A Ninth Circuit panel has held that a San Jose police officer used excessive force on a demonstrator at a 2020 protest outside City Hall but is nonetheless entitled to qualified immunity on the federal civil rights claim, according to an opinion filed Nov. 2. The Mercury News reported on the decision this week, noting that the court affirmed the officer used excessive force, still granted him legal protection, and left a related state civil rights claim in limbo.
The case is Johnson v. Adgar. Kyle Johnson was struck behind the knee by a 40mm foam baton round fired by Officer James Adgar during a protest on May 30, 2020, the night after demonstrations that one officer described as the most violent and destructive he had seen in 15 years, the opinion said. Adgar fired in response to projectiles thrown at officers by other people in the crowd, the court recounted. Doctors later diagnosed Johnson with a pulmonary embolism attributed to the leg injury. A jury found for Johnson on all claims against Adgar, including a finding that the officer had fired indiscriminately into the crowd, and awarded $1,353,313 in undifferentiated damages. The jury found against Johnson on his claims against the City of San Jose.
Writing for the majority, Judge Richard C. Tallman, joined by Judge Mark J. Bennett, said substantial evidence supported the conclusion that Adgar seized Johnson and that the force was unreasonable, given the "disproportionate number of peaceful protestors in the part of the crowd at which he fired" and the risk of serious injury or death from the weapon. But the panel held that Adgar did not violate "clearly established" law, concluding that Nelson v. City of Davis, a 2012 Ninth Circuit decision, was "materially distinguishable" from the situation he confronted. The court reversed the district court's denial of Adgar's post-verdict motion for judgment as a matter of law on the Fourth Amendment claim and remanded for a recalculation of attorneys' fees, pending a decision on the state claim.
The panel did not resolve Johnson's claim under California's Tom Bane Civil Rights Act in the opinion. Instead, in a companion order, it certified a question to the California Supreme Court: what standard determines whether a constitutional right is "clearly delineated and plainly applicable" under the Bane Act, and how that standard differs, if at all, from the "clearly established" test used for federal qualified immunity. That is the "limbo" the Mercury News described.
Judge Richard A. Paez dissented in part. He agreed that Adgar used excessive force but said Nelson clearly established that shooting a projectile weapon capable of causing serious and permanent injury indiscriminately into a group of protesters who did not pose an imminent risk to public safety was unlawful, and that Adgar therefore was not entitled to immunity. The appeal was argued on July 9, 2026, in San Francisco, before District Judge Beth Labson Freeman's judgment in the Northern District of California.
The ruling does not decide whether Johnson will keep a damages award under state law. It does mean that, on the federal claim, a finding of excessive force was not enough to overcome qualified immunity.