• Detaining people without reasonable suspicion to believe they are involved in criminal activity 
• Temporary detention of a material witness 
• Use of force and civil liability 
• Video recording a police-citizen contact per P.C. § 148(g) 
• Qualified immunity 

Generally, detaining an individual without reasonable suspicion violates the Fourth Amendment. There’s an exception, however, when the person detained is a material witness to a pending possible crime. To justify such a suspicionless detention there must be an exigency requiring immediate action, the gravity of the public interest must be great and the detention must be minimally intrusive, both in length of time and amount of force used. A threat of an imminent school shooting justifies a temporary detention of people who might know the whereabouts of the alleged shooter. Excessive force used during such a detention, however, may lead to civil liability for which there is no qualified immunity. 

On March 5, 2018, Ryan Bernal, a student at the Vista Del Lago High School in Folsom, California, sent a text to a friend stating that he intended to “shoot up the school, and today was the day.” This message was apparently passed onto the Folsom Police Department. After officers determined that Ryan did not show up at school that morning, Folsom asked for help from the Sacramento County Sheriff’s Department. Seven uniformed deputies responded to Ryan’s home address. They completed a “premises history check” of the Bernal residence before arriving, allowing the deputies to determine that William and Celia Bernal (presumed to be Ryan’s parents) lived there. It was also determined that no firearms were registered at the address or in any of the Bernals’ names.  

One of the deputies called the house and spoke with Celia. Identifying himself as a Sacramento County sheriff’s deputy, he informed Celia about the threats Ryan had made and asked to speak with him. Celia told the deputy that Ryan was at his grandmother’s house, but refused to tell the deputy where that was because she couldn’t verify who she was talking to. The deputies therefore drove to the Bernal residence en masse just as Celia and William were coming out of the house and heading toward their car.  

The deputies made contact, intending to detain the Bernals long enough to determine Ryan’s location. Celia, agitated and yelling, again informed the deputies that Ryan was not home. Telling the deputies that she did not want to speak with them anymore, and ignoring their commands not to leave, she got into her car, started the engine (which she denied doing), and appeared to be ready to back out of the driveway.  

Because she was ignoring their commands, one of the deputies blocked her from driving away by standing at the back of her car, while other deputies reached inside in an attempt to grab the keys. Two deputies grabbed her arms from both sides, applying a “twist-lock” (a type of control hold which uses pain to gain control) to her right arm. Yelling at William to use his cellphone to record what was going on, Celia eventually quit resisting. She was removed from the car and put into a plastic lawn chair, unhandcuffed.  

Meanwhile, other deputies confronted the also agitated 6-foot, 3-inch, 290-pound William as he stood in front of Celia’s car. As he yelled at the deputies to stop touching Celia, William placed a duffel bag he was carrying onto the hood of the car and “aggressively” reached into it (an action he later denied doing). At that point, one of the deputies drew his firearm and pointed it at William. When William pulled a cellphone out of the bag, the deputy reholstered his weapon. Telling him to put his phone away and to calm down, two deputies (both significantly smaller than William; about 5 feet, 7 inches) struggled with a yelling, uncooperative William, attempting to handcuff him by “wrenching” his arms behind his back as they pushed his head into the hood of the car.  

One of the deputies testified that William “elbow(ed)” him in the chest, necessitating the force the deputies used. William, in turn, testified that the deputies kicked his legs apart causing his knees to buckle, forcefully pushing his torso onto the hood of the car and forcing his head to turn past its natural range of motion. The deputies denied they touched his legs or knees. As they attempted to handcuff William, one of the deputies used a “rear twist-lock” while he attempted to push him onto the hood of the car. William denied resisting at all, claiming that he only tried to twist away from the deputies to relieve the pain caused from his recently surgically repaired shoulders.  

Once the deputies got William handcuffed and under control, they used a second pair of handcuffs to create a “daisy chain,” allowing William’s shoulders more room. William was put into the back of a patrol car, from which he was released about 10 minutes later. This whole episode, as recorded on the deputies’ body cameras, lasted approximately 20 minutes. The Bernals then led the deputies to the grandmother’s house, where Ryan was taken into custody by Folsom P.D. officers.  

Ryan pleaded no contest to a misdemeanor P.C. § 422, making threats to commit a crime resulting in death or great bodily injury, and unlawfully possessing a firearm – a charge that was later dismissed. The Bernals were apparently never charged with any offenses. 

