William Bernal v. Sacramento County Sheriff's Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM BERNAL; CELIA No. 22-15690

BERNAL,

D.C. No.

Plaintiffs-Appellants, 2:19-cv-00482-

MCE-AC

v.

SACRAMENTO COUNTY OPINION

SHERIFF’S DEPARTMENT;

HINKLEY, Sacramento County

Sheriff Deputy; SCOTT JONES,

Sacramento County Sheriff;

RANCHO CORDOVA POLICE

DEPARTMENT; FOLSOM POLICE

DEPARTMENT; BRADSHAW,

Folsom Police Officer; COUCH,

Sergeant; WINKEL, Sacramento

County Sheriff Deputy; KENNEDY,

Sacramento County Sheriff Deputy;

SUTTER, Sacramento County Sheriff

Deputy; CHHLANG, Sacramento

County Sheriff Deputy; BLISS,

Sacramento County Sheriff Deputy;

QUACKENBUSH, Sacramento

County Sheriff Deputy,

Defendants-Appellees.

2 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted March 31, 2023

San Francisco, California

Filed July 7, 2023

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit

Judges, and James V. Selna, * District Judge.

Opinion by Judge Selna

SUMMARY **

Civil Rights

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of Sacramento

County Sheriffs’ Deputies in a 42 U.S.C. § 1983 action that

presents the question of whether and to what extent law

enforcement may detain people who are not suspected of

engaging in criminal activity but who have information

essential to preventing a threatened school shooting.

*

The Honorable James V. Selna, United States District Judge for the

Central District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 3

The Deputies encountered Celia and William Bernal

(collectively “the Bernals”) at their home during the

Deputies’ investigation into allegations that the Bernals’ son

Ryan planned a shooting at his school that day. During the

interaction, the Deputies held Celia’s arms and used a twist-

lock to prevent her from leaving. The Deputies also pointed

a firearm at William, forcibly restrained him, and put him in

handcuffs.

The district court held that the Deputies did not violate

the Fourth Amendment by detaining the Bernals even in the

absence of reasonable suspicion. The district court further

found that the Deputies did not use excessive force during

the Bernals’ detention and, even if they had, qualified

immunity applied.

Tha panel first considered whether the initial seizure of

the Bernals was reasonable. Because the Bernals were

detained but not arrested, the reasonableness of their

detention depends on a balance between the public interest

and the individual’s right to personal security free from

arbitrary interference by law officers. To justify the

suspicionless seizure of a material witness, there must be

exigencies requiring immediate action, the gravity of the

public interest must be great, and the detention must be

minimally intrusive. Applying these principles, the panel

held that the Deputies had limited authority to briefly detain

and question the Bernals about Ryan’s location due

primarily to the exigencies inherent in preventing an

imminent school shooting. This holding was predicated on

two key facts: first, the Deputies knew the Bernals had

information crucial to stopping a potential mass shooting—

the suspected shooter’s location; and second, there was an

ongoing emergency threatening numerous lives which

required immediate action. The panel further held that it

4 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

need not set a definitive rule for the maximum length a non-

suspect witness detention may last because the detention

here lasted approximately twenty minutes, far less than

previous detentions that the court has considered. The

Deputies’ continued detention of Celia after she informed

the Deputies she did not want to speak with them did not

exceed this boundary. William’s initial detention was

likewise permissible, up to a point.

The panel next considered the Bernals’ Fourth

Amendment claims of excessive force. The district court

found the amount of force used against both Celia and

William reasonable under the circumstances. The panel

concluded that the district court was correct in its analysis

regarding Celia but erred as to William.

First, as to Celia, the panel held that the nature and

quality of the Deputies’ intrusion was slight because the

Deputies utilized a minimal amount of force on

Celia. Moreover, the Deputies utilized warnings and less

intrusive means before resorting to physical

coercion. Weighing the Deputies’ minimal use of force

against the government’s interests, the panel applied the

factors outlined in Graham v. Connor, 490 U.S. 386, 396

(1989). Factors considered in analyzing the government’s

interest include: (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. The panel weighed

the first Graham factor slightly in favor of the Deputies

because, by disregarding the Deputies’ commands, Celia

prolonged a dire emergency situation. The panel weighed

the second and most important Graham factor in favor of

Celia because merely being behind the wheel of an

operational vehicle does not automatically create a safety

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 5

hazard; any threat to officer safety was minimal and quickly

mitigated. The panel weighed the third Graham factor in

favor of the Deputies because Celia was uncooperative, and

refused to comply with the Deputies’ requests to exit the

vehicle. Only then did the Deputies restrain her, using holds

on both her arms. The panel held that this type of minimal

force was reasonable to prevent continued resistance or

flight. On balance, the panel concluded that the Deputies’

use of force against Celia was reasonable under the

circumstances.

Next, the panel concluded that the district court erred in

finding that the Deputies’ use of force against William was

not excessive. The intrusion on William’s liberty was too

great in the context of detaining a non-suspect

witness. According to William, the Deputies pointed a gun

at him, kicked his legs apart, turned his head beyond its

natural range of motion, kicked his knees to force his legs to

buckle, smashed his head into the hood of the car, and tightly

handcuffed him, resulting in a great deal of pain. Applying

the Graham factors, the first Graham factor weighed in favor

of Deputies, but only slightly. The Deputies did not suspect

William of committing a crime when they first arrived at the

Bernals’ home, and asserted they had probable cause to

arrest William when he physically resisted their attempts to

detain him. Viewing the evidence in the light most favorable

to the Bernals, the panel found a triable issue of fact

regarding whether the Deputies’ commands to William were

lawful because verbally challenging and recording officers

are not illegal actions, and thus commands to cease such

actions are not lawful orders. Nevertheless, the unfolding

emergency of a threatened school shooting must be taken

into account. The second and most important Graham factor

weighed in favor of William because a genuine dispute of

6 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

material fact remained as to whether William reached into

an unsearched bag, and the undisputed facts reflected that

the Deputies knew William was unarmed, undermining their

claim that they feared for their safety. On the third Graham

factor, to the extent William actively resisted the Deputies’

attempts to restrain him, this factor weighed only slightly in

favor of the Deputies. Weighing all relevant factors, the

panel found that the district court erred in granting summary

judgment to the Deputies by disregarding genuine disputes

of material fact. The panel also found that the Deputies used

excessive force when they violently detained William

despite knowing he was unarmed and posed no reasonable

threat to officer safety.

Having found that the Deputies violated William’s

Fourth Amendment rights, the panel considered whether the

Deputies were nonetheless entitled to qualified

immunity. The panel concluded that the Deputies violated

clearly established law whether they accepted the Bernals’

or the Deputies’ account of events. Viewing the evidence in

the light most favorable to the Bernals, William never

reached into his bag, and instead yelled at the Deputies to

stop assaulting his wife and attempted to record the

Deputies. Williams’ recording of the incident and his

verbally challenging of the police were not only legal actions

but were protected by the First Amendment. Even if the

Deputies’ account of events is taken as true, the Deputies

were on notice that merely reaching into an unsearched bag,

without more, could not reasonably lead to an inference that

William was armed such that the use of force was

justified. Finally, once it became apparent that William held

a cell phone, and not a weapon, the officers were on notice

they could not violently restrain him.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 7

Accordingly, the panel affirmed the district court’s grant

of summary judgment as to Celia and reversed as to

William. Because the panel reversed the district court’s

grant of summary judgment on William’s Fourth

Amendment claims, it reinstated William’s pendent state law

claims.

