Johnson v. City of San Jose

• Court: District Court, N.D. California
• Decided: March 16, 2022
• Docket: 5:21-cv-01849
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 KYLE JOHNSON, Case No. 21-cv-01849-BLF

8 Plaintiff, ORDER GRANTING IN PART WITH 9 v. LEAVE TO AMEND IN PART AND DENYING IN PART MOTION TO 10 CITY OF SAN JOSE, et al., DISMISS 11 Defendants. [Re: ECF No. 53]

12 13 Plaintiff Kyle Johnson alleges that he was seriously injured when Officer James Adgar of 14 the San Jose Police Department fired a less lethal projectile weapon at him during the George 15 Floyd protests in San Jose, California on May 30, 2020. Johnson brings his lawsuit against the 16 City of San Jose (“the City”), Officer Adgar, and other unnamed police officers, asserting claims 17 for battery and negligence and violations of 28 U.S.C. § 1983, the California Bane Act, and the 18 California Public Records Act. Defendants have moved to dismiss the First Amended Complaint. 19 ECF No. 53 (“MTD”); see also ECF No. 59 (“Reply”). Johnson opposes the motion. ECF No. 58 20 (“Opp.”). The Court held a hearing on the motion on December 16, 2021. For the reasons stated 21 on the record and explained below, the motion is GRANTED IN PART with leave to amend in 22 part and DENIED IN PART. 23 I. BACKGROUND 24 A. Johnson’s Experience 25 As alleged in the First Amended Complaint and accepted as true for the purposes of this 26 motion, on the night of May 30, 2020, Plaintiff Kyle Johnson participated in protests near San Jose 27 City Hall in the aftermath the killing of George Floyd in Minneapolis, Minnesota. ECF No. 47 1 city policy prohibited the use of 40mm projectile impact weapons that do not contain chemical 2 agents (“less lethal weapons”) for crowd control purposes. Id. ¶¶ 13–14. 3 Johnson was protesting near “the planters lining the sidewalk of East Santa Clara Street” in 4 front of the plaza of City Hall. FAC ¶ 15. Officer Adgar was standing with other officers on East 5 Santa Clara Street, and he was equipped with a 40mm launcher and zip ties. Id. Officers on East 6 Santa Clara Street began to deploy their weapons, including less lethal weapons, after an 7 unidentified member of the crowd threw a plastic water bottle up in the air (which landed on the 8 ground without hitting any officers). Id. ¶ 16. In an attempt to flee from the use of these weapons, 9 Johnson ran perpendicular from the officers’ advance and towards City Hall. Id. As Johnson 10 attempted to flee, Officer Adgar “aimed and intentionally fired” a 40mm foam baton projectile 11 towards him. Id. Johnson heard a noise that sounded like compressed air and felt the projectile 12 strike the back of his leg as he was in the City Hall plaza. Id. The projectile impact left a large 13 circular-shaped injury on Johnson’s leg. Id. 14 After Johnson was hit, he hobbled out of the line of fire towards City Hall and then limped 15 away from the area of the demonstrations. FAC ¶ 17. As he did so, Johnson heard tear gas being 16 deployed and the police making an announcement that the demonstration was unlawful. Id. ¶ 18. 17 Johnson did not hear any order to disperse or declaration of an unlawful assembly prior to being 18 hit with the projectile. Id. Johnson was never charged with a crime in connection with 19 demonstrating on May 30, 2020. Id. 20 The impact of the projectile caused “a large circular mark and severe bruising” on 21 Johnson’s leg. FAC ¶ 20. A blood clot formed, requiring Johnson to make multiple trips to the 22 emergency room and undergo “a sustained course of follow-up treatment,” which included 23 medication. Id. Johnson’s risk of blood clots has increased, and he continues to suffer from blood 24 clots. Id. He anticipates that he will have to continue taking medication to counteract the blood 25 clots for the rest of his life. Id. The injury has also severely impaired Johnson’s mobility. 26 Although he was previously an active, athletic person who taught physical education and coached 27 sports, for three months after the incident he was unable to walk or exercise normally. Id. ¶ 21. 1 of the projectile and his treatment experience. Id. ¶ 22. 2 B. San Jose Police Department Training and Officers’ Opinions on Protestors 3 Johnson alleges that as of the protests on May 30, 2020, the City’s training of officers 4 regarding crowd control, and in particular the use of less lethal weapons, had been “minimal and 5 infrequent.” FAC ¶ 23. The City had not conducted any ongoing training for patrol officers on 6 the use of the 40mm launchers used against Johnson. Id. In spite of this lack of training, the City 7 and the police department allowed untrained officers to be equipped with less lethal firearms in 8 their response to the protests. Id. Officer Adgar received no training on the use of the foam baton 9 projectiles in the five years preceding the May 30, 2020 protests. Id. ¶ 25. 10 To the extent any training was offered, Johnson says that it was constitutionally 11 inadequate. FAC ¶ 24. For example, a slide deck prepared by Sergeant Christopher Sciba, a 12 nonparty City police officer, says that projectile impact weapons could be used for “Riot/Crowd 13 Control,” but does not provide guidance about the circumstances under which use of projectile 14 impact weapons would be permitted by City policy or the Constitution. Id. The slides 15 acknowledge that “[i]njury should be expected” and depict shots to the chest, spine, head, and 16 neck as “lethal force.” Id. The slide urges trainees to “not hesitate” and “[a]ways win.” Id. 17 Furthermore, the City is not able to quantify the true number of less lethal munitions used during 18 the George Floyd protests because officers improperly counted the number of rounds used, in 19 violation of the San Jose Police Department’s duty manual. FAC ¶ 28. 20 Johnson alleges that some members and former members of the City police department are 21 “openly hostile” to the Black Lives Matter movement “or others who advocate for the eradication 22 of anti-Black racism in law enforcement.” FAC ¶ 30. Johnson alleges that multiple officers— 23 none of them parties here—have made remarks critical of the movement. One commented on 24 Facebook that “black lives don’t really matter.” Id. Another was fired (but later reinstated) after 25 he tweeted, “Threaten me or my family and I will use my God given and law appointed right and 26 duty to kill you. #CopLivesMatter” and “By the way if anyone feels they can’t breathe or their 27 lives matter, I’ll be at the movies tonight, off duty, carrying my gun.” Id. The San Jose Police 1 and “Blue Lives Matter,” phrases which Johnson alleges have been created to undermine the 2 Black Lives Matter movement. Id. 3 C. Public Records Request 4 As part of the preparation for this lawsuit, on August 5, 2020, Johnson requested public 5 records held by the City, San Jose Police Department, and other City officials pursuant to the 6 California Public Records Act. FAC ¶ 66; see also id. ¶ 71 (listing his 12 requests). Johnson’s 7 counsel engaged in “protracted negotiations” with the City in an attempt to obtain fulsome 8 responses to the requests. Id. ¶ 73. Johnson alleges that the City has produced some records, but 9 has improperly withheld records responsive to certain requests as exempt from disclosure. Id. 10 Johnson alleges that these withheld records include body camera footage of the protests, general 11 offense reports, official service photographs, lists of personnel assigned to the protests, and use of 12 force reports. Id. ¶ 74. 