Steven FISHER, Plaintiff-Appellee, and Sandra Fisher, Plaintiff, v. CITY OF SAN JOSE, Defendant-Appellant, and City of San Jose Police Department; Officer Boler; Officer Barnett; Officer Correa; Officer Esquivel; Officer Honda; Officer Kinsworthy; Officer O'Brien; Officer Ryan; Officer Nguyen, Defendants, 558 F.3d 1069

TALLMAN, Circuit Judge: We address the Fourth Amendment’s exigent circumstances 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 investigating 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 Fisher’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 warrant.

The district court nonetheless granted Fisher’s renewed motion for judgment as a matter of law, holding that no reasonable 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 circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing 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 support the verdict rendered. See Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir.1997). Fisher began the evening of October 23, 1999, in his apartment, 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 apartment complex in San Jose, California. The living room of his 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 patrolling 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 notified 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, Serrano 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 Serrano’s direction. Serrano, fearing for his safety, quickly left the area in front of Fisher’s apartment and reported the confrontation 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 apartment 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 sliding glass doors. Fisher eventually emerged onto his patio.

Sergeant Ryan explained to Fisher why the police had been called. Fisher, still noticeably intoxicated, lapsed into a rambling, 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 continued to secure the perimeter around Fisher’s apartment and to remove his neighbors from any lines of fire. Ultimately, more than sixty San Jose officers were deployed in the standoff. 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 officers 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 cartridges 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 several other magazines with ammunition, and strategically placing 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 progressed. 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 weapons.

At one point, Fisher invited Officer Males into his apartment, 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 California 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.

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 standoff. 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” 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 member of the MERGE unit shot Fisher in the leg with a nonlethal 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, drawing, exhibiting, or using a firearm or deadly weapon against a peace officer with the intent to resist or prevent arrest. The criminal jury deadlocked, and Fisher ultimately pleaded no contest to a misdemean- or 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 department, 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 unreasonable 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 judgment as a matter of law pursuant to Federal Rule of Civil Procedure 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, 475 F.3d 1049 (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, 509 F.3d 952 (9th Cir.2007). On March 14, 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., 251 F.3d 1222, 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 substantial evidence. Id. at 1227. “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., 768 F.2d 1001, 1014 (9th Cir.1985) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In making this determination, we must take care not to substitute our view of the evidence for that of the jury.

Johnson, 251 F.3d at 1227. “[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, 238 F.3d 1106, 1109 n. 4 (9th Cir.2001) (citing Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 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 apartment, 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 requirement excused officers from getting one. See United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985) (holding that the suspect was effectively arrested when police surrounded 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, 626 F.2d 753, 757 (9th Cir.1980), aff'd, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (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 probable cause to believe Fisher committed at least one of those crimes. See Bailey v.

Newland, 263 F.3d 1022, 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 u New York, 445 U.S. 573, 587-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (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 Sergeant 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 holding 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 improperly frustrating legitimate law enforcement efforts.” United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (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 apartment, 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 unreasonable under the Fourth Amendment.

Implicit in Fisher’s argument 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 circumstances 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 providing any meaningful Fourth Amendment protection. We conclude 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, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (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. Id. at 501-02, 98 S.Ct. 1942. After determining that an arsonist may have started the conflagration, the chief called a police detective to the scene, who arrived one and one-half hours later. Id. at 502, 98 S.Ct. 1942. The detective searched the building for several minutes but could not complete his search due to lingering smoke and steam. Id.

The next 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. Id. There was neither consent nor a warrant for any of these searches or seizures. Id. The Supreme Court upheld the warrant-less 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.” Id. at 510, 98 S.Ct. 1942.

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 continuation” of the initial entry. Id. at 511, 98 S.Ct. 1942. 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, 799 F.2d 1271 (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 flammable gas sometimes used to process cocaine. Id. at 1274. The officers entered the house without a warrant and arrested several suspects, one of whom was the defendant. Id. Moments later, the officers, joined by a firefighter, re-entered the house to eliminate the fire hazard and inspect the residence. Id. They discovered cocaine and drug processing equipment. Id.

The officers and firefighters then left the residence and requested that narcotics agents be sent to the scene to take over the investigation. Id. When the agents arrived, they entered the home again, looked around, and left to obtain a warrant. Id. We upheld the legality of all three war-rantless entries. As in Tyler, the first entries were justified by exigent circumstances.

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 initial lawful entry and exigency. Id. at 1280 (“Consequently, this ... entry was merely a continuation of the initial entry because both were done to alleviate the exigent circumstances.”).

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 reassess whether the exigency persisted throughout the standoff because the standoff was “no more than an actual continuation” 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, 456 F.3d 555, 565 (6th Cir.2006) (“Exigent circumstances terminate when the factors creating the exigency are negated.”).

