Johnson v. City of San Jose
| Docket Number | Case No. 21-cv-01849-BLF |
| Decision Date | 16 March 2022 |
| Parties | Kyle JOHNSON, Plaintiff, v. CITY OF SAN JOSE, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Abimael J. Bastida De Jesus, Andrew Keith Parkhurst, Cherrie Tan, Christine Peek, James McManis, McManis Faulkner, a Professional Corporation, San Jose, CA, for Plaintiff.
Benjamin Ardell Johnson, Matthew W. Pritchard, Nora Valerie Frimann, Yue-Han Chow, Office of the City Attorney City of San Jose, San Jose, CA, for Defendant City of San Jose.
Matthew W. Pritchard, Yue-Han Chow, Office of the City Attorney City of San Jose, San Jose, CA, for Defendant San Jose Police Department Officer James Adgar, Badge No. 4552.
ORDER GRANTING IN PART WITH LEAVE TO AMEND IN PART AND DENYING IN PART MOTION TO DISMISS
[Re: ECF No. 53]
Plaintiff Kyle Johnson alleges that he was seriously injured when Officer James Adgar of the San Jose Police Department fired a less lethal projectile weapon at him during the George Floyd protests in San Jose, California on May 30, 2020. Johnson brings his lawsuit against the City of San Jose ("the City"), Officer Adgar, and other unnamed police officers, asserting claims for battery and negligence and violations of 28 U.S.C. § 1983, the California Bane Act, and the California Public Records Act. Defendants have moved to dismiss the First Amended Complaint. ECF No. 53 ("MTD"); see also ECF No. 59 ("Reply"). Johnson opposes the motion. ECF No. 58 ("Opp."). The Court held a hearing on the motion on December 16, 2021. For the reasons stated on the record and explained below, the motion is GRANTED IN PART with leave to amend in part and DENIED IN PART.
As alleged in the First Amended Complaint and accepted as true for the purposes of this motion, on the night of May 30, 2020, Plaintiff Kyle Johnson participated in protests near San Jose City Hall in the aftermath the killing of George Floyd in Minneapolis, Minnesota. ECF No. 47 ("FAC") ¶ 12. Johnson alleges that on that day, there was no curfew in place in San Jose and that city policy prohibited the use of 40mm projectile impact weapons that do not contain chemical agents ("less lethal weapons") for crowd control purposes. Id. ¶¶ 13–14.
Johnson was protesting near "the planters lining the sidewalk of East Santa Clara Street" in front of the plaza of City Hall. FAC ¶ 15. Officer Adgar was standing with other officers on East Santa Clara Street, and he was equipped with a 40mm launcher and zip ties. Id. Officers on East Santa Clara Street began to deploy their weapons, including less lethal weapons, after an unidentified member of the crowd threw a plastic water bottle up in the air (which landed on the ground without hitting any officers). Id. ¶ 16. In an attempt to flee from the use of these weapons, Johnson ran perpendicular from the officers’ advance and towards City Hall. Id. As Johnson attempted to flee, Officer Adgar "aimed and intentionally fired" a 40mm foam baton projectile towards him. Id. Johnson heard a noise that sounded like compressed air and felt the projectile strike the back of his leg as he was in the City Hall plaza. Id. The projectile impact left a large circular-shaped injury on Johnson's leg. Id.
After Johnson was hit, he hobbled out of the line of fire towards City Hall and then limped away from the area of the demonstrations. FAC ¶ 17. As he did so, Johnson heard tear gas being deployed and the police making an announcement that the demonstration was unlawful. Id. ¶ 18. Johnson did not hear any order to disperse or declaration of an unlawful assembly prior to being hit with the projectile. Id. Johnson was never charged with a crime in connection with demonstrating on May 30, 2020. Id.
The impact of the projectile caused "a large circular mark and severe bruising" on Johnson's leg. FAC ¶ 20. A blood clot
formed, requiring Johnson to make multiple trips to the emergency room and undergo "a sustained course of follow-up treatment," which included medication. Id. Johnson's risk of blood clots has increased, and he continues to suffer from blood clots. Id. He anticipates that he will have to continue taking medication to counteract the blood clots for the rest of his life. Id. The injury has also severely impaired Johnson's mobility. Although he was previously an active, athletic person who taught physical education and coached sports, for three months after the incident he was unable to walk or exercise normally. Id. ¶ 21. He continues to suffer pain, reduced mobility, and mental and emotional distress from the impact of the projectile and his treatment experience. Id. ¶ 22.