13 D. This Lawsuit 14 Johnson filed this lawsuit on March 16, 2021 against Officer Adgar, the City, and Doe 15 defendants. ECF No. 1. The parties fully briefed a motion to dismiss, see ECF Nos. 27, 31, 32, 16 but then stipulated to Johnson filing a First Amended Complaint. ECF Nos. 46, 48. The First 17 Amended Complaint is the operative complaint. See FAC. Johnson asserts two claims under 42 18 U.S.C. § 1983 against Officer Adgar and the City—one for violation of the Fourth Amendment for 19 a seizure accomplished through excessive force and the second for violation of the First 20 Amendment for retaliatory use of force. See id. ¶¶ 33–47. Johnson also asserts claims against 21 Officer Adgar and the City for violation of the Bane Act, Cal. Civ. Code §§ 52.1, 52; battery; and 22 negligence. Id. ¶¶ 48–63.1 He asserts a claim against the City only for violation of the California 23 Public Records Act. Id. ¶¶ 64–81. Johnson requests general and special damages; civil penalties 24 and statutory damages under the Bane Act; punitive damages; injunctive and declaratory relief 25 under the California Public Records Act; pre- and post-judgment interest; attorneys’ fees; and 26 27 1 Although the operative complaint contains isolated references to the Ralph Act, Cal. Civ. Code 1 costs of suit. Id. at “Prayer for Relief”. 2 II. LEGAL STANDARD 3 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 4 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 5 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 6 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 7 as true all well-pled factual allegations and construes them in the light most favorable to the 8 plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court 9 need not “accept as true allegations that contradict matters properly subject to judicial notice” or 10 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 11 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation 12 marks and citations omitted). While a complaint need not contain detailed factual allegations, it 13 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 14 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 15 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to 17 dismiss, the Court’s review is limited to the face of the complaint and matters judicially 18 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. 19 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 20 III. DISCUSSION 21 The Court evaluates each of Johnson’s six claims in turn, splitting his first two claims into 22 separate analyses for Officer Adgar and the City given the different applicable legal standards. 23 A. Claim 1 – § 1983 / Fourth Amendment (Officer Adgar) 24 Johnson’s first claim against Officer Adgar is a § 1983 claim for a seizure accomplished 25 through excessive force under the Fourth Amendment. FAC ¶¶ 33–38. Officer Adgar argues that 26 he is entitled to qualified immunity on this claim because he did not violate clearly established 27 law. MTD at 3–8. Johnson says that Ninth Circuit law clearly established that Officer Adgar’s 1 conclusion. Opp. at 13–21. 2 “The doctrine of qualified immunity protects government officials from liability for civil 3 damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or 4 constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged 5 conduct.’” Wood v. Moss, 572 U.S. 744, 757 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 6 735 (2011)); see also Saucier v. Katz, 533 U.S. 194, 201 (2001) (establishing the two-part test). 7 “The relevant, dispositive inquiry in determining whether a right is clearly established is whether 8 it would be clear to a reasonable [official] that his conduct was unlawful in the situation he 9 confronted.” Saucier, 533 U.S. at 202. 10 The Supreme Court has repeatedly reiterated the longstanding principle that “the clearly 11 established right must be defined with specificity.” City of Escondido v. Emmons, 139 S. Ct. 500, 12 503 (2019). Defining the right at too high a level of generality “avoids the crucial question 13 whether the official acted reasonably in the particular circumstances that he or she faced.” District 14 of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 15 779 (2014)). “[A] defendant cannot be said to have violated a clearly established right unless the 16 right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes 17 would have understood that he was violating it.” Plumhoff, 572 U.S. at 779. There can be “the 18 rare ‘obvious case,’ where the unlawfulness of the [official’s] conduct is sufficiently clear even 19 though existing precedent does not address similar circumstances.” Vazquez v. Cty. of Kern, 949 20 F.3d 1153, 1164 (9th Cir. 2020) (quoting Wesby, 138 S. Ct. at 590). The relevant inquiry is 21 “whether the [official] had fair notice that her conduct was unlawful.” Nicholson v. City of Los 22 Angeles, 935 F.3d 685, 690 (9th Cir. 2019) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 23 (2018) (per curiam)). 24 The Court will now analyze the two prongs of the qualified immunity analysis. 25 i. Prong One – Violation of a Constitutional Right 26 Under a prong one analysis on a motion to dismiss, Officer Adgar is entitled to qualified 27 immunity unless Johnson “pleads facts showing that [Officer Adgar] violated a statutory or 1 recent decision in Torres v. Madrid, 141 S. Ct. 989 (2021), the Court must find that a seizure 2 occurred before analyzing the factors for excessive force under Graham v. Connor, 490 U.S. 386, 3 396 (1989). MTD at 3–7. He says that because there was no “objective manifestation of an intent 4 to restrain,” there was no seizure and thus no Graham analysis is required. Id. at 4. Even so, he 5 says that he is entitled to qualified immunity because relevant case law has been ambiguous as to 6 when a seizure occurs, meaning he could not have violated “clearly established” law by firing the 7 foam baton at Johnson. Id. at 4–8. Johnson responds that Torres does not undermine Graham, 8 that he adequately alleges a seizure, and that he adequately alleges the unreasonableness and 9 excessiveness of the force used under Graham. Opp. at 18–21. The Court first analyzes whether 10 Torres poses a threshold bar for Johnson’s claims (concluding that it does not) before moving to 11 the Graham analysis. 12 a. Torres v. Madrid 13 First, the Court considers how Torres affects the analysis of whether Officer Adgar 14 violated one of Johnson’s constitutional rights. In Torres, four New Mexico State Police officers 15 sought to execute an arrest warrant in Albuquerque for a woman accused of white collar crimes 16 and “having been involved in drug trafficking, murder, and other violent crimes.” Torres, 141 S. 17 Ct. at 994. Officers attempted to speak with Torres in the parking lot of the complex where they 18 were executing the warrant, although the officers concluded prior to approaching her that she was 19 not the target of the warrant. Id. Experiencing methamphetamine withdrawal, Torres did not 20 notice the officers’ badges, seeing only their guns and believing that someone was trying to 21 carjack her. Id. She hit the gas to try to escape, and officers fired at her 13 times, striking her 22 twice in the back. Id. Torres drove to a nearby parking lot, asked someone to report the attempted 23 carjacking, stole a different car, and drove 75 miles to a hospital. Id. After Torres was airlifted 24 back to Albuquerque for additional hospital care, she was arrested. Id. Torres brought claims 25 against the officers under § 1983, alleging that the excessive force made the shooting an 26 unreasonable seizure under the Fourth Amendment. Id. The district court granted summary 27 judgment to the officers on the basis of Tenth Circuit precent holding that “no seizure can occur 1 must terminate the suspect’s movement” or otherwise give rise to physical control over the 2 suspect. Id. 3 The Supreme Court reversed. After examining the common law meaning of “arrest” and 4 “seizure,” the Court concluded that “[a] seizure requires the use of force with intent to restrain,” 5 even if the person does not submit and is not subdued. Torres, 141 S. Ct. at 998. The inquiry 6 about whether there is an intent to restrain is “objective” and does not look to the subjective 7 motivations of the police officer or the “subjective perceptions of the seized person.” Id. at 999. 