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 DENYING PARTIAL MOTION

9 v. TO DISMISS SECOND AMENDED

COMPLAINT

10 CITY OF SAN JOSE, et al.,

11 Defendants.

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 42 U.S.C. § 1983 and the California Bane Act. 18 Defendants moved to dismiss the first amendment claim against Officer Adgar and the 42 U.S.C. 19 § 1983 claim against the City. ECF No. 74 (“MTD”); see also ECF No. 80 (“Reply”). Johnson 20 opposes the motion. ECF No. 79 (“Opp.”). The Court held a hearing on the motion on December 21 1, 2022. For the reasons stated on the record and explained below, the motion is DENIED. 22 I. BACKGROUND 23 A. Protests in San Jose 24 Following the May 25, 2020 killing of George Floyd by Minneapolis police officer Derek 25 Chauvin, there were nationwide protests against the disproportionate use of deadly force by law 26 enforcement against Black people. ECF No. 73 (“SAC”) ¶ 1. And San Jose was no exception. 27 Beginning on May 29, 2020, there were five days of protests against police brutality and systemic 1 behavior, and police officers responded by shooting impact munitions and chemical weapons at 2 them. Id. ¶ 15. On May 29, 2020, peaceful protestors gathered around 2:00 p.m. in downtown 3 San Jose. Id. ¶ 16. Officers from the San Jose Police Department (“SJPD”) arrived in riot gear 4 with less lethal weapons (40mm projectile impact weapons that do not contain chemical agents) 5 and announced an unlawful assembly. Id. ¶¶ 16-17. 6 Plaintiff alleges that SJPD had only one Long Range Acoustic Device to make 7 announcements; that demonstrators were unaware of dispersal orders; and that SJPD officers were 8 not properly trained on how to give warnings to put demonstrators on notice. SAC ¶ 18. During 9 the course of the protests, the City “authorized or ordered the use of ‘kettling,’” a containment 10 tactic, by which SJPD officers formed police lines and drove vehicles towards demonstrators to 11 “herd[]” them in a certain direction. Id. ¶ 19. Further, SJPD officers used less lethal force such as 12 tear gas, batons, rubber bullets, bean bags, and physical force, including thirty-one pepper ball 13 projectiles, thirty-two tear gas canisters, and at least 400 foam batons or rubber bullets. Id. ¶¶ 20- 14 21. SJPD depleted its stock of less lethal weapons and chemical agents after the first day of 15 protests, and they had to make “emergency purchases” to replenish. Id. ¶ 21; see also ¶ 58. 16 A September 2020 After Action Report from SJPD stated there was a “lack of training and 17 experience, insufficient staffing levels, and a need to update policies and procedures.” SAC ¶ 22. 18 Further, the City’s Independent After Action Report, published in October 2021, identified “the 19 same Department-wide training deficiencies in the realm of crowd control and civil disorder.” Id. 20 ¶ 23. It stated that most officers and sergeants had not received appropriate training. Id. 21 B. Johnson’s Experience 22 On the night of May 30, 2020, Plaintiff Kyle Johnson participated in protests near San Jose 23 City Hall in the aftermath the killing of George Floyd in Minneapolis, Minnesota. SAC ¶ 24. 24 Johnson alleges that on that day, there was no curfew in place in San Jose and that city policy 25 prohibited the use of less lethal weapons for crowd control purposes. Id. ¶¶ 26-27. 26 Johnson was protesting near “the planters lining the sidewalk of East Santa Clara Street” in 27 front of the plaza of City Hall. SAC ¶ 28. Officer Adgar was standing with other officers on East 1 Santa Clara Street began to deploy their weapons, including less lethal weapons, after an 2 unidentified member of the crowd threw a plastic water bottle up in the air (which landed on the 3 ground without hitting any officers). Id. ¶ 29. In an attempt to flee from the use of these weapons, 4 Johnson ran perpendicular from the officers’ advance and towards City Hall. Id. As Johnson 5 attempted to flee, Officer Adgar “aimed and intentionally fired” a 40mm foam baton projectile 6 towards him. Id. Johnson heard a noise that sounded like compressed air and felt the projectile 7 strike the back of his leg as he was in the City Hall plaza. Id. The projectile impact left a large 8 circular-shaped injury on Johnson’s leg. Id. After Johnson was hit, he hobbled out of the line of 9 fire towards City Hall and limped away from the demonstrations. Id. ¶ 30. As he did so, Johnson 10 heard tear gas being deployed and the police making an announcement that the demonstration was 11 unlawful. Id. ¶ 31. Johnson did not hear any order to disperse or declaration of an unlawful 12 assembly prior to being hit. Id. Johnson was never charged with a crime in connection with 13 demonstrating on May 30, 2020. Id. ¶ 32. 