The jury found that during the George Floyd protests in San Jose, Officer Adgar fired his weapon into a crowd of largely peaceful protesters, thereby injuring an innocent bystander, rather than firing at someone in particular who allegedly threw a bottle.
The majority opinion (by Judge Tallman, joined by Judge Bennett) concludes that this constitutes unlawful excessive force, but holds that this right was not clearly established. Judge Paez dissents in part, arguing that this right was indeed clearly established. (The majority also certifies a pendent state law claim to the California Supreme Court for clarification of the relevant state law standard.)
Neither the majority nor dissent mention it, but since the dispute is about whether a particular right is clearly established, I thought it might be worth noting that this is far from the only time a state officer has indiscriminately fired his weapon into a largely peaceful protest and thereby injured innocent bystanders. One of these events was well-known even before the founding our our Republic, and one might even argue instrumental in its founding. I'm pretty sure it was well-established even then that this was no good, and in derogation of our natural liberties. Another indiscriminate firing into a group of largely peaceful protesters transpired somewhat more recently, and the reaction thereto was similarly fairly uniform.
I understand that the relevant issue is the level of generality; how "specific" does a holding have to be before state officers are expected to realize that certain conduct is excessive. But, with respect, as to this particular issue -- firing your weapon indiscriminately into a group of largely peaceful protesters -- my own view is that everyone knows full well that this isn't allowed.
From the 1770 to the present day.
