{"id":13198,"date":"2014-03-07T20:42:28","date_gmt":"2014-03-08T03:42:28","guid":{"rendered":"http:\/\/amicuscuria.com\/wordpress\/?p=13198"},"modified":"2014-03-07T20:58:50","modified_gmt":"2014-03-08T03:58:50","slug":"barts-false-arrest-of-journalist-generates-lawsuit","status":"publish","type":"post","link":"http:\/\/amicuscuria.com\/wordpress\/barts-false-arrest-of-journalist-generates-lawsuit\/","title":{"rendered":"BART’s False Arrest of Journalist Generates Lawsuit"},"content":{"rendered":"

Targeting Journalist Proves Expensive for BART<\/strong><\/h2>\n
\"Targeted

Dave Id, targeted for arrest by BART Police<\/p><\/div>\n

by Andrew Meyer of PINAC<\/em><\/p>\n

San Francisco, CA —<\/strong> After being penned like an animal and arrested inside an official \u201cfree-speech zone,\u201d a San Francisco-area journalist has filed suit against BART, the Bay Area Rapid Transit Police Department, for planning his arrest ahead of time.<\/p>\n

David Morse, known to the readers of\u00a0Indybay.org<\/a>\u00a0as ‘Dave Id’, was arrested and held in jail along with dozens of protesters after documenting a protest at the Powell Street Station in 2011.\u00a0 Prior to the announced \u201cNo Justice No BART\u201d demonstration, BART decided to shut down over one-half of the Powell Street station, forcing the crowd of demonstrators, media, and passengers into a small section of the station. BART riot police then surrounded dozens of demonstrators and journalists for arrest.<\/p>\n

After a BART officer grabbed a demonstration organizer by his backpack and lifted him off of the ground, BART\u2019s riot police circled the demonstrators from all directions and trapped the entire group of protesters and media. Police claimed the suspects were blocking the movements of people within the subway station.<\/p>\n

But, Morse later learned they had planned his arrest before the protest.<\/p>\n

While the other credentialed\u00a0journalists were released<\/a>\u00a0without arrest at the subway station, Morse was arrested and held at the San Francisco city jail. Morse, who has written about BART for years, believes he was singled out specifically for arrest by BART Police Deputy Chief Dan Hartwig<\/strong>, who knew Morse and his work as a journalist covering BART.<\/p>\n

Chief Hartwig\u2019s<\/strong> \u201cretaliatory animus\u201d may end up costing BART in court, as a Federal Judge ruled last month\u00a0that Morse can sue BART Police for their retaliatory arrest.<\/strong>\u00a0<\/i><\/p>\n

\u201cThey first tried to say that I was chanting and \u2018marching\u2019 along with protesters, deliberately blocking fare gates, but after more and more evidence came out, including their own video of me, they\u2019ve changed their tune, now arguing my mere presence combined with people walking around me justified my arrest,\u201d said Morse.<\/p>\n

Morse\u2019s case was likely helped by the fact officers admitted in depositions they discussed arresting Morse in their planning meeting before the protest, even printing his picture out on a flier prior to his arrest. (ibid)<\/em><\/p>\n

Morse is no stranger to the legal arena. After suing the UC Berkeley Police Department, receiving a\u00a0$162,500 settlement in 2012<\/a>\u00a0following an unlawful arrest that occurred while documenting a protest on campus, Morse is once again seeking damages from public employees paid to \u201cserve and protect.\u201d<\/p>\n

BART has a notorious history of serving the public, including\u00a0tasing a man for no reason<\/a>,\u00a0murdering Oscar Grant<\/a>, not to mention killing homeless men\u00a0Fred Collins<\/a>\u00a0and\u00a0Charles Hill<\/a>\u00a0in separate incidents.\u00a0Johannes Mehserle, the BART officer who shot Grant in the back while another officer had Grant pinned to the ground, was released from prison after serving 11 months for the crime.<\/p>\n

While BART\u2019s settlement to Grant\u2019s family has yet to make a lasting impact on the culture of the department, Morse hopes his case teaches BART not \u201cto penalize journalists it doesn’t like.\u201d The majority of the people arrested at the Powell Street protest chose not to file a lawsuit after being arrested on a pretense in retaliation for exercising their free-speech in BART\u2019s designated ‘free-speech zone’.<\/p>\n

