mere fire haz-
ard.

   Notwithstanding the dissent’s misreading, these cases con-
clusively demonstrate that once exigent circumstances were
established to justify warrantless action, the passage of time
as Fisher obstinately rebuffed officers’ efforts to effectuate his
full arrest did not rejuvenate the warrant requirement. There
was arguably time and personnel available in the cited cases
to seek a warrant. But, as here, none was required. The com-
mon thread through Tyler, Echegoyen, and Fisher’s case is
that the warrant requirement remains excused at least as long
as the purpose for the original action persists and so long as
the subsequent actions continue toward that purpose. This is
unequivocally clear in Tyler where the Court held that entry
onto the premises the following day to continue the initial
warrantless search and seizure was permissible, but that sub-
sequent re-entries occurring several days later were “clearly
detached from the initial exigency and warrantless entry” and
thus required a 

, 511. Similarly, in
Echegoyen, because they were designed to investigate and
eliminate the potentially explosive fire hazard, the subsequent
entries into the residence by police and narcotics detectives
were permissible as a valid continuation of the initial warrant-
less 

.

   The Court’s analysis in Tyler and ours in Echegoyen
focused on the nexus between the challenged entries and the
original exigency that prompted the warrantless action—not
on whether, in hindsight, officers had sufficient time to obtain
3162                   FISHER v. CITY OF SAN JOSE
a warrant in the interim before the subsequent warrantless
entries occurred. See also 

(“The pas-
sage of time did not terminate the exigency because the tick-
ing of the clock did nothing to cut off Bing’s access to his
gun, or cure him of his willingness to fire it . . . .”). The dis-
sent’s proposed view is simply not the law; nor should it be.9

   It would strain credulity to contend that the MERGE team’s
actions after 7 a.m. were “clearly detached” from the danger
Fisher posed or his warrantless seizure. This armed standoff
was a single, ongoing event, and, as 

, Fisher
at all times remained armed and dangerous. A temporarily
quiescent Fisher, fueled by alcohol and behaving irrationally,
could have turned violent in the blink of an eye to make good
on his death threats. That he did not is fortuitous but unavail-
ing. See 

(rejecting the evaluation
of exigent circumstances in light of facts known only after
officers’ warrantless action). The law recognizes that officers
on the scene cannot predict future events with the clarity with
which we, as judges, can review the past.

  The dissent claims that our opinion purports to “immunize”
police action from constitutional scrutiny and strip Fisher and
similarly situated suspects of their Fourth Amendment rights.
  9
    The dissent’s sole focus on whether police had time to obtain a warrant
after Fisher was seized in his home is erroneous. Reinhardt Dissent at
3184; see also 

(noting that the only reason for warrantless
police action was insufficient time). It is undisputed that the need for
immediate police action was prompted by an obviously intoxicated, unsta-
ble, and heavily armed Fisher who, through his words and his actions, was
threatening to shoot people. The immense public safety risk, which never
dissipated, coupled with insufficient time to obtain a warrant, initially jus-
tified Fisher’s warrantless seizure in his apartment. The purpose of the
police action remained constant, cf. Mincey v. Arizona, 

,
394-95 (1978), and there was no intervening event that terminated the sei-
zure. Under the authority of California Penal Code section 836(a), and
bolstered by the principles of common sense applied by the jury, the
police were thereafter authorized to complete that action and to neutralize
the ongoing threat posed by Fisher.
                      FISHER v. CITY OF SAN JOSE                       3163
See, e.g., Reinhardt Dissent at 3176, 3178. We do no such
thing. Nor does our holding presume that officers engaged in
a standoff always reach the proper conclusion as to the legal-
ity of their actions. See 

Nothing in today’s opin-
ion, for example, even hints at disturbing the Fourth
Amendment requirement that the force, deadly or not, used in
the course of arrest, investigatory stop, or other “seizure” of
a person must satisfy the “objective reasonableness” standard.

. To be clear, we do not suggest
that the initial exigency and seizure thereafter condoned
unfettered force to resolve the armed standoff, discharged all
of Fisher’s Fourth Amendment protections, or reduced in any
way the probable cause needed to arrest. A court can certainly
later examine the officers’ actions in connection with a sus-
pect’s subsequent criminal trial or a collateral civil rights suit
for other alleged Fourth Amendment violations, as the jury
did here.

   Our holding fits squarely within existing Fourth Amend-
ment jurisprudence and respects the jury’s determination. We
simply refuse to take the momentous constitutional leap pro-
posed by Fisher and advocated by the dissent.10 As reason-
ableness is still the touchstone of Fourth Amendment
analysis, an objective look at the totality of the circumstances
supports the jury’s conclusion that police acted properly with-
out need to secure a warrant. See Brigham 

(“An action is ‘reasonable’ under the Fourth Amendment
. . . as long as the circumstances, viewed objectively, justify
the action.” (internal quotation marks and brackets omitted)).
It is the need for taking immediate action in the face of rap-
idly evolving circumstances that the Supreme Court dictates
  10
    “The states are, of course, free to limit warrantless arrests, as is Con-
gress . . . .” 

(White, J. concurring). As a constitu-
tional matter, however, we refrain from imposing the dissent’s proposed
“nationwide edict, founded as it is on a belief in the superior wisdom of
the Members of this Court and their power to divine that the country’s
practice to this date with respect to arrests is unreasonable within the
meaning of the Fourth Amendment.” 

v. CITY OF SAN JOSE
must guide our reasonableness analysis under the Fourth
Amendment.

   [7] In sum, the thrust of Judge Reinhardt’s disapproval
largely relates to what he considers increasingly intrusive
police action employed by the MERGE team. Fisher had
ample opportunity to present his Fourth Amendment exces-
sive force claim and challenge the reasonableness of the tac-
tics employed as part of this § 1983 action. The jury,
however, rejected this claim and returned a verdict in favor of
the police. That judgment is not on appeal. The narrow issue
here is whether the mere passage of time resuscitates the for-
mality of a warrant requirement during a continuing armed
standoff situation when a warrant was initially excused by
exigent circumstances. We hold it does not.

                               IV

   [8] Applying this rule here, we have no trouble concluding
that the evidence adduced at trial is legally sufficient to sup-
port the jury’s verdict. Fisher precipitated an armed standoff
with the police by pointing a gun at them and threatening to
shoot. This behavior established exigent circumstances, which
excused the need for a warrant, and gave police probable
cause to arrest Fisher for several crimes. The fact that Fisher
was not seen with a gun after 6:30 a.m. is immaterial. He
remained at all times drunk, heavily armed, unpredictable,
and dangerous. The standoff continued uninterrupted for over
twelve hours while the police made successive attempts to
resolve it. Under the rule we have announced today, once
police had probable cause to arrest Fisher, and exigent cir-
cumstances excused the need for a warrant, they were not
required to ponder whether the exigency continued as the
armed standoff progressed. The police were justified in effec-
tuating the arrest of Fisher, notwithstanding the mere passage
of time.