14 The projectile caused “a large circular mark and severe bruising” on Johnson’s leg. SAC 15 ¶ 35. A blood clot formed, requiring Johnson to make multiple trips to the emergency room and 16 undergo “a sustained course of follow-up treatment,” including medication. Id. Johnson’s risk of 17 blood clots has increased, and he continues to experience them. Id. He anticipates he will have to 18 take medication to counteract the blood clots for the rest of his life. Id. The injury has also 19 severely impaired Johnson’s mobility. While he was previously an active, athletic person who 20 taught physical education and coached sports, for three months after the incident he was unable to 21 walk or exercise normally. Id. ¶ 36. He continues to suffer pain, reduced mobility, and mental 22 and emotional distress from the impact of the projectile and his treatment experience. Id. ¶ 36-37. 23 C. Officer Adgar’s Actions 24 Johnson alleges that Officer Adgar “employed excessive force as a result of his 25 discriminatory views towards the demonstrators and his disagreement with the protest.” SAC ¶ 26 33. Johnson alleges that Officer Adgar fired his projectile weapon at an already-fleeing crowd 27 despite SJPD policy to only use projectile weapons when objectively reasonable to prevent bodily 1 previously thrown a bottle as that individual was trying to flee. Id. Similarly, Officer Adgar fired 2 two 40mm projectile rounds at a woman leaving the City Hall area who other officers claimed had 3 previously thrown a bottle. Id. Further, Johnson was shot from behind as he was leaving, and 4 thus did not pose a threat of bodily injury to Officer Adgar. Id. ¶ 33(b). 5 Similarly, Johnson alleges that Officer Adgar violated SJPD policy to only fire a projectile 6 weapon when he had identified a target, as body worn camera footage shows he told other officers 7 he could not see where he was firing. SAC ¶ 33(c). Further, SJPD policy indicates officers should 8 not use projectile weapons unless there are sufficient other officers present to take control and 9 custody of the suspect, and Officer Adgar used a projectile weapon despite not being able to arrest 10 any individual on whom he used it. Id. ¶ 33(d). Johnson also alleges that Officer Adgar did not 11 receive training from SJPD on the use of Combined Tactical Systems (CTS) projectiles, which 12 includes the CTS 40mm foam round baton, in the five years proceeding these protests. Id. ¶ 34. 13 D. San Jose Police Department Customs, Policies, Practices, Training, and Supervision 14 Johnson alleges that the City had crowd control customs, policies, and practices, including 15 the use of projectile weapons and kettling, that were likely to result in the deprivation of 16 constitutional rights. SAC ¶ 38. First, in October 2018, the police chief issued a memo changing 17 SJPD policy such that projectile impact weapons no longer had to be used “as a defensive 18 weapon,” but instead could be used “‘when objectively reasonable’ to incapacitate an armed 19 suspect who is likely to cause serious bodily injury or death.” Id. ¶ 38(a). On May 22, 2020, one 20 week before the protests, the police chief revised the Duty Manual on the use of projectile impact 21 weapons and crowd control such that “the policy now allowed 40mm projectile weapons in crowd 22 control situations when they had previously been prohibited.” Id. ¶ 38(b). Johnson alleges that 23 SJPD policy allowed for indirect fired munitions and multi-target munitions. Id. ¶ 38(c)-(d). 24 Further, SJPD policy authorized the use of kettling as a crowd control tactic, which Johnson 25 alleges SJPD implemented by forming a police line in front of City Hall. Id. ¶ 38(e)-(f). 26 Johnson alleges that as of the protests, the City’s training of officers regarding crowd 27 control, and in particular the use of less lethal weapons, had been “minimal and infrequent.” SAC 1 ¶ 40. The City had not conducted any ongoing training for patrol officers on the use of 40mm 2 launchers. Id. ¶ 41. SJPD also did not provide regular trainings on crowd control. Id. ¶ 42. In 3 spite of this lack of training, the City and the police department allowed untrained officers to be 4 equipped with less lethal firearms in their response to the protests. Id. ¶ 43. Officer Adgar 5 received no training on the use of less lethal weapons in the crowd control context in the five years 6 preceding the May 30, 2020 protests. Id. ¶ 44. An attendance list from SJPD listing all officers 7 who were trained to use 40mm munitions did not include Officer Adgar or Officer Yuen, another 8 officer who was deployed with 40mm munitions during the protests. Id. ¶ 45. 