8 The Court stressed that the rule it was announcing “does not transform every physical contact 9 between a government employee and a member of the public into a Fourth Amendment seizure.” 10 Id. at 998. Because intent to restrain is required, neither “accidental force” nor “force intentionally 11 applied for some other purpose” would satisfy the rule. Id. The Court was considering “only 12 force used to apprehend” with a firearm and declined to “opine on matters not presented here— 13 pepper spray, flash-bang grenades, lasers, and more.” Id. The Court concluded by emphasizing 14 that the rule it announced was “narrow,” and that whether a seizure occurred “is just the first step 15 in the analysis” because the Fourth Amendment only prohibits “unreasonable” seizures. Id. at 16 1003. “All we decide today is that the officers seized Torres by shooting her with intent to 17 restrain her movement. We leave open on remand any questions regarding the reasonableness of 18 the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified 19 immunity.” Id. 20 The Court concludes that Torres announced the rule that “application of physical force to 21 the body of a person with intent to restrain is a seizure even if the person does not submit and is 22 not subdued.” Torres, 141 S. Ct. at 1003. The Court characterized this rule as the “first step in the 23 analysis” of Torres’ excessive force claim and left open for remand the question of whether the 24 seizure itself was reasonable. Id. The decision in Torres post-dates this case. But to the extent 25 Torres further explicated the law of when a seizure occurs, the Court finds that even under the new 26 formulation, Johnson has sufficiently alleged that a seizure occurred. 27 Johnson has alleged that City policy prohibited the use of the 40mm projectile impact 1 heard no order to disperse or declaration that the assembly was unlawful prior to being fired upon. 2 Id. ¶¶ 15-18. Johnson further alleges that Officer Adgar was equipped with zip ties, that Johnson 3 was shot while he was attempting to flee from the scene, and that the projectile impact impaired 4 his movement. Id. Drawing inferences in Johnson’s favor, these are sufficiently plausible 5 allegations supporting the inference that by firing at Johnson, Officer Adgar had an objective 6 “intent to restrain” him. Torres, 141 S.Ct. at 1003. 7 Officer Adgar responds that these allegations are instead consistent with an intent to 8 disperse protestors rather than to restrain Johnson. MTD at 4. In support, Officer Adgar cites 9 three cases where courts found no intent to restrain: an unpublished and thus nonprecedential 10 Ninth Circuit case involving striking a plaintiff with a baton while officers “push[ed] protestors 11 off [a] freeway,” Jackson-Moeser v. Armstrong, 765 F. App’x 299 (9th Cir. 2019), and several 12 out-of-circuit cases involving the use of tear gas on reporters and protestors, Quraishi v. St. 13 Charles Cnty., 986 F.3d 831, 840 (8th Cir. 2021); Buck v. City of Albuquerque, 2007 WL 14 9734037, at *31 (D.N.M. Apr. 11, 2017); Molina v. City of St. Louis, 2021 WL 1222432, at *11 15 (E.D. Mo. Mar. 31, 2021). The Court finds these cases inapposite. Unlike tear gas or pepper 16 spray, which disperses within an environment through the air, Johnson alleges that he was struck 17 with a foam projectile that injured his leg and hobbled him. And in Jackson-Moeser, in which 18 batons were used, the court decided the seizure issue on summary judgment with the full benefit of 19 discovery. Jackson-Moeser, 765 F. App’x at 299. Finally, and contrary to the suggestion in some 20 of the cases that Officer Adgar cites—which predate Torres—that Johnson actually escaped does 21 not mean that there was no “seizure” under the Fourth Amendment. See Torres, 141 S. Ct. at 22 1003; contra, e.g., Jackson-Moeser, 765 F. App’x at 299 (pointing out that Jackson-Moeser “ran 23 away” and “no officers told her to stop or followed her as she left the freeway”); Quraishi, 986 24 F.3d at 840 (noting that the reporters’ “freedom to move was not terminated or restricted”). The 25 Court declines to draw an inference against Johnson that the objective intent of Officer Adgar was 26 to cause him to flee when, based on Johnson’s allegations, there is a plausible inference that 27 Officer Adgar’s objective intent was to restrain Johnson’s movement. 1 plausibly pled that he was seized because Officer Adgar had an objective intent to restrain him by 2 firing the foam baton at him. 3 b. Graham Factors 4 Second, the Court finds that Johnson’s allegations in the operative complaint adequately 5 allege an unreasonable and excessive use of force under the Graham factors. Analysis of he 6 reasonableness of force under the Fourth Amendment involves a totality of the circumstances 7 inquiry. Courts first consider the governmental interests at stake, such as “(1) the severity of the 8 crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or 9 others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by 10 flight.” Torres v. Madera, 648 F.3d 1119, 1124 (9th Cir. 2011) (citing Graham, 490 U.S. at 396). 11 On the other side, courts also consider the plaintiff’s interests by looking to the “type and amount 12 of force inflicted” and “the severity of injuries” experienced by the plaintiff. Felarca v. 13 Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018). 14 The Court finds that Johnson’s allegations plausibly establish that Officer Adgar used 15 excessive force. The Court first looks to governmental interests at stake. On the first Graham 16 factor—the severity of the crime at issue—Johnson has alleged that he was participating in 17 protected First Amendment activity, that no curfew was in place when he was protesting, that the 18 protestors were not ordered to disperse prior to Officer Adgar firing the projectile at him, and that 19 he was never charged with any crime related to the protests. FAC ¶¶ 12, 13, 18, 19. The most that 20 Officer Adgar points to is that a bottle was thrown at officers, MTD at 8, but Johnson has alleged 21 that he did not throw it and that it landed on the ground without harming any officer, FAC ¶ 16. 22 On the second factor—whether Johnson posed an immediate threat to the safety of the officers of 23 others—Johnson has alleged that he was already running away from the scene when Officer Adgar 24 fired the projectile at him. Id. On the third factor—resisting or evading arrest—although Johnson 25 was moving away from the scene, he has also alleged that he was not charged with any crime in 26 connection with the protests. FAC ¶ 19. 27 As to Johnson’s interest factors—the type and amount of force used and the injuries 1 Johnson has alleged that despite his peaceful protest, Officer Adgar fired a foam projectile at him. 2 FAC ¶ 16. Although that foam projectile is a “less lethal” weapon, Johnson alleges that the 3 projectile left a large circular-shaped injury that caused him to “hobble” and “limp away.” Id. 4 ¶ 17. The impact resulted in formation of a blood clot and has caused Johnson multiple trips to the 5 emergency room and ongoing (and potentially lifelong) treatment for blood clots. Id. ¶ 20. 