An excessive force lawsuit against a former San Jose cop disgraced by a racist texting scandal is set to resume, after a federal court ruling last week affirming the ex-officer is not shielded from litigation in his controversial 2022 shooting of an aspiring college football player.

Mark McNamara will continue having to defend himself against the wrongful-shooting claims of K’aun Green, who McNamara shot four times as Green was exiting a downtown taqueria on March 27, 2022 after a brawl inside the eatery. Green had his hands up while holding a gun above his head pointed up toward the air — a weapon he had disarmed from an assailant inside — when he was shot.

McNamara and his attorney, as well as the City of San Jose, had argued to Judge Nathanael Cousins of the federal Northern District of California that McNamara was entitled to qualified immunity, a legal doctrine that insulates government officials from litigation over their work actions provided they don’t breach someone’s clearly established constitutional or statutory rights.

Cousins denied the protection to McNamara, writing in a March 2024 ruling that the evidence in the case prompted sufficient questions about whether the shooting violated Green’s constitutional rights, and thus warranted a jury trial.

McNamara challenged Cousins’ decision with the 9th U.S. Circuit Court of Appeals, which on Sept. 9 agreed with the lower court ruling.

“Because a reasonable jury could find, on the basis of the district court’s assumed facts, that McNamara used excessive force when he shot a surrendering Green, and the law was clearly established at the time of the incident, the district court did not err in denying McNamara’s motion for summary judgment based on qualified immunity,” Judge Kim McLane Wardlaw wrote for the unanimous three-judge panel.

Monday, Green attorney Adante Pointer called out the defendants — McNamara and the city — for stalling the lawsuit for a year and a half with what he called a meritless appeal.

“Justice delayed is justice denied,” Pointer said in an interview. “This young man had his life turned upside down, was labeled a criminal when in fact he was a hero. We’re looking forward to his day in court since the City of San Jose will not take responsibility.”

Neither the City Attorney’s Office nor McNamara’s attorney immediately responded to requests for comment Monday.

McNamara’s shooting of Green quickly garnered controversy after it was established — by witnesses and security video — that Green was a peacemaker in a brawl that erupted inside the La Victoria restaurant next to San Jose State University, where Green had done a campus visit earlier in the day.

Green was backing away from combatants in the fight, holding the handgun high above his head, as he went out the front entrance of the restaurant. What he didn’t know was that several officers were in formation on the front steps with their guns pointed toward the same entrance, and as Green turned to face them, McNamara, who was the the front-most officer, opened fire.

Pointer and his firm, Lawyers for the People, have sparred with the city and San Jose Police Department over the limited knowledge each party had of the broader situation.

Police emphasized that the brawl unfolded a few hundred feet away from a recent fatal shooting, and that when officers saw people fleeing from the restaurant, they thought they might be dealing with the shooter. Green’s representation contends that he was never in a threatening stance and that he had barely heard the police orders to drop the gun before he was shot twice in his left arm, once in his knee, and once in his torso.

Both federal courts decided the evidence did not support the city and McNamara’s requests to throw the case out on its merits.

“Videos of the incident are arguably consistent with Green’s version of the incident and do not settle material disputes that only a jury or trier of fact can decide,” Wardlaw wrote in the 9th Circuit ruling.

Wardlaw also addresses the central question for a prospective jury, when she addresses a debate over the positioning of the weapon in Green’s hand: “What is critical is that the gun was not aimed at any person.”

“A reasonable jury could find that McNamara violated Green’s Fourth Amendment right not to be subjected to excessive force by shooting him as he surrendered,” Wardlaw wrote. “Police officers do not act reasonably when they shoot an armed individual who is surrendering or who does not pose an immediate threat.”

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The lawsuit was for a time affected by a separate scandal involving McNamara over the discovery in November 2023 of a trove of racist text messages sent between him and one current SJPD officer and a former officer. The messages included repeated uses of the N-word and crass references by McNamara regarding his shooting of Green, including “N— wanted to carry a gun in the Wild West … Not on my watch” and “They should all be bowing to me and bringing me gifts since I saved a fellow n— by making him rich as f—. Otherwise, he woulda lived a life of poverty and crime.”

Green’s attorneys tried but ultimately could not leverage the scandal into a swift resolution in their favor, and the case now continues toward trial, unless either the city or McNamara take the costly step of appealing to the U.S. Supreme Court.

McNamara resigned from the department in the wake of the scandal.

Green, a football star at Oakland’s McClymonds High School, has since recovered from his injuries and is now a scholarship athlete playing defensive end at the University of Arkansas, Pine Bluff. Pointer said he hopes the civil lawsuit will similarly move ahead.

“Now after a year and half of waiting,” he said, “we’re hoping the city will do right by Mr. Green and allow him to get the justice he deserves.”