9 To the extent training was offered, Johnson alleges that it was constitutionally inadequate. 10 SAC ¶ 46. For example, a slide deck prepared by Sergeant Christopher Sciba, a nonparty City 11 police officer, says that projectile impact weapons could be used for “Riot/Crowd Control,” but 12 does not provide guidance about the circumstances under which use of projectile impact weapons 13 would be permitted by City policy or the Constitution. Id. ¶ 46(a). The slides acknowledge that 14 “[i]njury should be expected” and depict shots to the chest, spine, head, and neck as “lethal force.” 15 Id. The slide urges trainees to “not hesitate” and “[a]ways win.” Id. ¶ 46(c). 16 Johnson also alleges that the City was aware of the SJPD officers’ actions during the 17 protests. SAC ¶ 48. Johnson alleges that there were images and video footage on social media 18 and news media reports showing that SJPD officers were using less lethal weapons to suppress the 19 demonstrations, as opposed to using them to defend against imminent harm or prevent property 20 damage; that SJPD officers were improperly using their less lethal weapons against SJPD policy; 21 and that SJPD officers were using improper crowd control tactics. Id. ¶ 49. For example, on May 22 29, several local live news broadcasts showed real-time footage of SJPD officers “indiscriminately 23 firing projectiles at peaceful protestors” at close range and not making any arrest attempts. Id. ¶ 24 49(a). During the CBS KPIX5 broadcast at 6:00 p.m. on May 29, a reporter appeared to have 25 been shot by an SJPD projectile and stated he had been hit with something. Id. ¶ 49(b). San Jose 26 Mayor Liccardo was on a 5:00 p.m. broadcast on KTVU Fox 2 on May 29 and was asked to 27 respond to the live footage of SJPD officers using less lethal weapons; he also stated he had just 1 being used near City Hall. Id. On another media appearance, the mayor stated that he was 2 observing the protests from his office and they were peaceful. Id. 3 Johnson notes that SJPD was aware of the behavior of Officer Yuen, a video of whom was 4 taken on May 29 and circulated on social media. SAC ¶¶ 50-51. The video showed him 5 “behaving aggressively, yelling obscenities at demonstrators, and firing his less lethal firearm in a 6 reckless manner.” Id. ¶ 50. He fired about 100 40mm projectiles on May 29, and SJPD received 7 over 1,000 complaints about his conduct at the protest. Id. ¶¶ 52-53. On May 31, the police chief 8 responded by stating that he was “a good kid” who had made a “mistake.” Id. ¶ 51. 9 Johnson also alleges that a “good Samaritan” helping when an officer was knocked 10 unconscious was later shot in the abdomen with a projectile weapon and another peaceful 11 demonstrator was struck in the genitals with a projectile. SAC ¶ 55. Another woman who was 12 recording the police in her home and yelling at them for their treatment of the protestors had at 13 least thirteen projectiles fired into her apartment through the living room and bedroom windows 14 by SJPD officers, and SJPD officers threw a tear gas canister into her apartment. Id. ¶ 56. 15 As stated above, Johnson alleges that SJPD depleted its stock of less-lethal weapons and 16 chemical agents after the first day of protests, and they had to make an “emergency purchase,” 17 even though they had made only 18 arrests. SAC ¶ 58. Furthermore, the City is not able to 18 quantify the true number of less lethal munitions used during the George Floyd protests because 19 officers improperly counted the number of rounds used, in violation of the San Jose Police 20 Department’s duty manual. Id. ¶ 59. 21 Johnson alleges that the number of SJPD officers that receive complaints of excessive 22 force and the number of use of force complaints have not improved over time. SAC ¶ 57. 23 Johnson also alleges that SJPD has a custom or practice of unconstitutional policing and 24 discrimination towards people of color. Id. ¶ 67. An SJPD After Action report indicated that over 25 75% of the arrests related to the demonstrations were of people of color. Id. ¶ 65. Johnson points 26 to several other studies showing that, over the past three decades, SJPD has disproportionately 27 stopped, arrested, and cited the Black population. Id. ¶ 66. E. San Jose Police Department Officers’ Opinions on Protestors 1 Johnson alleges that some members and former members of the City police department are 2 “openly hostile” to the Black Lives Matter movement “or others who advocate for the eradication 3 of anti-Black racism in law enforcement.” SAC ¶ 60. Johnson alleges that multiple