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View Full Version : Warrantless arrests net $1 damage in San Jose


KenpoProfessor
02-04-2007, 11:35 AM
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/91B9122675AD4E6388257265005CB74A/$file/0416095.pdf?openelement

copy and paste the link.


This is sad, sad, sad.

Have a great Kenpo day

Clyde

Hunter
02-04-2007, 11:48 AM
Here you go.

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/91B9122675AD4E6388257265005CB74A/$file/0416095.pdf?openelement


OPINION
BERZON, Circuit Judge:
Steven Fisher claims constitutional violations stemming
from a twelve-hour standoff at his apartment between him and
a large number of San Jose police officers, at the end of which
he came out of the apartment and submitted to arrest. He sued
the city of San Jose (the City) and several officers under 42
U.S.C. 1983, contending, among other things, that the arrest
was invalid because the police never obtained or attempted to
obtain a warrant. A jury found for the defendants on all
claims, including a claim for warrantless arrest. Fisher thereupon
filed a renewed motion under Federal Rule of Civil Procedure
50(b) for judgment as a matter of law on the
warrantless arrest claim. Granting the motion against the City
alone, the district court ordered the City to pay nominal damages
of one dollar and issued an injunction regarding future
training of police officers. We uphold the district court’s ruling
on appeal, as we agree that the failure to obtain a warrant
under the unusual circumstances of this case constituted a
constitutional violation as a matter of law.
470 FISHER v. CITY OF SAN JOSE

Hanniballs
02-04-2007, 11:49 AM
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/91B9122675AD4E6388257265005CB74A/$file/0416095.pdf?openelement

TonyM
02-04-2007, 11:57 AM
Just as an FYI, sometimes a URL is not a link so that there is no referrer.

bwiese
02-04-2007, 12:09 PM
And lo & behold, who was Fisher's attorney?

Don Kilmer, RKBA attorney in San Jose.

Ford8N
02-04-2007, 2:35 PM
Lesson learned: Do not let anyone see that you have guns.:(

Mute
02-04-2007, 2:43 PM
Doesn't this provide grounds for an additional civil suit?

Wulf
02-04-2007, 3:01 PM
Can somebody explain why the award was only $1? I mean that doesnt even come close to paying the guys damages. It probably wouldent even buy a bandaid from where he was hit with the rubber bullet.

CalNRA
02-04-2007, 3:04 PM
60 cops for one guy? no wonder the drug dealers, illegals, and gangs are on the up and up.

edwardm
02-04-2007, 3:16 PM
Doesn't seem sad to me. The Court applied the Dorman factors for the exigency exception to the warrant requirement, and found there was no such exigency. It's good precedent in this appellate district.

The $1 nominal damages award is not an uncommon award amount to see in cases like this. The money is not relevant. What matters is that the Court recognizes the rights of the private individual and holds the authorities accountable.





http://www.ca9.uscourts.gov/ca9/newopinions.nsf/91B9122675AD4E6388257265005CB74A/$file/0416095.pdf?openelement

copy and paste the link.


This is sad, sad, sad.

Have a great Kenpo day

Clyde

Wulf
02-04-2007, 3:31 PM
The $1 nominal damages award is not an uncommon award amount to see in cases like this. The money is not relevant. What matters is that the Court recognizes the rights of the private individual and holds the authorities accountable.

Yeah, but he has attorney's fees. Some loss from the 1 day stand off and court time. New slider window. I'm not saying the guy deserved a billion dollars, but it wouldent suprise me if he had $20K in direct costs.

SunshineGlocker
02-04-2007, 3:34 PM
He did win the suit. Notice that the defendants appealed the $1 judgement. That means that they were willing to spend tens of thousands of dollars to avoid this $1 payment. It's not just about the money in this case.

Still, I wish the guy had gotten more.

Remember, everyone, serve on those juries! That's the most powerful position most of us will ever be in, at least with respect to our judicial system.

edwardm
02-04-2007, 5:57 PM
$20K? Assuming he was charged at prevailing rates, both for trial and the appeal, he's in lots more than $20k.

I suspect, however, that Don may have done the right thing and, if anything, charged by means, not by a set or flat rate. I know that's what I would have done, at the most.

Yeah, but he has attorney's fees. Some loss from the 1 day stand off and court time. New slider window. I'm not saying the guy deserved a billion dollars, but it wouldent suprise me if he had $20K in direct costs.

bwiese
02-04-2007, 6:07 PM
There were other auxiliary payouts in this case, I believe, that didn't make the article.

