Last May, as protests against the death of George Floyd galvanized the nation, Michael Acosta left his home to run some errands at his local Walmart in San Jose. He had no idea that he would soon lose his left eye.
That day, hundreds of protesters had gathered in downtown San Jose to protest the death of George Floyd to advocate for police reform, which were largely peaceful with sporadic violent acts from protesters that were met with escalated responses from police.
Acosta found himself in the middle of a massive demonstration calling for police change after finding the Walmart where he meant to do his errands closed. As the police line closed in on protesters, Acosta was struck in the face by an “impact munition” rupturing his left eyeball beyond repair, according to a lawsuit he just filed, and was forced to have it surgically removed.
On Thursday, Acosta and several other plaintiffs who have faced injuries due to police violence encountered at the May 29 to 31 George Floyd demonstrations in San Jose announced they are suing the city of San Jose and the San Jose Police Department, alleging use of excessive force, wrongful arrests, and curtailment of freedom of speech and assembly by the police, and further alleging that those infractions are unconstitutional under the First, Fourth, and Fourteenth amendments to the US Constitution.
The compliant filed by the Lawyers Committee for Civil Rights says that the violent tactics used by police during the protests on the weekend of May 29 to 31 were unlawful and condoned by police leadership, and that leadership did not punish officers for infractions related to wrongful arrests and use of excessive force.
“Plaintiffs are informed and believe and thereon allege that Defendants encouraged, tacitly authorized, and/or condoned unlawful customs, policies, and/or practices: the use of excessive force; the failure to report the use of excessive force; the failure to hold officers and supervisors accountable for the use of excessive force…the violation of their rights to free speech, freedom of association and freedom of the press…the racial and religious profiling of perceived Muslims and Black, Indigenous and people of color…and/or other unlawful customs, policies and/or practices,” reads the complaint.
According to the complaint, plaintiffs’ injuries largely consisted of strikes and rubber bullet impacts to the body or face, leaving welts, bruises, and pain that persisted for months after for some. One plaintiff, Shaun Cartwright, said she still suffers from post traumatic stress disorder stemming from violence and injuries from police during the protest, which include a permanent scar on her right knee after being shot by a rubber bullet.
Plaintiffs are seeking class-action status for this lawsuit, demanding injunctive relief in the form of a court order that would bar police from using impact-based and chemical-based munitions against protesting crowds in San Jose in the future, including lead-filled bean bags, rubber bullets, and tear gas.
“This case is not just about…one bad apple that went out of control and started shooting, there were clearly orders from above for officers to use those weapons and to shoot into the crowd as an unlawful way to try and break up the protest…we’re trying to prohibit San Jose police officers from shooting impact munitions into crowds. It’s too dangerous,” said Rachel Lederman, one of several attorneys representing the plaintiffs.
The plaintiffs are also demanding damages to be paid out to all who suffered injuries or were wrongfully arrested during the course of the George Floyd protests in San Jose, which likely numbers between 70 and 131 people, according to the compliant. All of those peoples’ identities and how much they compensation each person would receive are yet to be known and would be discovered during litigation.
Plaintiff Alex Lee, who is now a member of the state Assembly representing District 25, which includes San Jose, is one of those who claims to have been suffered from excessive police violence. According to the complaint, Lee, who had not yet been elected at the time, attended all three days of protests in San Jose, and according to the complaint was subjected to chemical agents that restricted his breathing on May 29, was hit by a “grenade of chemical agent device” on May 30, and “wrongfully” arrested by SJPD on May 31.
Lee could not be reached for comment, but issued an email statement affirming the importance of police reform and banning the firing of impact munitions into protesting crowds.
“Police brutality is a serious issue that Americans throughout the country became more aware of or experienced last summer. Following the police murder of George Floyd and the historic protests against injustice, I joined the class action civil rights lawsuit as a private citizen — before I was elected to the Assembly. During the protests I was shot at, gassed, and arrested while peacefully demonstrating against police violence…The San Jose Police Department must also be held accountable for their brutalization of its residents. Their shocking use of projectile impact munitions and tear gas against San Jose residents last summer who were trying to exercise their rights to protest racist police violence should not happen ever again,” said Lee in a statement.
Also among the plaintiffs is the San Jose chapter to the NAACP. The San Jose NAACP president, Reverend Jethroe Moore III, said during a press conference this morning that his experience at the George Floyd protest was traumatic and that he and other protesters had been pushed down by the police and subjected to tear gas, which he said to this day still makes him wheeze occasionally.
“It scarred us in a way that we’re not sure how we’re scarred…There were a lot of kids, I tried to direct them, tried to help them…I said ‘let’s not show any resistance to them’…[the police] just got more and more aggressive towards the crowd to the point…they were pushing us and we couldn’t step back quicker than they were pushing us, and the whole police line surged in and knocks many of us down…I had never seen the police department this aggressive,” said Moore, his voice breaking as he recounted his experience.
San Jose Mayor Sam Liccardo has publicly stated his commitment to police reform, including a ban on the use of rubber bullets against protesting crowds and to defer investigations of police misconduct to an independent third party. But Lederman expressed skepticism that Liccardo’s assurances would be enough, saying that systemic change must involve a court order to prohibit the police from using impact-based munitions on protesting crowds ever again.
“This lawsuit is one means of getting a court order that could place San Jose police under court supervision to prevent a repeat of wanton violence against demonstrations…We don’t see that happening in an effective way without legal pressure,” said Lederman.
I have asked the San Jose police department to confirm if leadership ordered officers to use force on the protesters, and whether they consider such force lawful, and heard no response by press time.
Despite the violence that occurred in San Jose, as well as around the country, during the George Floyd protests last summer, plaintiffs made it clear that they plan to continue demonstrating to advocate for police reform, even despite the harrowing experiences for some of them.
“I regret losing my eye. I do not regret solidarity with the Black Lives Matter movement. I just wish it hadn’t turned violent. That’s the only regret that I have,” said Acosta.