San Jose: Federal excessive force lawsuit from George Floyd protests is greenlit for trial

SAN JOSE, Calif. — A federal judge ruled Thursday that a lawsuit filed against the San Jose Police Department and the city for using excessive force to disperse crowds protesting the police killing of George Floyd three years ago, which drew national attention and condemnation, will go to trial.

Michael Acosta, a man who lived downtown and was passively watching the protests that began in late May 2020 when an officer shot him in the face with a hard foam projectile, causing him to lose an eye, is one of the five plaintiffs whose claims of First and Fourth Amendment violations were approved to proceed.

Other plaintiffs permitted to argue in front of a federal civil jury include a woman who was shoved or jabbed with a baton “at least seventeen times” by two officers, a woman hit by projectiles while observing the protests, a man who was shoved to the ground by police and claims he was hit by multiple projectiles, and a man who was hit with a projectile in his groin while pacing back and forth in front of a police line.

After granting the city’s summary judgment requests, District Judge Phyllis Hamilton dismissed claims by six other plaintiffs, determining they did not specifically implicate an officer who injured them or missed filing deadlines.

The local NAACP chapter and the San Jose Peace & Justice Center were also dismissed as plaintiffs by the judge, who ruled that they lacked standing to sue. Several SJPD brass members were also dismissed as defendants at the time, though Hamilton did allow claims against three police supervisors to go to a jury after determining that their orders to use projectile launchers could be directly linked to the plaintiffs’ injuries.

According to Rachel Lederman, senior counsel for the Partnership for Civil Justice Fund and a member of the plaintiffs’ legal team, “we are very pleased we will be able to get this case in front of a jury.” She also praised Hamilton’s decision to allow the plaintiffs to use a Monell claim to challenge the city’s and police department’s policies and practices.

“It’s the city’s policies that are to blame for officers being allowed to use weapons in such an indiscriminate manner, resulting in hundreds of injuries,” Lederman said. “These are lethal weapons that should never be used in a crowd.” It’s a foregone conclusion that the wrong person will be struck in the wrong part of the body. Officers received little to no training with the weapons and had no practice using them on moving targets or in a crowd.”

In the aftermath of the protests, the police department admitted that most of the officers on the scene “lacked sufficient training and experience” with crowd control and blamed this on understaffing. Under intense scrutiny, the police department later prohibited the use of rubber bullets in crowd control scenarios.

The City Attorney’s Office, which is representing the police department and the city in the lawsuit, declined to comment on the decision, citing its policy of not commenting on pending litigation.

Hamilton denied qualified immunity to several of the officers and supervisors directly implicated in the remaining plaintiffs’ claims by allowing their claims to proceed.

Officer Jared Yuen, who sparked international outrage after a viral video of him profanely antagonizing protesters, is named in two of the remaining plaintiffs’ claims, including Acosta’s. Sgt. Ronnie Lopez, Yuen’s supervisor during the protests, and Capt. Jason Dwyer, the in-field commander who gave the orders to use projectiles, were also denied qualified immunity, which protects government officials from being sued over their work actions unless there is a clear violation of constitutional or statutory rights.

The ruling on Thursday cited in part an earlier federal excessive force lawsuit stemming from the protests, which was also allowed to proceed to trial in March, with the plaintiffs led by Derrick Sanderlin, a community activist and former police trainer. Sanderlin was shot in the groin by a police officer while attempting to de-escalate tensions between protesters and officers manning a police line. That case appears to be on hold pending the city’s expected appeal to the Ninth Circuit Court.

The city’s appeal, according to Sarah Marinho, a plaintiff attorney for the earlier suit, risks tying up the litigation for years, but the judge’s underlying ruling must be remembered.

“The important thing is that the Fourth Amendment excessive force claims and the First Amendment claims prevailed,” she said.

While many of the arguments were similar because they stemmed from the same alleged police misconduct, Judge Beth Labson Freeman denied the Monell claims in the Sanderlin case. Unlike Labson Freeman, Hamilton’s ruling on Thursday allowed plaintiffs to argue a violation of the Bane Act, which prohibits interfering with a person’s civil rights through violence or intimidation.

Another federal civil rights case involving the George Floyd protests in San Jose involved Tim Harper, a man who helped carry to safety an injured officer who had been punched by a demonstrator on the first day of the protests on May 29, 2020. He claimed Yuen shot him in the stomach with a rubber bullet hours later, during the same protests. That case, which Marinho also litigated, was dismissed in June after Harper and the city reached an agreement; the terms of the agreement could not be immediately verified Friday.