Molly Conso filed a federal lawsuit against the county of Humboldt and the city of Eureka, claiming officers used excessive force when they shot her with non-lethal projectiles during a peaceful protest in May 2020.

The Case: Conso v. City of Eureka

The Court: United States District Court, Northern District of California

The Case No.: 21-cv-04480-RMI

The Plaintiff: Conso v. City of Eureka

During a protest of the murder of George Floyd on May 25, 2020, the plaintiff, Molly Conso, claims the officers' use of non-lethal projectiles constituted excessive force. Conso filed the lawsuit in June 2021, seeking unspecified damages for physical pain and emotional distress. The plaintiff claims she peacefully marched alongside other protestors marching arm-in-arm on May 31, 2020 when police officers suddenly (and without warning) shot pepper balls into the crowd. Conso claims the projectiles caused her to suffer injuries to the head, including a concussion, post-concussive syndrome, bruising, chemical burns, hearing impairment, and emotional distress. According to protestors on the scene, there was no warning or verbal demands to disperse.

The Defendant: Conso v. City of Eureka

EPD Capt. Brian Stephens, an officer on the scene, released a response after the incident in which he stated that throughout the day, amidst the protest, acts of vandalism were perpetrated, and upon identifying the instigator of the vandalism, the Sherriff's office moved to make an arrest. However, according to the officer, the crowd turned unruly when police took the suspect into custody. When the situation escalated to members of the crowd attempting to remove the suspect from police custody forcibly, police determined escalating circumstances and safety risks to officers on the scene constituted the use of pepper balls (projectiles filled with powdered pepper spray). The police opened fire on the crowd with paintball guns filled with non-lethal projectiles. The officer then described how officers stayed on the scene, attempting to de-escalate the situation and provide needed medical treatment.

Details of the Case: Conso v. City of Eureka

In regards to the claims of excessive force used by the County and City when an individual allegedly does not pose an imminent threat of harm during a pursuit, the plaintiff cited three cases that indicated a pattern:

1. During a 1997 protest, police officers reportedly "swabbed pepper spray in the eyes of eight activists practicing nonviolent resistance." The action was later allegedly found to constitute excessive force.

2. Another allegation of excessive force resulted in a wrongful death action where a man died in the custody of Eureka police officers. This claim was settled before trial.

3. The reported denial of qualified immunity for the sheriff and chief deputy sheriff was connected to a matter involving "repeated use of [pepper] spray" and "refusal to wash out the protestors' eyes" (constituted excessive force), which the sheriff and his chief deputy had explicitly authorized.

The court found that Plaintiff correctly pleaded her case against the Doe Defendants she claims unjustifiably struck her with projectiles during the allegedly peaceful public protest. But her attempts to include the City, the County, Chief Watson, and Sheriff Honsal in the case and project her case into other various molds were not well argued or well founded. Instead of pleading concrete factual assertions about training programs, supervisory practices, or municipal policies, practices, or customs, the plaintiff veers toward conclusory argumentative statements without including the necessary factual development. Both motions to dismiss were granted based on the lack of factual development in these areas. The City, the County, Sheriff Honsal, Chief Watson, and the Doe Defendants were dismissed from the lawsuit to the following extent: the case remains active only as to the Doe Defendants for Claims 1 and 2 (unreasonable search and seizure - excessive force and violation of the First Amendment). Claim 3 (municipal liability for unconstitutional customs or policies) is dismissed. Claim 4 remains active. Claim 5 (negligence) remains active only as to the Doe Defendants. Claim 6 (assault and battery) is dismissed. Claim 7 (violation of the Bane Act) remains active. And Claim 8 (intentional and negligent infliction of emotional distress) is dismissed.

If you have questions about how to file a California excessive force or wrongful death lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.