COUNSEL

Matthew Becker (argued), Becker Law Practice,

Sacramento, California, for Plaintiffs-Appellants.

Nicole M. Cahill (argued) and Van Longyear, Longyear &

Lavra LLP, Sacramento, California, for Defendants-

Appellees.

OPINION

SELNA, District Judge:

This case asks us to decide the extent of law enforcement

officers’ authority to detain non-suspect witnesses, and how

much force, if any, may be used to effectuate such

detentions. Six Sacramento County Sheriffs’ Deputies

(collectively “the Deputies”) encountered Celia and William

Bernal (collectively “the Bernals”) 1 at their home during the

Deputies’ investigation into allegations that the Bernals’ son

1

Because this case involves multiple members of the Bernal family, we

will refer to each Bernal by their first name (e.g., Celia, William, or

Ryan) when discussing them individually and “the Bernals” when

discussing them collectively.

8 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

Ryan planned a shooting at his school that day. During the

interaction, the Deputies held Celia’s arms and used a twist-

lock to prevent her from leaving. The Deputies also pointed

a firearm at William, forcibly restrained him, and put him in

handcuffs. Based on these actions, the Bernals filed a

lawsuit under 42 U.S.C. § 1983 against the Deputies and the

Sacramento County Sheriff’s Department alleging, among

other things, violations of their Fourth Amendment rights.

The district court granted summary judgment in favor of

the Deputies, concluding the Deputies did not violate the

Fourth Amendment by detaining the Bernals even in the

absence of reasonable suspicion. The district court further

found that the Deputies did not use excessive force during

the Bernals’ detention and, even if they had, qualified

immunity applied. We affirm in part and reverse in part.

FACTUAL BACKGROUND

At approximately 10:00 a.m. on March 5, 2018, six

deputies from the Sacramento County Sheriff’s Department

responded to a request for help in finding Ryan Bernal, a

student at Vista Del Lago High School who was absent that

day. The Folsom Police Department received information

that Ryan sent a text to his friend saying he intended to

“shoot up the school, and today [March 5, 2018] was the

day.” Deputies Winkel, Kennedy, Couch, Sutter, Chhlang,

Bliss, and Quackenbush, all of whom were in uniform,

responded to the call.

The Deputies met in a parking lot near the Bernals’ home

for approximately ten minutes to coordinate their efforts and

gather more information. Deputy Chhlang performed a

premises history check on Ryan’s residence which identified

Celia and William, whom the Deputies presumed to be

Ryan’s parents, as residents of the home. Deputy Winkel

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 9

performed a weapons check on the home which showed no

firearms registered to the address or in any of the Bernals’

names.

Deputy Chhlang called Celia, identified himself as a

deputy with the Sacramento County Sheriff’s Office,

informed Celia about the threats Ryan allegedly made, and

asked to speak with Ryan. Celia responded that Ryan was

not at home but was at his grandmother’s house. She refused

to provide the address. According to Celia, she did not give

Ryan’s location because the number Deputy Chhlang called

from was blocked. Since she could not verify whether

Deputy Chhlang was, indeed, a member of law enforcement,

she did not want to give a stranger her son’s location.

The Deputies proceeded to the Bernals’ home in six

marked patrol cars and parked around the cul-de-sac in front

of the house. As the Deputies walked up to the Bernals’

driveway, they saw Celia and William exiting the home and

heading towards their car. They did not see Ryan or anyone

matching his description. The Deputies intended to briefly

detain the Bernals to ask them about Ryan’s location.

A. Celia’s Interaction with the Deputies

Deputies Chhlang and Kennedy approached Celia, who

appeared agitated and was talking very loudly. Deputies

Chhlang and Kennedy identified themselves as law

enforcement and asked to speak to her. Celia again informed

the Deputies that Ryan was not at home, stated she did not

want to speak to them any further, and proceeded to enter

her vehicle. Deputy Kennedy stood behind Celia’s car and

ordered her to stay out of her vehicle; she ignored him and

got in. Deputy Kennedy then ordered Celia to exit the

vehicle, but she again ignored him and remained inside.

10 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

The parties dispute whether Celia actually started the car,

but at least two deputies saw that the vehicle’s tail lights had

illuminated. Believing the car to have started, Deputy

Kennedy, still behind the vehicle, tapped on the rear window

to warn Celia not to back up, then moved to the driver’s side.

Deputy Kennedy reached through the driver’s side window

to remove the keys from the car, but Celia blocked him from

doing so. Deputies Kennedy and Chhlang proceeded to take

hold of Celia’s left forearm while Deputy Winkel held

Celia’s right arm from the passenger side in a twist lock. 2

Celia called out for William to record the Deputies

restraining her. After William had been handcuffed, Celia

stopped resisting. Deputies Winkel and Kennedy removed

her from her car and told her to sit in a plastic chair in her

yard. Celia was not placed in handcuffs.

B. William’s Interaction with the Deputies

As Deputies Chhlang, Kennedy, and Winkel spoke to

and restrained Celia, William, standing at 6 feet 3 inches and

weighing 290 pounds, was in front of Celia’s car and placed

a small duffel bag on the hood. The parties present differing

accounts of what happened next.

According to the Bernals, William did not reach into the

bag and instead had his cell phone in his hands from the time

he stepped out of his house until he was placed in handcuffs.

When Celia told William to record the Deputies’ use of force

against her, William held his cell phone with both hands to

record the interaction and yelled at the officers to stop

touching Celia. Celia stated that she was watching William

2

A twist-lock is a type of control hold which uses pain to gain control.

After a twist-lock is applied, most people bend forward on account of the

pain.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 11

the entire time and saw that he never reached into the bag on

the car’s hood.

According to Deputy Bliss, who stood at approximately

5 foot 7 inches and weighed 160 pounds, William

“aggressively” reached into the bag. Worried that William

could be retrieving a weapon, Deputy Bliss aimed his

firearm at William, ordering him to put his hands up.

William did not comply and instead continued yelling,

pulled out his cell phone from the bag, and raised it with both

hands. Deputy Bliss recognized the cell phone was not a

weapon, holstered his firearm, and helped Deputy Chhlang,

approximately the same size as Deputy Bliss, get William’s

hands behind his back. Deputy Chhlang reported a similar

account of events, including that he saw William reach into

the bag, heard Deputy Bliss tell William to take his hands

out of the bag and raise them, and saw that William was

holding a cell phone, not a weapon.

Another deputy and a third party also recalled William’s

use of his phone. Deputy Winkel reported hearing William

say “he was going to record the whole thing.” Gary Turner,

a third-party witness, stated that he saw William holding his

phone, filming the deputies, and yelling. Turner further

recalled that the Deputies told William to put his phone away

and calm down.

Importantly, the parties do not dispute that the Deputies

quickly recognized the object he held was a cell phone and

not a weapon. Despite acknowledging that William had not

retrieved a weapon, the Deputies proceeded to forcibly

restrain William. In addition to wrenching William’s arms

behind his back, the Deputies pushed William’s head into

the hood of the car. William also stated that the Deputies

kicked his legs apart and forced his knees to buckle, putting

12 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

the full force of his torso on the hood of the car and forcing

his head to turn past its natural range of motion. Deputies

Bliss and Chhlang contended they did not touch his legs or

knees.

