FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM BERNAL; CELIA 

BERNAL, 

Plaintiffs-Appellants, 

 v. 

SACRAMENTO COUNTY 

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.

No. 22-15690 

D.C. No. 

2:19-cv-00482-

MCE-AC 

OPINION
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 twistlock 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 nonsuspect 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 DefendantsAppellees.

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 twistlock 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, timesensitive 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 objectivereasonableness 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, lifethreatening—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).