Unreported / Non-Citable
Background
Colleen McCullough attended a March 2024 pro-Palestine demonstration near the Israeli consulate in San Francisco. Police erected barricades, and McCullough placed her hands on one, intending to buffer other protesters. Within seconds, Sergeant Brendan Caraway struck her hand twice with a 36-inch baton using both hands and full force. She suffered multiple fractures requiring surgery.
McCullough sued Caraway, Captain Mark Cota, and the City and County of San Francisco. Her claims included Fourth Amendment excessive force, First Amendment retaliation, failure to intervene, municipal liability, and California claims under the Bane and Ralph Acts and for assault, battery, and negligence. Defendants sought summary judgment. McCullough separately moved under Rule 702 and Daubert to exclude political scientist Ron Hassner’s proposed opinions classifying protest-route graffiti as threatening.
The Court’s Holding
The court allowed the excessive-force claim against Caraway to proceed. A jury could find that McCullough committed no crime, posed no immediate threat, did not hear a warning or lacked time to comply, and at most passively resisted for seconds. Video also showed other officers maintaining the barricade without force. A full-force, two-handed baton strike causing severe injury was materially different from lesser force used amid active resistance.
Qualified immunity did not resolve the claim. Ninth Circuit law had clearly established by 2008 that officers may not use nontrivial force against mere passive resistance. SFPD’s own policy refresher also stated that simply touching a barricade was not assaultive behavior warranting a baton strike. The First Amendment retaliation claim against Caraway likewise survived. A jury could infer retaliatory motive from his knowledge of the demonstration’s message, the immediate use of force, his apparent “that’s just hateful” response to a “free Palestine” chant, and his treatment of a Palestinian flag.
Other claims narrowed. Cota received summary judgment on failure to intervene because events unfolded too quickly for a realistic opportunity to stop the strikes. The municipal claim failed for insufficient evidence of a policy, custom, training failure, or final-policymaker ratification. The state Bane Act, Ralph Act, assault, battery, and negligence theories remained against Caraway and, on vicarious-liability grounds, the City, but not Cota.
The court also excluded Hassner’s opinions. Caraway had not seen the graffiti Hassner analyzed, and the only defendant who testified to seeing any of it—Cota—was out of the case. The testimony therefore did not fit the trial issues. Hassner also supplied no reliable method connecting particular messages with levels of actual threat, such as data correlating comparable graffiti with later violence. His political expertise did not substitute for a testable threat-assessment methodology.
Key Takeaways
- A brief failure to release a barricade, without an audible warning, threat, or crime, can amount only to passive resistance and cannot automatically justify intermediate force.
- Department training materials may help show that an officer had fair warning that specific conduct would violate the Constitution.
- Retaliatory motive may be proven circumstantially through timing, knowledge of a protest’s viewpoint, words, and treatment of political symbols.
- An officer cannot be liable for failing to intervene without a realistic opportunity to prevent the force.
- Expert testimony must address facts known to the decisionmaker and use a reliable method; general subject-matter expertise alone is insufficient.
Why It Matters
The decision sends core factual disputes about protest policing to a jury. For California civil-rights lawyers, synchronized video, the timing of warnings, injury severity, alternatives used by nearby officers, and internal policy can be decisive at summary judgment. Crowd disorder does not automatically justify force against a particular nonthreatening person.
The expert ruling is equally practical. Opinions about politically charged language may carry unusual persuasive force, so courts will demand a clear fit and reliable method. An expert’s interpretation of messages the officer never saw does not illuminate whether that officer reasonably used force or acted from retaliatory animus.