As he was attempting to handcuff William, Deputy

Chhlang felt William elbow him in the chest. Deputy

Chhlang interpreted this as resistance and pushed William

forward onto the hood of Celia’s car to gain leverage and

utilized a rear twist-lock. William later stated he did not hit

any of the Deputies, although he did recall twisting away

from the Deputies’ holds to relieve the pain from his

surgically repaired shoulders.

As the Deputies restrained William, Celia yelled that

they were hurting William due to his recent surgery. After

the Deputies initially handcuffed William, they used a

second pair of handcuffs to create a “daisy chain,” allowing

William’s shoulders more room. The Deputies then placed

William in the back of one of their squad cars for less than

ten minutes. In total, the interaction lasted approximately

twenty minutes.

After restraining William and Celia, the Deputies

confirmed that Ryan was at his grandmother’s house.

William provided the address, and the Bernals led the

Deputies to Ryan’s grandmother’s house at approximately

10:45 a.m. Ryan was arrested by the Folsom Police

Department and pleaded no contest to a misdemeanor

violation of California Penal Code Section 422 for making

threats to commit a crime resulting in death or great bodily

injury to another person. He was also charged with, but was

not convicted of and did not plead guilty to, unlawfully

possessing a firearm.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 13

PROCEDURAL BACKGROUND

The Bernals filed suit in the United States District Court

for the Eastern District of California against the Deputies

and the Sacramento County Sheriff’s Department alleging,

among other things, violations of their Fourth Amendment

rights. The Deputies moved for summary judgment on all

claims. The district court granted the Deputies’ motion as to

the federal claims, finding no genuine dispute of material

fact that the initial seizure and the Deputies’ use of force

were reasonable. In addressing qualified immunity, the

district court stated in a footnote that, even if a jury found

the seizure or use of force unreasonable, qualified immunity

would apply because the Bernals had failed to present any

on-point cases. The court declined to exercise supplemental

jurisdiction over the Bernals’ pendent state law causes of

action. The Bernals now timely appeal the district court’s

grant of summary judgment on their Fourth Amendment

claims.

STANDARD OF REVIEW

On appeal, a district court’s ruling on a motion for

summary judgment is reviewed de novo, viewing all

evidence in the light most favorable to the non-moving party.

FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986); Del. Valley Surgical Supply, Inc. v. Johnson

& Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008). A district

court’s ruling on whether an officer is entitled to qualified

immunity is also reviewed de novo. Glenn v. Washington

County, 673 F.3d 864, 870 (9th Cir. 2011).

DISCUSSION

The Bernals argue the district court erred by finding their

initial seizure reasonable, the Deputies’ use of force

14 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

reasonable, and that qualified immunity applied. We address

each argument in turn.

A. Fourth Amendment Claim for Unreasonable Seizure

The Fourth Amendment guarantees the right of the

people to be free from unreasonable seizures. U.S. CONST.

amend. IV. “No right is held more sacred, or is more

carefully guarded, by the common law, than the right of

every individual to the possession and control of his own

person, free from all restraint or interference of others,

unless by clear and unquestionable authority of law.” Terry

v. Ohio, 392 U.S. 1, 9 (1968) (quoting Union Pac. Ry. Co. v.

Botsford, 141 U.S. 250, 251 (1891)).

In safeguarding this right, the Fourth Amendment

protects individuals from both unreasonable detentions and

excessive force used during the detention. See Torres v.

Madrid, 141 S. Ct. 989, 995 (2021). The rule defining when

the Fourth Amendment permits seizures is well-established:

absent an exception, the government may not detain an

individual unless there is, at a minimum, reasonable

suspicion the individual is engaging in criminal activity. See

United States v. Brignoni-Ponce, 422 U.S. 873, 881–82

(1975); Terry, 392 U.S. at 21.

It is undisputed that the Bernals were detained within the

meaning of the Fourth Amendment and that, prior to their

initial seizure, the Bernals were not suspected of any

criminal wrongdoing. The controversy, then, is whether

their seizure was reasonable notwithstanding the lack of

reasonable suspicion. Because the Bernals were detained

but not arrested, the reasonableness of their detention

“depends ‘on a balance between the public interest and the

individual’s right to personal security free from arbitrary

interference by law officers.’” Brown v. Texas, 443 U.S. 47,

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 15

51 (1979) (quoting Pennsylvania v. Mimms, 434 U.S. 106,

109 (1977) (per curiam)). Thus, we 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.” Id.

1. Legal Framework

This case presents a particularly unique question:

whether and to what extent law enforcement may detain

people who are not suspected of engaging in criminal

activity but who have information essential to preventing a

threatened school shooting. Generally, when no reasonable

suspicion exists, police have no authority to detain. See City

of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).

However, the Supreme Court has recognized an exception to

this general rule in certain circumstances, permitting the

detention of non-suspect witnesses for the purpose of

obtaining information. See Illinois v. Lidster, 540 U.S. 419,

423–24 (2004). In contemplating this exception, we

concluded that the government’s interest is greatly decreased

when detaining non-suspect witnesses. See Maxwell v.

County of San Diego, 708 F.3d 1075, 1084 (9th Cir. 2013)

(en banc). Thus, until now, we have not upheld a

suspicionless witness detention because the government’s

interests in solving crime did not outweigh the individuals’

liberty interests. See id.; United States v. Ward, 488 F.2d

162, 169 (9th Cir. 1973) (en banc).

We first explored whether law enforcement may detain

a witness for the purpose of questioning them about the

crime of a third person in Ward. 488 F.2d at 169. There,

FBI agents searching for federal fugitives wanted to question

a motorist whom they believed had information relevant to

their investigation. Id. at 163. Considering the unique

16 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

factual nature of the case, we held the seizure

unconstitutional for three reasons. First, the agents made the

stop not “in connection with any particular crime,” but rather

“pursuant to a general criminal investigation that had begun

several months before.” Id. at 169. Accordingly, “[t]here

was no emergency situation nor any need for immediate

action.” Id. Second, we acknowledged the different scopes

of responsibility between federal agents, who only enforce

federal laws, and local law enforcement officers, who

typically conduct traffic stops “as guardians of the peace

generally.” Id. Third, “and most significantly,” the agents

did not suspect the motorist himself of engaging in criminal

activity. Id. Rather, the stop “was made for the purpose of

questioning the defendant about a third person.” Id. (italics

in original).

Forty years later, we explored this question for a second

time. We held in Maxwell that detaining witnesses to a fatal

shooting for five hours was an unreasonable seizure. 708

F.3d at 1084. While we noted that Ward left “the door open

to investigatory witness detentions” in limited

circumstances, such as in an unfolding emergency situation,

id. (citing 488 F.2d at 169), we nonetheless clarified “that in

the hierarchy of state interests justifying detention, the

interest in detaining [non-suspect] witnesses for information

is of relatively low value,” id. In concluding that the

government’s interest did not outweigh the plaintiffs’, we

found particularly relevant the length of the detention and

the fact that there was no ongoing emergency because the

crime had been solved. Id.

Supreme Court precedent confirms that, while detentions

solely for the purpose of obtaining information may be

permissible in very limited cases, the government’s interest

in effectuating such seizures is at a low ebb. In Lidster, the

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 17

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. 540 U.S. at 427. 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.” Id. 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.” Id. at 427–28. 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.” Id. at 428.