I saw this last week in Merc News and I think there was a number like $200K involved as punitive damages, etc. I remember thinking that Don Kilmer scored a good one...

I'll try to look it up and edit this post...

edited to add...

Ahh, eere it is:

http://www.broward.com/mld/mercurynews/news/local/states/california/the_valley/16487692.htm

* * * * * * *

City's appeal loss on warrant suit proves costly
By Rodney Foo
Mercury News

SETTING THE RECORD STRAIGHT(publ. 1/20/07)
A Mercury News article Thursday about a ruling by the U.S. Court of Appeals for the 9th Circuit regarding a lawsuit over San Jose police procedures contained an error. A federal district court jury initially rejected Steven Fisher's contention that San Jose police should have obtained an arrest warrant before taking Fisher into custody. But the trial judge put aside the jury's verdict and ruled in Fisher's favor.


Three years ago, Steven Fisher's federal lawsuit against the city of San Jose resulted in a judgment of $1 and an order to train police officers in the intricacies of obtaining arrest warrants.

Now, the city's appeal of that decision will cost it at least $100,000 in attorney's fees after a panel of the U.S. Court of Appeals for the 9th Circuit upheld the lower court's ruling.

In a split decision, the three-judge panel determined officers violated Fisher's Fourth Amendment rights during a 13-hour barricade situation at his South San Jose residence by taking him into custody without obtaining an arrest warrant.

"They were just a little too arrogant in saying, `We know what is right and what is wrong' in this instance,'' said attorney Donald E.J. Kilmer Jr., who represented Fisher.

Asked why the city filed the appeal, City Attorney Rick Doyle replied, ``Because there may be attorney fees involved attached to the $1 award.''

Doyle also said the appeal was filed to defend the actions of the officers who had to make decisions on the fly while dealing with the crisis. ``It's the principle,'' he said.

Kilmer said he is in the process of calculating his fees, which the city must pay unless it wins on further appeal. He estimated it would be in the six-figure range and that the appeal had increased his bill by 20 percent.

Kilmer said another attorney, Dennis Lempert, who also worked on Fisher's case, would also be submitting a bill.

Losing civil cases is hard enough to swallow, but the city has learned over the years it sometimes comes with a heavy price -- paying for the winning side's attorney's fees. In 2004, a Superior Court judge ordered the San Jose Redevelopment Agency to pay $1.44 million in legal fees after losing an eminent domain case to the owners of the Tropicana Shopping Center.

Doyle said he's likely to recommend the city council ask for a rehearing before all of the circuit's 15 judges. He pointed out the 9th Circuit panel's decision was split, 2-1, and other federal appeal courts have issued conflicting opinions on similar cases.

The case began on Oct. 23, 1999, when a South San Jose apartment complex security guard, Leo Serrano, went to Fisher's unit to inquire about noise coming from another apartment. Fisher arrived at the door holding a rifle.

Serrano left. The guard's supervisor called police and a 13-hour stand-off with officers ensued. At one point, Fisher's wife left the apartment and told police her husband had 18 rifles and that he had been drinking.

A police crisis negotiator tried to talk to Fisher, but he replied he'd shoot her if she came into the apartment. Police considered this threat to be a felony.

When Fisher finally did leave his apartment -- wearing just socks and underwear to show he was not armed -- officers shot him with a rubber bullet, knocking him down, when he failed to comply with an order.

At Fisher's trial, officers testified none of them had attempted to get an arrest warrant although all of them said they were aware judges were available 24 hours a day for such requests. The officers said they did not believe an arrest warrant was necessary under the circumstances.

The trial jury deadlocked and Fisher later agreed to plead no contest to a misdemeanor.

However, he and his wife sued the city in federal court, claiming his arrest constituted an ``unreasonable seizure.''

The federal jury sided with Fisher. But, the court only awarded him $1 and instructed police to train officers on how to lawfully arrest suspects and procedures for obtaining arrest warrants.

The city filed an appeal, asking the 9th Circuit to toss out the district court's interpretation regarding the failure to obtain a warrant.

But on Tuesday, the 9th Circuit panel affirmed the district court.

Judge Marsha S. Berzon, writing the majority opinion, concluded there were enough officers, 60, and enough time to get an arrest warrant.

"The warrant requirement's goal is to permit a third party to evaluate whether police should be intervening into a situation at all,'' Berzon said.

In a dissenting opinion, Judge Consuelo M. Callahan said police properly dealt with the volatile situation.

She wrote: "The majority undertakes to micro-manage, or worse, browbeat the police for failing to obtain a telephonic warrant in the midst of a police standoff that could have turned deadly at any moment.''