The Bernals sued the deputies and the Sacramento County Sheriff’s Department in federal court alleging, among other things, that their detentions and the force used on them violated the Fourth Amendment. The federal district court granted the deputies and sheriff’s department’s motion for summary judgment to dismiss the lawsuit, ruling that the deputies’ use of force was reasonable under the circumstances. The court also ruled that even if not, the deputies were entitled to “qualified immunity,” since there was no case law putting the deputies on notice that the force they used might have been excessive. The Bernals appealed. 

The Ninth Circuit Court of Appeal affirmed in part and reversed in part. At issue on appeal was (1) the lawfulness of detaining people when they are not suspected of any criminal offense, (2) the reasonableness of the force used in the detention, and (3) the applicability of “qualified immunity” to this case.  

Detentions of People Not Suspected of Having Committed a Criminal Offense: Generally, detaining a person absent at the very least a reasonable suspicion to believe the person is involved in criminal activity violates the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1.) In this case, it was undisputed that the Bernals were detained within the meaning of the?Fourth Amendment?and that prior to their initial seizure, they were not involved in any criminal activity. However, there’s at least one exception to the rule of Terry v. Ohio, and that’s when the person detained is a material witness to a pending possible crime. In determining when this exception might apply, the courts will weigh “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” (Brown v. Texas (1977) 443 U.S. 47.)  

An example of this exception is when the detention of a non-suspect witness is done for the purpose of obtaining information.?(See?Illinois v. Lidster (2004) 540 U.S. 419.) In?Lidster, the Supreme Court held that a traffic checkpoint in which police briefly detained all motorists in a specific area to inquire about a fatal hit-and-run incident did not run afoul of the?Fourth Amendment. As noted by the Ninth Circuit: “The ‘[m]ost important’ reason for the court’s holding was that ‘the stops interfered only minimally with liberty of the sort the?Fourth Amendment?seeks to protect.’ The motorists were delayed ‘a very few minutes at most,’ contact with police ‘lasted only a few seconds,’ and the contact ‘consisted simply of a request for information and the distribution of a flyer.’?...Further, ‘the contact provided little reason for anxiety or alarm’ due to the stop’s brevity?and the fact that ‘police stopped all vehicles systematically.’”? 

The rule is, therefore, that “to justify the suspicionless seizure of a material witness, there must be an exigency requiring immediate action, the gravity of the public interest must be great, and the detention must be minimally intrusive, both in length of time and amount of force used.”  In the instant case, the Sacramento sheriff’s deputies were seeking the whereabouts of a potentially dangerous school shooter, an obviously serious crime for which there is a strong “public interest” to prevent. An exigency existed, requiring an immediate response.  

The seizure would have been for a minimal amount of time and non-confrontational (i.e., minimally intrusive) had the Bernals not been so uncooperative. Under these circumstances, the court ruled that the deputies had “limited authority to briefly detain and question the Bernals” for the purpose of determining the whereabouts of their potentially and ‘imminent(ly)” dangerous son. The Ninth Circuit held, therefore, that the trial court properly granted the civil defendants’ motion for summary judgment on this issue.  

Reasonableness of the Force Used: The court considered the force used against Celia and William separately. The court noted that the U.S. Supreme Court has determined that it must consider three “non-excusive” factors when evaluating this issue: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” (Graham v. Connor (1989) 490 U.S. 386, 396.)  

First, the court noted that while no crime had yet been committed, it cannot be argued that the pending possibility of a school shooting is not serious. By resisting the deputies in their attempt to locate their son, the Bernals “‘prolong[ed] a dire’ emergency situation.” As such, it was obvious that the situation in general “posed an immediate threat to the safety of...others.”  

As for Celia, it was undisputed that deputies ordered Celia to stay out of, and then exit, her vehicle, which she ignored. It was only after Celia prevented the deputies from taking her keys did they use force. And even then, the amount of force used on her was “minimal,” mainly the restraining her arms, including the use of the “wristlock,” to keep her from driving away.  

The confrontation with her lasted a couple of minutes. She was then permitted to sit in a lawn chair in her yard, unhandcuffed.  

Under these circumstances, the court determined that there was no Fourth Amendment violation as to her, sustaining the trial court’s granting of the civil defendants’ motion for summary judgment.  