Taken together, these precedents establish that, while

detaining non-suspect witnesses can be permissible, the

government’s interest in such detentions is greatly decreased

for the simple yet significant reason that police do not have

individualized suspicion that the witness engaged in criminal

activity. See Ward, 488 F.2d at 169–70 (“Clearly, the

narrow exception of Terry v. Ohio . . . cannot be stretched so

far as to allow detentive stops for generalized criminal

inquiries.”). Accordingly, to justify the suspicionless seizure

of a material witness, there must be exigencies 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. See Edmond, 531

U.S. at 44 (recognizing that suspicionless checkpoints may

be permissible when certain exigencies exist, such as

thwarting a terrorist attack); Lidster, 540 U.S. at 427

(approving of suspicionless witness detention due to the

stop’s minimally intrusive nature).

18 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

2. Initial Seizure

Applying these principles to the case before us, we hold

that the Deputies had limited authority to briefly detain and

question the Bernals about Ryan’s location due primarily to

the exigencies inherent in preventing an imminent school

shooting. “There is nothing in the Constitution which

prevents a policeman from addressing questions to anyone

on the streets. Absent special circumstances, [however,] the

person approached may not be detained or frisked but may

refuse to cooperate and go on his way.” Terry, 392 U.S. at

34 (White, J., concurring). We find that the emergency

presented by an impending school shooting coupled with the

information the Deputies knew the Bernals possessed

constituted such “special circumstances.”

Our holding is predicated on two key facts. First, the

Deputies knew the Bernals had information crucial to

stopping a potential mass shooting: the suspected shooter’s

location. Celia told the Deputies over the phone that Ryan

was at his grandmother’s house, although she did not divulge

the precise address at that time. Celia’s hesitance to share

Ryan’s grandmother’s address was because she could not

confirm she was speaking with law enforcement on the

phone and did not want to provide Ryan’s precise location

to a stranger. Thus, this is not a case in which police merely

suspected or believed an individual had credible

information, but one in which the witness herself confirmed

that she knew the location of a suspected school shooter.

Second, and most importantly, there was an ongoing

emergency threatening numerous lives which required

immediate action. The Deputies were actively investigating

credible threats of a school shooting weeks after the

devastating and highly publicized events in Parkland,

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 19

Florida. We believe this to be precisely the type of exigency

contemplated by the Supreme Court in approving

suspicionless witness detentions. See Lidster, 540 U.S. at

427 (finding the relevant public concern grave because

“police were investigating a crime that had resulted in a

human death”); Edmond, 531 U.S. at 44 (recognizing that

suspicionless checkpoints may be permissible when certain

exigencies exist, such as thwarting a terrorist attack).

This exigency separates this case from our previous

cases in which the crime had already been solved, see

Maxwell, 708 F.3d at 1084, or there was no crime to solve,

see Ward, 488 F.2d at 169; see also Hill v. City of Fountain

Valley, No. 21-55867, slip op. at 14 (9th Cir. June 1, 2023)

(finding that an “exigent circumstance in investigating a

potentially kidnapped woman” justified ordering the

suspected kidnappers’ family members out of their home).

We are hard-pressed to imagine a more important, time-

sensitive matter than preventing the unspeakable tragedy of

a school shooting. Thus, while the government’s interest in

detaining non-suspect witnesses begins at a low ebb, the fact

that the Deputies were actively attempting to prevent a mass

shooting at a school sufficiently increased the government’s

interest to warrant a brief detention.

Even still, the Bernals’ liberty interests remained very

high, as they were not themselves suspected of engaging in

any criminal activity. See Maxwell, 703 F.3d at 1084.

Accordingly, the detention must be brief, ending after it is

clear the witness is not willing to divulge the information

sought. See Davis v. Mississippi, 394 U.S. 721, 727 n.6

(1969) (noting that witnesses may not be compelled to

answer law enforcement officers’ questions). The longer a

witness refuses to answer questions, the less the government

maintains an interest in the interaction. Similarly, the longer

20 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

the government detains non-suspect witnesses, the more the

detention interferes with liberty of the sort the Fourth

Amendment seeks to protect. See Lidster, 540 U.S. at 427.

We need not set a definitive rule for the maximum length

a non-suspect witness detention may last because the

detention here lasted approximately twenty minutes, far less

than previous detentions we have considered. See, e.g.,

Maxwell, 708 F.3d at 1084 (finding witnesses’ detention of

five hours unreasonable). Our sister circuits addressing this

issue have reached similar conclusions regarding the length

of witness detentions. See, e.g., Lincoln v. Scott, 887 F.3d

190, 197 (5th Cir. 2018) (detaining a non-suspect witness for

two hours in handcuffs in a police car is unreasonable);

Lincoln v. Turner, 874 F.3d 833, 845 (5th Cir. 2017) (same);

Cortez v. McCauley, 478 F.3d 1108, 1131 (10th Cir. 2007)

(en banc) (detaining non-suspect witness for one hour is

unreasonable); Walker v. City of Orem, 451 F.3d 1139, 1150

(10th Cir. 2006) (detaining non-suspect witnesses for ninety

minutes is unreasonable).

The Deputies’ continued detention Celia after she

informed the Deputies she did not want to speak with them

did not exceed this boundary. The time in which the

Deputies attempted to ask Celia questions was very brief,

lasting only a few seconds. Indeed, the record reflects the

Deputies had only one opportunity to ask Celia if she would

speak with them before she attempted to drive away. In light

of the unique exigencies inherent in preventing a school

shooting, we determine that law enforcement was permitted

a few minutes in which to ask questions. Requiring Celia to

remain at her home for those few minutes does not exceed

the bounds of the Fourth Amendment.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 21

William’s initial detention was likewise permissible, up

to a point. As with Celia, the Deputies had limited authority

to briefly detain William for the purpose of asking him

questions about Ryan’s location. However, as we discuss

further below, the Deputies exceeded this authority when

they used a significant amount of force to restrain William

who was unarmed and compliant with the Deputies’ lawful

orders. 3

Application of the Brown factors further supports our

conclusion. First, the “gravity of the public concerns served

by the seizure” could hardly have been weightier. Brown,

443 U.S. at 51. Ryan threatened to commit a mass shooting

at his school that day, rendering finding his location a highly

time-sensitive public matter. Additionally, this threat

occurred less than three weeks after a student at the Marjory

Stoneman Douglas High School in Parkland, Florida killed

seventeen people and injured seventeen more. Second,

detaining and speaking to the Bernals advanced the public

interest to the highest degree—locating the suspected school

shooter. See id. Finally, while the Deputies undoubtedly

3

The Deputies assert that William’s refusal to comply with their

commands constituted resistance and provided probable cause to arrest

under Section 148 of the California Penal Code separate and apart from

their authority to detain him as a witness. However, when viewing the

facts in the light most favorable to the Bernals, William only disregarded

unlawful commands to stop yelling at and recording the Deputies, which

“does not rise to the level of a [S]ection 148 violation.” In re Chase C.,

196 Cal. Rptr. 3d 381, 388 (Ct. App. 2015). “Speech is generally

protected by the First Amendment, even if it is intended to interfere with

the performance of an officer’s duty, provided no physical interference

results.” Id. (citation and quotation marks omitted). Because William

engaged in protected First Amendment conduct and did not physically

interfere with the Deputies’ performance of their duties, the Deputies did

not have probable cause to arrest him under Section 148.

22 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

interfered with the Bernals’ individual liberty, the initial

seizure was not so disproportionately intrusive as to

outweigh the other considerations. See id. We note that our

conclusion on the final Brown factor is based solely on the

initial detention; we separately assess the use of force

employed below.

