The Ninth Circuit found an officer used excessive force but granted qualified immunity because the constitutional violation was not clearly established.
At a protest outside San Jose City Hall, police officer James Adgar fired a 40mm foam baton round indiscriminately into a fleeing group of protesters after a small number of people had thrown bottles and other objects toward officers.
The round struck Kyle Johnson behind his left knee. Johnson had not thrown anything, was not threatening officers, and was not resisting arrest. He later developed pulmonary embolisms that doctors attributed to the injury.
A jury found that Adgar had fired indiscriminately into the crowd and returned a verdict in Johnson’s favor. The jury awarded him $1,353,313 in damages.
The Ninth Circuit agreed that Adgar’s use of force was unreasonable and that he violated Johnson’s Fourth Amendment right to be free from excessive force.
But the court still granted Adgar qualified immunity.
Because the majority concluded that prior Ninth Circuit precedent did not establish the unlawfulness of the officer’s conduct with enough factual specificity, Johnson lost his federal § 1983 remedy despite proving a constitutional violation.
That is what makes Johnson v. Adgar, filed November 2, 2026, important: the jury found excessive force, the Ninth Circuit agreed that the Constitution was violated, and yet qualified immunity still eliminated the federal damages claim.
What Happened in Johnson v. Adgar?
Kyle Johnson attended a protest outside San Jose City Hall on May 30, 2020.
Johnson went to the protest to show solidarity with other demonstrators. He carried no weapon, threw nothing at police, and did not engage with officers.
Later that evening, some people in the crowd threw bottles and other objects toward officers.
San Jose Police Officer James Adgar responded with a 40mm projectile impact weapon. The weapon fires foam baton rounds capable of causing serious injury or death.
Adgar fired into the crowd. One round struck Johnson behind his left knee.
Johnson later developed pulmonary embolisms that doctors attributed to the injury.
The Jury Found for Johnson
Johnson sued Officer Adgar and the City of San Jose.
His claims included violations of the First and Fourth Amendments under 42 U.S.C. § 1983, California civil-rights claims, battery, and negligence.
At trial, Johnson argued that Adgar did not actually target a person who had thrown an object. Instead, he fired indiscriminately into the crowd.
The jury agreed.
It found for Johnson on all claims against Adgar and specifically found that the officer had fired indiscriminately into the crowd. The jury awarded Johnson $1,353,313 in damages.
The case then took an unusual turn.
The Ninth Circuit Found a Fourth Amendment Seizure
Officer Adgar argued that he had not “seized” Johnson because he never intended to shoot Johnson specifically.
The Ninth Circuit rejected that argument.
A Fourth Amendment seizure occurs when an officer intentionally applies physical force with an objective intent to restrain.
The court relied heavily on Nelson v. City of Davis, a 2012 Ninth Circuit decision involving officers who fired projectiles toward a group rather than targeting a particular individual.
The jury had found that Adgar fired indiscriminately into the crowd. Because Johnson belonged to that crowd and the intentionally fired projectile struck him and restricted his movement, the Ninth Circuit held that Johnson had been seized even though Adgar did not specifically target him.
That portion of the decision could become important in other crowd-control cases.
An officer does not necessarily escape Fourth Amendment scrutiny merely because he fires into a group rather than identifying a particular person as his intended target.
The Court Also Found Excessive Force
The Ninth Circuit next considered whether the force was reasonable.
It concluded that it was not.
Johnson committed no crime. He posed no apparent threat. He was not resisting arrest, and he was not trying to evade arrest.
The court acknowledged that other people had thrown bottles and other objects at officers.
But the jury found that Adgar fired indiscriminately into a fleeing crowd that contained, at most, two people who had engaged in hostile conduct.
That distinction drove the excessive-force analysis.
The majority explained that firing a weapon capable of causing serious injury or death into a largely peaceful crowd created a substantial risk of striking someone who had done nothing wrong.
The court put the point more directly later in the opinion: although police have a legitimate interest in stopping an aggressor who throws objects at officers, that interest does not justify firing indiscriminately into a crowd and hoping to hit the aggressor.
Thus, the Ninth Circuit found a constitutional violation.
