San Jose Fails to Stop BLM Protesters from Suing for Police Violence

For Immediate Release 

September 27, 2021 

Media Contact 

Sam Lew, 415-272-8022,  

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area 


San Jose Fails to Stop BLM Protesters from Suing for Police Violence 

California federal court rejects the City of San Jose’s motion to dismiss police brutality lawsuit  

A California federal court has rejected the City of San Jose’s attempt to end demonstrators’ lawsuit against the City of San Jose, its police, and government officials. On September 24, 2021, Judge Phyllis Hamilton of the United States District Court for the Northern District of California denied the City of San Jose’s motion to dismiss the federal civil rights class action lawsuit. Judge Hamilton found that the racial justice demonstrators’ Complaint supports claims that San Jose Police used unlawful force and violated First Amendment rights at the May 2020 protests. 

The court ruled that the demonstrators offered enough specific factual allegations to claim San Jose Police: 

  • Used violence to suppress the plaintiffs’ freedom to express their views against police brutality and racism, in violation of the First Amendment; 
  • Issued and implemented an unconstitutional curfew order to stop the anti-police racist violence demonstrations, in violation of the First Amendment; 
  • Used excessive force and wrongful arrest in violation of the Fourth Amendment, including impact munitions, clubs, and teargas on demonstrators 
  • Failed to intervene when fellow San Jose police officers unlawfully brutalized demonstrators 
  • Discriminated against plaintiffs in violation of state anti-discrimination laws 
  • Discriminated against protesters with disabilities who attempted to participate in demonstration 

The Court squarely rejected the City of San Jose’s arguments that it could not be sued for excessive force – even where officers shot protesters who were kneeling, praying, or attempting to flee. In her opinion, Judge Hamilton noted that the allegations about police brutality alone, in light of the anti-police message of demonstrators, was enough to support the demonstrators’ constitutional claims at this early stage of the case. 

“Last year, San Jose residents were shot with impact munitions, sprayed with teargas and other chemicals, and attacked by militarized law enforcement for exercising their First Amendment rights to protest the murder of George Floyd and police brutality against Black people,” said Rev. Jethroe Moore of the NAACP of San Jose/Silicon Valley. “That the City of San Jose attempted to end our case demonstrates their absolute refusal to take accountability for the egregious harm San Jose police inflicted  — and continues to inflict — on our communities.” 

“The court’s order reaffirms what we already know to be true: The law does not permit a government to suppress the speech of its own citizens through armed, violent opposition,” said Tifanei Ressl-Moyer, Thurgood Marshall Fellow at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. “We are pleased with Judge Hamilton’s decision to advance our lawsuit against the City of San Jose.” 

The Complaint alleges San Jose Police shot highly dangerous impact munitions into the crowd without justification, even when demonstrators kneeled and prayed, stood peacefully with their hands up, or stepped back in compliance with police orders. People of color were particularly targeted, numerous nonviolent demonstrators were shot in the groin or the head, and many shot repeatedly. Plaintiff M. Michael Acosta was simply trying to walk home when police shot him in the face with a munition. His eye was destroyed and surgically removed. Another plaintiff, Joseph Canas, was playing the guitar when he, too, was shot in the eye, and suffered permanent vision impairment. Other demonstrators were beaten with clubs.   

“This case is an example of the tragic results when police do not respect the right to protest – including to protest the police – and then are given free reign with so-called ‘less lethal’ munitions,” said Rachel Lederman, an attorney for the demonstrators. “Impact munitions, whether they are euphemistically called ‘sponge rounds,’ ‘foam’ or bean bags,’ can cause very serious injuries and death. It is illegal to use these weapons to try to stop people from protesting, and without individual justification as to each person you are going to shoot. SJPD seems to have no clue of this and frankly it is amazing that no one was killed.” 

The case will now proceed to discovery as the parties exchange evidence from the critical days of demonstrations following George Floyd’s murder.  

The class action civil rights lawsuit was filed in March of this year against the City of San Jose on behalf of the NAACP of San Jose/Silicon Valley, the San Jose Peace and Justice Center, and individual demonstrators and observers who were brutalized by San Jose Police during the late May 2020 demonstrations in response to the murder of George Floyd.  

The plaintiffs are represented by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and civil rights attorneys Rachel Lederman, James B. Chanin, and R. Michael Flynn.  


The September 24, 2021 order denying the motion to dismiss can be viewed here.  

The class action complaint can be viewed here.