Johnson v. City of San Jose

Background

Kyle Johnson alleged that Officer James Adgar of the San Jose Police Department fired a 40-millimeter foam baton projectile at him during protests near San Jose City Hall on May 30, 2020. Johnson alleged that he was trying to flee, had not been ordered to disperse, and was not charged with a crime related to the protest. He alleged that the projectile caused a leg injury, a blood clot, emergency-room visits, continuing treatment, and impaired mobility.

Johnson sued Officer Adgar, the City of San Jose, and unnamed police officers. His First Amended Complaint asserted six claims: (1) a claim under 42 U.S.C. § 1983 alleging that Officer Adgar used excessive force in violation of the Fourth Amendment; (2) a § 1983 claim alleging First Amendment retaliation; (3) a California Bane Act claim; (4) battery; (5) negligence; and (6) a claim under the California Public Records Act against the City.

Rulings on the Claims

The court denied the motion to dismiss the Fourth Amendment excessive-force claim against Officer Adgar. It concluded that Johnson plausibly alleged that the projectile was fired with an objective intent to restrain him, which could constitute a Fourth Amendment seizure even though he continued moving away. Applying the factors used to assess whether force was unreasonable, the court also found that Johnson plausibly alleged excessive force. The court separately concluded that the right was clearly established at the time of the incident based on Ninth Circuit precedent. Officer Adgar therefore was not entitled to qualified immunity at this stage, although the court stated that he could raise that defense later.

The court granted the motion to dismiss the First Amendment retaliation claim against Officer Adgar with leave to amend. The court found that Johnson had not adequately alleged that his protected protest activity was a substantial or motivating factor in Officer Adgar’s use of force. The court stated that the allegations more plausibly suggested that the force was used in response to a water bottle thrown by an unidentified protester, and that allegations about hostile views expressed by other officers did not show that Officer Adgar shared those views.

The court granted the motion to dismiss Johnson’s first and second claims against the City with leave to amend. Those claims were based on municipal liability under Monell, a legal theory that can make a municipality liable for a constitutional violation caused by an official policy or practice, including certain failures to train employees. The court found that Johnson had not adequately alleged a pattern of similar violations or enough facts showing a widespread custom or practice. It also found that the alleged facts did not show the rare kind of single incident that can support a failure-to-train claim.

The court denied the motion to dismiss the Bane Act claim against Officer Adgar and the City. It found that Johnson’s allegations that Officer Adgar intentionally fired the projectile, despite the circumstances Johnson described, were sufficient at the pleading stage to allege the required specific intent, including reckless disregard of Johnson’s rights.

The court denied the motion to dismiss the battery claim. It rejected the defendants’ argument that the alleged conduct was privileged under California law because applying that privilege at this stage would require disregarding Johnson’s allegations that no unlawful assembly had been declared and that the water bottle did not come from him.

The court denied the motion to dismiss the negligence claim. It concluded that California Government Code section 820.2’s discretionary-act immunity did not apply to an officer’s alleged use of unreasonable force during a seizure. The court also stated that the City could be held vicariously liable under California law for excessive force or assaultive conduct by an officer acting within the scope of employment.

The court granted the City’s motion to dismiss the California Public Records Act claim without leave to amend. It declined to exercise supplemental jurisdiction—the federal court’s authority to hear a related state-law claim—because the claim raised complex California-law issues and the court found that state court offered a more suitable and potentially faster procedure. The claim was dismissed without prejudice to proceeding in state court.

Disposition and Amendment Deadline

The order granted in part with leave to amend in part and denied in part the motion to dismiss. Johnson was ordered to file an amended complaint within 30 days. The court stated that failure to meet the deadline or cure the identified deficiencies would result in dismissal of the deficient claims with prejudice. Johnson could not add new parties or claims without express court permission or the defendants’ agreement.

Judge Beth Labson Freeman’s order therefore left the Fourth Amendment, Bane Act, battery, and negligence claims proceeding as described, while permitting amendment of the First Amendment claim against Officer Adgar and the claims against the City. The Public Records Act claim could not be amended in this federal case but was dismissed without prejudice to pursuing it in state court.