Court Rejects Suit Against Illinois Firefighters Over Photo Taken of Shooting Victim

A lawsuit filed against two Cicero Fire Department paramedics and a retired lieutenant for taking and sharing a photo of a victim who was shot at a Black Lives Matter protest in 2020, has been dismissed. The suit was brought by the family of Victor Cazares, who was shot and killed while trying to protect a local grocery store from rioters on June 1, 2020.

The suit claimed that one or both of the medics, Justin Zheng or Gene Lazcano, photographed Cazares’ body, or allowed others to do so. The image was then forwarded to retired Lieutenant Frank R. Rand, who posted it to Facebook with the comment: “Come to Cicero to loot and break shit! Get a free body bag!! Nice head shot!!” The court provided a more detailed explanation of the facts as follows:

• On June 1, 2020, while protests were ongoing in Cicero, police reported that looting and vandalism had also broken out.
• Victor M. Cazares, Jr. gathered with several neighbors in front of a local grocery to discourage looting.
• At around 6 p.m., shots fired by an unknown person hit Mr. Cazares in the head.
• The Town of Cicero dispatched two Cicero Fire Department EMT paramedics, Justin Zheng and Gene Lazcano, to administer emergency medical care.
• When Zheng and Lazcano reached Mr. Cazares at 6:23 pm, he was still breathing and had a pulse.
• Paramedics Zheng and Lazcano dispensed medical aid to him.
• Nevertheless, Mr. Cazares died later that evening.
• Central to this Complaint, a photo of Mr. Cazares, wounded and on a stretcher, was disseminated on social media.
• According to the Complaint, while administering aid, “Zheng and Lazcano, took or caused another to take, one or more photograph[s] of Mr. Cazares without his consent.”
• According to the Complaint, the photograph depicts “Mr. Cazares on the ambulance stretcher, his head having been bandaged and dying” with the stretcher “covered in blood and the bandage roll on Mr. Cazares’ head… red and wet.”
• Another individual, Defendant Frank R. Rand, posted that photograph of Mr. Cazares to an 8,000-member Facebook group “for people who grew up in Cicero, Illinois” at 6:25 p.m., i.e., within two minutes of the paramedics’ arrival on the scene.
• Accompanying the photo is the message, “[c]ome to Cicero to loot and break shit! Get a free body bag!! Nice head shot!!”

The suit alleged a violation of Cazares’ civil rights, as well as conspiracy, invasion of privacy, defamation, breach of contract, and intentional infliction of emotional distress. In a ruling handed down last week, US District Court Judge Robert M. Dow, Jr. dismissed the suit, explaining as follows:

• A plaintiff [alleging a civil rights claim under §1983] must allege that the government violated a fundamental right or liberty.
• And that violation must have been arbitrary and irrational.
• Substantive due process protects against only the most egregious and outrageous government action.
• To be sure, in assessing purported violations of a fundamental right or liberty, the Supreme Court has held that “liberty” extends to certain rights beyond those “specific freedoms protected by the Bill of Rights.”
• The purported liberty interest asserted by Plaintiffs is the disclosure of private medical information.
• In this case, the Court agrees with Defendants that the Complaint does not allege a violation of Plaintiffs’ fundamental rights or liberties because Defendants did not publicly disclose private medical information.
• The photo neither captured a private scene, nor medical information that was not already readily accessible to the naked eye.
• Rather, the photograph at the center of this litigation captured an image of a tragic scene that occurred in a public forum (on the street, in front of a grocery story), visible in plain sight, surrounded by other people (e.g., at a minimum the community members with whom Mr. Cazares gathered), during a protest on a matter of wide public interest and of great public concern.
• Simply put, the Complaint does not allege that the photo uploaded by Mr. Rand revealed or exposed private medical information.
• To be sure, the photograph may have included Cazares’ “medical condition, including his conscious state and severe head injuries” and its caption may have allowed “recipients of the post” to “infer that Mr. Cazares was fatally injured.”
• Cazares’ allegations therefore do not “contain enough factual content to make out a claim for governmental violation of his medical privacy.”
• Furthermore, the photo captures an incident that occurred on a public street during a protest.
• In other words, the Complaint implicates free speech and expression under the First Amendment (an enumerated constitutional right), at a public event held in a public forum, where those rights are at their zenith.
• A Complaint that seeks to suppress photos documenting activity implicates the exact concerns raised by the Seventh Circuit in Wolfe, which warned about the tension between informational privacy and free speech.
• Taking Plaintiffs’ theory to its logical extreme, any image of a protestor, police officer, or passerby injured during a protest would convey “medical” information and would be subject to this “qualified medical information” right and thus prohibited from dissemination.
• Not only would recognizing a right to be free from disclosure of photos of violence and injury like Mr. Cazares’s undermine the ability to document, disseminate, and engage in discourse about police treatment of protestors (and citizens’ treatment of the police), but it would also have potentially suppressed the video from Minneapolis that sparked the 2020 protests in the first place.
• Such a result does not comport with the First Amendment.
• In sum, the Court dismisses Count One because the Complaint does not allege that any Defendants deprived Plaintiffs of a fundamental liberty in violation of the Fourteenth Amendment.
• Count Two for conspiracy to deprive Plaintiffs’ rights likewise must be dismissed, because there is no underlying constitutional deprivation from which to sustain the conspiracy claim.
• With the dismissal of all of Plaintiff’s § 1983 claims, the only claims remaining in the case arise under state law.
• Here, having dismissed the federal law claims, the Court declines to exercise jurisdiction over the remaining state law claims.

Here is a copy of the complaint: