Qualified Immunity Where Protest Crowd-Control Munitions Strike an Unintended Target; Retaliation Requires Evidence of Intentional Targeting

Introduction

Alyssa Schukar v. Kenosha County (7th Cir. July 21, 2026) arises from the August 25, 2020 unrest in Kenosha County following the police shooting of Jacob Blake. Photojournalists Alyssa Schukar and Scott Olson were injured by foam baton rounds while covering a protest outside the Kenosha County Courthouse. They sued under 42 U.S.C. § 1983, asserting (1) First Amendment retaliation and (2) Fourth Amendment excessive force against two officers involved in crowd control—Waukesha County Deputy Steven Robakowski and Delafield Officer Ryan Jacobs.

The central issues on appeal were whether the evidence permitted a jury to infer that the officers intentionally targeted the journalists because of their newsgathering, and whether being struck by crowd-control munitions—even if not the officers’ specific intended target—constituted a Fourth Amendment seizure (and, if so, whether the law was clearly established in 2020).

Summary of the Opinion

  • First Amendment: The court affirmed summary judgment because the record did not support an inference that either officer intentionally targeted Schukar or Olson—much less targeted them because they were engaged in protected press activity.
  • Fourth Amendment: The court declined to decide the unsettled constitutional question whether an officer’s intentional use of force with intent to restrain can “seize” an unintended target. Instead, it affirmed on qualified immunity grounds, holding it was not clearly established in 2020 that deploying less-than-lethal munitions that strike an unintended person constitutes a seizure.

Analysis

Precedents Cited

Standards on Review and Summary Judgment

The court applied de novo review of summary judgment, citing Bourke v. Collins, emphasizing that facts and reasonable inferences are taken in the nonmovants’ favor. Yet, consistent with Anderson v. Liberty Lobby, Inc., the court reiterated that a “scintilla” of evidence is insufficient—retaliatory intent must be supported by evidence from which a reasonable jury could find for plaintiffs.

First Amendment Retaliation Framework

The doctrinal backbone came from Nieves v. Bartlett (retaliation doctrine and the role of non-retaliatory grounds), FKFJ, Inc. v. Vill. of Worth (Seventh Circuit’s articulation of the burden-shifting framework and types of circumstantial proof), and Manuel v. Nalley (return burden to the plaintiff to show pretext after the defendant articulates non-retaliatory grounds). These cases guided the court’s focus on the third element—whether protected activity was “at least a motivating factor”—and on what kind of circumstantial evidence can sustain that element.

Inferring Animus in Protest-Force Contexts (Out-of-Circuit Guidance)

Because protest crowd-control scenarios often require inference from circumstances, the court relied on persuasive authority:

  • Los Angeles Press Club v. Noem (citing Index Newspapers LLC v. U.S. Marshals Service) for the proposition that evidence of officers “repeatedly target[ing]” journalists positioned “far from any protestors or bad actors” can support an inference of retaliatory animus.
  • De Mian v. City of St. Louis for the inverse: where a journalist is near the edge of a legitimate force deployment zone and there is no evidence of targeting, an inference of animus is weak.
  • Dickinson v. Trump for the principle that impact on an innocent bystander, without more, is generally not enough to show retaliatory animus when the person is close to legitimate targets.
  • Sanderlin v. Dwyer as an example of “more”: a threat directed at a specific peaceful person, followed by a strike, can materially change the inference calculus.

The Seventh Circuit used these cases not to import a rigid test, but to frame the evidentiary gap here: Schukar and Olson were near violent actors and lacked additional indicia of being singled out (distance from targets, repeated targeting, warnings, hostile statements, or pattern evidence).

Fourth Amendment Seizure and Excessive Force Doctrine

The court anchored the Fourth Amendment claim in familiar components: Hess v. Garcia (excessive force requires a seizure plus unreasonableness), Graham v. Connor (objective reasonableness under the totality of circumstances), and—crucially—Torres v. Madrid, which clarified that a seizure by force requires the “use of force with intent to restrain,” assessed by whether conduct “objectively manifests an intent to restrain.”

The opinion then highlighted post-Torres uncertainty on whether force intended to restrain that hits an unintended person effects a seizure, citing: Kilnapp v. City of Cleveland (6th Cir.) (holding that any person struck is seized if the circumstances objectively manifest intent to restrain), Hawatmeh v. City of Henderson (9th Cir.) (holding no seizure of a hostage accidentally shot), and Irish v. McNamara (8th Cir.) (treating dog-bite unintended-target analogs as not a seizure and resolving on qualified immunity). This landscape supported the court’s conclusion that the law was not clearly established in 2020.

The Seventh Circuit’s Pre-Torres “Means Intentionally Applied” Line

The officers invoked Bublitz v. Cottey (quoting Campbell v. White) for the “means intentionally applied” concept. The Seventh Circuit carefully distinguished Bublitz: there, plaintiffs were harmed by an “accidental consequence” of police tactics directed at someone else (tire-deflation device leading to a third-party collision), not by direct application of the very force that struck them. The court thus treated Bublitz as not resolving the more direct “unintended person struck by intended restraint force” question.

Qualified Immunity Sequencing and Clearly Established Law

The court applied modern qualified-immunity methodology from District of Columbia v. Wesby (two-prong test: violation and clearly established law) and Pearson v. Callahan (courts may decide either prong first). Even though the district court resolved the Fourth Amendment claim on the merits and did not reach immunity, the Seventh Circuit affirmed on immunity given the acknowledged doctrinal uncertainty.

