SAN JOSE, Calif. — A federal appeals court ruled Monday that a San Jose police officer violated a protester’s Fourth Amendment rights by firing a foam projectile indiscriminately into a crowd during a 2020 demonstration, but nevertheless granted the officer qualified immunity from federal liability because existing precedent did not clearly establish that his conduct was unlawful under the circumstances.
In a Nov. 2 opinion in Johnson v. Adgar, the U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s denial of qualified immunity to Officer James Adgar, despite finding that his use of force against protester Kyle Johnson was unconstitutional.
The ruling followed a jury verdict awarding Johnson more than $1.35 million in damages after he was struck by a 40-millimeter foam baton round during a protest outside San Jose City Hall on May 30, 2020.
The appellate court also referred a separate question involving California’s Tom Bane Civil Rights Act to the California Supreme Court, leaving unresolved whether Adgar can be held liable under state civil rights law.
The incident occurred during demonstrations following the killing of George Floyd by Minneapolis police.
According to the Ninth Circuit, Johnson arrived at the City Hall plaza intending to participate peacefully in the protest. He was unarmed, carried nothing to throw and did not engage in confrontations with police.
Officers had formed a line near the plaza, where protesters had gathered throughout the day. Although the crowd was generally peaceful, some individuals began throwing bottles and other objects toward officers as night fell.
Adgar, who was equipped with a 40-millimeter projectile impact weapon, had been instructed to fire at individuals he observed throwing bottles.
During a confrontation shortly after 10:30 p.m., officers fired projectiles toward the crowd after some protesters threw objects at police.
Johnson, who had not thrown anything, was struck behind his left knee by a foam baton round fired by Adgar.
Doctors subsequently diagnosed Johnson with a pulmonary embolism attributed to the leg injury he sustained during the protest.
Johnson sued Adgar and the city of San Jose, alleging violations of his First and Fourth Amendment rights, California’s Bane Act and state laws governing battery and negligence.
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At trial, Johnson argued that Adgar had fired indiscriminately into the crowd rather than targeting an individual who posed a threat.
A jury found in Johnson’s favor on all claims against Adgar, but not against the city, awarding $1,353,313 in damages.
The jury specifically determined that Adgar had fired indiscriminately into the crowd.
Following the verdict, Adgar sought judgment as a matter of law, arguing that he was entitled to qualified immunity and could not be held liable under the applicable federal and state civil rights claims.
The district court rejected his request as to claims based on the Fourth Amendment, prompting the appeal.
Writing for the Ninth Circuit majority, Judge Richard C. Tallman concluded that substantial evidence supported the jury’s determination that Adgar had used excessive force.
The court found that firing a potentially lethal projectile into a crowd containing predominantly peaceful demonstrators created an unreasonable risk of injuring someone who had not engaged in wrongdoing.
The panel nevertheless concluded that Adgar was entitled to qualified immunity because the relevant constitutional prohibition had not been clearly established under sufficiently similar circumstances.
Qualified immunity protects government officials from certain civil damages claims unless their conduct violates constitutional or statutory rights that were clearly established at the time.
The doctrine can therefore shield an officer from federal civil liability even when a court determines that the officer’s conduct violated the Constitution.
The majority examined the Ninth Circuit’s 2012 decision in Nelson v. City of Davis, which involved police officers firing pepper-ball projectiles toward a group of people who posed no immediate threat.
In that case, the appeals court held that officers violated clearly established constitutional protections by firing projectiles toward individuals who were not threatening police or others.
However, the majority distinguished Nelson from the San Jose protest because some individuals within the crowd had thrown objects at officers.
The court reasoned that the presence of threatening individuals created a materially different situation from the entirely peaceful group involved in Nelson.
The majority also discussed Puente v. City of Phoenix, a 2024 Ninth Circuit decision involving police use of force during a protest where peaceful demonstrators were present alongside individuals engaging in threatening conduct.
Although Puente was decided after the San Jose incident, the majority cited it in discussing the distinction between excessive force and the separate question of whether existing law clearly prohibited an officer’s actions.
Judge Richard A. Paez dissented from the qualified immunity ruling while agreeing that Adgar had violated Johnson’s Fourth Amendment rights.
Paez argued that the majority failed to properly apply the standard governing review of a jury verdict, which requires appellate courts to consider the evidence in the light most favorable to the prevailing party.
He disputed the majority’s reliance on evidence that objects had been thrown from the area where Johnson was standing.
According to Paez, testimony concerning the location of thrown objects was disputed, and forensic evidence suggested that bottles had been thrown from locations relatively far from Johnson.
Paez maintained that the jury’s finding that Adgar fired indiscriminately into the crowd should have been central to the qualified immunity analysis.
He argued that Nelson had already established that officers could not indiscriminately fire dangerous projectiles toward protesters who did not pose an imminent threat.
Under Paez’s interpretation, Adgar had sufficient notice that firing into a crowd without identifying a threatening individual could violate constitutional protections.
Paez also challenged the majority’s reliance on Puente, arguing that a decision issued four years after the incident could not establish what an officer reasonably should have understood about constitutional requirements in May 2020.
The panel’s decision leaves a separate legal question unresolved under California’s Bane Act, which permits civil actions against individuals who interfere with constitutional or statutory rights through threats, intimidation or coercion.
In a separate certification order, the Ninth Circuit asked the California Supreme Court to clarify the standard for determining when a constitutional right is sufficiently established to support liability under the state law.
The question specifically concerns whether the Bane Act’s requirement that a right be clearly delineated and plainly applicable differs from the clearly established law standard used in federal qualified immunity cases.
The Ninth Circuit said California courts have not provided controlling precedent resolving that distinction.
The answer could determine whether Johnson can maintain his state civil rights claim against Adgar despite the federal qualified immunity ruling.
The appeals court also vacated the district court’s attorney fee award and directed that any recalculation be postponed until the Bane Act issue is resolved.
Further proceedings in the consolidated appeals have been stayed pending a response from the California Supreme Court.
The Ninth Circuit’s ruling grants Adgar qualified immunity on Johnson’s federal Fourth Amendment excessive force claim while leaving the separate question of liability under California’s Bane Act for further consideration.