6 Johnson’s ability to walk and exercise has been seriously impaired. Id. ¶ 21. Each of these factors 7 suggests that the force used was unreasonable. Nelson v. Davis, 685 F.3d 867, 878–79 (9th Cir. 8 2012) (excessive force where nonviolent plaintiff partygoer was struck with pepperball in eye, 9 causing multiple surgeries, temporary blindness, and a permanent loss of visual acuity). 10 Officer Adgar points to Felarca, 891 F.3d at 809, as counseling against a finding of 11 excessive force under Graham. In Felarca, the Ninth Circuit held that officers did not use 12 excessive force when they used “jabs with a baton” to clear resisting protestors from an 13 encampment at the University of California, Berkeley. Id. at 817. The university had previously 14 warned the campers that camping was not permitted on campus, and police department policy 15 permitted the use of batons to “disperse” individuals. Id. That makes Felarca unlike this case, at 16 least as alleged in Johnson’s pleading. Johnson has alleged that he was moving away from the 17 protest as he was shot, that officers did not announce that the gathering was unlawful prior to 18 shooting him, and that City policy prohibited the use of the weapon used on him for crowd control 19 purposes. FAC ¶¶ 14, 16, 18. Felarca accordingly is not of help to Officer Adgar on the 20 excessive force inquiry. 21 Considering the totality of the circumstances based on Johnson’s pleading, he has 22 adequately alleged an unreasonable use of force under Graham. Accordingly, at this stage of the 23 case, Johnson adequately pleads the violation of a constitutional right. 24 ii. Prong Two – Clearly Established Right 25 At prong two of the qualified immunity analysis on a motion to dismiss, Johnson must 26 “plead[] facts showing . . . the right [violated] was ‘clearly established’ at the time of the 27 challenged conduct.” Wood, 572 U.S. at 757. “[A] defendant cannot be said to have violated a 1 official in the defendant’s shoes would have understood that he was violating it.” Plumhoff, 572 2 U.S. at 779. Both parties primarily point to Nelson v. Davis, 685 F.3d 867 (9th Cir. 2012), as the 3 relevant case. Johnson argues that Nelson clearly establishes that by firing a less lethal projectile 4 at Johnson in the midst of an allegedly unlawful assembly where Johnson was not an imminent 5 threat to officers, resulting in an injury restricting Johnson’s movement, Officer Adgar seized 6 Johnson and used excessive force against him. Opp. at 13–15. Officer Adgar says that Nelson is 7 not sufficiently similar to this case and so did not clearly establish that his actions violated the law. 8 MTD at 5; Reply at 2–3. 9 In Nelson, the plaintiff, a student at the University of California, Davis, was among about 10 1,000 people at an apartment complex near the U.C. Davis campus attending what one partygoer 11 called “the biggest party in history.” Nelson, 685 F.3d at 872–73. Officers arrived at the party 12 and began telling people they needed to leave. Id. at 873. After this individual approach was 13 ineffective, officers arrived in a police car, but the car was “soon overwhelmed by the crowd, 14 including some individuals who threw bottles at the vehicle.” Id. Officers returned in riot gear 15 armed with pepperball guns and “prepared to disperse the crowd.” Id. Officers entered the party 16 and gave dispersal orders, but recognized that they could not be heard over the “raucous” noise of 17 the party. Id. Officers then gathered in front of a breezeway in the apartment complex that was a 18 “very narrow and confined space.” Id. A group of students, including the plaintiff, were 19 attempting to leave, but “officers blocked their means of egress and did not provide any 20 instructions for departing from the complex,” even after the students expressly asked to leave and 21 held up their hands. Id. at 874. Although some bottles were being thrown in the area, the officers 22 saw that no one from the plaintiff’s group threw anything at them. Id. Officers then fired at the 23 group of students including the plaintiff, who was struck in the eye and fell to the ground writhing 24 in pain. Id. The plaintiff suffered temporary blindness, had to undergo multiple surgeries to repair 25 an ocular injury, and had to withdraw from U.C. Davis because he lost his athletic scholarship. Id. 26 On the plaintiff’s § 1983 claim for excessive force in violation of the Fourth Amendment, the 27 district court denied the officer’s bid for summary judgment on the basis of qualified immunity. 1 On interlocutory appeal, the Ninth Circuit affirmed. Nelson, 685 F.3d at 875–87. The 2 Ninth Circuit first found that the plaintiff was seized under the Fourth Amendment. “[T]he U.C. 3 Davis police officers took aim and intentionally fired in the direction of a group of which [the 4 plaintiff] was a member. [He] was hit in the eye by a projectile filled with pepper spray and, after 5 being struck, was rendered immobile.” Id. at 875–76. Because the plaintiff was “both an object of 6 intentional governmental force and his freedom of movement was limited,” he was seized under 7 the Fourth Amendment. Id. at 876. The Ninth Circuit rejected the officers’ arguments that they 8 did not individually or intentionally target the plaintiff, that they intended to hit the area around 9 plaintiff rather than plaintiff himself, and that they intended to disperse the crowd rather than 10 arrest anyone. Id. at 876–78. The Ninth Circuit then considered the Graham factors and found 11 that the seizure was unreasonable. Id. at 878–83. 12 The Court finds that Nelson clearly established that firing a less lethal projectile that risked 13 causing serious harm at an individual who was not an imminent threat to officers in the midst of 14 an allegedly unlawful assembly, resulting in an injury restricting the movement of that individual, 15 amounts to a seizure and an excessive use of force.2 Nelson is strikingly similar to this case. In 16 both Nelson and this case, police confronted large crowds that they claimed needed to be 17 dispersed. Officers were armed with less lethal weapons—pepperball guns in Nelson and 40 mm 18 weapons in this case. Individuals were throwing water bottles at officers, although officers never 19 saw the eventually injured plaintiff throw a bottle at them. A police officer then intentionally fired 20 his less lethal weapon at the plaintiff, whose ability to move was immediately restricted by the 21 impact of the weapon’s projectile. The plaintiff suffered severe injuries, requiring multiple 22 medical procedures and incurring permanent damage to their health. The Ninth Circuit in Nelson, 23 published almost eight years prior to the protests at issue in this case, was quite clear: the actions 24 25 2 Further, the Ninth Circuit did not announce a new standard in Nelson, instead finding that the 26 law was already clearly established by its prior rulings in Deorle v. Rutherford, 272 F.3d 1272, 27 1281 (9th Cir. 2001), and Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994). See Nelson, 685 1 of the police in Nelson “unquestionably constituted a seizure under the Fourth Amendment” and 2 “the force used by the government was unreasonable and resulted in a violation of the Fourth 3 Amendment.” Nelson, 685 F.3d at 877–78, 883. Officer Adgar thus had “fair notice that [his] 4 conduct was unlawful.” Nicholson, 935 F.3d at 690. 5 Officer Adgar’s efforts to avoid Nelson’s clearly established law at this stage of the case 6 are unavailing. Officer Adgar first zeros in on one factual distinction between Nelson and this 7 case: that officers blocked the Nelson plaintiff’s means of egress through the breezeway, rather 8 than letting him go free as officers did here. Reply at 3. The Court finds that this fact alone is 9 insufficient to make this case different enough from Nelson at the pleading stage. The significant 10 factual similarities between Nelson and this case put Officer Nelson “on notice” that his conduct 11 constituted a seizure and amounted to excessive force. 