A Berkeley Police Department patrol sergeant is facing federal civil allegations that while at home in Antioch he attacked a young Black man, brandished a handgun, yelled racial epithets and brought his pet dog along into the fray, according to a complaint filed Friday.
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In Berkeley police off-duty lawsuit, public agencies keep silent
The man accusing a BPD sergeant of a racist attack in July 2022 filed a claim notice in January of this year with the city of Berkeley. It is unclear who, if anyone, knew about the allegations before then. The city’s own civilian police watchdog agency didn’t hear about it until Tuesday.
Brian Lindhurst Jr. is suing Sgt. David Marble and the city of Berkeley, alleging negligence, assault and battery, intentional infliction of emotional distress, false imprisonment and violations of state and federal protections, according to his complaint.
Around 2:15 a.m. on July 16, 2022, Lindhurst was about to get into his car after leaving a friend’s house in Antioch, a friend he’d visited frequently without any “negative encounters with anyone in the neighborhood,” when Marble began yelling at him, demanding to know what Lindhurst was doing in the area, according to his complaint.
Marble and his labrador retriever blocked Lindhurst from leaving in his car, and an “extremely aggressive and clearly intoxicated” Marble began to swear, at one point saying “you all do not belong here, n—–s do not belong here,” according to Lindhurst’s complaint.
Marble walked away with the dog but came back with a handgun, cocking it back and aiming it at an unarmed Lindhurst, who said he was going to call the police if Marble attacked him anew, according to his complaint.
“Sergeant Marble responded, ‘I am the Law,’ invoking his status as a law enforcement officer and implying that he was the authority figure in the situation and that Mr. Lindhurst needed to obey him,” according to Lindhurst’s complaint. Lindhurst had not previously known Marble was in law enforcement, according to his complaint.
Lindhurst’s friend, who was not named in the complaint, pushed Lindhurst into his car “and grabbed Sergeant Marble’s arms, begging him not to shoot Mr. Lindhurst,” according to the complaint. “After several minutes of pleading, Sergeant Marble yelled more profanities at the two men but finally lowered his gun and walked back inside his home.”
Lindhurst suffered bruises to his face and “emotional distress,” according to his complaint.
Antioch police investigated. On Aug. 23, 2022, they referred misdemeanor charges of battery and exhibiting a concealable firearm in public against Marble to the Contra Costa County District Attorney Office, according to Ted Asregadoo, a public information officer for the district attorney.
“The case was reviewed by our office but not filed due to insufficient evidence to prove the case beyond a reasonable doubt,” Asregadoo wrote in an email Wednesday.
In a phone interview Wednesday, one of Lindhurst’s lawyers, Oakland-based Attorney John Burris, said Marble’s behavior was “a classic case of racial profiling” — one in which a white man saw two young Black men in his neighborhood and “decided that they didn’t belong in the neighborhood, used racial slurs, ultimately pulled a gun.”
“These young men had done nothing wrong, one of the young men lived in the neighborhood,” Burris said. “The conduct itself was not surprising to me, it’s not a one-off.”
The alleged attack, he said, is emblematic of what young Black men must consider any time a police officer approaches them. While not all police harbor racial biases, it is “certainly a significant number” that do, he said.
Berkeley police have faced other allegations of racism and other bias recently. A fired officer leaked text messages showing racially derogatory comments by the sergeant in charge of the department’s bike team. And racial disparities continue between the population of the city and region and how frequently people are stopped for questioning or pulled over while driving.
As far as the text messages are concerned, the sergeant, Darren Kacalek, was put on leave as outside investigators looked into the matter but was eventually put back on duty in a different unit after the investigators determined the police department had no “practice of racial bias,” a city spokesperson said at the time. The city’s Police Accountability Board’s Fair and Impartial Policing Subcommittee has continued to study data on the department’s stops.
Antioch police have not responded to inquiries about the incident. Officers from that agency are facing allegations of violence and racism themselves, with three officers — Morteza Amiri, Eric Allen Rombough and Devon Christopher Wenger — facing federal criminal charges alleging civil rights violations.
Wenger and another Antioch officer, Daniel Harris, have been charged separately with conspiring to distribute anabolic steroids. And yet another former Antioch officer, Timothy Allen Manly Williams, is also facing federal criminal charges, accused of interfering with a wiretap investigation and destroying the cell phone of an onlooker who recorded the aftermath of an Antioch K-9 dog deployed on a suspect.
The City of Berkeley has not filed any formal response in federal court to Lindhurst’s allegations. A request for comment and more information on Marble’s work for the department, sent simultaneously to the City Attorney’s Office, a police spokesperson, police Chief Jen Louis and a spokesperson for City Manager Dee Williams-Ridley was not answered Wednesday.
At least as recently as April Marble was listed as a sergeant in the police department’s patrol division.
Marble remains on active duty, according to police source with knowledge of the case, but who was not authorized to speak on behalf of BPD.
Messages left at numbers and an email address listed as Marble’s were not returned.
The lawsuit was first reported by the San Francisco Chronicle.
