SAN JOSE — Another excessive force lawsuit stemming from the 2020 George Floyd protests in downtown San Jose has been cleared for trial, this time involving a man claiming ongoing injuries from being hit in the leg with a police projectile, a munition that drew national scorn to the city and swift changes over its use for crowd control.
Earlier this month, federal Judge Beth Labson Freeman denied most of the city of San Jose’s attempts to get Kyle Johnson’s lawsuit thrown out at the summary judgment phase, paving the way for a trial in the new year.
It would be at least the third excessive force lawsuit from the protests — which garnered national infamy for violent police tactics highlighted by officers prolifically using rubber and foam bullets and tear gas to disperse demonstrators — to survive to trial. So far, none have actually gotten to trial, with one lawsuit ending with a hefty city settlement and another tied up in court appeals.
Barring a settlement, a trial would begin Feb. 26. Johnson’s attorney, Abimael Bastida, called the judge’s ruling “encouraging” and noted how a court trial could offer the deepest look at what went wrong with the protest response.
“It will give a fuller picture of what transpired,” Bastida, a partner at the law firm McManis Faulkner, said in an interview. “It would be the first time this would come to light, and would be of great value to the general public, other cases and ongoing investigations as to the conduct of these officers.”
In his 2021 lawsuit, Johnson states that he participated in demonstrations the night of May 30, 2020, the second day of downtown protests and about 24 hours after police officers largely depleted their supply of less-lethal projectile ammunition and chemical agents, which prompted the San Jose Police Department to make emergency purchases for more.
Johnson, a Black man, contends protesters were peaceful when police officers “began to deploy weapons” in response to someone in the crowd throwing a plastic water bottle in the air. He recalls that he was running toward San Jose City Hall when Officer James Adgar fired a foam baton round at him, hitting him in the back of his leg.
Only after this point did he hear police declare the gathering an unlawful assembly and order everyone to disperse and leave the area, Johnson states in his lawsuit. The city disputes this timeline, and argues that Johnson was hit as demonstrators threw bottles and rocks at a police skirmish line. Attorneys for the city also assert that Adgar only fired at demonstrators who had thrown bottles, and that a dispersal order had been given well before Johnson claims he arrived at the site.
City Attorney Nora Frimann declined to comment on the lawsuit, citing her office’s practice of not commenting on pending litigation.
Johnson claims he suffered a large circular bruise on the back of his leg and that the impact caused a blood clot to form and increased his risk for additional blood clots that will require close medical supervision for the rest of his life.
“Before he was hit, Mr. Johnson was an active, athletic person who taught physical education and coached sports,” the lawsuit states. “Mr. Johnson continues to experience pain and reduced mobility in connection with the blood clots.”
Bastida added that besides obtaining relief for his medical hardships, Johnson wants authorities held to account for their decisions.
“He is still dealing with the ongoing residual injuries he sustained from attending the protests,” Bastida said. “He’s not only seeking damages for that, but he is seeking his day in court for the simple fact that as a result of his exercising his First Amendment speech, he walked out of that peaceful protest with a lifelong, very serious injury.”
Labson Freeman wrote in a Nov. 13 ruling that Johnson will be allowed to argue at trial that his First and Fourth Amendment rights were violated, that SJPD has a “custom or practice of excessive force,” and that his civil rights were disrupted with force or intimidation. The judge sided with the city in prohibiting the plaintiffs from arguing that the injuries resulted from the city failing to train officers and enacting unconstitutional policies.
Ironically, amid the fallout from the protest response, the police department acknowledged that most of the officers on scene “lacked the sufficient training and experience” with crowd control and blamed understaffing for that dearth of training. The police department, under intense scrutiny, later banned the use of rubber bullets and similar munitions in crowd control scenarios.