Johnson v. City of San Jose

Background

Kyle Johnson sued Officer James Adgar and the City of San Jose based on events at a May 30, 2020 protest at San Jose City Hall. Johnson alleged that a 40-millimeter projectile impact weapon struck the back of his leg. He asserted claims under 42 U.S.C. § 1983 for excessive force under the Fourth Amendment and retaliation under the First Amendment. He also asserted California claims under the Bane Act, battery, and negligence.

The parties disputed when Johnson arrived, whether he heard a police dispersal order, when he was struck, and whether Officer Adgar fired the projectile that hit him. Johnson did not see the officer shoot him or identify the object that struck him. His video-forensics expert, Jason Fries, concluded that video evidence showed that Officer Adgar fired the projectile that injured Johnson. Officer Adgar stated that he fired five 40-millimeter projectiles at three people whom he believed had thrown glass bottles at police officers.

Evidentiary Rulings

The court overruled most of the defendants’ objections to Johnson’s evidence. It granted the objections to several video exhibits because Johnson had not provided evidence authenticating them, although the court said he could seek to introduce them at trial with proper authentication. The court overruled the objections to the other listed declarations, deposition excerpts, City documents, Google alert emails, and an attachment to the Fries report.

Claims Against Officer Adgar

The court denied summary judgment on the Fourth Amendment excessive-force claim. It found a genuine dispute of material fact about whether Officer Adgar caused Johnson’s injury because Fries’s expert opinion supported Johnson’s account. The court also found factual disputes about whether Adgar intentionally seized Johnson. Viewing the evidence favorably to Johnson, a reasonable jury could find that Adgar fired into the crowd without a specific target and thereby intentionally applied force to Johnson within the meaning of the Fourth Amendment.

The court also denied qualified immunity for Adgar at this stage. Qualified immunity can protect a government official from damages unless the official violated a constitutional right that was clearly established when the conduct occurred. The court concluded that deciding immunity would require accepting the defendants’ version of disputed facts, including whether Adgar aimed at a specific person other than Johnson.

The court denied summary judgment on Johnson’s First Amendment retaliation claim. It found factual disputes about whether Johnson’s protected protest activity was a substantial or motivating factor in Adgar’s conduct. The court cited circumstantial evidence, including the timing of the alleged force during the protest, an expert’s opinion that Adgar showed hostility toward demonstrators, and deposition testimony that the protest was described as “anti-police.”

Claims Against the City

Johnson proceeded against the City under Monell, which allows municipal liability under § 1983 when an unconstitutional action results from an official policy or custom. The court denied summary judgment on Johnson’s theory that the City had an unwritten custom or practice of using excessive or retaliatory force against protesters. Evidence that San Jose police repeatedly fired 37-millimeter and 40-millimeter projectiles into protest crowds on May 29 and May 30 created a factual dispute for trial.

The court granted summary judgment to the City on Johnson’s failure-to-supervise and failure-to-train theories. The evidence showed that officers received training on 40-millimeter projectile weapons and that City policy limited their use. The court found no material factual dispute showing that the City had notice of a pattern of similar constitutional violations or that the risk of such violations was so obvious that additional training or supervision was required.

The court also granted summary judgment to the City on Johnson’s ratification theory. Johnson did not identify evidence creating a material dispute about whether the police chief or another final policymaker knew that Adgar had fired the projectile that allegedly struck Johnson and then made a conscious, affirmative choice to approve that conduct. The court stated that a failure to discipline officers, by itself, did not establish ratification.

California Claims and Disposition

The court denied summary judgment on Johnson’s Bane Act claim because factual disputes remained about whether Adgar acted with reckless disregard for Johnson’s constitutional rights. It also denied summary judgment on the battery and negligence claims because the defendants’ arguments depended on resolving the disputed question whether Adgar intended to strike a specific person and whether Johnson was instead an unintended bystander.

Judge Beth Labson Freeman ordered that defendants’ motion for summary judgment be denied on the § 1983 claims against Adgar; denied with respect to the City’s alleged custom or practice of excessive force; granted with respect to the City’s failure-to-supervise-or-train and ratification theories; and denied on the Bane Act, battery, and negligence claims.