The Bernals contend that whatever authority the

Deputies had to detain them terminated when Celia indicated

she did not wish to continue speaking with the Deputies. In

arguing so, the Bernals rely on Florida v. Royer, 460 U.S.

491 (1983). There, the Supreme Court held that a person

approached by police “need not answer any question put to

him . . . he may decline to listen to the questions at all and

may go on his way.” Id. at 497–98.

However, Royer is inapposite because the quoted

language refers to a different situation, where a law

enforcement officer is “merely approaching an individual on

the street or in another public place” without “convert[ing]

the encounter into a seizure requiring some level of objective

justification.” Id. Under those circumstances, the person

approached “may go on his way” without answering the

questions, and the refusal to do so, “without more” does not

“furnish . . . grounds” to use force to detain the person any

further. Id. at 498. Here, conversely, the Deputies had

authority to detain and question the Bernals about Ryan’s

location due to exigent circumstances. The objective

justification giving the Deputies authority to briefly detain

the Bernals also justifies the use of limited force to prevent

the Bernals from going on their way. Id.

Thus, we hold that the Deputies could briefly detain the

Bernals because of the ongoing, time-sensitive investigation

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 23

into a threatened school shooting about which the Bernals

had vital information.

B. Fourth Amendment Claim for Excessive Force

The Bernals next argue that the district court erred in

granting summary judgment to the Deputies on the claims

for excessive force. The district court found the amount of

force used against both Celia and William reasonable under

the circumstances. We conclude the district court was

correct in its analysis regarding Celia but erred as to

William.

As a threshold matter, we recognize that “the right to

[detain] necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.”

Graham v. Connor, 490 U.S. 386, 396 (1989). However,

any use of force must be reasonable under the circumstances.

Id. To assess objective reasonableness, we balance the

nature and quality of the intrusion against the government’s

interests. O’Doan v. Sanford, 991 F.3d 1028, 1037 (9th Cir.

2021) (citing Graham, 490 U.S. at 396). Factors considered

in analyzing the government’s interest include “(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.” Maxwell, 708 F.3d at 1086 (citing

Graham, 490 U.S. at 396). These factors are not exclusive,

and we consider “whatever specific factors may be

appropriate in a particular context, whether or not listed in

Graham.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

2011) (en banc) (quoting Bryan v. MacPherson, 630 F.3d

805, 826 (9th Cir. 2010)). “Underlying Graham’s objective-

reasonableness test is the clear principle that the force used

to [to effectuate a detention] must be balanced against the

24 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

need for force: it is the need for force which is at the heart of

the Graham factors.” Blankenhorn v. City of Orange, 485

F.3d 463, 480 (9th Cir. 2007) (internal quotation marks

omitted).

We address the specific factual circumstances of the

Deputies’ use of force against Celia and William in turn.

1. Use of Force Against Celia

a. Nature and Quality of the Intrusion

In assessing the reasonableness of the use of force

against Celia, we look first to the nature and quality of the

intrusion on her liberty. See Graham, 490 U.S. at 396. We

determine that the intrusion was slight because the Deputies

utilized a minimal amount of force on Celia. When Celia

disregarded the Deputies’ commands to remain outside of

her vehicle, three Deputies restrained both her arms to

prevent her from leaving. Deputy Kennedy used the greatest

amount of force, utilizing a “twist-lock” on Celia’s right

arm. Even still, a twist-lock is one of the least intrusive

control holds available. See Fitzgerald v. Santoro, 707 F.3d

725, 734 (7th Cir. 2013) (approving of officers’ use of the

“arm bar” and “wrist lock” positions to secure an

uncooperative individual). Furthermore, the Deputies

restrained Celia for no more than a few minutes, releasing

her after she stopped attempting to leave. She was then

permitted to sit in a chair in her lawn, unhandcuffed.

Moreover, the Deputies utilized warnings and less

intrusive means before resorting to physical coercion. See

Rice v. Morehouse, 989 F.3d 1112, 1122 (9th Cir. 2021)

(considering whether there were “less intrusive alternatives

to the force employed and whether proper warnings were

given”). The undisputed facts reflect that the Deputies

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 25

issued orders to Celia to stay out of and then exit her vehicle,

both of which she disregarded. Deputy Kennedy then

reached through the driver’s side window to remove the car

keys, but Celia prevented him from doing so. Only at this

point did the Deputies resort to using force, and even then,

only a small amount.

b. Severity of the Crime at Issue

We now weigh the Deputies’ minimal use of force

against the government’s interests. The first Graham factor

addresses the severity of the crime at issue. See Graham,

490 U.S. at 396. When analyzing this factor, we typically

look to the alleged crime of the person being detained. See,

e.g., Mattos, 661 F.3d at 449 (considering the plaintiff’s

alleged crime of obstruction rather than the crime of

domestic violence to which police responded); Nelson v.

City of Davis, 685 F.3d 867, 879–80 (9th Cir. 2012)

(declining to consider the potential crime of trespass and

disturbance to which police responded when the plaintiff

himself did not commit a crime). “Where officers are

presented with circumstances indicating that no crime was

committed, the ‘severity of the crime at issue’ factor is

necessarily diminished as a justification for the use of force.”

Velazquez v. City of Long Beach, 793 F.3d 1010, 1025 (9th

Cir. 2015). However, when police are responding to an

ongoing emergency, we consider the “serious—indeed, life-

threatening—situation . . . unfolding at the time.” Ames v.

King Cnty., 846 F.3d 340, 349 (9th Cir. 2017); cf. Nelson,

685 F.3d at 880 (finding “the lack of serious criminal

behavior” and “the absence of exigency . . . significantly

reduce[d] the governmental interest involved” and provided

“minimal, if any, justification for the use of force”).

26 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

It is undisputed that the Deputies did not suspect Celia of

committing a crime when they first arrived at the Bernals’

home. At most, Celia resisted the Deputies’ orders to remain

outside of her vehicle. Disregarding an officer’s lawful

commands, “while a legally-punishable offense, is a minor

infraction that justifies, at most, only a minimal use of

force.” Nelson, 685 F.3d at 880 (citing Davis v. City of Las

Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007)). However,

when viewed in light of the time-sensitive, actively

unfolding emergency of a threatened school shooting, the

severity of the crime increases. By disregarding the

Deputies’ commands, Celia “prolong[ed] a dire” emergency

situation. Ames, 846 F.3d at 348–49. We therefore weigh

the first Graham factor slightly in favor of the Deputies.

c. Threat to Deputies’ Safety

The second and “most important” Graham factor asks

whether Celia presented an immediate danger to the

Deputies or others. Graham, 490 U.S. at 396; see also Ames,

846 F.3d at 349. The district court found that Celia might

pose a risk to officer safety because she was at the wheel of

an operational vehicle behind which Deputy Kennedy was

momentarily standing. However, merely being behind the

wheel of an operational vehicle does not automatically create

a safety hazard. See Mattos, 661 F.3d at 444 (noting that the

plaintiff, while “behind the wheel of her car . . . was not

physically threatening”). Furthermore, any threat to officer

safety was minimal and quickly mitigated. Although at one

point Deputy Kennedy stood behind Celia’s vehicle, he

promptly moved to the driver’s side door. Accordingly, we

weigh the second factor Graham factor in favor of Celia.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 27

d. Active Resistance or Attempt to Flee

Finally, we look to whether Celia actively resisted or

attempted to flee. See Graham, 490 U.S. at 396. The

Bernals argue that Celia was not resisting a lawful detention

or attempting to escape from custody when Deputies

employed force. However, the undisputed facts counsel

otherwise. Celia was in her car, intent on leaving. As

analyzed above, the Deputies had authority to briefly detain

Celia. Pursuant to that authority, the Deputies first ordered

Celia to not get in her car, then ordered her to exit her car,

then attempted to retrieve Celia’s keys from her car to

prevent her from leaving. Celia remained uncooperative,

refusing to comply with the Deputies’ requests to exit the

vehicle. Only then did the Deputies restrain her, using holds

on both her arms.

