DA Declines to File Battery Charge Against Teacher Who Physically Forced 9-Year-Old to Mask; Charges Dad With Campus Disruption Instead – RedState

DA Declines to File Battery Charge Against Teacher Who Physically Forced 9-Year-Old to Mask; Charges Dad With Campus Disruption Instead – RedState

Many RedState readers will recall our exclusive series covering the bullying and harassment Kamdin Hernandez, a 4th grader in Simi Valley, California was subjected to by teachers and school administrators because he was unable to wear a face mask fully over-the-nose throughout the school day. Due to Kamdin’s attention deficit hyperactivity disorder (ADHD), wearing a face mask so distracted him that he was unable to concentrate on his school work, yet teachers and administrators berated him in front of classmates, physically blocked him from entering the door into the school, locked him out of his classroom, physically pulled the mask up over his nose against his wishes, and more.

Kamdin’s father, Tim Hernandez, stood up for his son on numerous occasions, and has now been “rewarded” with a criminal complaint for “campus disruption” on August 13, 2021, despite the fact that he came to campus because both a teacher and the principal asked him to because they would not allow him to stay at school unless he wore a mask (i.e., no accommodations).

June 22, 2022 Criminal Complaint filed in Ventura County Superior Court against Tim Hernandez

At the same time, RedState can reveal that the Ventura County District Attorney’s office has decided to not pursue misdemeanor assault charges against the teacher who touched Kamdin without his permission and pulled the mask up over his nose – despite the fact that the teacher admitted she did so and an independent investigator determined that the act was “inappropriate.”

Hernandez is charged with violating California Penal Code Section 626.7 (a), with the Complaint alleging that he:

“[D]id willfully and unlawfully enter and fail to leave, and did re-enter, the campus and facility of Garden Grove Elementary School following the direction to leave the facility by the chief administrative officer and his/her designee.”

In a nutshell, based on video and audio recordings made that day by Mr. Hernandez and statements the principal made to an independent investigator, it’s clear that Hernandez is not guilty and never should have been charged. These materials show that Hernandez was asked to come to the school to pick Kamdin up, was never told that he wasn’t supposed to be there or to leave, and didn’t come back to the school after taking his son home.

That day Kamdin was there for the beginning of the school day, at 8:10 a.m. Hernandez got a call at 9:02 that morning from Ms. Prisk, a teacher at Garden Grove Elementary School, telling him he needed to come pick Kamdin up because he wouldn’t wear the mask:

“He’s refusing to wear it, and so I’m calling to let you know that you need to pick him up.”

Prisk told Hernandez that when she asked Kamdin to wear the mask, he had told her that he “can’t think” with the mask on and “that he feels stressed about wearing it in class.” Hernandez recorded that call, which can be heard below.

Within the conversation Hernandez also asked why the principal wasn’t calling, and what the long-term plan for his son’s education was since Kamdin wasn’t able to learn while wearing a face mask, and discussed mandates and medical exemptions. He told her he was out running errands and couldn’t get there right that minute.

A few minutes later, at 9:18 a.m., Principal Perryman called Hernandez, who was in the car with his wife. Perryman said her only option under the mask mandate was to have the parents come pick Kamdin up. He also recorded that call, which can be heard below.

Unbeknownst to Perryman, Hernandez was on his way back to the school when she called. When he got there, he hung up and walked in the school with the video camera on his phone running. Perryman did not tell him to leave or that he wasn’t allowed to be there, according to the video. She said:

I’ll be contacting the school resource officer to have another conversation with you because now you’re not following direct guidelines about recording on campus.

Hernandez’s video is one minute long and covers the time from when he walked through the school doors and then went out of the office toward Kamdin’s classroom, accompanied by Perryman.

Perryman claims that Hernandez said, at the beginning of his video:

“This is the woman who is emotionally abusing my son. She is retaliating against me and my son. I am going to ruin her career. I hope the $160,000 salary was worth losing.”

The video very clearly shows that is not what he said. According to the video, he said:

“This is the lady that likes to kick kids out because they’re stressed.”

The independent investigator’s report stated:

“On August 13, 2021, Ms. Prisk and Mrs. Perryman contacted parent to request that parent pick his son up from school because K.H. was refusing to wear his mask indoors, which is required according to guidance from California Department of Public Health and Ventura County Public Health.”