For William, however, the facts were different. One of the deputies pointed his gun at William when, according to the deputy, William reached “aggressively” into the duffle bag he was carrying. William denied making such a move. This leaves a factual determination that must be decided by a jury. Secondly, the force used against William was considerably more than used against Celia, bending his arms back, pushing him onto the hood of the car while twisting his head, and handcuffing him. William also alleges that the deputies kicked his legs apart and forced his knees to buckle, an action the deputies denied. The deputies also argue that the use of such force was made necessary by William’s physical resistance, while William argues that he did not resist at all.  

It was also noted that William was under no legal obligation to stop recording the events as they related to his wife, Celia, or to provide the deputies with any information about his son’s whereabouts. It was alleged that William's “belligerent” demeanor caused the deputies to fear for their safety. William, on the other hand, denies that he did anything more than react to the unnecessary pain the deputies were causing, yell at the officers to quit hurting his wife, and attempt to record on his cellphone what was occurring.  

Assuming William did not physically resist the officers, as he alleges, he could not be arrested or prosecuted for resisting arrest. To the contrary, if the events occurred as William alleges, then the force used against him was excessive, and a violation of the Fourth Amendment.  

Even if the deputies’ version of the events is accepted, the law does not prevent a person from verbally contesting a law enforcement officer’s actions or from recording the events as they occur. (See Houston v. Hill (1987) 482 U.S. 451, 462.)  

The court also noted that the California Penal Code specifically provides that it is not an unlawful obstruction to make an “audio or video recording” of an officer “while the officer is in a public place” or the person making the recording “is in a place he or she has the right to be.” (Pen. Code § 148(g))  

All this leaves several factual determinations that must be decided by a jury. As such, the Ninth Circuit reversed the trial court, remanding the case back for trial, ruling that the trial court improperly granted the civil defendants’ motion for summary judgment. 

Qualified Immunity: Despite all the above, the civil defendants argued that because there was no prior case authority dictating how the deputies should have acted in such a situation, they were entitled to a finding of “qualified immunity” from civil liability. “Qualified immunity shields law enforcement officers from civil liability under (42 U.S.C.)?§ 1983?‘unless the officers violated a clearly established constitutional right.’”?(Monzon v. City of Murrieta (9th Cir. 2020) 978 F.3rd 1150, 1156.)  

A court is to make two inquiries in determining whether qualified immunity applies. First, did the deputies violate a constitutional right, and if so, was that right “clearly established” at the time of the misconduct??(Id., quoting?Pearson v. Callahan (2009) 555 U.S. 223, 232-233.)  

At least as to William, the deputies did, in fact, violate his constitutional rights, as discussed above. The only issue is whether this issue is “clearly established” in the law, sufficient to put the deputies on notice that they were violating William’s rights. “An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the (civil) defendant’s shoes would have understood that he was violating it.” (City of Escondido v. Emmons (2019) 139 S.Ct. 500, 503, quoting the Supreme Court in?Kisela v. Hughes (2018) 138 S. Ct. 1148, 1152.)  

Contrary to the conclusions of the trial court, the Ninth Circuit held here that: “(A)lthough not an absolute right, the ‘freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’” (Houston v. Hill, supra, at pp. 462-463.) And, as noted above, Penal Code § 148(g) protects William’s right to record the events as they occurred. With these rules being so clearly established, the deputies should have been aware of them. As such, they are not entitled to qualified immunity. 

Even assuming the correctness of the court’s holdings in this case, some might sympathize with the deputies who suddenly — due solely to the lack of cooperation of those detained — found themselves in a lose-lose situation. Faced with the possibility of a pending school shooting, or at the very least the possibility of an armed, possibly mentally ill, high school student out there somewhere looking for someone to kill, and whose parents are not cooperating, what are you to do?  

If I were a juror in such a civil case, I might find the deputies liable, but award the Bernals zero damages for the simple reason that had they cooperated, none of this would have occurred. The Bernals might also consider the recent Michigan case where parents James and Jennifer Crumbley of teenager Ethan, who were both found guilty of involuntary manslaughter for allowing their mentally disturbed son to have access to firearms that he used in a school shooting, killing four students and wounding seven others. Ethan is now serving a life sentence in prison, while his parents were sentenced to between 10 and 15 years in prison on four counts each of involuntary manslaughter. 

But the legal significance of the Bernal case is the fact that under limited circumstances, an officer has the right to detain a person even when there is no evidence that that person is himself suspected of committing a criminal offense. At the same time, it must be remembered that any force used to execute that detention must be minimal, if any; that the person is not legally obligated to cooperate; and when the cellphone cameras come out, the officer has no legal right to prevent anyone from recording the event.