We and our sister circuits have held this type of minimal

force reasonable to prevent continued resistance or flight.

See, e.g., Ames, 846 F.3d at 349; Fitzgerald, 707 F.3d at 734.

Moreover, it is unlikely that officers could have used less

force than briefly holding Celia’s arms to restrain her. The

Deputies never handcuffed Celia and allowed her to sit in a

chair in her yard while William was in the Deputies’ patrol

vehicle. We therefore weigh the third Graham factor in

favor of the Deputies.

On balance, we conclude the Deputies’ use of force

against Celia was reasonable under the circumstances. The

authority to detain Celia “necessarily carrie[d] with it the

right to use some degree of physical coercion or threat

thereof to effect it.” Graham, 490 U.S. at 396. Because the

government’s interest in detaining Celia, as a non-suspect

witness, was at a low ebb, so too was the accompanying right

to use physical force. Thus, because the undisputed facts

28 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

indicate the Deputies briefly applied among the lowest levels

of force possible, we affirm the district court’s grant of

summary judgment to the Deputies for the seizure of and use

of force against Celia.

2. Use of Force Against William

We now address the Deputies’ use of force against

William and conclude that the district court erred in finding

it was not excessive.

a. Nature and Quality of the Intrusion

We again begin by assessing the nature and quality of the

intrusion. See Graham, 490 U.S. at 396. We find the

intrusion on William’s liberty was “simply too great” in the

context of detaining a non-suspect witness. Washington v.

Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996). According to

William, the Deputies pointed a gun at him, kicked his legs

apart, turned his head beyond its natural range of motion,

kicked his knees to force his legs to buckle, smashed his head

into the hood of the car, and tightly handcuffed him,

resulting in a great deal of pain. Although the Deputies

employed mitigating measures when they learned that

William’s shoulders were healing from surgery, the initial

use of force and the harm it caused remain significant.

Even when police have reasonable suspicion to make an

investigatory stop, “drawing weapons and using handcuffs

and other restraints will violate the Fourth Amendment.”

Lambert, 98 F.3d at 1187. William’s expectation of privacy

as a non-suspect witness was even greater than that of an

individual subject to an investigatory stop. Moreover, when

viewing the facts in the light most favorable to the Bernals,

the Deputies did not utilize sufficient warnings or attempt

less intrusive means before resorting to harsh physical holds.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 29

See Rice, 989 F.3d at 1122. When William raised up a cell

phone to record the incident, Deputy Bliss’s first reaction

was to draw his firearm, aim it at William, and order him to

put his hands up. When William did not immediately

comply, Deputies Bliss and Chhlang proceeded to forcibly

restrain William, causing him to suffer significant pain.

b. Severity of the Crime at Issue

We now weigh the nature and quality of the intrusion

against the government’s interests. See Graham, 490 U.S.

at 396. We arrive at the same conclusion for William as we

do for Celia on the first Graham factor. As with Celia, the

Deputies did not suspect William of committing a crime

when they first arrived at the Bernals’ home. The Deputies

assert they had probable cause to arrest William when he

physically resisted their attempts to detain him.

However, “[i]t is well established under California law

that even an outright refusal to cooperate with police officers

cannot create adequate grounds for [police] intrusion

without more.” Velazquez, 793 F.3d at 1023. Furthermore,

for William to be properly arrested for obstruction under

Section 148 of the California Penal Code, the Deputies must

have been acting lawfully prior to the obstruction. Lemos v.

Cnty. of Sonoma, 40 F.4th 1002, 1008 (9th Cir. 2022) (en

banc) (“[T]he validity of a conviction of an offense

involving a peace officer engaged in the performance of his

or her duties depends on whether the officer was acting

lawfully at the time the offense against the officer was

committed.” (internal quotations omitted) (citing People v.

Williams, 236 Cal. Rptr. 3d 587, 599 (Ct. App. 2018))).

Thus, if the Deputies’ reasons for forcibly detaining William

were predicated on his failure to obey unlawful orders, there

can be no Section 148 violation.

30 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

Viewing the evidence in the light most favorable to the

Bernals, we find a triable issue of fact regarding whether the

Deputies’ commands to William were lawful. Verbally

challenging and recording officers are not illegal actions,

and thus orders to cease such actions are not lawful orders.

See Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir.

1990) (holding that “making obscene gestures” and “yelling

profanities,” while “boorish, crass and, initially at least,

unjustified,” is “not illegal”); Johnson v. Bay Area Rapid

Transit Dist., 724 F.3d 1159, 1174 (9th Cir. 2013) (stating

that “[e]ven though the police may dislike being the object

of abusive language,” they are not permitted “to use the

awesome power which they possess to punish individuals for

conduct that is not only lawful, but which is protected by the

First Amendment”); Fordyce v. City of Seattle, 55 F.3d 436,

439 (9th Cir. 1995) (holding that officers could not “prevent

or dissuade” the plaintiff “from exercising his First

Amendment right to film matters of public interest”).

Therefore, when William did not comply with the Deputies’

orders to put his phone down and stop yelling, he was not

disobeying a lawful command. See In re Chase C., 196 Cal.

Rptr. 3d at 388. Accordingly, the Deputies were not acting

lawfully when they restrained William, negating any

probable cause they had to arrest him for resisting under

Section 148. See Lemos, 40 F.4th at 1008.

The only remaining crime at issue was the threatened

school shooting. Although William himself was not

involved in this crime, the unfolding emergency of a

threatened school shooting must be taken into account. See

Ames, 846 F.3d at 349. The first Graham factor therefore

weighs in favor of the Deputies, but only slightly.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 31

c. Threat to Deputies’ Safety

The second and “most important” Graham factor weighs

in favor of William. Graham, 490 U.S. at 396; Ames, 846

F.3d at 349. The district court’s grant of summary judgment

to the Deputies was premised primarily on the Deputies’

assertion that they reasonably feared for their safety. We

find the district court’s grant of summary judgment on this

issue improper for two reasons. First, a genuine dispute of

material fact remains as to whether William reached into an

unsearched bag. FED. R. CIV. P. 56(a); see also Celotex

Corp., 477 U.S. at 322–23. Second, the undisputed facts

reflect that the Deputies knew William was unarmed,

undermining their claim that they feared for their safety.

The Deputies’ primary argument, which the district court

accepted, is that they thought William was reaching for a

weapon when he put his hand into his duffel bag. However,

this cannot justify the Deputies’ use of force for two distinct

reasons. First, whether William, in fact, had his hand in the

bag at any point is hotly disputed. According to the Bernals,

William never reached into a bag. Rather, he used both

hands to hold his cell phone as he attempted to record the

Deputies restraining Celia. On a motion for summary

judgment, courts must not weigh the evidence or assess

credibility, but rather must make all reasonable inferences in

favor of the non-moving party. See Tolan v. Cotton, 572

U.S. 650, 655–59 (2014) (per curiam) (holding that, in

determining whether a dispute about a material fact is

“genuine,” the trial court must not weigh the evidence and

instead must draw all reasonable inference in the nonmoving

party’s favor). The district court’s acknowledgment and

rejection of the Bernals’ version of the events, however

implausible the court perceived it to be, was improper. See

Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017)

32 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

(holding that a court may not discount “self-serving”

testimony that includes contrary factual assertions and

requires the observation of a witness’s demeanor to assess

credibility). Thus, when taking all inferences in the light

most favorable to the Bernals, William held his phone,

attempted to record the Deputies, and yelled at them to stop

assaulting his wife. None of these actions warrants any use

of force, much less to the extent the Deputies used.