   [9] In light of the jury’s verdict and our legal determination
that no warrant was required, the plaintiffs were not entitled
                   FISHER v. CITY OF SAN JOSE              3165
to judgment against the City under the Monell standard, which
governs when a municipality can be held liable under 42
U.S.C. § 1983. See Brass v. County of Los Angeles, 

, 1198 (9th Cir. 2003) (citing Monell v. Dep’t of Soc.
Servs., 

(1978)). In short, there is no evidence
that the City had a policy, written or implicit, that was the
“moving force” behind any alleged constitutional violation.
Galen v. County of Los Angeles, 

, 667-68 (9th
Cir. 2007). We reverse the district court’s decision to grant
Fisher’s Rule 50(b) motion. Fisher is not entitled to the nomi-
nal damages awarded to him by the district court, nor is the
San Jose Police Department required to train its officers in the
manner ordered by the trial court. The jury’s defense verdict
is reinstated, and the district court shall enter judgment in
conformance to it on remand.

  REVERSED and REMANDED.



PAEZ, Circuit Judge, with whom PREGERSON, REIN-
HARDT, and THOMAS, Circuit Judges, join, dissenting:

   I can not agree with the majority’s conclusion that substan-
tial evidence supports the jury’s verdict that Steven Fisher’s
Fourth Amendment rights were not violated when San Jose
City police officers arrested him without a warrant at his
home on October 24, 1999. The majority holds that Fisher’s
armed threats justified his warrantless arrest. The majority’s
analysis, however, is neither consistent with case law defining
exigent circumstances, nor supported by the evidence, and
effectively eliminates the need for law enforcement officers to
obtain an arrest warrant when confronted with an armed
standoff at a person’s home.

   To justify a warrantless seizure on the basis of exigent cir-
cumstances, the government must establish the factual basis
for the exigencies and that there was no time to obtain a war-
3166               FISHER v. CITY OF SAN JOSE
rant before taking action to alleviate the exigencies. United
States v. Good, 

, 775 (9th Cir. 1986). In revers-
ing the district court’s Rule 50(b) judgment, the majority dis-
regards the latter requirement. Here, although the City
presented substantial evidence that the officers reasonably
believed that Fisher posed a threat to them and others, it pre-
sented no evidence to show that the officers did not have time
to obtain a warrant before seizing Fisher while he was inside
his apartment. Because the City failed to make such a show-
ing, I agree with the district court that there was insufficient
evidence to support the jury’s verdict on the issue of exigent
circumstances. I would therefore affirm the district court’s
order granting Fisher’s motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(b).

                               I.

   The Fourth Amendment, in part, protects “[t]he right of the
people to be secure in their . . . houses . . . against unreason-
able searches and seizures . . .” U.S. Const. amend. IV. As the
Supreme Court has firmly recognized, “[a]t the very core [of
the Fourth Amendment] stands the right of a man to retreat
into his own home and there be free from unreasonable gov-
ernmental intrusion.” Silverman v. United States, 

, 511 (1961). Applying this protection to a person’s home,
the Court in Payton v. New York, 

, 576 (1980),
held that the Fourth Amendment “prohibits the police from
making a warrantless and nonconsensual entry into a sus-
pect’s home in order to make a routine felony arrest.” Without
a warrant, such a seizure is “presumptively unreasonable.”
Welsh v. Wisconsin, 

, 749 (1984) (quoting Pay-
ton v. New 

). The need to secure a war-
rant, however, is not necessary when the police have probable
cause to arrest and exigent circumstances exist. 

when the government attempts to justify a warrantless
seizure of a person in his home, “the police bear a heavy bur-
den . . . to demonstrate an urgent need that might” excuse the
obligation to obtain a warrant. 

(emphasis added).
                  FISHER v. CITY OF SAN JOSE                 3167
  In applying this exception to the warrant requirement, we
have defined

    exigent circumstances as those circumstances that
    would cause a reasonable person to believe that entry
    (or other relevant prompt action) was necessary to
    prevent physical harm to the officers or other per-
    sons, the destruction of relevant evidence, the escape
    of the suspect, or some other consequence improp-
    erly frustrating legitimate law enforcement efforts.

United States v. McConney, 

, 1199 (9th Cir.
1984) (en banc); see also United States v. Brooks, 

, 1133 n.5 (9th Cir. 2004) (same). “Exigent circum-
stances alone, however, are insufficient as the government
must also show that a warrant could not have been obtained
in time.” United States v. 

; see also
United States v. Lai, 

, 1442 (9th Cir. 1991)
(“Exigency necessarily implies insufficient time to obtain a
warrant; therefore the Government must show that a warrant
could not have been obtained in time.”); United States v.
Howard, 

, 555 (9th Cir. 1987) (same); United
States v. Echegoyen, 

, 1279 (9th Cir. 1986)
(same); United States v. Manfredi, 

, 522 (9th Cir.
1983) (holding that as part of showing that a warrantless entry
was “imperative,” the government must demonstrate “that a
warrant could not have been obtained in time even by tele-
phone under the procedure authorized by Fed. R. Crim. P.
41(c)(2).”). Our definition of exigent circumstances is not
novel. Indeed, the Supreme Court has stressed that a warrant-
less entry into a home may be “legal when there is compelling
need for official action and no time to secure a warrant.”
Michigan v. Tyler, 

, 509 (1978) (emphasis
added).

  For purposes of the Fourth Amendment analysis in this
case, it makes no difference that the officers did not enter
Fisher’s apartment to take physical custody of him. We have
3168                  FISHER v. CITY OF SAN JOSE
long recognized that “it is the location of the arrested person,
and not the arresting agents, that determines whether an arrest
occurs within a home.” United States v. Johnson, 

, 757 (9th Cir. 1980), aff’d on other grounds, 

(1982); see also United States v. Al-Azzawy, 

, 893 (9th Cir. 1985) (holding that because defendant
“only emerged under circumstances of extreme coercion, the
arrest occurred while he was still inside his trailer.”). With
these basic Fourth Amendment principles in mind, I turn to
the merits of the City’s appeal and explain why I can not
agree with the majority.

