Kern Deputies Must Face Illegal Arrest Claim

FRESNO, Calif. (CN) - A federal judge said Kern County and two sheriff's deputies must face claims they illegally arrested a man and confiscated his cellphone after he recorded them beating another man with batons.

Francisco Arrieta says he and four other people recorded deputies beating David Silva across the street from Kern Medical Center around midnight on May 7, 2013.

Silva, a father of four, died from his injuries that morning. His young children filed a wrongful death complaint against Kern County in July 2013.

Arrieta's fellow witnesses are plaintiffs Laura Vasquez, Sulina Quair-Vasquez, Maria Melendez and Melissa Quair.

A few hours after the incident, the witnesses met at Quair-Vasquez's apartment to be interviewed by investigators with the Sheriff's Department. Arrieta says defendant Dets. Brandon Rutledge and Enrique Bravo refused to let him leave until he handed over his cellphone, though they had no warrant.

After hours of threats and harassment, Arrieta says, he gave them his phone so he would not be late for work. Later that morning the deputies returned and demanded Melendez's cellphone as well, according to his original complaint, filed in March 2014.

The others also sued, and the cases were consolidated, and filed an amended complaint in July 2014.

In April 2015, U.S. District Judge Lawrence J. O'Neill sided with the county on all but one claim, allowing Arrieta's federal civil rights claim against Bravo to advance.

The plaintiffs filed a similar case in May 2015 against sheriff's Officers Kevin Kimmel and Kavin Brewer, who came to Quair-Vasquez's apartment in the early morning and allegedly demanded the plaintiffs' phones before Brewer and Rutledge came back with a warrant, and against Sgt. Bill Smallwood, who supervised the investigation. That case was consolidated with the earlier cases in late August 2015.

Kimmel and his co-defendants sought summary judgment, which O'Neill granted in part and denied in part Wednesday.

Claims that Smallwood is liable for the seizure of the plaintiffs' phones in the early morning failed because he merely directed the deputies to the apartment, not to take the plaintiffs' phones.

However, as the highest-ranking officer on the scene, Smallwood could have lifted the "freeze" Bravo placed on Quair's house and stopped the deputies from taking the phones, making him liable for the later morning events, the ruling states.

The plaintiffs' excessive force claims failed. Though Kimmel and Brewer blocked Arrieta and Quair from leaving and Brewer pushed Arrieta on the shoulder to keep him inside the apartment, neither Arrieta nor Quair can prove the deputies physically hurt them during their detention, O'Neill ruled. The judge found this use of force de minimis and granted the deputies summary judgment on that claim.

Though one of the deputies may have been blocking the door, "the allegation of a single push to the shoulder does not rise to the level of a constitutional violation," O'Neill found.

Nor does threatening to take the plaintiffs to jail rise to the level of excessive force, because verbal threats are allowable "in the context of questioning."

But O'Neill allowed claims that the deputies improperly seized Arrieta's phone to advance, rejecting the defendants' arguments that the seizure was proper because they needed to make a copy of the video before Arrieta "inadvertently" erased it.

Though the officers claim they needed Arrieta's phone because they were not able to copy the video, a transcript of the early morning events implies that Kimmel and Officer Swanson did transfer the video to an SD card, and the defendants offered no evidence why transfer to an SD card was insufficient, the judge ruled.

The questionable lawfulness of seizing Arrieta's phone also puts his arrest under dispute because the officers may not have had probable cause to detain him, O'Neill found.

Finally, O'Neill granted the defendants' request to dismiss claims against Rutledge for to the early morning events, as there is no question that he was not present then.

The judge ordered the parties to file joint status reports on whether "consolidation should be extended to include the trial," and a joint pre-trial statement of the case.

Neither party immediately returned requests for comment sent Thursday afternoon.

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