Johnson alleges that as of the protests on May 30, 2020, the City's training of officers regarding crowd control, and in particular the use of less lethal weapons, had been "minimal and infrequent." FAC ¶ 23. The City had not conducted any ongoing training for patrol officers on the use of the 40mm launchers used against Johnson. Id. In spite of this lack of training, the City and the police department allowed untrained officers to be equipped with less lethal firearms in their response to the protests. Id. Officer Adgar received no training on the use of the foam baton projectiles in the five years preceding the May 30, 2020 protests. Id. ¶ 25.
To the extent any training was offered, Johnson says that it was constitutionally inadequate. FAC ¶ 24. For example, a slide deck prepared by Sergeant Christopher Sciba, a nonparty City police officer, says that projectile impact weapons could be used for "Riot/Crowd Control," but does not provide guidance about the circumstances under which use of projectile impact weapons would be permitted by City policy or the Constitution. Id. The slides acknowledge that "[i]njury should be expected" and depict shots to the chest, spine, head, and neck as "lethal force." Id. The slide urges trainees to "not hesitate" and "[a]ways win." Id. Furthermore, the City is not able to quantify the true number of less lethal munitions used during the George Floyd protests because officers improperly counted the number of rounds used, in violation of the San Jose Police Department's duty manual. FAC ¶ 28.
Johnson alleges that some members and former members of the City police department are "openly hostile" to the Black Lives Matter movement "or others who advocate for the eradication of anti-Black racism in law enforcement." FAC ¶ 30. Johnson alleges that multiple officers—none of them parties here—have made remarks critical of the movement. One commented on Facebook that "black lives don't really matter." Id. Another was fired (but later reinstated) after he tweeted, and "By the way if anyone feels they can't breathe or their lives matter, I'll be at the movies tonight, off duty, carrying my gun." Id. The San Jose Police Officers Association also allegedly posted a video that ended with the phrases "All Lives Matter" and "Blue Lives Matter," phrases which Johnson alleges have been created to undermine the Black Lives Matter movement. Id.
As part of the preparation for this lawsuit, on August 5, 2020, Johnson requested public records held by the City, San Jose Police Department, and other City officials pursuant to the California Public Records Act. FAC ¶ 66; see also id. ¶ 71 (listing his 12 requests). Johnson's counsel engaged in "protracted negotiations" with the City in an attempt to obtain fulsome responses to the requests. Id. ¶ 73. Johnson alleges that the City has produced some records, but has improperly withheld records responsive to certain requests as exempt from disclosure. Id. Johnson alleges that these withheld records include body camera footage of the protests, general offense reports, official service photographs, lists of personnel assigned to the protests, and use of force reports. Id. ¶ 74.
Johnson filed this lawsuit on March 16, 2021 against Officer Adgar, the City, and Doe defendants. ECF No. 1. The parties fully briefed a motion to dismiss, see ECF Nos. 27, 31, 32, but then stipulated to Johnson filing a First Amended Complaint. ECF Nos. 46, 48. The First Amended Complaint is the operative complaint. See FAC. Johnson asserts two claims under 42 U.S.C. § 1983 against Officer Adgar and the City—one for violation of the Fourth Amendment for a seizure accomplished through excessive force and the second for violation of the First Amendment for retaliatory use of force. See id. ¶¶ 33–47. Johnson also asserts claims against Officer Adgar and the City for violation of the Bane Act, Cal. Civ. Code §§ 52.1, 52; battery; and negligence. Id. ¶¶ 48–63.1 He asserts a claim against the City only for violation of the California Public Records Act. Id. ¶¶ 64–81. Johnson requests general and special damages; civil penalties and statutory damages under the Bane Act; punitive damages; injunctive and declaratory relief under the California Public Records Act; pre- and post-judgment interest; attorneys’ fees; and costs of suit. Id. at "Prayer for Relief".
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’ " Conservation Force v. Salazar , 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Expl. (Alaska) Inc. , 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice" or ...
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