12 Officer Adgar also argues that Nelson predates Torres, “and so did not have occasion to 13 apply its rule regarding an objectively manifested intent to seize.” Reply at 2. Officer Adgar cites 14 several out-of-circuit cases applying Torres, arguing that they indicate lack of clarity in the law 15 and so preclude a finding that the law was clearly established in May 2020. Reply at 2, 3-5 (citing 16 Quraishi, 986 F.3d at 831; McCoy, 341 F.3d at 600; Slocum v. Palinkas, 50 F. App’x 300 (6th Cir. 17 2002); Black Lives Matter D.C. v. Trump, 2021 WL 2530722 (D.D.C. June 21, 2021); Molina, 18 2021 WL 1222432; Buck, 2007 WL 9734037; and Gause v. City of Philadelphia, 2001 WL 19 1251215 (E.D. Pa. Sept. 27, 2001)). Both arguments are unpersuasive. Torres post-dates the 20 events of this case, and so could not have undermined Nelson’s clearly established law at the time 21 Officer Adgar acted. See NAACP of San Jose/Silicon Valley v. City of San Jose, --- F. Supp. 3d --- 22 -, 2021 WL 4355339, at *14 (N.D. Cal. Sept. 24, 2021) (Torres did not undermine applicability of 23 Nelson). To the extent Officer Adgar argues that the Supreme Court’s choice to take up and 24 decide Torres itself indicates lack of clarity in the law, the Court declines to read the tea leaves as 25 to why the Supreme Court agreed to hear a case. Because Nelson was the clearly established law 26 in the Ninth Circuit at the time of the events of this case, the out-of-circuit cases cited by Officer 27 Adgar (some of which also post-date Officer Adgar’s actions) are inapposite. See Cmty. House, 1 Court and Ninth Circuit law at the time of the alleged act” to determine if a right is clearly 2 established).3 3 * * * 4 Accordingly, the Court finds that Officer Adgar is not entitled to qualified immunity at this 5 juncture on Johnson’s § 1983 claim for violation of the Fourth Amendment. His motion to 6 dismiss the claim on this basis is DENIED. Because this finding is based solely on the allegations 7 in Johnson’s pleading, this finding is without prejudice to Officer Adgar raising a qualified 8 immunity defense to this claim later in this case. 9 B. Claim 2 – § 1983 / First Amendment (Officer Adgar) 10 Johnson’s second claim against Officer Adgar is a § 1983 claim for retaliatory use of force 11 under the First Amendment. FAC ¶¶ 39–47. Officer Adgar argues that he is entitled to qualified 12 immunity on this claim because he did not violate clearly established First Amendment law. MTD 13 at 12–16. Officer Adgar also claims that Johnson has not pled that he acted with discriminatory 14 purpose and targeted Johnson based on his political affiliation or expression. Id. Johnson 15 responds that viewpoint discrimination is not a necessary element of his claim and that he 16 adequately alleges retaliatory motive. Opp. at 21–23. 17 The Court finds it unnecessary to reach Officer Adgar’s qualified immunity argument 18 because it agrees with him that Johnson has not adequately alleged facts supporting an inference 19 that Officer Adgar acted with discriminatory animus. To succeed on a First Amendment 20 retaliation claim, Johnson is required to show (1) he was engaged in a constitutionally protected 21 activity, (2) Officer Adgar’s actions would “chill a person of ordinary firmness from continuing to 22 engage in the protected activity,” and (3) “the protected activity was a substantial or motivating 23 factor in [Officer Adgar’s] conduct.” Index Newspapers LLC v. United States Marshals Serv., 977 24 25 3 Even looking to Torres, the Supreme Court expressly “declined to opine” on whether certain uses 26 of certain weapons, such as “pepper spray, flash-bang grenades, lasers, and more,” constituted a 27 seizure. Torres, 141 S.Ct. at 998. Accordingly, Torres did not consider the use of the types of 1 F.3d 817, 827 (9th Cir. 2020). This dispute goes to the third element—whether Johnson’s 2 protected activity was “a substantial or motivating factor” in Officer’s Adgar’s response.4 This 3 element “may be met with either direct or circumstantial evidence” and often “involves questions 4 of fact that normally should be left for trial.” Id. at 827 (citing Ulrich v. City & Cnty. of San 5 Francisco, 308 F.3d 968, 979 (9th Cir. 2002)). 6 The Court agrees with Officer Adgar that Johnson has not offered sufficient allegations to 7 support an inference that his protected activity was “a substantial or motivating factor” in Officer 8 Adgar’s conduct. Johnson has alleged that after a bottle was thrown by an unknown protestor, 9 Officer Adgar and others began advancing against the protestors and shortly afterward used less 10 lethal force against him, causing his injury. FAC ¶¶ 16–18. But these allegations do not support 11 the inference that Johnson’s protected activities were the reason Officer Adgar used force against 12 him. Johnson expressly alleges that he did not throw the bottle at officers. He does not allege that 13 Officer Adgar holds views or made comments against the protests or against Johnson, or that 14 officers particularly targeted him and other Black Lives Matter protestors while not targeting 15 counterprotestors. The plausible inference from Johnson’s allegations is that Officer Adgar fired 16 in response to the water bottle being thrown. While this force may been a seizure accomplished 17 with excessive force under the Fourth Amendment, that does not mean it was retaliatory in 18 violation of the First Amendment. 19 In response, Johnson makes two arguments, but neither of them is persuasive. First, he 20 says that “[t]he use of indiscriminate weapons against all protestors—not just the violent ones— 21 supports the inference that [police] actions were substantially motivated by . . . protected activity.” 22 Opp. at 22–23 (quoting Black Lives Matter Seattle-King Cnty. v. City of Seattle, 466 F. Supp. 3d 23 1206, 1214 (W.D. Wash. 2020) and citing Anti Police-Terror Project v. City of Oakland, 477 F. 24 25 4 Because the Court finds that Johnson has not sufficiently alleged that his protected activity was a 26 “substantial or motivating factor” for Officer Adgar’s conduct, it need not address whether 27 “viewpoint discrimination” is the proper framing of one requirement to state a First Amendment 1 Supp. 3d 1066, 1088 (N.D. Cal. 2020)). But Johnson’s allegations do not support that inference 2 here. Both of the cases Johnson cites involved extensive allegations of broad and repeated uses of 3 projectiles, tear gas, and police tactics over the course of several days against mostly peaceful 4 protestors. For example, in Anti-Police Terror Project, the plaintiffs alleged that the Oakland 5 Police Department and other mutual aid partners “used a variety of impermissible tactics against 6 peaceful protestors, often without warnings, causing physical injuries and trauma and discouraging 7 members of the Oakland community from participating in lawful protest activities.” 