Facts

On March 7, 2004 plaintiff Andrew Marconi, his sister and several friends came to San Francisco to visit numerous bars. At around 8:45 p.m., they all starting drinking at a bar in North Beach. A few hours later, they left North Beach and headed to the EndUp nightclub known for staying open well in the early morning hours. Around 2:15 am, plaintiff was waiting in line outside the EndUp. Marconi left the line with some friends to walk around the corner to urinate in an alley on Morris Street. As Marconi was urinating, an unmarked police vehicle car drove up on Morris Street and stopped near Marconi. Three uniformed San Francisco police officers got out of the car and approached Marconi and his acquaintance, Eric Piedra.

After that, a disputed chain of events led to Marconi on the ground, on his hands and knees, wiping up the urine with his own shirt.

Plaintiff did not lodge a citizen complaint against the officers. None of the defendants was found to have violated departmental policies or procedures. Marconi did however claim he had been deprived of his civil rights and sued Fox, Chan and a third officer, Ian Furminger for assault, battery, use of excessive force, failing to intervene in a criminal situation and illegal search.

PLAINTIFF'S CONTENTIONS:
Marconi claimed officers made anti-gay remarks when they approached him in the alley, allegedly asking if he thought they wanted his "AIDS-infected pee" on their city streets. Marconi claimed Sgt. Fox grabbed his shoulders and forced him to his knees, and Officer Chan ordered him to clean up the urine with his own shirt. Marconi, allegedly fearing for his life, obeyed. Marconi asserted that while he was on the ground cleaning up his urine, Sergeant Fox grabbed him by the head and pushed his head against a short wall in the area where Marconi had urinated, allegedly using the hair on his head to mop up the urine.

Piedra, though unable see the majority of the events take place because Officer Furminger had put him with his back to the incident, did look over his shoulder at one point and allegedly saw Sgt. Fox and Officer Chan standing over the top of plaintiff who was kneeling in a puddle of urine, and he heard an officer proclaim, "We don't have to worry about this one, he's going to clean up his own mess." Piedra also claimed he heard the term "AIDS-infected pee" used.

Eric Gora, one of the members of Marconi's group of friends and an off-duty police officer in a different jurisdiction, entered the alley and saw Marconi getting up off the ground, holding his shirt, which was drenched in urine, as the police officers were moving away from him. Gora identified himself as a police officer, showed the officers his police ID card, and the officers left.

Marconi alleged that the officers never spoke to Gora and that Gora had drinken as much as Marconi at the time. Marconi claimed that when Gora came down the alley and told officers he was a police officer, Officer Furminger proclaimed, "He's a cop," and the officers quickly got back into their vehicle and left the scene.

DEFENDANTS' CONTENTIONS:
Defendants claimed that Marconi was drinking that evening and was urinating on a Morris Street wall when the officers drove past in an unmarked car. After seeing Marconi urinating, Sergeant Fox stopped the vehicle and tried to talk with Marconi, who began slowly walking away. Defendants claimed Marconi was ignoring Sergeant Fox, so he grabbed Marconi's shoulder and told him not to walk away. Upon talking to Marconi, Sergeant Fox noted Marconi's eyes were watery and his breath reeked of alcohol. Marconi's face was flushed, eyes glassy, and his breath smelled of alcohol. Sgt. Fox believed that Marconi appeared detached and unable to understand that it was improper and illegal to urinate in the alley. He was concerned not only about Marconi's physical signs of intoxication, but also the lack of judgment he exhibited by urinating publicly and ignoring a police officer's instruction to stop.

Sergeant Fox claimed he told Marconi it was illegal to urinate on the street, but that Marconi was incoherent and kept telling Sergeant Fox that everybody urinated in the street. Sergeant Fox then told Marconi to sit down and began to ask routine questions to see if he should detain him for public intoxication. Through this questioning, Marconi continued to repeat and protest "Let me go. It's no big deal. Everybody pisses in the street." Marconi did not respond to the questions, rather, he kept asking why he was being bothered and tried to get up.

Sergeant Fox recalls stating something to the effect that he believed Marconi may need to be detained until sober. At that point, Marconi became very upset and panicky. He continued to repeat "it's not big deal" and "why are you picking on me?" Then he started to get up to leave. Before he could get up, Sergeant Fox put his hand out on Marconi's head to stop him and told him not to get up because he was not free to leave. Marconi pleaded "You don't have to take me. I'll clean it up." Neither Officer Chan nor Sergeant Furminger ever touched plaintiff nor spoke to him.

Then, defendants allege, Gora entered the alley and asked if he could help. Gora allegedly told the officers that he was sober and, after the officers spoke with him for a few minutes, they felt comfortable enough leaving Marconi under Gora's supervision, so they got into his vehicle and departed the scene.

Defendants claimed that neither Officer Furminger nor Officer Chan laid a hand on Marconi. In addition, defendants asserted that the officers acted appropriately and lawfully in investigating an incident of public urination and intoxication and that none of the officers violated departmental policies or procedures.

The city believes that its officers acted appropriately and lawfully in investigating an undisputed incident of public urination and public intoxication. Plaintiff's allegations lacked credibility or corroboration by witnesses. He conceded that he suffered no physical injury from the alleged use of force. Plaintiff was not arrested but was released to the care of a responsible adult companion.

Damages

Marconi sought damages for emotional distress and minimal wage loss damages.

Injuries

Marconi had abrasions on the back of his head which he claimed came from Sergeant Fox pushing his head against the wall. Marconi conceded he did not sustain any physical injuries that required medical care, but that he suffered emotional distress after officers humiliated him because he was a homosexual. Defendants contended that Marconi only suffered from emotional distress through his own intoxicated behavior and stated that he sustained no physical injuries and did not file a citizen's complaint.

Result

The city and county of San Francisco paid plaintiff $82,500 to settle the case.