The Ninth Circuit Upholds a ‘Suspicionless’ Detention Under ‘Special Circumstances’

MATTHEW TAYLOR
Associate Attorney
Messing Adam & Jasmine LLP

In its July 7, 2023, decision, Bernal v. Sacramento County Sheriff’s Department, Case No. 22-15690, the Ninth Circuit Court of Appeals ruled for the first time that law enforcement officers’ detention of witnesses, without suspicion, under “special circumstances” did not violate the Fourth Amendment of the U.S. Constitution. In other words, the court upheld the authority of law enforcement to detain people who are not suspected of engaging in criminal activity but who have information about an ongoing threat of extreme violence. Because this ruling is the first of its kind within the Ninth Circuit dealing with an extreme set of circumstances, many questions remain as to how this case will be applied in other situations that are similar but have their own factual nuances.

The unique situation in this case included the imminent threat of a school shooting. On March 5, 2018, Ryan Bernal was reported absent from his high school in Folsom, California, and the local police department received information that Ryan threatened to “shoot up the school” on that day. When the Sacramento County Sheriff’s Office learned about this threat, five deputies set out to find Ryan to neutralize the threat. They first placed a call to the Bernal home. Ryan’s mother, Celia Bernal, answered and stated that Ryan was at his grandmother’s house; however, she refused to provide the grandparent’s address because, as she testified, she could not verify whether the deputies were indeed members of law enforcement.

Continuing their investigation, the deputies drove to the Bernal residence. Upon their arrival, they observed Celia and her husband, William Bernal, outside the home heading toward their car. All five deputies were in uniform and identified themselves as law enforcement. Celia repeated that Ryan was not home and stated that she did not want to speak to them any further. Despite the deputies’ continuous commands that she remain outside of her vehicle, Celia entered the car and, according to the deputies, started the engine. At this point, one of the deputies reached through the car window to grab the keys from the ignition. When Celia blocked him from doing so, two other deputies grabbed her arms, placing them in a “twist lock” (which the court described as a control hold to gain compliance through the application of pain).

William also defied the deputies’ orders. The parties had conflicting accounts regarding these events. What is clear, however, is that William became agitated at the sight of his wife being restrained by the officers. He yelled at the deputies to stop touching Celia and started recording their actions with his cellphone. He also defied the deputies’ orders to stop yelling and recording the scene. The deputies claimed that William, who had a significantly larger physique than the deputies, aggressively reached into his bag to obtain his cellphone, which caused the officers to believe he was reaching for a weapon. The Bernals claimed that William never reached into his bag because he already had his phone in his hand. As stated by the court, “[i]mportantly, the parties do not dispute that the deputies quickly recognized the object he held was a cell phone and not a weapon.” Despite this observation, “the deputies proceeded to forcibly restrain William.” The Bernals alleged that the officers restrained William by cuffing his hands, pushing his head and torso into the car, kicking his legs apart, forcing his knees to buckle and forcing his head to turn past its natural range of motion. The deputies, for their part, contended that they never used force with respect to William’s legs and that William actively resisted by elbowing them. William stated that he did not hit any of the officers but only twisted away from the deputies to relieve pain.

Only after the twist lock was applied to Celia and her husband was handcuffed, did Celia stop resisting. The deputies then removed her from the car and ordered her to sit in a chair where she remained uncuffed. At this point, William gave the deputies the address to Ryan’s grandmother’s house, and the deputies confirmed that Ryan was at that location. The deputies’ entire encounter with the Bernals lasted approximately 20 minutes.