Moreover, the exigent circumstances that precipitated the initial seizure did not materially change from the beginning of the standoff to the end. This armed standoff was a single Fourth Amendment event, a continuous process of formalizing Fisher’s arrest that 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 eighteen guns and ammunition until the end.

The entire standoff was an uninterrupted, fluid engagement between Fisher and the police. See id. (holding that, in an armed standoff, “the exigency did not terminate due to the passage of time because Bing was at all times dangerous” (citing Tyler, 436 U.S. at 510, 98 S.Ct. 1942)). 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 person, based on the totality of the circumstances, “would have believed that he was not free to leave,” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (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 abandon 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 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 threatened 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 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 connection with armed standoff situations. a 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. We do not see what a neutral and detached magistrate would have added in helping to peacefully effect Fisher’s arrest.

Fisher is unable to clearly define what the Fourth Amendment 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 seizure amounts to the retroactive warrant practice that we have condemned. See United States v. Allard, 634 F.2d 1182, 1187 (9th Cir.1980) (observing that “post hoc justifications [for searches and seizures] are alien to the Fourth Amendment warrant and reasonableness requirements”).

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 dangerous and volatile standoff. It would introduce yet another element of uncertainty into the already complex and dangerous calculus confronting law enforcement in armed standoff situations. At minimum, the officers on the scene would be unable to devote their full attention to the actual threat and to ensuring public safety.

Police would be forced to ponder with each passing moment whether the exigency justifying the warrantless arrest that existed at the start of the standoff had sufficiently 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, “[ojbtaining 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 verbatim. The only step that is saved is the trip to the magistrate’s office.” United States v.

Good, 780 F.2d 773, 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 condoning a scheme that exposes police to civil liability when, as here, they elect to methodically respond to dangerous standoffs, 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 recalcitrance.

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 suspects who, by their actions, both provoke and prolong the need for continuing police action. To adopt his novel Fourth 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 heightened risk to all involved. The suggestion that imposing a warrant requirement on police already engaged in an armed standoff will diminish the risk to public safety, see, e.g., Reinhardt Dissent at 1097, defies common sense. In sum, we adhere to the established principle that once there is a lawful war-rantless 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 lacking. A civil rights suit may be pursued for using excessive force.

But suggesting that a magistrate judge should be telling police in the middle of the standoff that they must withdraw or what tactics are permissible does not strike us as a reasonable role for a judicial officer under the Fourth Amendment. 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. Id. at 1097.

Such optimism is unfounded and, in any event, alien to the Fourth Amendment. Fisher’s armed standoff, 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 Fisher’s criminal acts and his unwillingness to surrender, combined 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 lawfully 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. 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, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (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 circumstances, 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 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 1089-90. He argues that, in armed standoff situations, a magistrate judge would provide an independent evaluation of the justifications for escalating and increasingly invasive Fourth Amendment intrusions.

This position, which condones the continued war-rantless seizure of Fisher but not the methods used to detach him from his heavily 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 Constitution 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 unprecedented 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 unreasonable legal obstacle of questionable value that only encourages the kind of judicial second-guessing the Supreme Court has repeatedly condemned. “Reasonableness” remains the touchstone under the Fourth Amendment. Pennsylvania v.

Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). As the Court trenchantly observed in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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.” Id. at 397-98, 109 S.Ct. 1865; accord Saucier v. Katz, 533 U.S. 194, 204-05, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); County of Sacramento v. Lewis, 523 U.S. 833, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

C We turn to the dissent’s contention that the warrant requirement 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 distinct intrusion upon Fisher’s Fourth Amendment rights. Reinhardt Dissent at 1090-91; accord Paez Dissent at 1087 n. 1. This argument, which departs significantly from Fisher’s dissipation theory, fails at its inception.

The presence of exigent circumstances 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 warrant requirement. See United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985) (noting that exigent circumstances are viewed from the totality of the circumstances known to officers at the time of the warrantless action).

Fundamental to the dissent’s theory is the flawed presumption that each entry constitutes a legally distinct Fourth Amendment intrusion that required either a warrant or independent exigent circumstances at the moment such entry occurs. Reinhardt Dissent at 1091. 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 constitutionally required to do so. The Supreme Court has never intimated such a rigid rule; nor have we. See United States v.

Turvin, 517 F.3d 1097, 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, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (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, 204 F.3d 947, 954 (9th Cir.2000).

But that general principle does not legitimize the dissent’s extreme position that each and every entry by police into a suspect’s home, in whatever form and regardless 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 1091. The law is quite clearly otherwise. See, e.g., Echegoyen, 799 F.2d at 1280.

The Fourth Amendment, by its very language, protects “[t]he right of the people to be secure in their ... houses ... against unreasonable 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, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (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 Reinhardt’s attempt to confine the application of this precedent to public safety concerns arising from fire hazards is neither persuasive nor sensible.

