Ninth Circuit says officer who fired a foam round "indiscriminately" into a protest crowd used excessive force, but grants qualified immunity anyway

Nov 3, 2026 · 6 min read · By Brandon J. Grable

Case: Johnson v. Adgar, Nos. 25-1392 & 25-5468 (9th Cir. Nov. 2, 2026) (published; opinion by Judge Tallman, joined by Judge Bennett; Judge Paez dissenting in part). Read the opinion

The short version

A peaceful protester was hit behind the knee by a 40mm foam baton round at a 2020 protest in San Jose. A jury found the officer "had fired indiscriminately into the crowd" and returned a verdict for the protester. On appeal, all three judges agreed the officer violated the Fourth Amendment. But two of the three held the law was not "clearly established" in 2020 and granted the officer qualified immunity on the federal claim. The dissenting judge would have affirmed the trial court's denial of qualified immunity on the Fourth Amendment claim.

The case shows both sides of qualified immunity: a court can hold that an officer used excessive force against a peaceful person and still let the officer off the federal hook.

What happened

The court recounted the facts in the light most favorable to the protester, Kyle Johnson. On May 30, 2020, he went to a protest outside San Jose City Hall after George Floyd's death. The court said: "He had no sign, no weapon, and nothing to throw." He did not engage with the police.

Officer James Adgar arrived with a 40mm projectile impact weapon, which the court said "fires a foam baton round that can cause serious injury or death." He was "ordered to shoot with his PIW anyone he saw throwing bottles." Some people in the crowd threw bottles and possibly other objects at officers, and officers fired. The crowd retreated, came back, and a second volley was thrown. Officers fired again. The court wrote that "Johnson, who had not thrown anything, was hit in the back of his left leg." Doctors later diagnosed a pulmonary embolism attributed to the injury.

Johnson sued under 42 U.S.C. § 1983 and California law. The jury found for him on all claims against Officer Adgar (none against the City) and awarded $1,353,313 in damages. The jury "specifically found that Officer Adgar had fired indiscriminately into the crowd." The trial court threw out the First Amendment-based claims after the verdict but kept the Fourth Amendment claims. The officer appealed.

What the court decided

Being hit by an indiscriminate shot is a seizure. The officer argued Johnson was an "innocent bystander" who was never seized. The court disagreed, relying on the jury's finding and on its earlier decision in Nelson v. City of Davis. It held: "Because this intentional application of force meaningfully interfered with Johnson's freedom of movement, even if briefly, Johnson was seized for Fourth Amendment purposes."

The force was excessive. The court held the shot was unreasonable. "Key to this conclusion is the jury's finding that he fired indiscriminately into a fleeing crowd that contained, at most, two bad actors." Given how many peaceful people were in that part of the crowd, "there was a significant risk that he would hit someone not engaged in wrongdoing with a weapon that could cause serious injury or death." The court added that the government interest in preventing those two bad actors from returning for more hostilities "does not justify indiscriminately firing a weapon capable of causing serious injury or death into a fleeing crowd." The dissenting judge agreed with this part.

But qualified immunity applied. The majority held the law was not clearly established in May 2020. The parties agreed Nelson was the relevant precedent. The majority found it different: "The key distinction is that the crowd fired upon in Nelson was an entirely peaceful, non-threatening subset of the larger group." Here, the majority said, two hostile actors were in the part of the crowd where the officer fired, the group was not physically isolated, and more volleys were possible. The court reversed on the § 1983 Fourth Amendment claim and vacated the attorney's fee award for recalculation.

The dissent. Judge Paez would have affirmed. He wrote that Nelson "clearly established the unlawfulness of shooting a projectile weapon capable of causing serious and permanent injury indiscriminately into a group of protestors who did not pose an imminent risk to public safety." He also wrote that the majority overlooked its duty to view the trial evidence in Johnson's favor.

The case isn't over. In a separate order, the panel asked the California Supreme Court a question about California's Bane Act, the state civil rights statute. The court will decide the Bane Act claim later, told the trial court not to recalculate fees until then, and is holding its mandate. The officer did not challenge the jury's verdict on the battery and negligence claims.

Why this matters in Texas

Ninth Circuit decisions do not bind courts in Texas, and the Fifth Circuit applies its own qualified immunity precedent. Still, the case is a useful example for anyone hurt by "less-lethal" weapons at a protest:

• A violation finding still matters. Even though the officer won qualified immunity, a federal appeals court has now held in a published opinion that firing a foam baton round indiscriminately into a fleeing crowd that was almost entirely peaceful, with at most two bad actors, was excessive force under the Fourth Amendment. Courts use published holdings like this to decide whether the law is "clearly established" for later cases.
• Qualified immunity turns on fine factual differences. The majority and the dissent read the same precedent and the same record and reached opposite answers. The details of who was in the crowd, where they were, and what they were doing can decide a case.
• Evidence matters early. The jury's specific finding that the officer fired indiscriminately drove the seizure and excessive-force rulings. Video, timestamps, and witness accounts are often what make that kind of finding possible.
• Federal and state claims can come out differently. Johnson lost his federal Fourth Amendment claim on qualified immunity, but the officer did not challenge the jury's battery and negligence verdicts, and the Bane Act claim is still pending. Qualified immunity is a defense to federal damages claims; whether and how state-law claims are available depends on the state.

If you were injured by police force at a protest in Texas, talk with a civil rights lawyer about your options.

Attorney advertising. This post is for general information only. It is not legal advice and does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee future outcomes.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, 12451 Starcrest Dr, Suite 206, San Antonio, Texas.

Topics: Qualified Immunity