officers— 4 none of them parties here—have made remarks critical of the movement. One commented on 5 Facebook that “black lives don’t really matter.” Id. Another was fired (but later reinstated) after 6 he tweeted, “Threaten me or my family and I will use my God given and law appointed right and 7 duty to kill you. #CopLivesMatter” and “By the way if anyone feels they can’t breathe or their 8 lives matter, I’ll be at the movies tonight, off duty, carrying my gun.” Id. The San Jose Police 9 Officers Association also allegedly posted a video that ended with the phrases “All Lives Matter” 10 and “Blue Lives Matter,” phrases which Johnson alleges have been created to undermine the 11 Black Lives Matter movement. Id. ¶ 61. 12 F. This Lawsuit 13 Johnson filed this lawsuit on March 16, 2021 against Officer Adgar, the City, and Doe 14 defendants. ECF No. 1. Defendants filed a motion to dismiss the First Amended Complaint, 15 which the Court granted in part and denied in part. See ECF No. 67. On July 14, 2022, Johnson 16 filed the Second Amended Complaint. See SAC. Johnson asserts two claims under 42 U.S.C. 17 § 1983 against Officer Adgar and the City—one for violation of the Fourth Amendment for a 18 seizure accomplished through excessive force and the second for violation of the First Amendment 19 for retaliatory use of force. See id. ¶¶ 68–82. Johnson also asserts claims against Officer Adgar 20 and the City for violation of the Bane Act, Cal. Civ. Code §§ 52.1, 52; battery; and negligence. Id. 21 ¶¶ 83–98. Johnson requests general and special damages; civil penalties and statutory damages 22 under the Bane Act; punitive damages; pre- and post-judgment interest; attorneys’ fees; and costs 23 of suit. Id. at “Prayer for Relief”. Defendants now seek to dismiss two claims: (1) the Section 24 1983 claim against Officer Adgar for violation of the First Amendment for retaliatory use of force 25 and (2) the Section 1983 claims against the City. See MTD. 26

II. LEGAL STANDARD

27 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 1 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 2 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 3 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 4 as true all well-pled factual allegations and construes them in the light most favorable to the 5 plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court 6 need not “accept as true allegations that contradict matters properly subject to judicial notice” or 7 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 8 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation 9 marks and citation omitted). While a complaint need not contain detailed factual allegations, it 10 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 11 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 12 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the 13 reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to 14 dismiss, the Court’s review is limited to the face of the complaint and matters judicially 15 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. 16 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 17 III. DISCUSSION 18 The Court evaluates the two claims challenged by Defendants in the second motion to 19 dismiss: (1) Johnson’s Section 1983 claim against Officer Adgar for First Amendment violations 20 and (2) Johnson’s Section 1983 claims against the City. 21 A. Claim 2 – § 1983 / First Amendment (Officer Adgar) 22 Johnson’s second claim against Officer Adgar is a § 1983 claim for retaliatory use of force 23 under the First Amendment. SAC ¶¶ 74–82. To succeed on a First Amendment retaliation claim, 24 Johnson is required to show (1) he was engaged in a constitutionally protected activity, (2) Officer 25 Adgar’s actions would “chill a person of ordinary firmness from continuing to engage in the 26 protected activity,” and (3) “the protected activity was a substantial or motivating factor in 27 [Officer Adgar’s] conduct.” Index Newspapers LLC v. United States Marshals Serv., 977 F.3d 1 Officer Adgar contests the third prong—whether Johnson’s protected conduct was a 2 “substantial or motivating factor” in his response. MTD at 4-7. This element “may be met with 3 either direct or circumstantial evidence” and often “involves questions of fact that normally should 4 be left for trial.” Id. at 827 (citing Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 979 (9th 5 Cir. 2002)). Johnson has “pleaded adequate facts supporting an inference that the widespread use 6 of force against mostly peaceful protestors was aimed at ‘intimidating protestors to deter [their] 7 speech,’ which was anti-police in focus.” See