Meanwhile, Assistant Police Chief Tuck Younis said the department has trained officers on the lawful arrest procedures and the requirements for arrest warrants.


Contact Rodney Foo at rfoo@mercurynews.com or (408) 920-5258.

* * * * * * *

triggerhappy
02-04-2007, 7:11 PM
Bill, I really don't know how you can stand to live there. I know some nice folks that live there, because that's where their bus. contacts are (drag racing, for a LIVING no less!), but I just can't see how y'all can do it. I guess I'm more of a Yreka kinda guy...

Wulf
02-04-2007, 7:13 PM
$20K? Assuming he was charged at prevailing rates, both for trial and the appeal, he's in lots more than $20k.

I suspect, however, that Don may have done the right thing and, if anything, charged by means, not by a set or flat rate. I know that's what I would have done, at the most.

I figured Don was on contingency. I'm just talking "direct" costs. Money he was litereally out of pocket. The window, clean up of the CS, lost wages, medical bills, etc.

bwiese
02-04-2007, 7:39 PM
Bill, I really don't know how you can stand to live there. I know some nice folks that live there, because that's where their bus. contacts are (drag racing, for a LIVING no less!), but I just can't see how y'all can do it. I guess I'm more of a Yreka kinda guy...

Well all you can do is fight where you are. What you say about me in SJ is what others from outside CA say about anyone in CA - Yreka or San Jose.

Besides, what the heck could I do in Yreka? Last I heard unemployment was pretty high in north-NorCal.

When I was in Yuba City the meth heads at the local diners and Motel 6 were readily apparent. The wimmen at the diners were talking about having children from different fathers and the perils of having to collect multiple instances of child support. The grocery stores have card readers for welfare benefits cards (i.e, food stamps on an ATM). It seems the problems we see in the inner cities are basically identical, just different race and lower concentration per square mile when you go up to "NorNorCal".

I don't think they do a whole lotta Silicon Valley stuff up there. All I could do would be work at Ace Hardware or wait tables, which nobody sane would hire me to do - unless Ace started selling AR15 parts :)

bwiese
02-04-2007, 7:43 PM
It may not be over yet, the city could appeal - however they could well dig themselves deeper in the whole. This is likely not gonna be overturned (statistically).

So Don gets $100K-$120K, and Lempert gets something, probably quite a bit smaller since he apparently had a lesser position in the case.

Maybe this'll let Don hole up and go full-insane-attack mode on Nordyke gunshow freedom-of-speech case!

artherd
02-04-2007, 8:17 PM
Can somebody explain why the award was only $1? I mean that doesnt even come close to paying the guys damages. It probably wouldent even buy a bandaid from where he was hit with the rubber bullet.
Typically the awward will be $1 punative, plus fees, plus costs, plus medical bills etc.

The precident set, and the fees & costs are the big deal.

Sailormilan2
02-05-2007, 8:15 AM
Because there was a monetary award, in this case $1 will work, his attorney is eligible to get the state to reimburse him, since he won. Many times an attorney with a marginal case will tell the jury to award just a token amount of $1 as for the "Principle" of the thing. Of course the jury can't be told that by awarding any monetary amount, the attorney can get all his fees paid by the state. So, the jury will often award the $1, not realizing the consequences.

Rumpled
02-05-2007, 1:27 PM
The SJPD position on this is really lousy. Am I to beleive that during a 13 hour standoff during which time they had time to call in a police crisis negotiator they couldn't call a judge? True, they did not know when it would end or that it would take that long; but somewhere between cop number 6 and number 100 that probably showed up to that (including air support and other "teams" I'm sure) no Sargeant, LT, Captian or Chief had the brains to say, "Hey, Ofc. Jones over there with the donuts and coffee, why don't you see if you can call a judge and get a warrant for this?, You're not really doing anything"
As far as PC at that time, they probably could told the judge to turn on a TV.

Hopefully, the attorneys involved get their full hourly rate. Sorry to all SJ residents whos taxes will probably go up a penny to cover this outlay.

bwiese
02-05-2007, 4:51 PM
Hopefully, the attorneys involved get their full hourly rate. Sorry to all SJ residents whos taxes will probably go up a penny to cover this outlay.


Um, they could go after the pension fund or overtime plan.

They could also start allowing more private security in San Jose. The SJPD union + admin have a little scam going where anything requiring more than doorman-level of security has to be a cop (like the old 'patrol specials' of yesteryear). If you have an event, you have to hire these folks at $70/hr instead of private services at a lower rate.