                                    II

   In the context of an armed standoff, the majority holds that
as long as probable cause and exigent circumstances existed
at the initial seizure the police are not required to assess
whether the “exigency persisted throughout the standoff
because the standoff was no more than an actual continuation
of the initial seizure.” Maj. Op. at 3151 (internal quotation
marks omitted). Under this rule, any dissipation of the exigen-
cies before the person can be taken into physical custody does
not require the police to reassess the need for a warrant. Maj.
Op. at 3152. Although I seriously question whether the major-
ity’s holding is supported by Michigan v. Tyler or United
States v. Echegoyen, the cases on which the majority primar-
ily relies, I would not, in light of the record, decide those
issues here.1 In my view, because the City presented no evi-
dence explaining why the officers did not have time to obtain
a warrant when they seized Fisher at about 6:30 a.m., exigent
circumstances did not exist and the warrantless seizure of
Fisher violated the Fourth Amendment.2
  1
    Although I believe that the court need not reach the issue, I agree with
Judge Reinhardt’s compelling analysis and therefore join his dissent.
  2
    The majority complains that the basis for my dissent is at odds “with
Fisher’s own theory on appeal, and is contradicted by overwhelming evi-
dence” in the record. Maj. Op. at 3148-49 n.4. The thrust of Fisher’s argu-
                      FISHER v. CITY OF SAN JOSE                      3169
  I begin by noting that, for purposes of the Fourth Amend-
ment, a seizure occurs when police officers use such force or
show of authority that “a reasonable person would have
believed he was not free to leave.” United States v. Al-

(quoting Florida v. Roger, 460 U.S.

ment, however, was that the police never explained why there was
insufficient time to obtain a warrant before they seized him. I recognize
that Fisher states that “exigent circumstances” existed before 6:30 a.m.
However, I do not understand Fisher’s argument to concede that during
the early morning hours there was insufficient time to obtain a warrant
before taking any action. The fact that Fisher posed a threat does not end
the inquiry. The inquiry, as noted above, must also consider whether the
circumstances required urgent action, such that a warrant could not have
been obtained in time. On that score, my view of the case is entirely con-
sistent with the district court’s ruling and Fisher’s argument.
   As for when Fisher was effectively seized for Fourth Amendment pur-
poses, the majority asserts that there was sufficient evidence in the record
for the jury to conclude that, in light of Fisher’s actions, he was seized
sometime before 6:30 a.m. After outlining Fisher’s own behavior in the
early morning hours of October 24, the majority concludes that “[a] rea-
sonable person would not believe that his freedom remained unimpaired
after engaging in such aggressive conduct toward the police officers sur-
rounding his apartment.” Maj. Op. at 3149 n.4.
   This analysis of the moment of seizure departs substantially from our
Fourth Amendment jurisprudence. “A person is seized if ‘taking into
account all of the circumstances surrounding the encounter, the police
conduct would have communicated to a reasonable person that he was not
at liberty to ignore the police presence and go about his business.’ ”
United States v. Washington, 

, 769 (9th Cir. 2007) (quoting
Florida v. Bostick, 

, 437 (1991)) (emphasis added). Our
inquiry does not, as the majority suggests, seek to ascertain a person’s
view of the effect that his own conduct has upon the police. Rather, our
inquiry, an objective one, “is designed to assess the coercive effect of
police conduct” on that person. Michigan v. Chesternut, 

, 573
(U.S. 1988).
   As I explain above, the conduct of the police in this case would not
have led a reasonable person to believe that “he was not at liberty to
ignore the police presence and go about his business” until the MERGE
team arrived on the scene. See 

. In my view, no
reasonable juror could conclude otherwise.
3170               FISHER v. CITY OF SAN JOSE
491, 501-03 (1983)); see also United States v. 

. Where the police attempt to justify a warrantless
seizure on the basis of exigent circumstances, “[t]he critical
time for determining whether any exigency exists is the
moment the officer makes the warrantless entry.” United
States v. Johnson, 

, 907 (9th Cir. 2001) (en
banc). Here, until the San Jose Police Department’s Mobile
Emergency Response Group and Equipment (“MERGE”)
team arrived, a reasonable person in Fisher’s position would
not have believed that his freedom had been so restricted that
he was not free to leave his apartment. That is the moment,
in light of all the circumstances, at which we must determine
whether the urgency of the situation was such that the police
had no time to obtain a warrant.

   Between the arrival of the first responder, Officer Ryan,
and the assembly of the MERGE team around 6:30 a.m.,
nothing significant about the officers’ activities would have
led a reasonable person to believe that he was not free to leave
if he desired to do so. Officer Ryan’s actions were limited to
coaxing Fisher out of his apartment and attempting to engage
him in a meaningful conversation. When this proved unsuc-
cessful, Ryan called a tactical negotiator, Officer Males, to
assist. She responded and arrived around 3:15 a.m. Her
attempts to speak with Fisher were also unsuccessful. Indeed,
Fisher informed Males that she could enter his apartment, but
he would shoot her if she did. Males, like Ryan, neither
ordered Fisher to exit his apartment, nor displayed a weapon;
her objective was to persuade Fisher to exit his apartment
peacefully so that the officers could speak with him about the
events earlier in the morning. Both Males and Ryan specifi-
cally testified that they never told Fisher he was under arrest
or was required to leave his home. Although other officers
were positioned around the apartment building, there is noth-
ing in the evidence that shows that Fisher was aware of their
presence, or that the other officers attempted to make their
presence known to Fisher.
                     FISHER v. CITY OF SAN JOSE                  3171
   The arrival of the MERGE team on the scene, however,
changed the atmosphere outside Fisher’s apartment. Ryan cal-
led for the MERGE team at about the same time that he called
for the tactical negotiator. Sometime between 6:00 and 7:00
a.m., approximately seventeen MERGE officers assembled at
the scene along with an armored rescue vehicle and a mobile
command center. The MERGE officers, dressed in tactical
gear and armed, did not take long to make their presence
known to Fisher. The MERGE team set up a loud speaker sys-
tem and fully secured the perimeter areas. The record clearly
reflects that by at least 6:30 a.m., a reasonable person in Fish-
er’s position would have understood that, with such show of
force, he was not free to leave.

   In determining whether Fisher’s seizure was justified, we
must consider whether exigent circumstances excused the
need for a warrant. That inquiry, as noted above, requires con-
sideration of both the facts of the exigency and whether there
was sufficient time to secure a warrant. No evidence in the
record suggests that, from the time Fisher threatened Officer
Ryan until 6:30 a.m. when the MERGE team was in control,
there was insufficient time to obtain a warrant before taking
any official action to seize or arrest Fisher. Officer Ryan and
Males did testify that they did not believe that a warrant was
necessary, but that subjective testimony is irrelevant, because
the Fourth Amendment inquiry is an objective one. United
States v. 

. The evidence did
establish, however, that a district attorney was available
twenty-four hours a day/seven days a week to assist the police
in obtaining a warrant, telephonically3 or in person. The
record also shows that a magistrate was on call twenty-four
hours a day/seven days a week. Significantly, there was no
explanation why any attempt to obtain an arrest warrant
  3
   Under California Penal Code section 817(c)(2), the police may apply
for an arrest warrant using telephone and facsimile transmission equip-
ment, or using telephone and electronic mail.
3172               FISHER v. CITY OF SAN JOSE
between 2:00 and 6:30 a.m. would have frustrated the offi-
cers’ on-scene objectives.