477 F. Supp. 8 3d at 1070–71 (internal quotations omitted). These included (1) declaring an unlawful protest 9 through an inaudible loudspeaker and then using flash bang grenades, tear gas canisters, and 10 rubber bullets on demonstrators; (2) using stun guns and batons; (3) targeting journalists and 11 medics; (4) “kettling” peaceful protestors at a high school while dressed in full riot gear prior to a 12 curfew and using tear gas, flash bang grenades, and rubber bullets as the protestors tried to flee but 13 were impeded; and (5) using tear gas to force protestors to remove their masks and risk exposure 14 to COVID-19 (including from unmasked officers). Id. at 1071 (citing the operative complaint); 15 see also NAACP of San Jose/Silicon Valley, 2021 WL 4355339, at *11 (allegations that officers 16 shot impact munitions and chemical weapons “at people who were kneeling on the ground 17 praying, standing with their hands up, playing the guitar, trying to walk away, or otherwise 18 peacefully demonstrating,” and that officers at the protest were “making jokes about George 19 Floyd’s death” and “taking a group selfie”). In contrast, the allegations in the operative complaint 20 about the tactics at the protest Johnson attended concern only Johnson’s individual experience, the 21 number of less lethal rounds used at the protest, a few isolated instances of injuries to protestors, 22 and the actions of a single City police officer. See FAC ¶¶ 15–22 (Johnson’s experience), 27 23 (brief statements concerning two other protestors), 28 (number of less lethal rounds used), 29 24 (Officer Jared Yuen). These allegations alone are insufficient for the Court to draw the same 25 inference as was drawn in the two cases Johnson cites, which included much more extensive 26 allegations of police violence. 27 Second, Johnson also points to his allegations about animus towards the Black Lives 1 support an inference of retaliation. Opp. at 23 (citing FAC ¶ 30). The Court does not find that to 2 be a reasonable inference. The operative complaint does not allege that Officer Adgar holds the 3 views of the two officers mentioned or of the San Jose Police Officers Association. Just because a 4 few others in the police department may have, in a different context prior to the protest, expressed 5 views hostile toward the Black Lives Matter movement, does not create a reasonable inference 6 that Officer Adgar shared those views and acted upon them in targeting Johnson. See Cangress v. 7 City of Los Angeles, 2016 WL 5946878, at *6 (C.D. Cal. Mar. 22, 2016) (no retaliation claim 8 stated where plaintiffs’ evidence of retaliation was not specific to the officers who allegedly acted 9 against them). 10 Accordingly, the motion to dismiss Johnson’s § 1983 claim against Officer Adgar based on 11 the First Amendment is GRANTED WITH LEAVE TO AMEND. Although the Court cannot 12 draw the inference Johnson seeks based on his current allegations, he may be able to offer 13 additional allegations that would warrant that inference. If he attempts to do so in an amended 14 complaint, the Court would also have to analyze Officer Adgar’s argument that he is entitled to 15 qualified immunity on the claim. 16 C. Claims 1 and 2 – Monell (City of San Jose) 17 Johnson’s first two claims under § 1983 are also asserted against the City based on liability 18 under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). The City argues 19 that Johnson has not adequately alleged that any City policy caused excessive force or retaliation 20 against him or that the City failed to adequately train its employees. See MTD at 8–12 (claim 1), 21 15–16 (claim 2). Johnson responds that he has adequately alleged the City’s liability under the 22 custom or policy and failure to train species of Monell liability. Opp. at 27. 23 “The Supreme Court in Monell held that municipalities may only be held liable under 24 section 1983 for constitutional violations resulting from official…policy or custom.” Benavidez v. 25 Cty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (citing Monell, 436 U.S. at 694). 26 “[P]olicies can include written policies, unwritten customs and practices, failure to train municipal 27 employees on avoiding certain obvious constitutional violations, … and, in rare instances, single 1 instance indicates at least deliberate indifference of the municipality[.]” Id. at 1153 (internal 2 citations omitted). “A municipality may [also] be held liable for a constitutional violation if a 3 final policymaker ratifies a subordinate’s actions.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 4 2004). “In order to establish liability for governmental entities under Monell, a plaintiff must 5 prove ‘(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that 6 the municipality had a policy; (3) that this policy amounts to deliberate indifference to the 7 plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional 8 violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (alterations in 9 original) (quoting Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 10 1997)). Because Johnson says that his claims against the City are based on a failure to train and 11 unwritten customs or practices, the Court analyzes only those two species of Monell liability. 12 i. Failure to Train 13 “Failure to train an employee who has caused a constitutional violation can be the basis for 14 § 1983 liability where the failure to train amounts to deliberate indifference to the rights of persons 15 with whom the employee comes into contact.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1186 16 (9th Cir. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). This standard is met 17 when “the need for more or different training is so obvious, and the inadequacy so likely to result 18 in the violation of constitutional rights, that the policymakers of the city can reasonably be said to 19 have been deliberately indifferent to the need.” Canton, 489 U.S. at 390. “Only where a failure to 20 train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our 21 prior cases—can a city be liable for such a failure under § 1983.” Id. at 389. And only under such 22 circumstances does the failure to train constitute “a policy for which the city is responsible, and 23 for which the city may be held liable if it actually causes injury.” Id. at 390. “A municipality’s 24 culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to 25 train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). As such, “[a] pattern of similar 26 constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate 27 deliberate indifference for purposes of failure to train.” Id. at 62 (internal citations omitted). 1 he has not sufficiently alleged a “pattern of similar constitutional violations by untrained 2 employees” to support a failure to train claim.5 Connick, 563 U.S. at 62. Instead, he says that this 3 is the rare case where the violation of federal rights is such a “highly predictable consequence of 4 failure to equip law enforcement officers with specific tools to handle recurring situations” such 5 that other incidents are not necessary. Opp. at 24–25 (quoting M.H. v. Cnty. of Alameda, 62 F. 6 Supp. 3d 1049, 1082 (N.D. Cal. 2014)). The Court finds that this is not such a case based on 7 Johnson’s own allegations. Johnson has alleged that there was in fact training on the use of less 8 lethal weapons, although it was infrequent and insufficient. See FAC ¶¶ 23–26. If these 9 allegations sufficed to state a claim under Monell for failure to train on the basis of a single 10 incident, then municipalities would be liable for failure to train in all instances where only a single 11 incident occurred (regardless of whether any training occurred at all). This is inconsistent with the 12 principle that only in “rare” cases can a single incident form the basis for failure to train liability. 