Second, even taking the Deputies’ account as true, the

Deputies were not entitled to forcibly restrain William

because of his purportedly reaching into the duffel bag. Our

inquiry on this issue asks whether, at the time of the

detention, the Deputies could reasonably have believed that

William’s reach into the bag posed a threat to their safety.

See Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017)

(citing White v. Pauly, 137 S. Ct. 548, 550 (2017)). We

conclude they could not.

We have held there was no reasonable threat to officer

safety when an uncooperative individual put their hand in

their weighted-down pocket because the officers had

information that the individual was unarmed and was not

suspected of committing a crime involving weapons. A.K.H.

ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1012 (9th

Cir. 2016). In A.K.H., officers responded to a domestic

violence call where the victim reported that Herrera, a

known member of the “Southside Gang,” hit her on the head

and left on foot. Id. at 1011–12. When the officers

encountered Herrera, he was noncompliant and put his hand

in his pocket which appeared to be weighed down by

something heavy. Id. Fearing Herrera was armed, the

officers shot and killed Herrera. Id. We held this use of

force unreasonable because the officers “had little, if any,

reason to believe that Herrera was armed.” Id. at 1012.

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 33

Before the officers encountered Herrera, police dispatch

informed the officers that, despite being associated with a

gang, Herrera “was not known to carry weapons.” Id. We

further noted that, although Herrera had a traffic warrant out

for his arrest and had been convicted for drug possession,

those were “relatively minor crimes, neither of which

entailed violence or gun possession.” Id.

The Deputies in this case had even less reason to believe

William was armed than the officers in A.K.H. The Deputies

conducted a weapons check prior to arriving at the Bernals’

house and learned that there were no firearms registered to

the home. Further, William was not a gang member, had no

prior convictions, and no warrants out for his arrest. William

was not suspected of committing a crime, much less a crime

that entailed violence or gun possession. The Deputies

responded to a call regarding the potential crime of a third

person who they had substantial reason to believe was not

even at the Bernals’ home. Thus, William’s lack of

cooperation and reach into the duffel bag did not create cause

to point a firearm at and aggressively restrain him.

Independent of whether William reached into the duffel

bag, we find that the Deputies did not have cause to use force

against William even under the undisputed facts. The

uncontroverted facts in the record reflect that it was

immediately apparent to everyone at the scene that William

had a cell phone in his hands, not a weapon. Before Deputies

Chhlang and Bliss restrained William, they stated they saw

William pull out a cell phone, and not a firearm or other

weapon. The third-party witness, Gary Turner, stated he saw

William holding his phone, filming, and yelling at the

Deputies. Turner additionally testified that he recalled the

Deputies telling William to put the phone down. William

even voiced his intention, loudly yelling he was “going to

34 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

record the whole thing.” And yet, despite knowing the

object William held posed no danger to them or others, the

Deputies proceeded to use a substantial amount of force to

restrain William, injuring him in the process. Based on their

own admissions, the Deputies could not have reasonably

believed that William, a non-suspect witness, posed such a

threat to officer safety that would require the level of force

the Deputies used on William. See Tekle v. United States,

511 F.3d 839, 860 (9th Cir. 2007) (“The proposition that

police may not inflict pain on non-suspects . . . in the absence

of any law enforcement reason, should be so obvious to

reasonable officers that qualified immunity cannot shield

them.”) (Kleinfeld, J., concurring)).

The Deputies also argue that William’s “belligerent”

demeanor caused them to fear for their safety. It is

undisputed that William yelled at the Deputies to stop

touching his wife and refused to put his cell phone down.

However, verbally challenging and recording officers are not

illegal actions. See Duran, 904 F.2d at 1377 (holding that

“making obscene gestures” and “yelling profanities,” while

“boorish, crass and, initially at least, unjustified,” is “not

illegal”). Furthermore, William’s actions remained

protected under the First Amendment “even if [they were]

intended to interfere with the performance of an officer’s

duty, provided no physical interference occurs.” In re Chase

C., 196 Cal. Rptr. 3d at 388; see also Fordyce, 55 F.3d at

439. William did not attempt to physically interfere with the

Deputies as they restrained Celia. Thus, the Deputies

therefore could not have reasonably used force to stop

William from yelling or recording. See Johnson, 724 F.3d

at 1174.

Furthermore, while in some cases “abrupt movements or

. . . suspicious, furtive behavior” may “justifiably prompt[]”

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 35

an officer to fear for their safety, United States v. Brown,

996 F.3d 998, 1007–08 (9th Cir. 2021) (citation and

quotation marks omitted), officers merely stating they feared

for their safety “is not enough; there must be objective

factors to justify such a concern,” Deorle v. Rutherford, 272

F.3d 1272, 1281 (9th Cir. 2001). There are no such indicia

here. William did not approach the Deputies, assault them,

or attempt to fight them. See Isayeva v. Sacramento Sheriff’s

Dept., 872 F.3d 939, 948 (9th Cir. 2017) (officer’s fear for

their safety was reasonable where the detainee “engaged in

a struggle with the deputies, physically resisting them, and .

. . tossing them around”). William merely breathed heavily,

widened his eyes, and was upset at seeing Deputies

forcefully restrain his wife. Moreover, as we noted

previously, William was not suspected of committing any

crime, much less a serious one which would give rise to an

inference that he was armed. Cf. Nehad v. Browder, 929

F.3d 1125, 1130–31 (9th Cir. 2019) (weighing the fact that

the detainee had been reported threatening people with a

knife in favor of the officers’ use of force); Estate of Diaz v.

City of Anaheim, 840 F.3d 592, 605 (9th Cir. 2016)

(weighing the fact that the detainee was believed to be a

member of a gang that was investigated for selling and

possessing firearms in favor of the use of force).

Finally, the Deputies contend that William’s large size

compared to Deputies Bliss and Chhlang justified their use

of force. While disparities in size are germane to a use of

force inquiry, they are most relevant when they create a

change in the status quo, leading to an actual need to employ

greater force. For example, in Isayeva, we noted that a

similar “disparity in size posed obvious risks of physical

harm to the officers.” 872 F.3d at 949. There, however, the

deputies detained a self-proclaimed schizophrenic who

36 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

appeared to be on drugs and was acting and speaking

erratically. Id. at 943. When the deputies attempted to

detain him, he punched one deputy in the face and threw

another into the wall. Id. at 944.

Despite William’s large stature, there are no

circumstances here justifying the Deputies’ escalation of

force as there were in Isayeva. Accepting William’s version

of the facts, he twisted away from Deputy Chhlang to

alleviate the pain he experienced when his surgically

repaired arms were wrenched together. Unlike the detainee

in Isayeva, William did not push the Deputies, punch them,

or throw them off him. See id. at 943. In short, William’s

height and weight advantage over the Deputies did not create

a need to restrain him and thus cannot serve as a justification

for their use of force.