   I fully understand the majority’s concern for the ability of
police officers to have the freedom to make swift tactical
decisions that, in the context of a highly dangerous and vola-
tile armed standoff, could implicate the safety of officers and
others. I also recognize that when police face an armed stand-
off, there may be a compelling need to use force to enter a
person’s home immediately to alleviate a highly dangerous
situation. However, the officers’ measured and deliberate
responses to Fisher’s verbal and physical threats—
summoning and waiting for both the tactical negotiator and
the MERGE team—demonstrate that there was ample time to
have at least made a good faith attempt to obtain a warrant.
A review of this evidence leads to the inescapable conclusion
that between 2:00 a.m. and the initial seizure at 6:30 a.m.,
there was ample time for the officers to obtain an arrest war-
rant. The subsequent arrest of Fisher was unlawful because
the initial warrantless seizure, unsupported by exigent circum-
stances, was unlawful. For this reason, I would affirm the dis-
trict court’s Rule 50(b) judgment as a matter of law.

   Because I would resolve this case on the basis of the evi-
dence and our settled law, I see no need to “clarify our juris-
prudence relating to the Fourth Amendment’s application to
armed standoffs.” Maj. Op. at 3140. In my view, the majority
reaches out to decide unnecessarily that, in the context of an
armed standoff, a Fourth Amendment seizure is a continuous
event and that any dissipation of the exigencies is not a factor
in the analysis. In so holding, the majority virtually eliminates
the urgency requirement of the exigent circumstances excep-
tion and thereby undermines, rather than clarifies, our Fourth
Amendment jurisprudence.

  For all of the above reasons, I respectfully dissent.
                     FISHER v. CITY OF SAN JOSE                   3173
REINHARDT, Circuit Judge, with whom KOZINSKI, Chief
Judge, and PREGERSON, THOMAS, and PAEZ, Circuit
Judges, join, dissenting:

   It is a fundamental principle of our Fourth Amendment
jurisprudence that warrantless in-home arrests are permissible
only when necessitated by exigent circumstances. Even if exi-
gent circumstances existed at 6:30 a.m. when the police ini-
tially constructively seized Fisher by surrounding his home,1
the officers involved in the ensuing standoff violated the
Fourth Amendment by failing to seek a warrant before
escalating their initial interference with Fisher’s Fourth
Amendment rights. This escalation occurred when the police
hurled a throw phone, a flash-bang device, and tear gas onto
Fisher’s property, forced him from his home, shot him with
“less-than-lethal” rubber bullets, and ultimately made an
actual forcible arrest some eight hours after the initial con-
structive seizure. The officers undisputedly had more than
enough time and opportunity to procure a warrant before tak-
ing those additional invasive actions, and their failure to do so
violated the Fourth Amendment. In reaching this determina-
tion, I reject the majority’s unprecedented conclusion that,
once a police action is initiated without a warrant because
there is insufficient time to obtain the approval of a magis-
trate, that action may be substantially expanded and continued
indefinitely without a warrant, even though the police have
every opportunity to obtain one with respect to the additional
Fourth Amendment intrusions.

                                   I.

   Warrantless in-home searches and seizures are permissible
only if the police demonstrate exigent circumstances. Such
circumstances are not present “unless the government demon-
  1
    I do not believe it necessary to decide for purposes of this dissent
whether exigent circumstances existed when the police constructively
seized Fisher by surrounding his home.
3174               FISHER v. CITY OF SAN JOSE
strates that a warrant could not have been obtained in time
. . . . ,” United States v. Manfredi, 

, 522 (9th Cir.
1983); see also Bailey v. Newland, 

, 1033 (9th
Cir. 2001) (“ ‘[T]he presence of exigent circumstances neces-
sarily implies that there is insufficient time to obtain a war-
rant; therefore, the government must show that a warrant
could not have been obtained in time.’ ”) (quoting United
States v. Tarazon, 

, 1049 (9th Cir. 1993);
United States v. Lindsey, 

, 782 (9th Cir. 1989).
In other words, the absence of time to obtain a warrant is a
necessary condition for a finding of exigent circumstances; if
time to obtain a warrant is available, there are necessarily no
exigent circumstances.

   Here, there is no dispute that the police could have obtained
a warrant during the period between their arrival at Fisher’s
apartment and the forcible arrest that ended the standoff.
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. 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.

   As the district court noted, “Defendants have offered no
explanation, and none exists, as to why [not] one of these offi-
cers was [ ]able to seek and obtain a telephone warrant or
make use of the procedures available twenty-four hours a day
to obtain a warrant from a judge in person . . . .” The standoff
here did not involve “rapidly unfold[ing]” events that pre-
vented the police from seeking a warrant. Cf. United States v.
Sarkissian, 

, 964 (9th Cir. 1988). Likewise, in
light of the return to the station house of a number of officers
from the scene at 7 a.m., the defendants cannot assert that
their ability to procure a warrant was evident only in hind-
sight. Cf. 

(finding that no warrant
                     FISHER v. CITY OF SAN JOSE                     3175
was required where officers had the time to procure a warrant
only because of an unforeseeable delay in the arrival of rein-
forcements). Rather than “taking immediate action in the face
of rapidly evolving circumstances,” Majority Opinion at 3163
(emphasis added), the defendants in this case chose a course
of action that gave them more than sufficient time and oppor-
tunity to procure a warrant, and failed to obtain one only
because they elected not to do so.2 Their failure to obtain a
warrant in these circumstances violated the Fourth Amend-
ment and compels affirmance of the district court’s decision.

   Whether or not the initial constructive seizure was, as the
majority claims, justified by exigent circumstances, those cir-
cumstances no longer existed after 7 a.m. when the officers
returned to the station house with a full opportunity to procure
a warrant. In the absence of such circumstances, the officers
were required to seek a warrant before further accelerating
their intrusion on Fisher’s Fourth Amendment rights, and cer-
tainly before forcing him out of his home and making a forc-
ible arrest.

   In the context of in-home arrests, the warrant requirement
protects two distinct Fourth Amendment rights. First, it pro-
tects a right to personal liberty by preventing unjustifiable
detentions. Second, it protects the privacy and sanctity of the
home. The home is “perhaps the most sacrosanct domain” —
the domain in which “Fourth Amendment interests are at their
strongest.” LaLonde v. County of Riverside, 

,
954 (9th Cir. 2000). Due to the home’s sanctity, “[t]he Fourth
Amendment has drawn a firm line at the entrance to the
house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton v. New
York, 

, 590 (1980). For the same reason, any
warrantless entries that do occur “must be ‘strictly circum-
  2
   It appears from the record that it was approximately three and a half
hours after the constructive seizure when the officers first escalated the
Fourth Amendment intrusion.
3176                  FISHER v. CITY OF SAN JOSE
scribed by the exigencies which justify [their] initiation.’ ”
Mincey v. Arizona, 

, 393 (1978) (quoting Terry
v. Ohio, 

, 25-26 (1968).