Sanderlin v. City of San Jose, No. 20-cv-04824- 8 BLF, 2022 WL 913055, at *7 (N.D. Cal. Mar. 29, 2022) (quoting NAACP of San Jose/Silicon 9 Valley v. City of San Jose, 562 F. Supp. 3d 382, 399 (N.D. Cal. 2021)); see also Anti Police- 10 Terror Project v. City of Oakland, 477 F. Supp. 3d 1066, 1088 (N.D. Cal. 2020) (inference 11 warranted from allegations of “aggressive conduct” by officers, including “shooting a reporter 12 with a rubber bullet”); Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150, 1155-56 13 (D. Or. 2020) (inference warranted from allegations that “officers indiscriminately used force 14 against peaceful protestors on multiple occasions,” “fire[d] tear gas canisters as people attempted 15 to leave the protest area,” and subjected protestors to “rubber bullets, tear gas, and a flash bang 16 grenade at close range . . . as [they tried] to comply with officers’ orders”); Black Lives Matter 17 Seattle-King Cnty. v. City of Seattle, 466 F. Supp. 3d 1206, 1214 (W.D. Wash. 2020) (inference 18 warranted from use of “indiscriminate weapons” against all protestors and “excessive amount” of 19 chemical agents). 20 Johnson alleges that Officer Adgar “aimed and intentionally fired” a 40mm foam baton 21 projectile towards Johnson while Johnson was attempting to flee from the officers. SAC ¶ 29. In 22 the SAC, Johnson added allegations about the protests more generally, which show a “widespread 23 use of force against mostly peaceful protestors.” See Sanderlin, 2022 WL 913055, at *7. For 24 example, Johnson has alleged that during the course of the response on May 29, SJPD officers 25 used less lethal force including tear gas, batons, rubber bullets, bean bags, and physical force, 26 including thirty-one pepper ball projectiles, thirty-two tear gas cannisters, and at least 400 foam 27 batons or rubber bullets. Id. ¶¶ 20-21. In fact, SJPD depleted its stock of less lethal weapons and 1 replenish. Id. ¶ 21; see also ¶ 58. And Johnson alleges the use of tear gas and other less lethal 2 weapons by SJPD officers against peaceful protestors. See, e.g., id. ¶¶ 15, 17, 20-21, 29, 31, 33, 3 49, 50, 55-56. These allegations, taken as a whole, plausibly establish that the protestors’ 4 protected First Amendment activity was a substantial or motivating factor in Defendants’ conduct, 5 and the claims are thus adequately pled. 6 “As other district courts have noted, given that the protestors were specifically protesting 7 police misconduct, it is reasonable to allege that the protestors’ viewpoint was a substantial or 8 motivating cause – even if not necessarily the sole cause – behind the defendants’ conduct.” 9 NAACP, 562 F. Supp. 3d at 399-400. Based on the alleged facts, Officer Adgar’s motion to 10 dismiss Johnson’s § 1983 claim asserting violations of the First Amendment is DENIED. 11 B. Claims 1 and 2 – Monell (City of San Jose) 12 Johnson’s first two claims under § 1983 are also asserted against the City based on liability 13 under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). “The 14 Supreme Court in Monell held that municipalities may only be held liable under section 1983 for 15 constitutional violations resulting from official [municipal] policy or custom.” Benavidez v. 16 Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (citing Monell, 436 U.S. at 694). 17 “[P]olicies can include written policies, unwritten customs and practices, failure to train municipal 18 employees on avoiding certain obvious constitutional violations, and, in rare instances, single 19 constitutional violations [that] are so inconsistent with constitutional rights that even such a single 20 instance indicates at least deliberate indifference of the municipality[.]” Id. (internal citations 21 omitted); see also Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019) 22 (“In particular, municipalities may be liable under § 1983 for constitutional injuries pursuant to (1) 23 an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; 24 or (4) a decision or act by a final policymaker.”). “A municipality may [also] be held liable for a 25 constitutional violation if a final policymaker ratifies a subordinate’s actions.” Lytle v. Carl, 382 26 F.3d 978, 987 (9th Cir. 2004). “In order to establish liability for governmental entities under 27 Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed a constitutional right of which 1 deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving 2 force behind the constitutional violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th 3 Cir. 2011) (alterations in original) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 4 F.3d 432, 438 (9th Cir. 1997)). Johnson asserts that his claims against the City are based on a 5 custom or practice; failure to train, supervise, or discipline; and ratification. Opp. at 14-27. 