Berkeley is being sued of an alleged confrontation by an off-duty sergeant in Antioch in July 2022. The sergeant is accused of brandishing a gun and using racist language. Photo credit: Kelly Sullivan

Public agencies in two cities and a county have closed ranks after a Berkeley police sergeant and the city of Berkeley itself were sued in federal civil court over an allegedly violent and racist off-duty incident in Antioch.

Berkeley has released some limited information — including that the city first received a notice of claim on the matter in January; that the sergeant, David Marble, remains on duty; that Marble would have his own defense counsel; and that the city would respond to the allegations in court.

Marble is accused of confronting two Black men, one a neighbor of his and the other the neighbor’s visitor — Brian Lindhurst Jr. — outside the neighbor’s house in the early morning hours of July 16, 2022. After first asking what the two men were doing there, Marble later said “you all do not belong here, n—–s do not belong here,” according to a complaint filed by Lindhurst, who also alleged Marble struck him and pointed a gun in his face.

“We take very seriously any allegation of misconduct involving an officer in the Berkeley Police Department. This is regardless of whether an officer is off duty,” said Matthai Chakko, a spokesperson for City Manager Dee Williams-Ridley. “While state law has very strict rules about what we can discuss in regards to police officer personnel issues, you should know that systems of review, investigation and discipline are built into our police operations.”

Antioch police have refused to answer even basic informational questions, such as whether any arrests were made in connection to the incident, or the extent of any injuries reported to police, referring questions to the Contra Costa County District Attorney’s Office.

That agency, in turn, referred similar questions back to the Antioch police. A spokesperson with the district attorney’s office did confirm Antioch police had referred to them misdemeanor allegations against Marble. They opted not to file charges, citing doubts they could prove the case beyond a reasonable doubt.

Though the City Council is still on recess, Berkeleyside tried to contact each member by email to see what they knew of the allegations. Only two responded Friday, with Mark Humbert and Sophie Hahn saying the first they’d heard of the matter was when they read about it in news reports.

Public agencies do not typically discuss personnel matters, nor do they typically discuss pending litigation such as that which Berkeley is facing. And disciplinary proceedings and arbitration within police agencies in California, if and when they are called for, can take months or years to play out. Except in certain circumstances, they are also kept confidential.

But for context, the claim notice came as outside investigators were looking into bias allegations against another BPD sergeant, Darren Kacalek, on account of text messages he sent to the department’s bike unit when he led it. That investigation concluded that the Berkeley Police Department “does not have a practice of racial bias,” Chakko said on the city’s behalf in July when the investigators, San Francisco-based Swanson and McNamara LLP, finished their work.

According to one of the investigator’s own memos to Berkeley City Manager Dee Williams-Ridley, their inquest focused narrowly on the bike unit. The conclusions, nevertheless, purported to apply to the entire department, a matter that rankled the city’s own civilian police watchdog agency, and at least one member of the City Council.

Meanwhile, the lid was kept so tight on the allegations against Marble that nobody at the Office of the Director of Police Accountability or the Police Accountability Board knew anything about it until the San Francisco Chronicle first reported the lawsuit on Tuesday, Berkeley’s Director of Police Accountability Hansel Aguilar confirmed in an email.

The agency and board provide civilian oversight of city police, investigate allegations of wrongdoing by city officers from members of the public and advise the city on police department policies. Citizens typically approach them directly with requests to look into complaints.

The same firm that is representing Lindhurst in his federal lawsuit, Oakland-based Burris Nisenbaum Curry & Lacy, submitted the claim on his behalf in January, and the language detailing the alleged encounter between Lindhurst and Marble is almost exactly the same.

The Berkeley City Attorney’s Office responded to Lindhurst on Feb. 23, notifying him that they had rejected his claim, according to a copy of the notice furnished by the city.

Claims like the one Lindhurst filed are a legal requirement before someone can sue a public agency in California, giving the agency a chance to settle the claim without the matter rising to the level of a lawsuit.

Note: This story was updated to include statements from city spokesperson Matthai Chakko and City Councilmember Sophie Hahn that were received after publication.

Alex N. Gecan joined Berkeleyside in 2023 as a senior reporter covering public safety. He has covered criminal justice, courts and breaking and local news for The Middletown Press, Stamford Advocate and...