September 12, 2023
Racial justice protestors who were attacked and injured by the San José Police Department (SJPD) in May 2020 will receive $3.35 million in a settlement approved today by the San José City Council. The agreement comes after three years of litigation by the protestors.
In May 2020, the SJPD fired hundreds of so-called "less lethal" Projectile Impact Weapons (PIW) into crowds during protests in downtown San José that followed the murder of George Floyd. Among the many injured was bystander M. Michael Acosta, who was trying to walk home when Officer Jared Yuen shot him in the eye. Acosta's eye was destroyed, and he has undergone four surgeries to remove his eye globe and reconstruct his eye socket since the attack. Mr. Acosta will receive $2.9 million.
“I was only a block away from my home when I was fired upon by several San José police officers,” Mr. Acosta said. “I am told it was Officer Yuen whose ‘less lethal’ munition hit me in the face, destroying my eye. I'm glad the lawsuit has been resolved, but no amount of money could ever return to me what has been taken. Every aspect of my life has been impacted, and not a day goes by when I am not reminded of the loss of my eye. It is my hope that this case and incident will be an impetus for change in the SJPD and these so-called ‘less lethal’ weapons will no longer be used the way they were on me.”
“The SJPD responded to the May 2020 racial justice protests by inflicting unlawful indiscriminate force on crowds, used dangerous impact munitions and batons to brutalize protestors for hours, and engaged in such massive deployment of munitions that they used up their entire supply on the first day,” Rachel Lederman, Senior Counsel with the Partnership for Civil Justice Fund (PCJF) and its project, the Center for Protest Law & Litigation, said. “When police officers are allowed to shoot so-called ‘less lethal’ munitions into crowds, tragedies are sure to result. During the 2020 George Floyd protests nationwide, more than 115 people were shot in the head with impact munitions. Many were blinded in one eye like Mr. Acosta or suffered serious head injuries.”
It was Officer Jared Yuen, who gained notoriety when he was captured on video cursing at protestors and expressing eagerness to shoot them, who shot Mr. Acosta, but at least three officers fired toward Mr. Acosta as he stood on the sidewalk filming.
“The unlawful police violence during the San José racial justice protests was not limited to just a single officer. Other officers reacted when the protests targeted the police themselves. The officers were not trained or supervised adequately for this scenario and predictably, reacted with excessive force when they were encouraged to fire at will,” said Michael Harrison, Senior Counsel with Shook, Hardy & Bacon LLP, who leads Shook’s civil rights and racial justice pro bono efforts.
"I never expected that I would be subjected to police violence for protesting police violence," said Megan Swift, who was clubbed 17 times by SJPD officers. “It is important to all who make San José their home that San José police officers never again hurt our community with the brutality they inflicted on May 29, 2020.” Ms. Swift will share a $450,000 settlement with three other plaintiffs.
“Litigation such as this case contributed to the state legislature passing AB 48 in 2022, which greatly restricts use of impact munitions to disperse protestors, a big step in the right direction. But the new law doesn't address all of the issues for San José. SJPD’s long history of violence, racism, and impunity was reflected in the de facto policy of indiscriminate violence against George Floyd protestors, and a striking lack of accountability for this violence that went all the way to the top,” Ms. Lederman said. “We hope that this settlement will help push the city toward alternatives to policing and stronger oversight of the SJPD.”
The district court dismissed the claims of six individuals who were unable to timely identify which SJPD officer shot them with less lethal munitions. “SJPD failed to require its officers to report their targets and justifications for use of force at these protests, contrary to their written policy. SJPD also suspended its internal investigations on the police violence against our clients, and the way SJPD officers held their PIW guns often blocked officers’ body cameras when they raised the gun to shoot, so it was extremely difficult to identify the cops who shot each of the plaintiffs with certainty,” civil rights attorney R. Michael Flynn explained. “In our view, the City of San José and the police commanders who allowed officers to shoot dangerous munitions into the crowds were responsible for violating the protestors’ constitutional rights, and it was SJPD's responsibility to identify the officers who used unconstitutional force.”
“Although it was disheartening that not all of those injured were allowed to proceed, we will continue to use pressure and action to hold this militarized ‘law enforcement system’ accountable. The fight against the injustice faced by people of color by the SJPD and police around this country is not over,” said Mahmoudreza Naemeh, one of the six original plaintiffs whose claims were dismissed.
The protestors were represented by the PCJF and its project, the Center for Protest Law & Litigation; Shook, Hardy & Bacon; Flynn Law Office; and attorney Jim Chanin.
The case is NAACP of San José / Silicon Valley, et al., v. City of San José, Northern District of California U.S. District Court Case No. 4:21-cv-01705-PJH.