McCullough v. City and County of San Francisco

Background

Colleen McCullough alleged that she was participating in a peaceful pro-Palestine march in San Francisco on March 2, 2024. According to the First Amended Complaint, police had placed temporary fencing in front of the building housing the Israeli Consulate. McCullough alleged that, while she was at the front of the march with her hand on the barrier, Sergeant Brendan Caraway struck her left hand with a baton without warning or lawful justification. She alleged that the strike fractured her third metacarpal in multiple places and that she required surgery three days later.

McCullough also alleged that Captain Mark Cota witnessed the strike but failed to intervene, and that Caraway falsified his use-of-force report by stating that none of his uses of force that day had caused injury. She further alleged that Caraway had a history of using excessive force and that the City and County of San Francisco promoted and commended him rather than disciplining him.

The First Amended Complaint asserted ten claims. The defendants moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not allege enough facts to support a legally valid claim, as to Claim Two, First Amendment retaliation; Claim Four, municipal liability under 42 U.S.C. § 1983; Claim Six, a claim under California’s Ralph Act; and Claim Nine, negligent hiring, training, and retention.

Claim Two: First Amendment Retaliation

The court denied the motion as to Claim Two. To state a retaliation claim, McCullough had to plausibly allege that she engaged in protected activity, Caraway took adverse action against her, and her protected activity was a substantial or motivating factor in his conduct. The defendants challenged only the third element.

The court concluded that McCullough’s allegations were sufficient at the pleading stage. She alleged that demonstrators were peacefully chanting messages supporting Palestine and criticizing the United States government, and that Caraway used extreme force against her without warning or justification. The court held that these allegations supported a plausible inference that her protected activity motivated Caraway’s conduct. The court rejected the defendants’ competing assertion that McCullough was breaching the barricade or disobeying police commands because, at this stage, the court had to accept McCullough’s version of the events rather than resolve disputed facts.

Claim Four: Municipal Liability

The court denied the motion as to Claim Four. Under the rule commonly called Monell liability, a municipality cannot be held liable merely because it employs an officer who allegedly violated someone’s rights. A municipality may be liable, however, when an unconstitutional policy or custom, a deliberately indifferent failure to train, or a final policymaker’s involvement or ratification caused the constitutional injury.

The court concluded that McCullough adequately alleged municipal liability based on a custom or practice of failing to supervise or discipline officers. She alleged multiple prior uses of excessive force by Caraway and alleged that he was not disciplined but instead was promoted and given a commendation. Those allegations plausibly suggested a custom or practice of failing to supervise or discipline officers. The court did not decide whether McCullough adequately alleged her separate failure-to-train or ratification theories because the custom-or-practice theory was sufficient to proceed.

Claim Six: Ralph Act

The court denied the motion as to Claim Six. California’s Ralph Act protects people from violence or threats of violence committed because of political affiliation. The court found McCullough’s allegations sufficient to plausibly allege that Caraway was motivated by her political affiliation when he used force against her. The court relied on the same allegations supporting the First Amendment retaliation claim, including the peaceful political demonstration, the alleged extreme force, and the alleged lack of justification.

Claim Nine: Negligent Hiring, Training, and Retention

The court granted the motion as to Claim Nine and dismissed the claim. Under the California Tort Claims Act, a public entity generally is not liable for an injury unless a statute creates liability or a specific duty of care. The court concluded that McCullough’s direct-liability theory against the City lacked a statutory basis, which she did not dispute.

The court also considered McCullough’s theory that the City was vicariously liable for the Chief of Police’s alleged negligence. California law can permit vicarious liability for negligent hiring, retention, or supervision in some circumstances, but the employee must have owed a duty of care and otherwise be subject to liability. The court stated that the question of discretionary immunity could not be decided at the pleading stage because the complaint did not establish that the immunity standards were met. Even so, McCullough had not alleged facts showing that the Chief of Police had a special relationship with her that created a duty of care. The court therefore found Claim Nine insufficiently pleaded.

Disposition

Judge Joseph C. Spero’s order states that the motion was granted as to Claim Nine, which was dismissed, and denied in all other respects. McCullough was given until October 30, 2024, to file a Second Amended Complaint addressing the deficiencies in Claim Nine or to file notice that she intended to proceed without amending that claim.