13 Connick, 563 U.S. at 64 (characterizing those single incidents as those in which “the consequences 14 of failing to train [are] so patently obvious”). Johnson’s Monell claim cannot be presently 15 sustained on a failure to train theory.6 16 17 5 Although Johnson points to videos of Officer Yuen taken on May 29, 2020, MTD at 26 (citing 18 FAC ¶¶ 27, 29), Johnson fails to allege that anything depicted in the videos put the City 19 sufficiently on notice within one day of Officer Adgar’s actions that it needed to institute 20 additional training on the use of less lethal weapons. These allegations similarly cannot support 21 any ratification theory of Monell liability because the alleged failure to immediately condemn 22 Officer Yuen’s actions does not amount to a “conscious, affirmative choice” to endorse his 23 actions. See Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992); contra Opp. at 26 24 (briefly raising ratification). 25 6 Although discussed at the hearing, see 12/17 Hrg. Tr. at 17:2–18, 19:7–13, allegations about an 26 after-action report issued by the City following the George Floyd protests are not in the operative 27 complaint. Of course, a report issued after the protests could not have put the City on notice prior 1 ii. Custom or Practice 2 A municipality may be held liable on the basis of an unconstitutional policy if a plaintiff 3 can “prove the existence of a widespread practice that, although not authorized by written law or 4 express municipal policy, is ‘so permanent and well settled as to constitute a “custom or usage” 5 with the force of law.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes 6 v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)). “Liability for improper custom may not be 7 predicated on isolated or sporadic incidents”—rather, “[t]he custom must be so persistent and 8 widespread that it constitutes a permanent and well settled city policy.” Trevino v. Gates, 9 99 F.3d 911, 918 (9th Cir. 1996) (internal citations omitted). In order to withstand a motion to 10 dismiss for failure to state a claim, a Monell claim must consist of more than mere “formulaic 11 recitations of the existence of unlawful policies, customs, or habits.” Warner v. Cty. of San Diego, 12 No. 10-1057, 2011 WL 662993, at *4 (S.D. Cal. Feb. 14, 2011). 13 At oral argument, counsel for Johnson stated that “the main theory” of Monell liability was 14 failure to train. 12/17 Hrg. Tr. at 17:3–4. There was some discussion of a policy or custom 15 theory, see id. at 19:15–20:7. To the extent that Johnson attempts to allege that theory of Monell 16 liability, his allegations are presently insufficient. “An isolated or sporadic incident . . . cannot 17 form the basis of Monell liability for an improper custom.” Saved Mag. v. Spokane Police Dep't, 18 19 F.4th 1193, 1201 (9th Cir. 2021) (citing Trevino, 99 F.3d at 918) (cleaned up). As under his 19 failure to train theory, Johnson has not sufficiently alleged any other examples of the use of less 20 lethal weapons on protestors, and so his Monell claim cannot proceed on this theory as presently 21 pled. 22 * * * 23 Accordingly, the motion to dismiss claim 1 and claim 2 against the City are GRANTED 24 WITH LEAVE TO AMEND. While counsel for Johnson have alluded to similar incidents the day 25 prior to Officer Adgar shooting Johnson with the 40 mm weapon, they are not adequately alleged 26 in the complaint. To the extent Johnson can provide allegations about that or other such incidents 27 as evidence of the City’s custom or practice or a failure to train, he may do so in an amended 1 D. Claim 3 – Bane Act 2 Johnson’s third claim against Officer Adgar and the City is for violation of the Bane Act, 3 Cal. Civ. Code §§ 52.1, 52. FAC ¶¶ 48–52. Defendants argue that this claim must be dismissed 4 for the same reasons as the § 1983 claim for violation of the Fourth Amendment must be 5 dismissed. See MTD at 3 (discussing the Bane Act concurrently with the first § 1983 claim). 6 Johnson argues that he has adequately alleged his Bane Act claim. Opp. at 27–28. 7 Under the Bane Act, a plaintiff can seek damages “if a person or persons, whether or not 8 acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by 9 threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals 10 of rights secured by the Constitution or laws of the United States, or of the rights secured by the 11 Constitution or laws of this state.” Cal. Civ. Code § 52.1(b)-(c). “The essence of a Bane Act 12 claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or 13 coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do 14 under the law or to force the plaintiff to do something that he or she was not required to do under 15 the law.” Simmons v. Superior Ct., 7 Cal. App. 5th 1113, 1125 (2016). A Bane Act claim requires 16 a showing of specific intent to violate protected rights, which can be satisfied by “[r]eckless 17 disregard of the ‘right at issue.’” Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 18 800 (2017). 19 The Court finds that, for similar reasons as discussed in its analysis of Johnson’s § 1983 20 claims, the Bane Act claim is adequately pled. While it is “incorrect that proving a Fourth 21 Amendment violation vicariously triggers Bane Act liability,” Sandoval v. Cty. of Sonoma, 912 22 F.3d 509, 520 (9th Cir. 2018), the Court finds that Johnson’s allegations in support of the 23 excessive force claim against Officer Adgar meet the requirements to allege a specific intent to 24 violate Johnson’s rights under the Bane Act. See Ochoa v. City of San Jose, 2021 U.S. Dist. 25 LEXIS 226380, at *50–51 (N.D. Cal. Nov. 17, 2021) (allegations that supported excessive force 26 claim satisfied recklessness standard required to meet requirements in Cornell). The operative 27 complaint alleges that Officer Adgar fired his the foam baton at Johnson, even though he was 1 circular injury and forcing Johnson to seek ongoing medical treatment. FAC ¶ 16. Those 2 allegations suffice at the pleading stage. 3 As such, the motion to dismiss the Bane Act claim is DENIED. 4 E. Claim 4 – Battery 5 Johnson’s fourth claim against Defendants is for battery. FAC ¶¶ 53–58. Defendants 6 move to dismiss this claim for the same reasons as they move to dismiss the § 1983 claim for 7 violation of the Fourth Amendment. MTD at 16. They also argue that an officer’s use of force 8 against a person who is a part of an unlawful assembly is a privileged act under California law. Id. 9 Johnson argues that because the § 1983 claim for violation of the Fourth Amendment survives, his 10 battery claim does too, and says that he has alleged that no unlawful assembly was declared prior 11 to Office Adgar shooting him. Opp. at 28–29. 12 The Court agrees with Johnson that his battery claim is adequately pled. First, because the 13 Court has already found that Johnson adequately alleges his first § 1983 claim, dismissal of the 14 battery claim is not warranted on that basis. Second, Defendants’ argument that Officer Adgar’s 15 actions were privileged under California law is unpersuasive. Defendants cite no case authority 16 finding conduct similar to that alleged here to be privileged. Defendants do cite the Restatement 17 (Second) of Torts § 141 as authority that a police officer is privileged to use force against another 18 “for the purpose of terminating or preventing the renewal of an affray or an equally serious breach 19 of the peace.” MTD at 16. Even assuming that privilege as articulated in the Restatement is an 20 accurate statement of California law, applying it here at this stage of the case would require 21 ignoring Johnson’s allegations. Johnson has alleged that no unlawful assembly was declared prior 22 to Officer Adgar shooting him and that only a water bottle had been thrown toward officers (and 23 not by Johnson). FAC ¶¶ 18–19. Those allegations, assumed to be true, mean that there was no 24 “affray or equally serious breach of the peace,” which the Restatement defines as when “two or 25 more persons [are] engaged in mutual combat or in an attack upon a third person” or something 26 that “cause[s] or threaten[s] a disturbance of the public order equal to that caused by” such attacks 27 or combat. Restatement (Second) of Torts § 141 cmt. a. 1 F. Claim 5 – Negligence 2 Johnson’s fifth claim against Defendants is for negligence. See FAC ¶¶ 59–63. 