Key Points

  • A 2-1 Ninth Circuit panel held that San Jose Officer James Adgar violated Kyle Johnson's Fourth Amendment right to be free from excessive force by firing a 40mm foam round indiscriminately into a largely peaceful protest crowd on May 30, 2020.
  • The majority, in an opinion by Judge Richard C. Tallman, held that Adgar is entitled to qualified immunity on the Section 1983 claim because Nelson v. City of Davis is materially distinguishable, and reversed the denial of his post-verdict motion for judgment as a matter of law.
  • Judge Richard A. Paez dissented in part, writing that Nelson clearly established the unlawfulness of the conduct and that the majority failed to view the trial evidence in Johnson's favor.
  • In a separate order, the panel certified to the California Supreme Court the standard for whether a right is 'clearly delineated and plainly applicable' under the Bane Act and how it differs from federal 'clearly established' law.
  • The panel vacated the attorneys' fee award, barred recalculation until it decides the Bane Act claim, stayed further proceedings, and directed the clerk to hold the mandate.

A divided federal appeals court ruled Monday that a San Jose police officer used unconstitutional force when he fired a 40mm foam round into a largely peaceful protest crowd in May 2020. It also held that he is immune from the protester's federal civil rights claim because no earlier case clearly barred his conduct.

The 2-1 decision by the U.S. Court of Appeals for the Ninth Circuit reversed a trial judge's refusal to set aside the jury's verdict for Kyle Johnson on that claim. The jury had found Officer James Adgar liable on every claim against him and awarded Johnson $1,353,313 as a single, undivided sum. Judge Richard C. Tallman wrote for the majority, and Judge Richard A. Paez dissented in part.

The panel left undecided Johnson's parallel claim under California's Tom Bane Civil Rights Act, which makes liable anyone who interferes "by threat, intimidation, or coercion" with constitutional rights. In a separate order, the panel asked the California Supreme Court to define when a right is "clearly delineated and plainly applicable" under that law, and how that test differs, if at all, from the federal standard. The issue is "likely to recur and affect state civil rights cases brought under federal pendent jurisdiction throughout California's four federal districts," the panel wrote.

Johnson went to a protest at San Jose City Hall on May 30, 2020, after George Floyd's death, carrying no sign, no weapon and nothing to throw. Adgar was posted behind a police skirmish line with a 40mm weapon that fires a foam baton round capable of causing serious injury or death. He had orders to shoot anyone he saw throwing bottles.

At about 10:24 p.m., some protesters threw bottles at officers, some of them glass, and officers fired back. The crowd retreated and quickly returned. At 10:33 p.m., after a second volley, officers fired again, and a round struck Johnson in the back of his left leg. Doctors later diagnosed him with a pulmonary embolism that they attributed to the leg injury.

Adgar argued that he had aimed at a specific bottle thrower and missed, making Johnson an innocent bystander who was never "seized" under the Fourth Amendment. The jury instead found that he fired indiscriminately into the crowd, and Tallman wrote that substantial evidence supported that finding.

On that record, the majority held that the force was excessive. "Given the disproportionate number of peaceful protestors in the part of the crowd at which he fired, there was a significant risk that he would hit someone not engaged in wrongdoing with a weapon that could cause serious injury or death," Tallman wrote.

The majority nonetheless granted qualified immunity, which protects an officer unless the unlawfulness of his conduct was clearly established at the time. Both sides agreed that the controlling precedent was Nelson v. City of Davis, a 2012 Ninth Circuit decision holding that police used unreasonable force when they fired pepper balls at partygoers gathered in a breezeway at U.C. Davis.

"The key distinction is that the crowd fired upon in Nelson was an entirely peaceful, non-threatening subset of the larger group," Tallman wrote. In San Jose, two people who had thrown objects were in the part of the crowd Adgar fired into, and the second volley indicated "that the bad actors could reload and return for more volleys," he wrote. The majority also relied on Puente v. City of Phoenix, a 2024 Ninth Circuit decision granting immunity for force used on a protester in a mixed crowd. "In sum, we conclude that Officer Adgar did not violate clearly established law because Nelson is materially distinguishable from the situation he confronted," Tallman wrote.

Paez agreed that Adgar violated the Fourth Amendment but would have upheld the verdict. He wrote that Nelson "clearly established the unlawfulness of shooting a projectile weapon capable of causing serious and permanent injury indiscriminately into a group of protestors who did not pose an imminent risk to public safety." After a jury verdict, courts must view the evidence in the winning party's favor. "The majority fails to adhere to this standard of review," Paez wrote.

He also wrote that "the majority cannot rely on Puente, a decision published in 2024—four years after Officer Adgar shot Johnson—to argue that Johnson's Fourth Amendment right was not clearly established in 2020." The majority answered that Puente involved events from the same period, so it was applying the law as it then stood.

The certified question stems from Cornell v. City and County of San Francisco, a 2017 California appellate decision. Under Cornell, a judge first decides whether the right is "clearly delineated and plainly applicable under the circumstances of the case," and a jury then decides whether the defendant acted with specific intent to violate it.

"If we were to define the relationship between the 'clearly delineated' and 'clearly established' standards ourselves, that interpretation would be binding on district courts in the Ninth Circuit—even if it were contrary to California law," the panel wrote. The order added that if Adgar is not liable under the Bane Act, "this could have a significant impact on the fees to which Johnson is entitled." Adgar did not challenge the jury's verdict on Johnson's battery and negligence claims.

Abimael Bastida of McManis Faulkner argued for Johnson. Brian P. Eggleston, a senior deputy city attorney in the San Jose Office of the City Attorney, argued for Adgar.

The panel vacated the attorneys' fee award and told U.S. District Judge Beth Labson Freeman of the Northern District of California not to recalculate it until the panel decides the Bane Act claim. Proceedings are stayed meanwhile. If the California Supreme Court accepts the question, the parties must report on its status every six months. The deadline to seek rehearing will not start until the panel rules on the state claim.