   The fact that Fisher was constructively seized by the police
at approximately 6:30 a.m. cannot justify the subsequent war-
rantless intrusions that occurred long after a warrant could
have been obtained. Because each subsequent intrusion
involves a violation of the sanctity and privacy of a suspect’s
home, each intrudes separately upon the suspect’s Fourth
Amendment rights. Because any warrantless entry of the
home must be strictly circumscribed by the exigent circum-
stances justifying it, police crossings of that “firm line at the
entrance to the house” established by the Fourth Amendment
must be supported by either a warrant authorizing the physical
entry or by exigent circumstances. Once a warrant is obtained
— ordinarily not a very difficult task when time exists — the
necessary support is provided, and no additional warrant is
needed to justify any subsequent intrusions. However, when
the exigency has ended, no additional intrusions are permissi-
ble without a warrant. Forcing a suspect out of his home and
physically arresting him through the use of force involves an
additional intrusion upon his personal liberty far more serious
than the surrounding of his home or apartment, and must
unquestionably be justified by a warrant or exigent circum-
stances. Because of the significant additional intrusions upon
Fisher’s Fourth Amendment rights resulting from the subse-
quent actions of the police, his constructive seizure at approx-
imately 6:30 a.m. cannot immunize those subsequent actions
from constitutional scrutiny if there was time and opportunity
to obtain a warrant before they occurred. Cf. Terry v. Ohio,

, 17 (1968). Any contrary rule entirely disregards
the fundamental differences between a constructive seizure
and an actual, forcible arrest or home invasion.3
  3
   In light of these substantial additional intrusions of Fisher’s Fourth
Amendment rights, we need not determine in this case whether the simple
continuation of a constructive seizure also requires the procuring of a war-
rant after the police have the time and opportunity to obtain one.
                   FISHER v. CITY OF SAN JOSE               3177
   Here, hours after the constructive seizure and long after
they had an opportunity to obtain a warrant, the police
engaged in a series of escalating intrusions into Fisher’s apart-
ment designed to force him out of his home, followed by a
forcible physical arrest. They first broke a sliding glass door
and threw a “throw phone” — a phone encased in a box that
also contains a live microphone — onto Fisher’s patio. Just
before 11 a.m., they detonated a flash-bang device on Fisher’s
property in order to attempt to disorient him. At 1 p.m. — six
and a half hours after the constructive seizure — the police
officers threw into his apartment, through a door they had
broken, four tear gas canisters. The officers next deployed
another round of tear gas at 1:30 p.m. Fisher finally was
forced out of his home around 2:35 p.m. and, in accordance
with police instructions, walked in a designated direction with
his hands in the air. When he stopped walking forward, the
police responded by shooting him in the leg with a less-than-
lethal bullet, and then physically placed him under arrest.

   As the actions of the police who surrounded the house esca-
lated, they became increasingly more dangerous to Fisher and
more invasive of his rights. The initial action involved a con-
structive seizure and presented little risk of damage to his
apartment or physical injury to him. The subsequent actions
of the police involved the actual physical invasion of his
property with a throw phone, a flashbang device, and tear gas,
and the use of increasingly dangerous tactics, including the
hurling of the flash-bang device onto the premises, see, e.g.,
United States v. Ankeny, 

, 833 (9th Cir. 2007)
(noting first- and second-degree burns caused by explosion of
flash-bang device), followed by tear gas canisters, and finally
the firing at him of less-than-lethal bullets, culminating in his
physical injury and forcible physical arrest. Given the drasti-
cally different consequences of the initial constructive seizure
and the subsequent police actions — consequences directly
related to the suspect’s interests in privacy, personal security,
and the sanctity of the home, all of which are protected by the
Fourth Amendment — and the requirement that any warrant-
3178               FISHER v. CITY OF SAN JOSE
less intrusion upon Fourth Amendment rights be strictly cir-
cumscribed by the exigent circumstances justifying the
intrusion, the alleged legality of the initial warrantless con-
structive seizure did not render the subsequent warrantless
actions of the police constitutional. Those further intrusions
on Fisher’s Fourth Amendment rights would have been lawful
only if the police had obtained a warrant or if, at the time
those further intrusions occurred, exigent circumstances con-
tinued to exist; as 

, such exigent circum-
stances would have existed at the time of the further
intrusions only if at that point the police had not had an
opportunity to obtain a warrant.

                               II.

   The majority contends that a warrant was not required for
the Fourth Amendment intrusions that followed Fisher’s con-
structive seizure in his home because the protections of the
Fourth Amendment were stripped from him at the time his
home was surrounded. Thus, the majority argues, the subse-
quent actions were “no more than an actual continuation of
the initial seizure.” Majority Opinion at 3150 (citation omit-
ted). There is no legal authority whatsoever that supports this
contention. The majority relies entirely on two wholly inap-
plicable cases: the Supreme Court’s decision in Michigan v.
Tyler, 

(1978), and this court’s decision in
United States v. Echegoyen, 

, 1273 (9th Cir.
1986). Neither Tyler nor Echegoyen supports the majority’s
holding, and the majority offers no other support for its theory
of the stripping of Fourth Amendment rights by an initial con-
structive seizure.

   Tyler dealt with an entirely different question: the intrusion
of firefighters onto private property in order to fight a fire and
their right to remain on the premises for a reasonable period
in order to (1) determine the fire’s cause and (2) make certain
that there is no danger that the fire will start up again. The
Court held that firefighters do not need a warrant for such an
                   FISHER v. CITY OF SAN JOSE               3179
intrusion — i.e., that actual firefighting is categorically
exempt from the warrant requirement. It also held that, when
at 4 a.m. “darkness, steam and smoke” temporarily prevented
fire officials from pursuing that objective, their departure
from the premises and return “shortly after daylight” to com-
plete their mission did not constitute a termination of one
intrusion and the commencement of another, one for which a
warrant might be 

. Instead, the
Court held that when the search resumed the fire officials
were still pursuing their initial action, one for which a warrant
was not needed. 

made plain in Tyler what would appear obvious.
It stated, “It would defy reason” to assert that firefighters
would need a warrant to enter a building to fight a fire, 

or to remain there “for a reasonable time” to determine
the fire’s cause and make certain that it would not resume, 

The fire itself, the Court explained, provides a suffi-
cient excuse from the requirement that a warrant be obtained;
it added that resuming the investigation in the morning was
simply “an actual continuation” of the prior evening’s cate-
gorically exempt activities.

   Here, however, there is no question that a warrant is
required for the type of action undertaken by the police,
including the initial constructive seizure of Fisher in his
home. In Fisher’s case, the requirement that a warrant be
obtained was excused only because there was insufficient
time to obtain one before undertaking the initial police action.
Tyler tells us nothing about whether, in such cases, when con-
ditions change and there is time to seek a magistrate’s authori-
zation a warrant must be offered before the police engage in
further and more substantial Fourth Amendment intrusions.

  In short, Tyler is a case about a category of actions for
which a warrant is not required, while Fisher is about a cate-
gory of actions for which one is. That the firefighters’ actions
in Tyler all constituted a part of a continuing categorically
3180                   FISHER v. CITY OF SAN JOSE
exempt investigation renders the case of no relevance here. To
base approval of the warrantless actions of the police in Fish-
er’s case on the Supreme Court’s holding in Tyler is to misun-
derstand fundamentally the nature and purpose of the Fourth
Amendment warrant provision.