6 1. Custom or Practice 7 A municipality may be held liable on the basis of an unconstitutional policy if a plaintiff 8 can “prove the existence of a widespread practice that, although not authorized by written law or 9 express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage with 10 the force of law.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. 11 S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)). “Liability for improper custom may not be 12 predicated on isolated or sporadic incidents”—rather, “[t]he custom must be so persistent and 13 widespread that it constitutes a permanent and well settled city policy.” Trevino v. Gates, 14 99 F.3d 911, 918 (9th Cir. 1996) (internal quotation marks and citations omitted). To withstand a 15 motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere 16 “formulaic recitations of the existence of unlawful policies, customs, or habits.” Warner v. Cnty. 17 of San Diego, No. 10-cv-1057 BTM(BLM), 2011 WL 662993, at *4 (S.D. Cal. Feb. 14, 2011). 18 Johnson argues that the City has “an unwritten custom or practice of using excessive force, 19 including the use of projectile weapons, tear gas, and kettling, with little or no warning against 20 people participating in protests against the racist killings of Black people by police officers.” Opp. 21 at 15. The City argues that Johnson cannot show a “permanent,” “longstanding,” or “well settled” 22 practice because his allegations are all regarding one single protest. Reply at 4-8. The City argues 23 that Johnson must provide “more than allegations of contemporaneous or near contemporaneous 24 conduct” to support a Monell custom or practice claim. Id. at 7-8. 25 Johnson points to several cases from other district courts across the country addressing this 26 same issue in the context of the May 2020 police brutality protests. Opp. at 17-19. In Samaha v. 27 City of Minneapolis, plaintiffs’ allegations of “incidents of excessive force against peaceful 1 the city” were sufficient to plead an unconstitutional custom under Monell. 525 F. Supp. 3d 933, 2 941-42 (D. Minn. 2021). The court noted that the plaintiffs alleged “similar misconduct occurring 3 on different days and in different places, by many different MPD officers, during the George 4 Floyd protests.” Id. at 942. The court recognized that the alleged incidents were “condensed into 5 a relatively short period in May 2020,” but found that there was a “reasonable inference that the 6 time period was sufficiently long for the City Defendants to take notice of the MPD officers’ 7 alleged misconduct and change course.” Id. In Tirado v. City of Minneapolis, the court 8 determined that the approximately ten incidents of misconduct alleged by the plaintiff were 9 sufficient to plead a custom or policy, even though they all took place over the course of the 10 protests. 521 F. Supp. 3d 833, 842-43 (D. Minn. 2021). In analyzing the time frame, the court 11 noted that even though the timeframe was isolated, plaintiff had alleged it was long enough that 12 the City was on notice of the practice. Id. at 843. And in Huffman v. City of Boston, the court 13 decided that plaintiffs had sufficiently pleaded a custom of excessive force based on their 14 allegations of unreasonable force on May 29 and 31, 2020. No. 21-cv-10986-ADB, 2022 WL 15 2308937, at *7 (D. Mass. June 27, 2022). 16 The City points to two cases from the Southern District of California. Reply at 6-7. In 17 Bidwell v. County of San Diego, the court looked at whether the municipal defendants had “a 18 pattern and practice of declaring peaceful assemblies to be unlawful based on their own 19 convenience.” --- F.3d ---, 2022 WL 2135002, at *13 (S.D. Cal. June 14, 2022). Plaintiffs alleged 20 three different unlawful assembly declarations during a days-long protest in 2016, and the court 21 determined this was insufficient. Id. First, the court noted that plaintiffs did not dispute there was 22 “some basis” for each declaration. Id. The court further stated that “the fact that three unlawful 23 assembly declarations occurred over the span of a four-day time period during a weeks-long 24 demonstration of varying sizes and characteristic is not” sufficient under Monell. Id. And in Lien 25 v. City of San Diego, the court decided whether the municipal defendant had “a policy of anti- 26 Trump viewpoint discrimination.” No. 21-cv-224-MMA (WVG), 2021 WL 2072385, at *4 (S.D. 27 Cal. May 24, 2021). Plaintiffs pointed to similar anti-Trump viewpoint discrimination at two 1 currently pleaded, Plaintiffs’ proffered two prior incidents are insufficient to state a plausible 2 longstanding custom.” Id. at *5. 