Legal Reasoning

1) First Amendment: “Hit by Force” Is Not Enough Without Evidence of Targeting Because of Protected Activity

The court accepted two points as undisputed: (a) newsgathering/photojournalism is protected First Amendment activity, and (b) being injured by a foam baton round would deter future protected activity. The case turned on causation/motive: whether the press activity was a motivating factor in the officers’ use of force.

The Seventh Circuit concluded the record lacked evidence from which a reasonable jury could find intentional, retaliatory targeting:

  • Context of lawful targets: violence escalated (fireworks/tear gas/rocks) and the plaintiffs were near “legitimate and more likely targets”—violent protestors. Proximity to legitimate targets weakened any inference that plaintiffs were singled out.
  • No pattern of press-directed force: unlike scenarios in Los Angeles Press Club v. Noem / Index Newspapers LLC v. U.S. Marshals Service, there was no evidence of repeated targeting of journalists, or that journalists were struck while located far from unrest.
  • No individualized threats or warnings: unlike Sanderlin v. Dwyer, there were no statements or conduct evidencing intent to hit specific journalists or press.
  • Use-of-force report discrepancies: the court treated omissions/inconsistencies as insufficient to create a reasonable inference of retaliatory animus—particularly absent any requirement that reports itemize all rounds fired, and given supplementation by Officer Jacobs.

In effect, the opinion draws a line between (i) cases where force use against press appears deliberate and press-focused, and (ii) cases where journalists are harmed amidst volatile crowd-control operations without additional “targeting” indicia. Only the former supports a retaliation inference on this record.

2) Fourth Amendment: The Court Avoids the Seizure Question and Resolves on Qualified Immunity

Rather than decide whether a person struck by force not aimed specifically at them is “seized” under Torres v. Madrid, the court held that—given acknowledged circuit disagreement and analytical fragmentation—no clearly established law existed in 2020. That conclusion alone entitled the officers to qualified immunity.

The reasoning is noteworthy for two moves:

  1. Recognizing doctrinal instability post-Torres: the opinion treats Torres as suggestive but not dispositive on unintended targets, and then surveys conflicting circuit approaches (including Kilnapp v. City of Cleveland and Hawatmeh v. City of Henderson).
  2. Separating “direct force” from “accidental consequence”: by distinguishing Bublitz v. Cottey, the court signals that Seventh Circuit precedent does not cleanly answer the unintended-target-by-direct-force question—another reason immunity applies.

Impact

On First Amendment Retaliation Claims by Journalists at Protests

The decision underscores a proof-based constraint: being struck by crowd-control munitions, without more, will not support a retaliation claim when journalists are commingled with or near violent actors. Future plaintiffs in the Seventh Circuit will likely need evidence such as: repeated or directional targeting despite distance from unrest, explicit statements, warnings/threats, selective enforcement patterns, or other facts that make press status the plausible motivating factor.

On Fourth Amendment Litigation Involving Unintended Targets

The opinion’s immediate doctrinal effect is practical rather than definitional: it fortifies qualified immunity for officers in 2020-era protest cases involving less-than-lethal munitions striking unintended persons. It also preserves (for a future case) the unresolved constitutional question whether an “intent to restrain” deployment that hits a bystander constitutes a seizure—an issue the court flagged as subject to a circuit split and inconsistent sub-doctrines.

On Qualified Immunity as a Case-Dispositive Tool on Appeal

Even when the district court does not reach qualified immunity, the Seventh Circuit’s reliance on Pearson v. Callahan demonstrates how appellate courts can affirm on immunity to avoid prematurely constitutionalizing unsettled areas—especially where national doctrine is in flux.

Complex Concepts Simplified

  • Summary judgment: the court ends the case without a trial when no reasonable jury could find for the plaintiffs on the evidence presented.
  • First Amendment retaliation (burden-shifting): plaintiffs must show protected activity, deterrent harm, and that the activity motivated the adverse action; defendants can point to non-retaliatory reasons; plaintiffs then must show those reasons are pretext.
  • Retaliatory animus: evidence (direct or circumstantial) that officials acted because they disliked or intended to punish protected expression (here, press coverage).
  • Fourth Amendment “seizure”: not every injury by police conduct is a seizure; a seizure by force requires conduct that objectively shows an intent to restrain (from Torres v. Madrid).
  • Qualified immunity: even if a constitutional violation occurred, officers are not liable for damages unless the law was clearly established at the time—i.e., existing precedent put the issue beyond debate.
  • “Clearly established” law: plaintiffs must point to precedent that would have made it obvious to every reasonable officer in 2020 that the specific conduct was unconstitutional under similar circumstances.

Conclusion

Alyssa Schukar v. Kenosha County affirms summary judgment for officers in a volatile protest setting by tightening two practical requirements: (1) First Amendment retaliation claims by journalists require evidence of intentional, press-motivated targeting—not merely injury during crowd-control operations near legitimate targets; and (2) for Fourth Amendment excessive force, the Seventh Circuit holds that—whatever the ultimate answer on whether unintended targets are “seized” under Torres—the law was not clearly established in 2020, entitling officers to qualified immunity. The opinion thus both signals evidentiary rigor for protest-related retaliation claims and preserves unresolved seizure doctrine for future, better-posed cases.