Background
In August 2020, amid civil unrest in Kenosha following the shooting of Jacob Blake, photojournalists Alyssa Schukar and Scott Olson were injured by foam baton rounds fired by officers from a courthouse window. The officers were responding to protestors who had launched fireworks and thrown objects at law enforcement. The district court granted summary judgment, finding no evidence of retaliatory animus and concluding that accidental contact did not constitute a seizure.
The court’s reasoning
The court affirmed on two grounds. First, regarding the First Amendment retaliation claim, the plaintiffs failed to show that the officers intentionally targeted them rather than violent protestors nearby. Second, regarding the Fourth Amendment excessive force claim, the court noted a circuit split on whether force intentionally used to restrain an intended target seizes an unintended one. However, the court held that qualified immunity applied because it was not clearly established in 2020 that such conduct violated the Fourth Amendment.
What it means going forward
The ruling reinforces that photojournalists injured by stray munitions during volatile protests face high hurdles in proving retaliatory intent and that officers retain qualified immunity where the legal boundaries of accidental seizures remain unsettled.