A lawsuit against Berkeley and a former city police sergeant could settle as early as next month, court records show. But thanks to a statute of limitations, Berkeley is no longer named as a defendant in the suit.
Brian Lindhurst Jr. accused now-retired Sgt. David Marble of a racist attack in Marble’s Antioch neighborhood where Lindhurst was visiting a friend. Marble, who was still employed as a police sergeant but was off duty at the time of the 2022 incident, has denied all Lindhurst’s allegations of wrongdoing and racism. The case is scheduled for an early settlement conference May 15 in federal court in San Francisco.
Lindhurst has accused Marble of excessive force, violation of due process, negligence, assault and battery, intentional infliction of emotional distress, false imprisonment and other California civil rights violations, all of which Marble has denied.
Lindhurst, who is Black, first filed suit Aug. 31, 2023. He claimed that on July 16, 2022, Marble had confronted Lindhurst with a handgun, cocking the gun and aiming it at Lindhurst, saying “n—–s do not belong here” and punching Lindhurst in the face, according to the complaint.
In a formal response filed Nov. 13, Marble denied having punched Lindhurst, brandishing a gun or made any racist remarks, as well as behaving aggressively to Lindhurst or the friend Lindhurst had been visiting nearby. He also denied having been intoxicated, which Lindhurst also alleged. Marble did concede that at one point he left the scene of the confrontation and then came back “with his closed fanny pack which did contain a firearm,” according to court records.
Part of Lindhurst’s complaint alleged that Marble was acting in his official capacity and that as his employer, Berkeley should also be liable for any possible wrongdoing. But a judge ruled in February that Lindhurst and his attorneys had taken too long to file their federal civil complaint to include Berkeley as a defendant, since state law limits how long people can take to sue public agencies.
For his part, Marble also denied ever having said “I am the law” during the confrontation, an allegation Lindhurst’s attorneys argue showed that Marble was “acting under the color of law and in his official capacity as a police official,” according to Lindhurst’s complaint.
City wins debate over time limit
The same day Marble filed his response, attorneys for the city filed a motion asking the court to dismiss Berkeley as a defendant, arguing that Lindhurst had filed his complaint past the time in which state law allows lawsuits against public agencies, court records show.
Lindhurst first submitted a claim notice, a preliminary step before a formal lawsuit is filed, on Jan. 12, 2023; the city mailed a notice rejecting the claim Feb. 23, 2023, according to court records. The California Government Code reads that if a claim has been rejected, possible plaintiffs must file formal complaints within six months of the time that a rejection notice “is personally delivered or deposited in the mail.” The city’s rejection notice included language advising Lindhurst he had six months after Feb. 23 to file a complaint, according to court records.
Lindhurst’s complaint was filed six months and eight days after the city mailed the rejection.
Lindhurst’s attorneys argued that case law added a grace period for plaintiffs to sue, and that even if the complaint had been a few days late, it would only constitute “an innocuous procedural technicality,” according to court records. They argued that Lindhurst should have had six months from March 1, 2023, the day he received the rejection, to sue.
U.S. District Judge Haywood S. Gilliam Jr. sided with the city’s interpretation of the statute of limitations in a Feb. 7 order.
Video resurfaces after civil suit begins
One of Lindhurst’s attorneys, John L. Burris, previously told Berkeleyside that the Antioch incident is emblematic of what young Black men must consider any time a police officer approaches them.
Six days after the San Francisco Chronicle first broke the news of Lindhurst’s lawsuit, Berkeley Copwatch, an advocacy group that focuses on police misconduct, drew attention to a 2017 video of Marble telling a Black man “don’t give me that Black crap” in the midst of telling the man why police had stopped to question him.
Notwithstanding the uproar over Lindhurst’s suit, as well as a previous scandal involving text messages within the department’s bike unit that included racial and derogatory language and regular observations from police accountability officials that stops and arrests by BPD still show racial disparities, Chief Jen Louis has said the department has made strides to address any possible bias amongst its ranks.
“We have created a training focus on courses that strengthen our responses and ensure that our efforts are constitutional, humane, impartial, neighborhood- and community-oriented and DEI-Centered,” Louis reported in January to the City Council.
The department is also beginning Active Bystander for Law Enforcement (ABLE) training, “a nationally recognized program with the aim of creating a police culture in which officers routinely intervene and accept interventions from their peers as necessary,” Louis told the council in January.
Attorneys for Lindhurst said they are still pursuing their suit against Marble. Christopher A. Dean, another of the three lawyers on Lindhurst’s legal team from Oakland-based Burris, Nisenbaum, Curry & Lacy, said they have subpoenaed internal affairs records from Marble’s time at BPD.
Ben Nisenbaum, another attorney on the team, said that under certain circumstances, Marble himself might be able to sue Berkeley to cover his own losses if a court awards Lindhurst damages from Marble, “So Berkeley is not totally out of the woods.”
The City Attorney’s Office and police officials did not respond to requests for comment other than to confirm that Marble has retired from service. A city spokesperson previously told Berkeleyside that state law is extremely restrictive as to what public agencies can say where personnel matters are concerned.
Attorneys for Marble did not respond to requests for comment. Marble did not return a message left at his home requesting comment.
