The United States Court of Appeals for the Seventh Circuit has upheld a lower court’s decision dismissing a lawsuit brought by photojournalists from The New York Times and Getty Images, ruling that law enforcement officers did not intentionally target the media members during the 2020 civil unrest in Kenosha, Wisconsin. The appellate panel’s decision reinforces the high evidentiary bar required for members of the press to prove constitutional violations when caught in the crossfire of police crowd-control measures.
The case, which stems from the volatile protests following the police shooting of Jacob Blake, centered on whether the use of "less-lethal" foam baton rounds against journalists constituted an intentional effort to suppress First Amendment activities or an unreasonable seizure under the Fourth Amendment. In a unanimous affirmation, the Seventh Circuit concluded that while the journalists were indeed struck by projectiles, the evidence did not support the claim that they were singled out because of their profession or their presence as observers.
Background: The Kenosha Unrest of 2020
The legal dispute traces back to late August 2020, a period of intense social and political upheaval in Kenosha. On August 23, 2020, a Kenosha police officer shot Jacob Blake, a Black man, seven times in the back, leaving him paralyzed. The incident, captured on video, sparked immediate and widespread protests against police brutality and systemic racism, mirroring the national outcry following the death of George Floyd earlier that year.
By the second and third nights of the protests, the area surrounding the Kenosha County Courthouse had become a focal point for clashes between demonstrators and law enforcement. The environment was characterized by fire-starting, property damage, and the deployment of tear gas, flash-bang grenades, and rubber bullets. It was within this chaotic theater that the plaintiffs—veteran photojournalists tasked with documenting the historic events—reported being struck by 40mm foam baton rounds fired by officers positioned behind a security fence.
The plaintiffs argued that they were clearly identifiable as members of the press, carrying professional camera equipment and, in some instances, wearing high-visibility gear or press credentials. They contended that the officers fired at them not to disperse a threatening crowd, but to impede their ability to record the police response to the demonstrations.
The Legal Journey and District Court Ruling
The photojournalists filed their initial complaint in the U.S. District Court for the Eastern District of Wisconsin, naming various local law enforcement agencies and individual "John Doe" officers as defendants. The lawsuit sought damages for physical injuries and alleged that the officers’ actions created a "chilling effect" on the freedom of the press.
To prevail on a First Amendment retaliation claim, the plaintiffs were required to prove that:
- They were engaged in a constitutionally protected activity.
- The officers took an adverse action against them that would likely deter a person of ordinary firmness from continuing that activity.
- The adverse action was motivated, at least in part, by their protected activity.
In the district court, the presiding judge granted summary judgment in favor of the defendants. The court found that the plaintiffs failed to provide specific evidence—such as radio transmissions, verbal taunts, or a pattern of directed fire—that suggested the officers were aiming at the journalists specifically because of their status. The court noted that the journalists were positioned near a crowd that was actively ignoring dispersal orders, making it difficult to distinguish between intentional targeting and incidental contact during a general crowd-control operation.
The Seventh Circuit’s Analysis
On appeal, the Seventh Circuit panel scrutinized the record to determine if there was a "genuine dispute of material fact" that would warrant a trial. The appellate judges focused heavily on the chaotic nature of the night in question.
The panel noted that for a Fourth Amendment "seizure" to occur, there must be a government-terminated freedom of movement through means intentionally applied. While the foam batons were intentionally fired into the area, the court reasoned that the plaintiffs did not provide sufficient evidence that the officers intended to "seize" the photographers specifically.
Regarding the First Amendment claims, the court emphasized the "but-for" causation requirement. The judges argued that the photographers were in close proximity to protesters who were throwing objects at the courthouse and refusing to leave the area. "In a fluid and violent situation, the fact that a journalist is struck by a projectile intended to disperse a crowd does not, by itself, establish that the journalist was the intended target of a retaliatory strike," the opinion stated.
The court further observed that the journalists were not arrested or prevented from leaving the scene. The panel concluded that without a "smoking gun" or a more definitive link between the officers’ intent and the journalists’ professional identity, the claims could not survive summary judgment.
Chronology of Events
- August 23, 2020: Jacob Blake is shot by Kenosha police, triggering immediate protests.
- August 24–25, 2020: Protests escalate at the Kenosha County Courthouse. Photojournalists from The New York Times and Getty Images are struck by foam baton rounds while documenting the scene.
- August 25, 2020: The situation in Kenosha turns deadly when Kyle Rittenhouse shoots three people, killing two, during continued unrest.
- 2021: The photojournalists file a federal civil rights lawsuit against Kenosha County and law enforcement officials.