3 The Court also finds instructive the Ninth Circuit’s decision in Menotti v. City of Seattle. 4 409 F.3d 1113 (9th Cir. 2005). In that case, the plaintiffs challenged the city’s actions in issuing 5 an emergency order prohibiting access to portions of downtown Seattle during the 1999 World 6 Trade Organization conference. Id. at 1117. The plaintiffs, who were protesting the WTO 7 conference, were all arrested under the order. Id. at 1118. The court evaluated whether the city of 8 Seattle was liable under Monell for the actions of police officers who had arrested protestors 9 without determining whether they were subject to an exemption in the emergency order. Id. at 10 1146-47. The Ninth Circuit recognized it had “held that a municipal policy ‘may be inferred from 11 widespread practices or evidence of repeated constitutional violations for which the errant 12 municipal officers were not discharged or reprimanded.’” Id. at 1147 (quoting Nadell v. Las 13 Vegas Metro. Police Dep’t, 268 F.3d 934, 929 (9th Cir. 2001)). Five individuals submitted 14 declarations that they had been improperly refused entry into a restricted zone unless they 15 removed anti-WTO buttons or stickers; all of the incidents took place on December 1, 1999. Id. at 16 1147-48. Based on these five declarations, along with “the absence of evidence that police 17 officers were discharged or reprimanded” for engaging in this behavior, the Ninth Circuit reversed 18 the district court’s grant of summary judgment for the City. Id. at 1148. 19 First, looking to the decisions in Samaha, Tirado, and Huffman, the Court declines to 20 decide that the allegations were over too short a timeframe so as to justify dismissing the 21 policy/custom theory at this stage. Further, the Court notes that under Menotti, it can rely on 22 “repeated constitutional violations for which the errant municipal officers were not discharged or 23 reprimanded” to find a custom or policy. 409 F.3d at 1147. Johnson alleged a failure to 24 reprimand at least one police officer for his actions in the protests. See SAC ¶¶ 50-51. These 25 allegations, taken as a whole, allow the Court to reasonably infer a custom or policy. 26 2. Failure to Train, Supervise, or Discipline 27 “[F]ailure to train an employee who has caused a constitutional violation can be the basis 1 persons with whom the employee comes into contact.” Long v. Cnty. of Los Angeles, 442 F.3d 2 1178, 1186 (9th Cir. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). This 3 standard is met when “the need for more or different training is so obvious, and the inadequacy so 4 likely to result in the violation of constitutional rights, that the policymakers of the city can 5 reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390. 6 “Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a 7 ‘policy’ as defined by our prior cases—can a city be liable for such a failure under § 1983.” Id. at 8 389. And only under such circumstances does the failure to train constitute “a policy for which 9 the city is responsible, and for which the city may be held liable if it actually causes injury.” Id. at 10 390. “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim 11 turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). As such, “[a] pattern 12 of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to 13 demonstrate deliberate indifference for purposes of failure to train.” Id. at 62. But a plaintiff can 14 show a failure to train “without showing a pattern of constitutional violations where ‘a violation of 15 federal rights may be a highly predictable consequence of a failure to equip law enforcement 16 officers with specific tools to handle recurring situations.’” Long, 442 F.3d at 1186 (quoting Bd. 17 of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)). Similarly, a constitutional violation may 18 arise from a failure to supervise when “the supervision is sufficiently inadequate as to constitute 19 ‘deliberate indifference’ to the rights [sic] of persons with whom the police come into contact.” 20 Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989). 