See Reinhardt Dissent at 1094 (“Because Echegoyen, like Tyler, involved an entry responding to the public safety risks created by a fire hazard, that case, like Tyler, is entirely irrelevant here.”)- We see no material difference between the substantial public dangers posed by the exigent 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 hazard. Notwithstanding the dissent’s misreading, these cases conclusively 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 common 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 subsequent re-entries occurring several days later were “clearly detached from the initial exigency and warrantless entry” and thus required a warrant. 436 U.S. at 503, 511, 98 S.Ct. 1942.

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 warrantless entry. 799 F.2d at 1280. 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 warrant-less action-not on whether, in hindsight, officers had sufficient time to obtain a warrant in the interim before the subsequent warrantless entries occurred.

See also Bing, 456 F.3d at 565 (“The passage of time did not terminate the exigency because the ticking of the clock did nothing to cut off Bing’s access to his gun, or cure him of his willingness to fire it....”). The dissent’s proposed view is simply not the law; nor should it be. 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 discussed supra, 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 unavailing. See Lindsey, 877 F.2d at 781-82 (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. See, e.g., Reinhardt Dissent at 1091, 1092. We do no such thing. Nor does our holding presume that officers engaged in a standoff always reach the proper conclusion as to the legality of their actions. See id. at 1096.

Nothing in today’s opinion, 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. Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. 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 suspect’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 Amendment jurisprudence and respects the jury’s determination. We simply refuse to take the momentous constitutional leap proposed by Fisher and advocated by the dissent.

As reasonableness 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 without need to secure a warrant. See Brigham City, 547 U.S. at 404, 126 S.Ct. 1943 (“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 rapidly evolving circumstances that the Supreme Court dictates must guide our reasonableness analysis under the Fourth Amendment. 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 excessive force claim and challenge the reasonableness of the tactics 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 formality 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 Applying this rule here, we have no trouble concluding that the evidence adduced at trial is legally sufficient to support 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 circumstances 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 effectuating the arrest of Fisher, notwithstanding the mere passage of time. In light of the jury’s verdict and our legal determination that no warrant was required, the plaintiffs were not entitled to judgment against the City under the Mo-nell standard, which governs when a municipality can be held liable under 42 U.S.C. § 1983. See Brass v.

County of Los Angeles, 328 F.3d 1192, 1198 (9th Cir.2003) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 477 F.3d 652, 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 nominal 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. .

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. . 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. . A "throw phone” is a phone encased in a box that also contains an open microphone. . 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 1087-88.

This innovative view of Fisher's case conflicts with Fisher's own theory on appeal and, in any event, is contradicted by overwhelming evidence, 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 id. at 1088 (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 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, 490 F.3d 765, 769-71 (9th Cir.2007). The delusional beliefs of a severely intoxicated Fisher are legally irrelevant 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 earlier that morning, well before 6:30 a.m. Fisher was as a matter of law under constructive arrest. .

Fisher relies principally on United States v. Alvarez, 810 F.2d 879 (9th Cir.1987). There, police effected the warrantless arrest of a suspected drug smuggler in his hotel room after receiving a tip from a coconspirator. Id. at 880. Police later argued that exigent circumstances excused the need for a warrant. Id. We disagreed, 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. Id. at 882-83. In contrast, in the present case, it is undisputed that exigent circumstances existed to seize Fisher.

Our task is to decide whether, in an armed standoff, the mere passage of time may act to liberate a lawfully seized suspect, thereby re-triggering the warrant requirement. . 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. . In his dissent, Judge Reinhardt clarifies that, under his theory, the magistrate judge would treat the warrant application in these circumstances no differently than any other warrant application. Reinhardt Dissent at 1096 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. Id. at 1097. 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., id. at 1097 (noting that once officers 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 independent 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. .

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 ''conceivable” 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 dangerous.” Reinhardt Dissent at 1097. This hypothetical has nothing to do with this disposition and is, at any rate, a complete non sequitur. If probable cause is lacking, an arrest cannot occur and a previously seized suspect must be released. See United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir.2005).

If peace officers overstep their authority and violate a suspect's rights, the law holds them accountable. The mere potential for a theoretical scenario, especially one that bears no resemblance to the actual circumstances of the case before us, combined with the dissent's skepticism regarding officers' willingness to follow the law, hardly justifies rewriting the Constitution and creating an unprecedented warrant requirement. . 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 1096; see also id. at 1093 (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, unstable, 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 justified Fisher’s warrantless seizure in his apartment. The purpose of the police action remained constant, cf. Mincey v.

Arizona, 437 U.S. 385, 394-95, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and there was no intervening event that terminated the seizure. 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. . "The states are, of course, free to limit warrantless arrests, as is Congress....” Santana, 427 U.S. at 44, 96 S.Ct. 2406 (White, J. concurring). As a constitutional 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.” Id.