3 Defendants move to dismiss this claim, arguing that (1) they are immune from liability under the 4 California Government Code and (2) cannot assert a negligence theory based on the City’s alleged 5 failure to train. MTD at 17–18. Johnson says that the Government Code immunity does not apply 6 to a claim for excessive force. Opp. at 29–30. Johnson does not expressly defend a negligence 7 theory based on a failure to train, instead saying that the claim is for negligent use of force and that 8 the City can be vicariously liable under California law. Id. 9 The Court agrees with Johnson that he adequately states a negligence claim because the 10 discretionary act immunity in California Government Code § 820.2 does not apply. That 11 provision immunizes public officials from liability “resulting from [an] act or omission where the 12 act or omission was the result of the exercise of discretion vested in [the official].” Cal. Gov’t 13 Code § 820.2. “But it has been long established that this provision does not apply to officers who 14 use unreasonable force” in effectuating a seizure. Blankenhorn v. City of Orange, 485 F.3d 463, 15 487 (9th Cir. 2007) (citing Scruggs v. Haynes, 252 Cal. App. 2d 256 (1967)); see also Sharp v. 16 Cnty. of Orange, 871 F.3d 901, 920 (9th Cir. 2017) (immunity does not extend to “operational 17 decision[s] by the police purporting to apply the law”). Because the Court has found that 18 Johnson’s § 1983 claim for a seizure accomplished through excessive force has been adequately 19 alleged, § 820.2 immunity does not apply here and the negligence claim may proceed against 20 Officer Adgar and the City. See Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 216 (1991) 21 (governmental entity can be held vicariously liable under California law “when a police officer 22 acting in the course and scope of employment uses excessive force or engages in assaultive 23 conduct”) (citing cases). 24 The motion to dismiss Johnson’s negligence claim is DENIED. 25 G. Claim 6 – California Public Records Act 26 Johnson’s six claim is against the City for violation of the California Public Records Act, 27 Cal. Gov’t. Code § 6252 (“CPRA”). FAC ¶¶ 64–81. Johnson claims that he made requests under 1 the protests, to the City, but that the City has (1) failed to produce all relevant responsive records 2 and (2) made overbroad claims of exemptions under relevant California statutes. Id. The City 3 argues that (1) this claim must be brought in state court; (2) even if it can be brought in federal 4 court, that the Court should decline to exercise supplemental jurisdiction; and (3) Johnson is not 5 entitled to the records he seeks. See MTD at 19–21. Johnson responds that the Court should 6 exercise supplemental jurisdiction over the claim and that he has adequately pleaded the claim. 7 See Opp. at 31–36. 8 The Court will decline supplemental jurisdiction over the CPRA claim. California 9 Government Code section 6258 specifies that “[a]ny person may institute proceedings for 10 injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce 11 his or her right to inspect or to receive a copy of any public record or class of public records” 12 under the CPRA. Government Code section 6259 says that a court shall order disclosure of 13 records or issue an order to show cause why records should not be disclosed when “it is made to 14 appear by verified petition to the superior court of the county where the records or some part 15 thereof are situated” that records are being impermissibly withheld. The Court notes that there is 16 somewhat of a split of authority over whether federal courts may exercise supplemental 17 jurisdiction over CPRA claims given the language in section 6259, with more courts finding that 18 state courts do not have exclusive jurisdiction. Compare Brooks v. Vallejo City Unified Sch. Dist., 19 2013 WL 943460, at *4 (E.D. Cal. Mar. 11, 2013) (“The exclusive remedy for challenges under 20 the CPRA is to file a writ of mandamus in state court . . . .”), with Calonge v. Cty. of San Jose, 523 21 F. Supp. 3d 1101, 1107 (N.D. Cal. 2021) (exercising supplemental jurisdiction over CPRA claim). 22 Recent California Court of Appeal authority suggests that jurisdiction is not limited to the superior 23 court of the county where the records are held. See California Gun Rts. Found. v. Superior Ct., 49 24 Cal. App. 5th 777, 790 (2020) (CPRA “does not limit jurisdiction over a CPRA dispute to the 25 superior court of the county where the disputed records are located”). 26 Assuming the Court could exercise supplemental jurisdiction over the CPRA claim, the 27 Court nevertheless declines to do so. A court may decline to exercise supplemental jurisdiction 1 circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. 2 § 1367(c)(1), (4). The Court finds that both principles apply here. Entitlement to records under 3 the CPRA presents a complex issue of California law. The Court would be required to adjudicate 4 the breadth of Johnson’s requests and whether certain types of documents were properly withheld 5 under exemptions in the California Government Code and the California Penal Code that were 6 only recently enacted, among other issues of state law. State courts are better positioned to 7 adjudicate those issues. The Court additionally finds that “other compelling reasons” support 8 declining jurisdiction. If Johnson pursues his CPRA claim in this Court, in his best case scenario 9 he would not be able to obtain a ruling granting his desired remedy—production of the records he 10 seeks—until after trial. Johnson’s better course is to file a writ of mandate in the relevant superior 11 court, which would likely provide a more expedited procedure that could provide for production of 12 records for use in this case. 13 Accordingly, the Court declines to exercise supplemental jurisdiction over the CPRA 14 claim. The City’s motion to dismiss the CPRA claim is GRANTED WITHOUT LEAVE TO 15 AMEND. Although leave to amend is not granted, the claim is DISMISSED WITHOUT 16 PREJUDICE to proceeding in state court. 17 IV. ORDER 18 For the foregoing reasons, IT IS HEREBY ORDERED that the motion is GRANTED IN 19 PART with leave to amend in part and DENIED IN PART. The motion is: 20 • DENIED as to the first claim against Office Adgar pursuant to 28 U.S.C. § 1983 for 21 violation of the Fourth Amendment; 22 • GRANTED WITH LEAVE TO AMEND as to the second claim against Officer Adgar 23 pursuant to 28 U.S.C. § 1983 for violation of the First Amendment; 24 • GRANTED WITH LEAVE TO AMEND as to the first and second claims against the 25 City; 26 • DENIED as to the third claim for violation of the Bane Act; 27 • DENIED as to the fourth claim for battery; 1 e GRANTED WITHOUT LEAVE TO AMEND as to the sixth claim for violation of the 2 California Public Records Act, but WITHOUT PREJUDICE to proceeding in state 3 court. 4 || Plaintiff SHALL file an amended complaint within 30 days of this order. Failure to meet the 5 deadline to file an amended complaint or failure to cure the deficiencies identified on the record or 6 || in this order will result in a dismissal of the deficient claims with prejudice. Amendment shall not 7 exceed the scope allowed by the Court. Plaintiff may not add new parties or claims without 8 express leave of Court or agreement by Defendants. 9 10 || Dated: March 16, 2022 han an 11 / be h BETH LABSON FREEMAN %L United States District Judge

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