As our readers know, the Fourth Amendment generally permits seizures, including detaining an individual, only when there is, at a minimum, reasonable suspicion that the individual is engaging in a crime (see Terry v. Ohio [1968] 392 U.S. 1, 21). Per the U.S. Supreme Court, there is an exception to this rule. Under certain circumstances, non-suspect witnesses may be detained for questioning (see Illinois v. Lidster [2004] 540 U.S. 419, 423-424). However, the governmental or public interest in this type of detention “is greatly decreased” compared to the “individual’s right to personal security free from arbitrary interference by law officers” (Brown v. Texas [1979] 443 U.S. 47, 51). For this reason, prior to the Bernal case, the Ninth Circuit categorically ruled that the police violated an individual’s Fourth Amendment rights by executing these types of detentions. For example, in U.S. v. Ward (9th Cir. 1973) 488 F.2d 162, 163, 169, the court ruled that the FBI’s detention of a witness for questioning regarding “a general criminal investigation that had begun several months before” the detention — and thus did not concern an ongoing emergency situation — was not lawful. And, in Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075, 1084, the court similarly held that the detention of witnesses to a shooting for questioning was unreasonable. The court’s decision was predicated on the excessive duration of the detention, which spanned five hours, and the fact that there was no ongoing emergency at the time of the questioning.

The facts in Bernal were quite different than these earlier cases. The key factors in the court’s unprecedented decision were as follows. First, there was a credible, ongoing threat to numerous lives requiring immediate action. The court particularly noted that the threat in Bernal came only weeks after the devastating and highly publicized school shooting in Parkland, Florida, where 17 people were killed. Second, the deputies knew that the Bernals had critical information to stop the emergency, i.e., the suspect’s location. As the federal district court which first heard the case put succinctly, “the Court is at a loss to conceive what [the Bernals] would have had the officers do” when Celia advised them that her son was not home. “Should officers have walked away knowing they were potentially leaving hundreds if not thousands of students to innocuously start their school day at risk of being killed …?” This option is “absurd.” “The detention [ ] was Defendants’ only reasonable alternative under the circumstances.”

The court’s ruling will likely apply to other scenarios beyond the threat of a school shooting. The obvious scenario would be threats of other mass shootings, such as in a mall or at an office. But what about dangerous threats affecting a small number of people or a single person? Applying the U.S. Supreme Court’s balancing test between the public interest and the individual’s right to be free from arbitrary detention, common sense suggests that a highly credible ongoing threat to the life of even a single individual would give the police the ability to detain a witness without suspicion despite Fourth Amendment protections. Other questions also remain. How would a court rule regarding a witness detention under very similar facts as Bernal, including the same level of threat, but where the threat had less credibility? Furthermore, how would a court rule if, under similar circumstances, the deputies detained witnesses like the Bernals for a much longer period of time than 20 minutes? Only time will tell if federal courts in the Ninth Circuit or California courts will apply the precedent set in Bernal to a broader range of potential criminal activity.

Though the decision in Bernal is a victory for smart, proactive policing, it also serves as a cautionary tale for PORAC members. While the court upheld the Bernals’ detention and the use of minimal force against Celia, it also ruled that the deputies used an unreasonable level of force against William. Therefore, they were not entitled to qualified immunity with respect to those claims. The court’s decision in this regard shows that despite the overarching threat of an impending, horrible act, and the officers’ authority to detain Celia as a step in counteracting that threat, courts will continue to place officers’ actions under a microscope, i.e., dissecting the minutia of a stop and seizure and scrutinizing each officer’s actions with respect to each individual witness. The courts do not appear inclined to give too much leeway to officers, beyond what the courts believe to be absolutely necessary to obtain information to stop the emergency, to conduct such detentions. The best course of action for PORAC members is, therefore, to be proactive in detaining witnesses to counter extreme and credible threats of violence, but to use only the minimal force necessary to conduct the detention and obtain critical information to stop the threat.

About the Author

Matthew Taylor is an associate at Messing Adam & Jasmine LLP, which predominantly represents public-sector labor unions and their members in litigation and labor relations. Matthew has significant experience in representing peace officers in disciplinary matters, including throughout investigations and subsequent litigation, and grievances against their employer. Matthew draws from his background in law enforcement and investigations. He served as a police officer in the NYPD and an investigator for the City of New York. He is also a PORAC LDF panel attorney.