The idea of a ‘free-speech zone’ in the first place is a Constitutional anathema to many. For those who find the police infringing further on First Amendment rights, going the extra mile in court may be the step that makes all the difference. While Morse\u2019s case, \u201cis far from over, and victory is not guaranteed,\u201d civil suits provide people with a way to teach police departments like BART no one is above the law–a potential payday for the litigant’s defense of free speech.<\/p>\n

According to the\u00a0judge\u2019s ruling:<\/a><\/p>\n

It is undisputed that Plaintiff published numerous stories that were, at best, critical of BART and BART police officers, in particular. Plaintiff openly mocked and ridiculed the agency and its officers. These declarations did not go unnoticed at BART. For instance, Hartwig testified that he \u201cmaybe\u201d discussed Plaintiff\u2019s articles with Fairow and Chief Rainey. (Dkt. No. 64-1, Ex. A at 43:1-15.) Four other officers also testified they read at least some of Plaintiff\u2019s articles, including Fairow who testified that he read any of Plaintiff\u2019s articles that had to do with the protests. Further, Fairow\u2014who was personally criticized and mocked in at least two of Plaintiff\u2019s articles\u2014ordered the creation of a flyer depicting Plaintiff and Cantor as the primary subjects of the day\u2019s protest. The flyer was discussed and handed out to officers at a briefing the day of the protest. While Hartwig denies he was at the briefing, two other officers testified that he was in attendance. The officers were told that if either Plaintiff or Cantor was witnessed violating the law, he was to be arrested. In other words, Plaintiff was singled out, possibly to retaliate against him for his inflammatory articles.<\/p>\n

Further, a reasonable trier of fact could find that Hartwig\u2019s comment to the media following the protest that no \u201clegitimate\u201d members of the press were arrested, suggests animosity towards Plaintiff and Plaintiff\u2019s reporting. While Hartwig testified that \u201clegitimate\u201d members of the media were journalists \u201cwe could identify\u201d as a member of the media (Dkt. No. 64-1, Ex. A at 132:11-13), Plaintiff would have presumably fallen into this category since Plaintiff testified that he was wearing his press credentials around his neck during the protest and while he was being arrested. Moreover, it is undisputed that Hartwig knew Plaintiff was a journalist, and, as discussed above, there is evidence that Plaintiff\u2019s conduct at the protest did not go beyond that of other journalists at the protest who were not arrested. A rational jury could thus infer that Hartwig did not consider Plaintiff a \u201clegitimate\u201d member of the media because of the content of Plaintiff\u2019s speech. A rational jury could further infer that this animosity carried over into Hartwig\u2019s arrest of Plaintiff, which occurred only shortly before Hartwig made his comment.<\/p>\n

A reasonable trier of fact could also call into question the motivations underlying the arrest given that Plaintiff was subject to a custodial arrest, rather than the cite-and-release procedure used for other arrestees at the protest. (See\u00a0<\/i>Dkt. No. 64-1, Ex. A at 143:6-12 (Hartwig testifying that some non-journalists were cited and released).) Further, BART procedures for crowd control include a \u201ccite & release procedure\u201d whereby the default for a misdemeanor arrest is cite and release. BART argues that Hartwig\u2019s decision to not cite and release Plaintiff was nevertheless consistent with this policy because Plaintiff fell within an exception to that policy; namely, \u201c[t]here was a reasonable likelihood that the offense(s) would continue or resume.\u201d (Id.\u00a0<\/i>at Ex. B at \u201cBART 019355.\u201d) Hartwig testified that such a custodial arrest was necessary because Plaintiff and Cantor were \u201cthe reason for the emotion and passion\u201d and once they were removed, \u201cthe center of that inner circle went silent to the point I stepped inside and they all sat down.\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Targeting Journalist Proves Expensive for BART by Andrew Meyer of PINAC San Francisco, CA — After being penned like an animal and arrested inside an official \u201cfree-speech zone,\u201d a San Francisco-area journalist has filed suit against BART, the Bay Area … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-13198","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/13198","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/comments?post=13198"}],"version-history":[{"count":3,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/13198\/revisions"}],"predecessor-version":[{"id":13201,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/13198\/revisions\/13201"}],"wp:attachment":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/media?parent=13198"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/categories?post=13198"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/tags?post=13198"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}