.Judgment Time

San Jose cops want a federal judge to throw out a class-action lawsuit filed by the NAACP and several residents who contend protesters were brutalized and maimed during the May 2020 racial justice protests, arguing that the city’s police officers acted lawfully.

In a motion filed in Northern California Federal Court, San Jose City Attorney Nora Frimann argues that the NAACP has insufficient proof that city police violated anyone’s rights when force members fired rubber projectiles, tear gas and stun grenades at crowds in 2020. Frimann’s team argues that law enforcement officers are protected by city policies, while opposing attorneys want to hold them accountable for crossing boundaries. 

The city is now asking the federal courts for a summary judgment in its favor. The fight is largely over liability for injuries to residents alleged to have been caused by police officers during the 2020 protests. The residents have asked the court to recognize the officers’ “excessive-force and viewpoint during those violent days more than three years ago. 

Rachel Lederman, lead attorney for the plaintiffs, believes that police failed to enact proper safety precautions to prevent injury to peaceful protesters and bystanders. She alleges police violated residents’ First and Fourth Amendment rights, which protect free speech and unlawful searches and seizures. 

Lederman says officers fired into crowds indiscriminately and used unnecessary force on protesters. Police were inadequately and improperly trained for a protest of this size, especially following the filmed murder of George Floyd at the hands of a Minneapolis police officer. 

“When faced with protests about police violence, the San Jose Police authorized and carried out violence,” Lederman’s team of attorneys wrote in court filings. 

A man lost his eye

Records in the case show local officers shot hundreds of projectiles during the first two days of protests. According to witness reports, police shot two plaintiffs in the head, three in the groin and one in the left chest, despite SJPD policy identifying those spots as non-target areas. 

“People didn’t really have an opportunity to get out of the way because of the large amount of munitions,” Lederman said. 

One plaintiff, Michael Acosta, is suing after a projectile destroyed his eye, forcing him into four consecutive surgeries to reconstruct his eye socket so he can wear a prosthetic glass eye. Lederman said Acosta was trying to get home from the grocery store when police blocked his way and forced him into a different path that led to his injuries.

Another plaintiff, Joseph Cañas, wears glasses now after a projectile hit his eye, scarring him and altering his vision. Police shot him while he played guitar on East Santa Clara Street during the beginning of the hail of rubber bullets. 

Police also shot Leslie Vasquez and Gustavo Flores-Rodriguez in the groin, according to court records, causing bruising. Others were clubbed, gassed or shot with rubber rounds. 

Lederman said former SJPD Chief Eddie Garcia was nowhere to be found during the protests. He was reportedly off-duty but authorized subordinates to use projectiles and tear gas. 

Garcia assigned direct responsibility for the protests to Deputy Chief David Tindall, Capt. Jason Dwyer and others, Lederman added. But she said Garcia failed to demand any such accountability during his tenure as chief before he moved to Texas to become Dallas’ Police Chief shortly after the protests. And she believes Garcia “should have been directly involved in this protest.” 

Garcia told Metro he could not comment “due to the pending litigation.”  

Police also reportedly flew a helicopter to an undisclosed location to make an emergency purchase of new munitions for extended days of protests, Lederman said. It is not publicly known where the officers flew to make the purchase. 

Of the reported injuries to police, the most significant includes an officer knocked out after he tried to steal a protester’s phone on a skirmish line. Video shows the protester punching the officer in his face, knocking him out. Other damages include busted and graffitied squad cars, fatigued officers, trash can fires and broken glass. 

Police: ‘only by accident’

Police would like the courts to dismiss many, if not all, of the liability for firing projectiles at crowds and injuring protesters. City attorneys argue that police behaved as they were trained. 

City attorneys allege that most people hit by projectiles happened “only by accident.” They say police did not violate anyone’s rights “for the simple reason that they have no evidence to suggest any (officer) secretly harbored retaliatory animus against them.”

They argue that officers “attempted to prevent further such assaultive conduct by targeting the responsible individuals with 40mm, but they did not use any force against anyone in the crowd otherwise.” Also, according to the city, the NAACP lacks proof that police violently retaliated against any residents or protesters on May 29 or 30, 2020. 

The city requests the courts grant police “qualified immunity” for their actions during the crowd control activities. NAACP and Lederman want the case to go to a jury. 

“It’s a jury that should decide what actually happened to the extent that there’s dispute about the facts and dispute against using this serious force against peaceful protesters and supporters,” 

Lederman said. “[The city is] looking for the court to just simply let them off the hook and not have to be responsible for the actions of the police during the George Floyd protest.” 

She said no one yet has held police accountable for injuring residents those years back, and no officer received adequate discipline for shooting people excessively with projectiles. Lederman is also fighting for new policies to better train police to handle a major protest. 

“It’s kind of obvious that there has to be close supervision of the officers because they may react in a violent way against the protesters… They need to be kept in line,” Lederman said. “A lot of basic accountability measures were skipped over.” 

Officer Jared Yuen, who was reassigned after video posted to social media recorded his aggressive actions toward protesters, reportedly released 100 rubber bullets on the first day of protests. He was taped shouting “let’s get this motherfucker” and “shut up, bitch,” at protesters. 

Protesters demanded his termination after the first two days of rubber bombardment. Lederman added that Yuen should have already been fired “if San Jose police were functioning properly,” and that police have failed to justify the level of force used against protesters.

“We don’t have a way to directly punish any of the officers, and that’s not really the intent of the case,” Lederman said. “Hopefully, this is a wake-up call for the city to have better accountability measures in place, because there is no accountability for any of the officers who committed misconduct during the George Floyd protests.” 

Last month New York City agreed to settle a similar post-protest lawsuit with a $13 million payout to 1,300 people who were arrested or beaten by police. 

If the judge denies San Jose’s request for summary judgment, a trial could get underway in October. 

Kyle Martin was one of the reporters who was tear gassed in 2020 while covering the protests for Metro and San Jose Inside. Others hit by gas or projectiles included KPIX’s Len Ramirez and NBC Bay Area’s Scott Budman.—Editor


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