21 The Court finds that Johnson has made out a failure to train claim based on the change in 22 policy immediately before the protest regarding the permissible uses of less lethal weapons. See 23 Sanderlin, 2022 WL 913055, at *15. He alleges that one week before the protest, the police chief 24 sent a memo to all SJPD personnel informing them that the Duty Manual had been revised to 25 permit the use of less lethal weapons for crowd control purposes, a context in which those 26 weapons were previously prohibited. SAC ¶ 38(b). Johnson also alleges that while there had been 27 some training on crowd control and the use of less lethal weapons generally, it was not conducted 1 on the legally permissible uses of less lethal firearms in a crowd control context in at least the 2 previous five years. Id. ¶¶ 40-45. While failure to train claims are the “most tenuous” form of 3 Monell liability, Connick, 563 U.S. at 61, the Court finds that the allegations are sufficient to state 4 a failure to train claim. See Sanderlin, 2022 WL 913055, at *15. Without training on how to use 5 less lethal weapons in a crowd control situation, Johnson has pled that the City was deliberately 6 indifferent to his constitutional rights by changing the policy to allow for such uses of less lethal 7 weapons. See id. 8 The Court also finds that Johnson has adequately alleged that SJPD’s failure to supervise 9 the police officers during the protests constituted deliberate indifference. Johnson has alleged that 10 SJPD was aware of the officers’ conduct during the protests, see SAC ¶¶ 48-51, and did nothing to 11 change course. Further, Johnson alleged that SJPD went so far as to replenish the stock of less 12 lethal weapons midway through the protest, after a very large amount were used, yet failed to 13 direct the officers to change their behavior. Id. ¶¶ 20-21, 58. This behavior creates a reasonable 14 inference of a deliberate indifference by SJPD as to the rights of the protestors. 15 Johnson also asserts a failure to discipline. The Ninth Circuit has held that “a custom or 16 practice can be ‘inferred from widespread practices or evidence of repeated constitutional 17 violations for which the errant municipal officers were not discharged or reprimanded.’” Hunter 18 v. Cnty. of Sacramento, 652 F.3d 1225, 1233-34 (9th Cir. 2011) (quoting Nadell, 268 F.3d at 929). 19 As discussed above, the Court considered SJPD’s failure to discipline its employees in evaluating 20 the custom or policy claim. 21 3. Ratification 22 “A municipality may be held liable for a constitutional violation if a final policymaker 23 ratifies a subordinate’s actions.” Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). “To show 24 ratification, a plaintiff must show that the authorized policymakers approve a subordinate’s 25 decision and the basis for it.” Id. (internal quotation marks and citation omitted). The 26 policymaker must have knowledge of the constitutional violation and actually approve of it—a 27 failure to overrule a subordinate’s actions, without more, is insufficient to support a § 1983 claim. 1 affirmative choice” to endorse a subordinate’s actions. Gillette v. Delmore, 979 F.2d 1342, 1347 2 |} (9th Cir. 1992). A policymaker’s after-the-fact approval of a subordinate’s conduct that caused 3 || the alleged constitutional violations may be used as evidence that a municipality had a pre-existing 4 || policy that caused the alleged constitutional violations. Si/va v. San Pablo Police Dep’t, 805 F. 5 || App’x 482, 485 (9th Cir. 2020). To show that ratification was a “moving force” behind the 6 || constitutional deprivation, a plaintiff must demonstrate both causation in fact and proximate 7 causation. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); Dougherty v. 8 || City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011). 9 Another court, in evaluating Monell liability in the context of similar Black Lives Matter 10 || protests, stated that “when [a police] department is executing an organized, department-wide 11 response, one can presume that the police chief was in control of his department, either directing 12 || that response himself or—at the very least—ratifying the actions of his subordinates.” Martinez v. 5 13 City of Santa Rosa, 499 F. Supp. 3d 748, 750 (N.D. Cal. 2020). In such an instance “it becomes 14 || easier to infer that the repeated conduct of individual police officers is really the conduct of the 3 15 department.” Jd. (collecting cases). Here, the facts alleged in the SAC suggest that SJPD was a 16 || engaged in “an organized, department-wide response.” See SAC. In such an instance, the Court 3 17 can infer ratification by the Department. See Martinez, 499 F. Supp. 3d at 750; see also Sanderlin, |] 2022 wr 913055, at “16. 19 20 Defendants’ motion to dismiss the Monell claims (claims 1-2 against the City) is DENIED. 21 || IV. ORDER 22 For the foregoing reasons, IT IS HEREBY ORDERED that the motion is DENIED. 23 24 || Dated: December 12, 2022 fecuinfhacncan 25

BETH LABSON FREEMAN

26 United States District Judge 27 28