- 2023–2024: Discovery and depositions take place, with officers testifying to the high-stress environment and the difficulty of identifying individuals in the dark, smoky conditions.
- Late 2025: The District Court for the Eastern District of Wisconsin grants summary judgment to the defendants, dismissing the case.
- July 21, 2026: The Seventh Circuit Court of Appeals affirms the lower court’s ruling, effectively ending the plaintiffs’ pursuit of damages in federal court.
Supporting Data: Journalists Under Fire in 2020
The Kenosha incident was not an isolated event. According to data from the U.S. Press Freedom Tracker, the year 2020 saw a staggering spike in violence against journalists in the United States.
- Assaults: Over 600 journalists reported being assaulted while covering protests in 2020.
- Munitions: In approximately 80% of these cases, the "assailant" was identified as law enforcement using less-lethal munitions (tear gas, rubber bullets, or foam rounds).
- Arrests: More than 140 journalists were arrested or detained in 2020, a significant increase from previous years where the average was typically in the single digits.
- Geographic Spread: While Kenosha was a major flashpoint, similar lawsuits were filed in Portland, Minneapolis, and Los Angeles, with varying degrees of success.
These statistics were often cited by press advocacy groups to argue that there was a systemic failure to protect the media during the 2020 unrest. However, as the Seventh Circuit’s ruling demonstrates, translating these broad statistics into a successful individual legal claim requires specific proof of intent that is often difficult to secure in the "fog of war" surrounding civil disturbances.
Official Responses and Reactions
Following the ruling, representatives for the law enforcement agencies involved expressed satisfaction with the court’s decision. A spokesperson for the Kenosha County Sheriff’s Department stated, "Our officers were tasked with protecting public infrastructure and maintaining order under extreme duress. The court’s decision recognizes that our personnel acted to manage a dangerous situation rather than to target any specific group or profession."
Conversely, press freedom advocates expressed concern over the precedent the ruling might set. A legal counsel for a prominent media rights organization commented, "This decision places a nearly impossible burden on photojournalists. If being clearly marked as press and being struck by a projectile is not enough to at least reach a jury, it creates a ‘zone of immunity’ for law enforcement to use force against the media so long as they are near a protest."
The New York Times and Getty Images have not yet indicated whether they will seek an en banc hearing from the full Seventh Circuit or petition the U.S. Supreme Court for certiorari. In past statements, both organizations have maintained that the safety of their journalists is paramount and that legal action is necessary to ensure that the press can operate in conflict zones without fear of state-sponsored violence.
Fact-Based Analysis of Implications
The Seventh Circuit’s affirmation has several significant implications for the future of protest coverage and police accountability:
1. The "Proximity" Defense
The ruling reinforces the "proximity" defense for law enforcement. If journalists are positioned near a group that has been declared an unlawful assembly, the courts are likely to view any incidental injury to the press as a secondary effect of lawful crowd dispersal. This puts journalists in a precarious position: to get the necessary footage, they must be close to the action, but that very proximity may waive their ability to seek legal recourse if they are injured.
2. High Bar for First Amendment Retaliation
The court’s insistence on "but-for" causation and specific evidence of intent makes it increasingly difficult for plaintiffs to win summary judgment. Without body camera footage showing an officer explicitly aiming at a "Press" vest or audio recording of an officer expressing animus toward the media, most cases will likely be dismissed before reaching a jury.
3. Impact on Press Behavior
There is a growing concern that such rulings will lead to "self-censorship" or tactical withdrawals by media outlets. If the legal system cannot guarantee protection or provide a remedy for injuries, news organizations may be less willing to send staff into high-risk environments, potentially leaving the public with a less complete understanding of how police interact with protesters.
4. Qualified Immunity and Monell Liability
The case also highlights the ongoing debate over qualified immunity. While the Seventh Circuit focused on the lack of evidence for a constitutional violation, the underlying framework of qualified immunity often protects officers unless they violated a "clearly established" right. By ruling that no violation occurred, the court avoided the qualified immunity question but effectively strengthened the shield for officers in similar future scenarios.
Conclusion
The Seventh Circuit’s decision in the case of the New York Times and Getty photojournalists serves as a definitive statement on the legal challenges facing the media in the modern era of civil unrest. While the court acknowledged the physical toll taken on the journalists, it remained steadfast in its requirement for clear, individualized proof of targeting. As the legal landscape continues to evolve, the balance between law enforcement’s mandate to maintain order and the press’s constitutional right to document that process remains one of the most contentious issues in American jurisprudence.