   Unlike the majority’s interpretation, this reading of Tyler
accords with the Supreme Court’s subsequent treatment of the
case. Tyler has been cited at least twice by the Court for its
specific holding that fire investigators may remain on the
premises where a continuing or recently extinguished fire has
occurred, in order to determine the fire’s cause. See, e.g.,
Brigham City v. Stuart, 

, 403 (2006); City of
Indianapolis v. Edmond, 

, 37 (2000).4 The
Supreme Court has never interpreted Tyler, however, as estab-
lishing a “mere continuation” exception to the warrant
requirement in criminal cases or suggested that any such
exception applies to in-home warrantless arrests. In fact, in
the thirty years since Tyler was decided, the Court has never
relied upon Tyler’s “mere continuation” holding to justify a
search or seizure for law enforcement purposes.

   Echegoyen, upon which the majority also relies, is inappli-
cable here for the same reason as Tyler. As the district court
held, the subsequent entry in Echegoyen “was a [ ] limited
entry done for the purpose of avoiding a possible explosion”
at a time when the evidence showed the existence of an “ex-
plosive” and “potentially dangerous fire 

, 1278. “[T]he subsequent entry . . . was based on the
need to use [the officers’] expertise in inspecting the premises
for a possible fire hazard.” 

; see also 

  4
   Another part of Tyler has been cited as a ruling on administrative
searches. See, e.g., Soldal v. Cook County, Ill., 

, 67 (1992) (cit-
ing Tyler for the proposition that “the [Fourth] Amendment’s protection
applies in the civil context”); Michigan v. Clifford, 

, 291
(1984) (“In Tyler, we restated the Court’s position that administrative
searches generally require warrants.”).
                       FISHER v. CITY OF SAN JOSE                       3181
(“The second entry was . . . done to inspect the premises to
determine if any public safety hazard [related to a fire or
explosive hazard] remained.”). Thus, the “subsequent” entry
in Echegoyen was a Tyler entry designed to investigate and
eliminate a potentially explosive fire hazard. Because Eche-
goyen, like Tyler, involved an entry responding to the public
safety risks created by a fire hazard, that case, like Tyler, is
entirely irrelevant here.5

  Because Tyler involves an intrusion to suppress a fire and
make certain that it would not resume — an intrusion for
which no warrant is necessary — and Echegoyen involves a
similar intrusion for the purpose of investigating a potential
explosive fire hazard, neither case offers any support for the
majority’s decision. And without Tyler and Echegoyen, the
majority is left with nothing, not a single case, that lends any
support to its theory: that no warrant is required for any
Fourth Amendment intrusion, regardless of its nature, that
occurs at any time following the warrantless surrounding of
a dwelling and constructive seizure of its occupant, even
though the police have more than sufficient time to obtain a
warrant before undertaking such actions.6 The majority may
  5
     Tyler and Echegoyen are inapplicable here for another reason. In both
cases, the “continuation” was identical to the initial Fourth Amendment
intrusion; no more, no less. In Tyler, the investigation that was interrupted
by a lack of visibility was not expanded in any manner, nor was it more
intrusive on Fourth Amendment rights, when it resumed at daybreak.
Likewise, the two searches at issue in Echegoyen were identical with
respect to the extent of the invasion of the interests protected by the Fourth
Amendment. By contrast, the majority here holds that any police action
for which there was insufficient time to obtain a warrant at the outset is
thereafter entirely exempted from the Fourth Amendment’s warrant
requirement, no matter how much greater the subsequent intrusions.
   6
     The majority’s citations to Bing ex rel. Bing v. City of Whitehall, 

(6th Cir. 2006) also do not support its theory. I wholeheartedly
agree with Bing that “[e]xigent circumstances terminate when the factors
creating the exigency are negated.” 

One necessary “factor[ ]
creating . . . exigency” is the inability to procure a warrant in a timely
3182                   FISHER v. CITY OF SAN JOSE
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.

                                    III.

   Because a police action may be commenced before a war-
rant can be obtained, it does not follow that the police may
continue that action indefinitely or may significantly escalate
their invasion of a suspect’s Fourth Amendment rights with-
out obtaining a warrant, even though they have a full opportu-
nity to obtain one first. Specifically, where a house is
surrounded and its occupants constructively seized without a
warrant because of lack of time to obtain one, it does not fol-
low that a forceful invasion of the home or a forcible arrest
of the person may be initiated without a warrant long after
one could be obtained.7 To the contrary, whenever the justifi-

fashion. Here, there is no dispute that that factor was “negated” before
fundamental intrusions upon Fisher’s Fourth Amendment rights occurred
many hours after the constructive seizure. For the same reason, the majori-
ty’s second citation to Bing is inapposite: Even if Fisher “was at all times
dangerous,” 

factor required to demonstrate exigency — the
inability to obtain a warrant in time — had dissipated before the subse-
quent entries and ultimate arrest, and thus the reason not to obtain a war-
rant no longer existed.
   7
     Although the majority suggests that “we are dealing with an unre-
strained, armed suspect who poses a continuing public safety risk — not
a compliant arrestee or innocent homeowner,” Majority Opinion at 3157,
it does not so limit its holding. Its rule — that an initial constructive sei-
zure based on exigent circumstances eliminates any further need for a war-
rant, no matter how much time elapses or how much more invasive the
subsequent police actions — could be applicable to all constructive sei-
zures justified by exigent circumstances, not just those involving armed
standoffs or individuals who pose a continuing public safety risk. In truth,
the majority suggests just the kind of “rigid” “ ‘bright-line’ ” rule that it,
itself, tells us is improper in the Fourth Amendment context. Majority
Opinion at 3159-60 (quoting United States v. Turvin, 

, 1103
(9th Cir. 2008)).
                   FISHER v. CITY OF SAN JOSE               3183
cation for a serious intrusion on Fourth Amendment rights
may be presented to a neutral magistrate for his consideration,
law enforcement officers are required to do so. That is the
fundamental teaching of the Fourth Amendment, and nothing
in the circumstances of this case justifies a departure from that
simple rule, particularly as the obtaining of a warrant here
would in no way have interfered with or delayed the ongoing
police action. As pointed out earlier, any of the numerous
officers who withdrew from the scene and returned to the
station-house could have prepared the necessary application
and presented it to a magistrate.

   As Justice Jackson explained more than 60 years ago, the
basic protection of the Fourth Amendment “consists in requir-
ing that [the] inferences [justifying a search or seizure] be
drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enter-
prise of ferreting out crime.” Johnson v. United States, 

, 13-14 (1947). A neutral evaluation protects Fourth
Amendment rights by reducing the risk of unjustifiable
searches and seizures and by requiring that police carefully
define the reasons for and scope of any particular search or
seizure. Because of the importance to Fourth Amendment
interests of a magistrate’s review of a warrant application,
“the police bear a heavy burden when attempting to demon-
strate an urgent need that might justify” a departure from the
warrant requirement. Welsh v. Wisconsin, 

, 749-
50 (1984). Such departures are “ ‘few in number and carefully
delineated.’ ” 

(quoting United States v. United
States District Court, 

, 318 (1972)). It is only in
those limited instances where necessity requires abatement of
this principle that we do so — in other words, only in exigent
circumstances.

