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

SAN JOSE — An excessive force lawsuit against the San Jose Police Department and the city over officers’ violent tactics to break up downtown crowds protesting the police killing of George Floyd three years ago —  which elicited national notoriety and condemnation — will proceed to trial after a federal judge’s ruling Thursday.

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

Other plaintiffs allowed to eventually argue in front a federal civil jury include a woman shoved or jabbed with batons “at least seventeen times” by two officers, a woman hit by projectiles while observing the protests, a man shoved to the ground by police and who 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.

District Judge Phyllis Hamilton also threw out claims by six other plaintiffs after granting the city’s requests for summary judgment, deciding they did not specifically implicate an officer who injured them or missed filing deadlines.

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

Rachel Lederman, senior counsel for the Partnership for Civil Justice Fund and part of the plaintiffs’ legal team, said “we are very pleased we will be able to get this case in front of a jury.” She also lauded Hamilton’s decision to allow the plaintiffs to put the city and police department’s policies and practices on trial with what is known as a Monell claim.

“It’s the city’s policies that are to blame in the fact that officers were allowed to use the weapons in this indiscriminate manner, causing hundreds of injuries,” Lederman said. “These are dangerous weapons that should never be used in a crowd situation. It’s a sure thing that the wrong person will be hit in the wrong part of the body. Officers had minimal to no training with the weapons, and no practice using weapons with moving targets or in a crowd.”

In the fallout from the protests, 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 in crowd control scenarios.

The City Attorney’s Office, which is defending the police department and city against the lawsuit, did not immediately respond to a request for comment Friday.

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

Officer Jared Yuen, who elicited international scorn because of a viral video of him profanely antagonizing protesters, is named in two of the remaining plaintiffs’ claims, including that of Acosta, the man who lost his eye. Yuen’s supervisor during the protests, Sgt. Ronnie Lopez, and Capt. Jason Dwyer, the in-field commander who gave the orders to use projectiles, were also denied qualified immunity, a legal protection for government officials against being sued over their work actions absent a clear violation of constitutional or statutory rights.

Thursday’s ruling cited in part an earlier federal excessive force lawsuit stemming from the protests that was similarly allowed to proceed to trial in March, with the plaintiffs headed by Derrick Sanderlin, a community activist and former police trainer who infamously was shot with a projectile in the groin by a police officer while trying to de-escalate tensions between protesters and officers manning a police line. That case now looks to be held up pending an expected appeal from the city with the Ninth Circuit Court.

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

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

While many of the arguments were similar given they were derived from the same alleged police misconduct, Judge Beth Labson Freeman did not allow the Monell claims in the Sanderlin case to move forward. Hamilton’s ruling Thursday also allowed plaintiffs to argue a violation of the Bane Act, which prohibits interfering with a person’s civil rights through violence or intimidation, while Labson Freeman did not.

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