But the Officer Still Received Qualified Immunity
Finding a constitutional violation does not end a qualified-immunity analysis.
A plaintiff must also show that the constitutional right was clearly established when the officer acted.
Courts usually require precedent involving sufficiently similar circumstances. The Supreme Court has repeatedly instructed lower courts not to define the constitutional right at a high level of generality, particularly in excessive-force cases.
The Ninth Circuit therefore asked whether existing precedent clearly told a reasonable officer that Adgar’s conduct violated the Fourth Amendment.
The key precedent was Nelson v. City of Davis.
And that is where Johnson lost.
Why the Majority Distinguished Nelson
In Nelson, officers fired projectiles toward a group of people at a large party.
The Ninth Circuit had held that officers used unreasonable force by firing a projectile capable of causing serious harm toward non-threatening people who had committed, at most, minor offenses.
But the Johnson majority found important factual differences.
In Nelson, the group that officers fired upon was entirely peaceful and physically separated from the more disorderly crowd.
In Johnson, the group contained both peaceful protesters and people who had thrown objects at police.
The majority also emphasized that Adgar fired after a second volley of objects came from Johnson’s general area.
Those differences were enough for the majority to conclude that Nelson did not “squarely govern” Adgar’s conduct.
The court therefore held that Adgar violated Johnson’s Fourth Amendment rights but did not violate clearly established law.
As a result, Adgar received qualified immunity on the § 1983 excessive-force claim.
The Dissent on Qualified Immunity
Judge Richard Paez agreed that Adgar used excessive force.
He disagreed, however, with granting qualified immunity.
Judge Paez concluded that Nelson already gave officers adequate notice that they could not fire a projectile capable of causing serious injury indiscriminately into a group of protesters who did not pose an imminent danger.
The dissent also criticized how the majority treated the factual record.
Because the case reached the Ninth Circuit after a jury verdict, the court had to view disputed evidence in Johnson’s favor and respect factual findings supported by substantial evidence.
Judge Paez believed the majority effectively reconsidered some of those facts in Adgar’s favor when distinguishing Nelson.
That disagreement shows how much qualified-immunity cases can turn on the level of factual specificity a court demands from earlier precedent.
Why Johnson v. Adgar Matters
The decision matters for several reasons.
First, the Ninth Circuit confirmed that intentionally firing a projectile into a group can constitute a Fourth Amendment seizure even when the officer does not intend to hit one particular person.
Second, the court held that firing a potentially dangerous projectile indiscriminately into a mostly peaceful, fleeing crowd can constitute excessive force.
Third—and most significantly—the decision shows the gap that qualified immunity can create between a constitutional violation and a legal remedy.
The majority did not conclude that Officer Adgar acted constitutionally.
It concluded the opposite.
The court found that his force was unreasonable and violated the Fourth Amendment.
Yet the federal damages claim still failed because the majority believed existing precedent had not addressed sufficiently similar circumstances.
That distinction lies at the center of modern qualified-immunity litigation.
The Practical Lesson for Civil-Rights Cases
For lawyers litigating excessive-force claims, Johnson reinforces the importance of the clearly-established-law analysis from the beginning of the case.
It is not enough to show that the officer’s conduct violated the Fourth Amendment.
Counsel must identify precedent that defines the constitutional violation at a sufficiently specific factual level.
That means comparing details such as:
- the type and degree of force used;
- whether the plaintiff posed a threat;
- whether other people nearby posed a threat;
- whether the plaintiff was moving toward or away from officers;
- whether police gave warnings;
- whether the plaintiff was individually targeted;
- the purpose of the police action; and
- the circumstances immediately surrounding the use of force.
After Johnson, seemingly small factual differences can determine whether an officer who violated the Constitution nevertheless receives qualified immunity.
Arizona Civil Rights Litigation
The Law Offices of David J. Don, PLLC represents individuals in serious civil-rights cases involving law enforcement and governmental entities in Arizona.
Claims involving excessive force, unconstitutional detention, police misconduct, and other constitutional violations often arise under 42 U.S.C. § 1983 and can involve qualified-immunity defenses.
Understanding both the constitutional violation and the evolving law governing qualified immunity is critical to evaluating these cases.