   Because exigency is an exception to a fundamental princi-
ple of the Fourth Amendment mandated by necessity, any
warrantless search or seizure “must be ‘strictly circumscribed
by the exigencies which justify its initiation.’ ” Mincey, 437
3184                  FISHER v. CITY OF SAN JOSE
U.S. at 393 (quoting 

).8 Here, as in
all cases involving exigent circumstances, there was at the
outset insufficient time to obtain a warrant. When that condi-
tion of exigency dissipated — i.e., when there was time to
obtain a warrant — the exigency itself no longer existed and
there was no longer any justification for continuing or escalat-
ing the intrusion on Fisher’s Fourth Amendment rights with-
out allowing “a neutral and detached magistrate” to evaluate
the circumstances.9

   In suggesting that requiring a warrant in the circumstances
of Fisher’s case would serve no purpose, the majority fails to
comprehend the significance of its abandonment of basic
Fourth Amendment principles. According to the majority,
“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. We do not see what a neutral
  8
     In addition to relying upon Tyler and Echegoyen in a way that the
Supreme Court itself has never done, the majority departs from the Court’s
prior authority by entirely ignoring Mincey’s requirement that warrantless
searches and seizures be “strictly circumscribed.” This is not surprising,
because the majority’s approach is utterly irreconcilable with that require-
ment.
   9
     The majority asserts that my “focus on whether police had time to
obtain a warrant . . . is erroneous.” Majority Opinion at 3162 n.9. How-
ever, it is the majority’s understanding of exigent circumstances that is
faulty. Newland, Lindsey, and Manfredi establish that exigent circum-
stances do not exist unless there is inadequate time to obtain a warrant. Of
course, the absence of time alone is not sufficient for a finding of exigent
circumstances. The situation must also involve “ ‘a substantial risk of
harm to the persons involved or to the law enforcement process . . . .’ ”
United States v. Gooch, 

, 679 (9th Cir. 1993) (quoting United
States v. Al-Azzawy, 

, 894 (9th Cir. 1985)). Exigent circum-
stances exist only where both of the conditions are met. Because the police
had time to obtain a warrant, one of the two requisite conditions was not
met, and the general constitutional rule requiring the obtaining of a war-
rant applied.
                      FISHER v. CITY OF SAN JOSE                       3185
and detached magistrate would have added in helping to
peacefully effect Fisher’s arrest.” Majority Opinion at 3153
(footnote omitted). This analysis is startling. As Justice Jack-
son explained, the purpose of the warrant requirement is not,
as the majority appears to believe, to help police “effect [a
suspect’s] arrest,” 

ensure that the decision to arrest
an individual is consistent with the Constitution. Nothing in
the circumstances of Fisher’s constructive seizure eliminates
the value of a neutral, detached evaluation of the reasons for
the subsequent invasions of his home, including his forcible
extraction from it in order to physically arrest him. In such
circumstances the magistrate does not “pre-authorize tactical
decisions made by police,” Majority Opinion at 3158, as the
majority suggests, but instead, as in any other case, the magis-
trate provides an independent evaluation of the justifications
for the Fourth Amendment intrusions that have not yet
occurred — in this case escalating intrusions of a different
order than a simple constructive seizure.10 By suggesting that
requiring a warrant here would be pointless the majority pre-
sumes that officers engaged in a standoff always reach the
proper conclusion as to the legality of a search or seizure;
however, the Fourth Amendment provides that, whenever
  10
     The majority suggests that this approach would require magistrate
judges to evaluate the tactics used by police during a standoff. That is sim-
ply incorrect. The majority confuses a reason we must require a warrant
after exigent circumstances have dissipated — namely, that police actions
subsequent to the constructive in-home seizure of a suspect involve addi-
tional, greater intrusions upon the suspect’s Fourth Amendment rights —
with the role played by the magistrate judge hearing the warrant request.
The magistrate judge would treat a warrant application in these circum-
stances no differently from any other warrant application: He would sim-
ply ask whether the requested warrant meets the requirements of the
Fourth Amendment, including probable cause, specificity, and support by
oath or affirmation. U.S. Const. amend. IV. If a warrant for the suspect’s
arrest is obtained, no additional resort to the magistrate is necessary,
regardless of the subsequent tactics chosen by the police. The majority’s
bogeyman — a magistrate judge at the scene of a standoff evaluating each
and every tactical decision — is wholly illusory and bears no relationship
to judicial reality.
3186               FISHER v. CITY OF SAN JOSE
possible, the determination of the validity of a prospective
search or seizure may not be made by the police alone.

   Furthermore, requiring a warrant in these circumstances
would not involve a “retroactive warrant practice.” Majority
Opinion at 3153. The warrant would not, as the majority
seems to believe, justify the prior constructive seizure of the
suspect. Instead, it would authorize the additional intrusions
upon the suspect’s Fourth Amendment rights that may result
from the subsequent actions of the police. Even if a construc-
tive seizure effectively places the suspect under arrest, as the
majority claims, but cf. California v. Hodari D., 

, 626 (1991) (“An arrest requires either physical force . . .
or, where that is absent, submission to the assertion of author-
ity.”) (emphasis in original), the purpose of the arrest is not
fulfilled until the suspect has actually submitted to the author-
ity of the police. Thus, the police are actively engaged in exe-
cuting the arrest for as long as the suspect does not submit.
Where, as here, the constructive seizure continues for a sub-
stantial period of time and the efforts of the police to effect
the suspect’s submission involve additional serious intrusions
upon his Fourth Amendment rights, those intrusions must be
supported either by a warrant or by exigent circumstances.

   The neutral judicial evaluation provided by a magistrate
judge’s review of a warrant application is especially important
in cases involving nighttime in-home arrests, often after forc-
ible entries, and lengthy standoffs, which are inherently dan-
gerous and may lead to tragic consequences. Such
occurrences can lead to the death of the suspect or the
destruction of the suspect’s home, see, e.g., 

, 562 (suspect killed during raid and home burned down
by fire started by flashbang device); or to the death of inno-
cent third parties, see, e.g., Ewolski v. Brunswick, 

, 499 (6th Cir. 2002) (suspect killed his son during stand-
off). An infamous police standoff in Philadelphia resulted in
the deaths of eleven people, including five children, and the
destruction of an entire city block. Don Terry, Philadelphia
                    FISHER v. CITY OF SAN JOSE                 3187
Held Liable for Firebomb Fatal to 11, N.Y. Times, June 25,
1996, at A10. Even where no deaths result from a standoff,
the consequences may nonetheless be tragic. See, e.g.,
O’Brien v. Grand Rapids, 

, 994 (6th Cir. 1994)
(suspect rendered quadriplegic during raid). Closer to home,
this Circuit has seen its own share of tragic police standoffs,
from the shootout at Ruby Ridge, see Harris v. Roderick, 

, 1193-94 (9th Cir. 1997) (describing the deaths of
the wife and son of the subject named in the arrest warrant the
enforcement of which led to the Ruby Ridge incident), to the
destructive fire that ended the 1974 standoff between the Los
Angeles Police Department and members of the Symbionese
Liberation Army. Requiring that, when there is time to do so,
police procure a warrant in such circumstances helps ensure
that high-stakes standoffs occur only when legally proper.