Accordingly, we weigh the second Graham factor in

favor of William.

d. Active Resistance or Attempt to Flee

To the extent William “actively resist[ed]” the Deputies’

attempts to restrain him, this factor weighs only slightly in

favor of the Deputies. Graham, 490 U.S. at 396. The

Deputies first argue that William resisted the Deputies’

attempts to question him. However, the record does not

indicate that Deputies asked William any questions or even

attempted to—they were directing their questions to Celia.

The Deputies never spoke to William until he purportedly

reached into his bag. William could therefore not have been

resisting Deputies’ attempts to question him. Moreover, as

we previously discussed, William yelling at the officers does

not, on its own, constitute resistance. See Johnson, 724 F.3d

at 1174 (holding that a person cannot be arrested merely for

yelling at police).

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 37

The Deputies next contend that William resisted the

Deputies’ efforts to restrain him. When viewing the

evidence in the light most favorable to William, we conclude

this, at most, constitutes minimal resistance. William

testified he did not hit any of the officers, although he did

recall struggling against the Deputies’ holds to relieve the

pain from his surgically repaired shoulders. Moreover, even

if William intentionally elbowed Deputy Chhlang, this

resistance is not proportionate to the significant amount of

force the Deputies used to restrain him. Accordingly, we

weigh this factor slightly in favor of William.

Weighing all relevant factors, we find that the district

court erred in granting summary judgment to the Deputies

by disregarding genuine disputes of material fact. We

additionally find that the Deputies used excessive force

when they violently detained William despite knowing he

was unarmed and posed no reasonable threat to officer

safety.

C. Qualified Immunity

Having found that the Deputies violated William’s

Fourth Amendment rights, we consider whether the

Deputies are nonetheless entitled to qualified immunity.

Qualified immunity shields law enforcement officers from

civil liability under § 1983 “unless the officers violated a

clearly established constitutional right.” Monzon v. City of

Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020). We 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, 555 U.S.

223, 232–33 (2009)).

38 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

As noted, the first step in the analysis is satisfied. Thus,

we turn to the second and ask whether William’s

constitutional right the Deputies violated was clearly

established. “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

defendant’s shoes would have understood that he was

violating it.” 4 City of Escondido v. Emmons, 139 S. Ct. 500,

503 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018) (per curiam)). In the Fourth

Amendment context, defining clearly established law with

specificity is particularly important because “it is sometimes

difficult for an officer to determine how the relevant legal

doctrine, here excessive force, will apply to the factual

4

The Bernals additionally argue that we should not apply qualified

immunity because the doctrine is unconstitutional. We decline to do so

for two reasons. First, the Bernals argue that qualified immunity violates

the right to petition for redress of grievances in the First Amendment.

See U.S. CONST. amend. 1 (“Congress shall make no law . . . abridging .

. . the right of the people . . . to petition the Government for a redress of

grievances”). This is an improper basis for challenging the doctrine.

Although Congress promulgated the Civil Rights Act of 1871, including

Section 1983, qualified immunity itself is a court-created doctrine. See

Ziglar v. Abbasi, 582 U.S. 120, 160 (2017) (Thomas, J., concurring).

Therefore, the First Amendment’s requirement that “Congress shall

make no law” cannot serve as a vehicle to overturn qualified immunity.

Second, consistent with the Supreme Court’s guidance, we have and

continue to apply qualified immunity. See, e.g., Rivas-Villegas v.

Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam); Williamson v. City of

Nat’l City, 23 F.4th 1146, 1151 (9th Cir. 2022). While Justice Thomas

has recently expressed his view that qualified immunity is an improper

judicially created doctrine, his opinion is not currently the law. See

Ziglar, 582 U.S. at 157–60 (Thomas, J., concurring); Baxter v. Bracey,

140 S. Ct. 1862, 1863 (2020) (Thomas, J., dissenting from the denial of

certiorari).

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 39

situation the officer confronts.” City of Tahlequah v. Bond,

142 S. Ct. 9, 11–12 (2021) (per curiam) (cleaned up).

“While there does not have to be a case directly on point,

existing precedent must place the lawfulness of the particular

action beyond debate.” Emmons, 139 S. Ct. at 504 (cleaned

up). We conclude that the Deputies violated clearly

established law whether we accept the Bernals’ or the

Deputies’ account of events.

Viewing the evidence in the light most favorable to the

Bernals, William never reached into his bag, and instead

yelled at the Deputies to stop assaulting his wife and

attempted to record the Deputies. Recording and verbally

challenging police are not only legal actions but are

protected by the First Amendment. The Supreme Court held

in Houston v. Hill that “the First Amendment protects a

significant amount of verbal criticism and challenge directed

at police officers.” 482 U.S. 451, 462 (1987). Although 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.” Id. at 462–63;

see also United States v. Poocha, 259 F.3d 1077, 1082 (9th

Cir. 2001) (“Criticism of the police, profane or otherwise, is

not a crime.”). Therefore, William’s right to verbally

challenge police is clearly established.

Similarly, we held in Fordyce that the First Amendment

protects the right to film matters of public interest. 55 F.3d

at 439. This right is further established in California’s penal

code, which states that it is not 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.” CAL. PEN. CODE § 148(g)

(West 2014). William was recording, or attempting to

40 BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T

record, police in his front yard, a place where he undoubtedly

had the right to be. Accordingly, William’s right to record

police is clearly established and the Deputies are not entitled

to qualified immunity.

Even if we take the Deputies’ account of events as true,

the Deputies were on notice that merely reaching into an

unsearched bag, without more, could not reasonably lead to

an inference that William was armed such that a use of force

was justified. We held in A.K.H. that police used excessive

force in part because there was no rational reason to believe

Herrera was armed even though he put his hand into his

pocket which appeared to be weighed down by something

heavy. See A.K.H., 837 F.3d at 1012–13. Although the

police in that case used deadly force, rather than the

intermediate amount of force the Deputies used against

William, A.K.H.’s holding put the Deputies on notice that

reaching into an unsearched pocket, or bag, without any

other indicia that weapons may be present does not permit

them to assume William was reaching for a firearm as a

justification for using force. The Deputies here had even less

reason to assume William was armed than those in A.K.H.

There, the decedent was a known gang member, was

reported to have assaulted his partner, had prior convictions,

and had a warrant out for his arrest. See id. at 1012. As we

previously noted, there were no similar indicia William

could be armed here.

Finally, once it became apparent that William held a cell

phone, and not a weapon, the officers were on notice they

could not violently restrain him. William was an unarmed,

non-suspect witness who posed no physical threat to the

Deputies or others. “The proposition that police may not

inflict pain on non-suspects . . . in the absence of any law

enforcement reason, should be so obvious to reasonable

BERNAL V. SACRAMENTO COUNTY SHERIFF’S DEP’T 41

officers that qualified immunity cannot shield them.” Tekle,

511 F.3d at 860 (Kleinfeld, J., concurring).

Thus, even accepting the Deputies’ account of events, we

find they violated William’s clearly established right and are

not entitled to qualified immunity with respect to William.

CONCLUSION

For the foregoing reasons, we affirm the district court’s

grant of summary judgment as to Celia and reverse as to

William. Because we reverse the district court’s grant of

summary judgment on William’s Fourth Amendment

claims, we reinstate William’s pendent state law claims. See

Brodheim v. Cry, 584 F.3d 1262, 1273 (9th Cir. 2009).