“Parent” referenced in the report is Tim Hernandez, since he was the person who filed the report. The report also states that when Hernandez and Perryman reached Kamdin’s classroom, Hernandez attempted to ask the teacher present if she was the one who had physically pulled up Kamdin’s mask before, but Perryman stepped in and said they were not going to discuss the matter at that time and asked the teacher to get Kamdin. Then, Hernandez and Kamdin “turned and walked away.” While they didn’t follow Perryman’s request to go through the main gate, instead going through the office (perhaps because that’s the way Hernandez came in and where his car would have been), they still left peaceably, according to the report — which relied upon statements made by Perryman and other school employees.

(The entire independent investigator’s report can be read here.)

In addition, while school officials had threatened to charge Hernandez with trespassing on the school campus, the date they allege he was there without permission was Monday, August 16, 2021. SVUSD Superintendent (then Assistant Superintendent) Hani Youssef directed one of the School Resource Officers to visit Mr. Hernandez at home and serve him with a trespassing citation, which Hernandez refused to accept.

At the same time, Hernandez complained to the Simi Valley Police Department that Kamdin’s teacher had committed assault by touching him without his permission to pull up his face mask. In the investigator’s report the teacher admitted that she had done so, but said that she was used to teaching younger students and physically helping them with things like tying their shoes and untangling hair and that was why she physically “assisted” him with his face mask without his consent. The investigator concluded that her actions were appropriate, and the school district addressed the issue with the teacher.

Despite this admission, the District Attorney’s office declined to pursue any charges against the teacher, including simple battery. To prove simple battery under California Penal Code 242, the DA’s office would simply have to show that the teacher:

  • Intentionally touched someone with force
  • that the force used is perceived as harmful or insulting

Now, I’m not an attorney and I cannot say whether the force needed to pull the mask up over the nose of an unwilling 4th grader is sufficient to qualify for a criminal charge, but from Kamdin’s and his father’s own words I believe they perceive the force used as insulting. It also seems that the amount of evidence to pursue this misdemeanor charge is at least as weighty as the evidence of any campus disruption charge — and there’s possibly even more evidence for a simple battery charge than a campus disruption charge.

RedState contacted Ventura County District Attorney Erik Nasarenko’s office to request documents relating to all conversations between any SVUSD employee and the District Attorney’s office regarding this case, and for all affidavits and documents supporting such charges. We also asked how they matter came to the District Attorney’s office, and whether or not charges against the teacher were considered. The District Attorney’s office is working to provide the documents requested within the statutory guidelines, but in the meantime provided the following answers to the questions submitted:

  1. The case [against Mr. Hernandez] was submitted to our office for review of criminal charges by the SVPD [Simi Valley Police Department] on August 25, 2021, and it was placed in a queue of misdemeanor cases to be reviewed that is organized by date of offense. Unfortunately, due to the backlogs created during COVID shutdowns, cases are not reviewed immediately upon submission. DDA Rayburn reviewed the case in order of the queue on June 15, 2022.
  2. The case [against the teacher] was submitted to our office for review of criminal charges by the SVPD on January 21, 2022, and it was placed in the same queue of misdemeanor cases to be reviewed. This case was also reviewed in order of the queue on June 15, 2022. After review, criminal charges will not be filed in this case.

It’s interesting that the case against the teacher wasn’t submitted until January 21, 2022, when Hernandez was much more vocal about what was happening with his son, but that’s not the District Attorney’s fault. We also don’t yet know what information was presented to the DA’s office from SVPD or from the school district — and what information was not presented.

In our final piece regarding this saga, we reported that on February 2, 2022, SVUSD Director of Elementary Education Julie Ellis contacted the Hernandez family to start the evaluation process for Section 504 accommodations since the family had alerted the district that Kamdin had been diagnosed with ADHD and was dealing with problems related to anxiety. That contact only came after Hernandez posted public videos to his Instagram feed bringing attention to what the family was dealing with and when the district knew that RedState was about to publish a story.

Kamdin is now preparing to enter 5th grade, and the mask mandates are over in California schools — and according to Ventura County officials they won’t return here. it seems like there’s not a factual basis for any criminal charges against Tim Hernandez at all, but even if there were, at what point does Simi Valley Unified School District, the Simi Valley Police Department, and the Ventura County District Attorney’s office determine that the family has been harassed enough and allow the healing to begin? This isn’t about an administrator attempting to save face. This is about a child receiving an education.

Originally Posted on: https://redstate.com/jenvanlaar/2022/07/13/update-da-declines-to-file-battery-charges-against-teacher-who-physically-forced-a-9-year-old-to-wear-a-mask-charges-his-dad-with-campus-disruption-instead-n593727
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