   Furthermore, in any standoff it is entirely conceivable that,
following its commencement, information may be developed
that establishes that the person in a residence is not the person
who committed the offense in question and is not armed or
dangerous. If the magistrate judge hearing a warrant request
prepared after an initial constructive seizure determines that
a physical arrest would be impermissible, either because the
police do not have probable cause to believe that they have
the right person or because they otherwise lack probable
cause to make an arrest, then the standoff can be terminated
peacefully before the escalating efforts to extract the suspect
from his home increase the likelihood of a tragic end to the
confrontation. Procuring a warrant in such circumstances is
anything but an “empty gesture,” as the majority suggests.
Majority Opinion at 3154.

   The primary question, however, is not the presence of prob-
able cause; it is who should make the determination required
by the Constitution. Asking a magistrate judge to determine
whether an arrest is supported by probable cause is not simply
a “reasonable role for a judicial officer,” id.; it is constitution-
ally required, absent exigent circumstances, and is especially
3188                FISHER v. CITY OF SAN JOSE
important in the high stakes context of nighttime in-home
arrests or potential armed standoffs. The Fourth Amendment
requires that, before certain invasions of constitutional inter-
ests may transpire, a neutral magistrate must determine
whether probable cause exists. Whether a warrant is issued by
the magistrate or not, submitting the application to him for his
review fulfills the dictates and purpose of the Constitution and
helps safeguard the rights of all individuals. The Constitution
requires a warrant unless exigent circumstances exist at the
time of the Fourth Amendment intrusion in question. Exi-
gency requires a lack of time, and any exigency here no lon-
ger existed when the police engaged in the substantial Fourth
Amendment intrusions that occurred hours after the initial
constructive seizure of Fisher. The majority provides no sup-
port for its departure from the Constitution’s requirements.

                                IV.

   Finally, the majority justifies its decision on the ground that
requiring a warrant in these circumstances would interfere
with the efficiency and efficacy of police operations. How-
ever, “the privacy of a person’s home and property may not
be totally sacrificed in the name of maximum simplicity in
enforcement of the criminal law.” 

.
The majority’s concerns for police efficiency are commend-
able, but they are extra-constitutional and exceed the proper
role of the judiciary — absent exigent circumstances, the
Fourth Amendment requires a warrant regardless of the
majority’s view that the Fourth Amendment may be ineffi-
cient.

    The majority’s efficiency concerns are also chimerical.
Requiring officers with the time and ability to procure a war-
rant to follow the dictates of the Constitution would not “di-
vert one or more officers from the task of resolving the
standoff,” Majority Opinion at 3155, nor would it lead police
to “ponder with each passing moment whether the exigency
. . . that existed at the start of the standoff had sufficiently dis-
                   FISHER v. CITY OF SAN JOSE                3189
sipated such that they must immediately” obtain a warrant. 

of officers is necessary and no pondering by
officers is required. If the officers do not have the time or
ability to procure a warrant, the exigency continues. The offi-
cers’ first priority is to perform the duties in which they are
engaged. If all of the officers at a standoff are engaged in
responding to the “rapidly unfold[ing]” events, there is no
time for them to procure a warrant and, accordingly, no need
for them to do so. 

. The police here
chose a course of action that afforded a number of the officers
all the time necessary to procure a warrant. Numerous officers
left the scene during the twelve hour period at issue and those
officers had a more than sufficient opportunity to seek a war-
rant. All chose not to do so, despite the clear requirements of
the Fourth Amendment.

   Moreover, rather than inviting judicial review “months if
not years later by a jury or a judge from the confines of a
courtroom” or placing judges in “the role of incident com-
mander,” requiring a warrant in such circumstances will
decrease the possibility of judicial “second-guessing.” Major-
ity Opinion at 3155, 3158. Obtaining a warrant will afford the
police protection against a number of potential lawsuits. Simi-
larly, should a magistrate decide that the issuance of a warrant
is not justified, the police will likely avoid a serious constitu-
tional error and subsequent unfavorable judicial review years
later; in addition, they may even discover that they are wrong
as to the merits of the case. At the very least, requiring the
police to procure a warrant ensures that they will do a proper
job in obtaining the evidence necessary to establish that they
have the right person. Under the majority’s rule, however, an
initial constructive seizure of an individual that occurs before
there is an opportunity to obtain a warrant will relieve the par-
ties of the ordinary obligation to obtain the objective view of
a magistrate judge before engaging in major armed actions,
thereby jeopardizing the public safety and opening the police
to liability against which they might otherwise be protected.
3190                FISHER v. CITY OF SAN JOSE
   Finally, the majority’s concern that requiring a warrant
would create a “safe harbor” for suspects in active standoffs,
Majority Opinion at 3154 n.7, is entirely baseless and reflects
its failure to comprehend the relationship between the exigent
circumstances exception and the fundamental Fourth Amend-
ment warrant requirement. Should “a clear opportunity to
peacefully resolve a dangerous situation” arise “in the midst
of a pending, but not yet approved, warrant request,” Majority
Opinion at 3155, or should the suspect’s actions demonstrate
the need for an immediate police response while a warrant
request is pending, the police officers are free to act without
a warrant because they would not have had time to obtain one
before acting. This would seem to be a fairly elementary
proposition, but one that the majority fails to comprehend. In
sum, once again, the crisis the majority fears is wholly non-
existent.

                             *   *   *

    The majority’s contention that requiring a warrant in the
circumstances presented by this case would be pointless and
inefficient suggests that today’s opinion has less to do with
the conduct of Fisher — whose drunken interaction with a
security guard led to a twelve-hour, hostage-free standoff; a
single misdemeanor conviction; and an award of nominal
damages and additional police training — and more to do
with the majority’s lack of respect for the warrant require-
ment. This court is not free to abandon that requirement, and
it is regrettable that the majority renders it a nullity in the cat-
egory of cases before us. It does so without any precedent in
law, and its sole legal rationale consists of an erroneous
extension of a single Supreme Court case — a case designed
to allow emergency efforts by firefighters to eliminate unsafe
fire conditions — to circumstances in which it has absolutely
no applicability. Even more regrettable is the majority’s fail-
ure to respect the historic Fourth Amendment principles that
give meaning to the warrant requirement. Accordingly, I dis-
sent.