In Schukar, et al. v. Kenosha County, et al., the Seventh Circuit Court of
Appeals upheld a district court’s decision in favor of
police officers in a First and Fourth Amendment case brought by
photojournalists relating to a protest incident.
On August 25, 2020, two photojournalists were documenting a protest at the Kenosha County Courthouse. The protest was
sparked by the shooting of a 29-year-old Black male by a City of
Kenosha police officer. During the protest, both protestors and police officers
launched objects at one another, including the officers’ launching of foam
batons that hit and injured the journalists. Shortly after the incident, the journalists filed a lawsuit against two police officers who were at
the protest. They claimed the officers
intentionally struck them in retaliation for engaging in the First Amendment
protected activity of protesting and used excessive force in violation of the
Fourth Amendment. The district court ruled against the journalists, who
appealed the district court’s ruling.
The Seventh Circuit upheld the
district court’s ruling in favor of the police officers. As to the journalists’ First Amendment claim, the Seventh Circuit
found there was no evidence that either officer intentionally targeted the journalists for engaging in their First Amendment right to protest. The Court
found that the officers’ use-of-force reports (which failed to accurately state the total number of rounds deployed during the protest) were not enough to show that the officers intentionally
targeted the photojournalists.
As to the Fourth
Amendment claim, the Seventh Circuit found that the officers had qualified immunity. The Seventh Circuit determined that it was not “clearly established” by case
law whether an officer’s intentional deployment of less-than-lethal munitions
that hit unintended targets during a protest constitutes a seizure under the
Fourth Amendment, so the journalists could not defeat the officers’ claims of qualified
immunity.
Authored by Rachel Stempler, Ancel Glink
