Background
Photojournalists Alyssa Schukar and Scott Olson covered an August 25, 2020 protest outside the Kenosha County Courthouse following the police shooting of Jacob Blake. During intense unrest, some protesters launched fireworks and tear gas and threw objects at officers, who responded with crowd-control measures including pepper balls and foam baton rounds.
Schukar and Olson were each struck and injured by fast-moving objects they believed were foam baton rounds. They sued Deputy Steven Robakowski and Officer Ryan Jacobs under 42 U.S.C. § 1983, alleging that the officers targeted them in retaliation for constitutionally protected newsgathering and used excessive force in violation of the Fourth Amendment. The district court granted summary judgment to the officers.
The Court’s Holding
The Seventh Circuit affirmed summary judgment on the First Amendment claim because the record would not permit a reasonable jury to find retaliatory animus. Although the photojournalists were engaged in protected activity and suffered injuries that could deter similar activity, they were standing near protesters who had been launching fireworks at law enforcement. The court found no evidence that either officer intentionally targeted Schukar or Olson, much less targeted them because they were journalists. Discrepancies in the officers’ use-of-force reports were also insufficient to support a reasonable inference of anti-press retaliation.
On the Fourth Amendment claim, the court declined to decide whether force intentionally deployed to restrain someone can seize an unintended person whom the force directly strikes. It noted uncertainty and disagreement in the case law on that question. Because it was not clearly established in 2020 that an officer using less-than-lethal munitions during a protest thereby seized an unintended target, Robakowski and Jacobs were entitled to qualified immunity.
Key Takeaways
- An injury to a journalist during crowd-control operations does not, without additional evidence of intentional targeting or anti-press motive, establish First Amendment retaliation.
- Proximity to protesters who are legitimate targets of force weakens an inference that officers deliberately targeted a peaceful journalist or observer.
- The Seventh Circuit left unresolved whether intentionally deployed force constitutes a Fourth Amendment seizure of an unintended target, resolving the claim instead through qualified immunity.
Why It Matters
The decision identifies the evidence journalists must produce to take a retaliation claim to trial when they are injured while reporting from a volatile protest. Proof of protected newsgathering and serious injury is not enough when the record does not reasonably connect the officers’ use of force to hostility toward the press.
The ruling also highlights an unsettled Fourth Amendment issue concerning unintended targets of intentionally applied force. Although the Seventh Circuit did not resolve that constitutional question, it held that the lack of clearly established law shielded the officers from damages for their conduct in 2020.