Californian Journalist Wins $162,500 Settlement For Unlawful Arrest

A journalist who was jailed on several felony charges while documenting a protest at UC Berkeley won a $162,500 settlement last week.

UC Berkeley police also seized David Morse’s camera as evidence and held on to his memory card for more than six months before a judge ordered it returned to him.

And when they did, he discovered they had deleted a photo he took of them arriving on the scene, which contradicted their story that he was fleeing from the scene.

But because of their unlawful arrest, the university not only had to dish out all that money, its police department will now be required to undergo training in dealing with the media, specifically in regards to obtaining videos and photos for evidentiary purposes.

Morse, who goes by the pseudonym Dave Id on Indybay, was arrested in December 2009 as protesters stood outside the on-campus home of the university chancellor carrying lit torches.

Some of the protesters began vandalizing the home, running away as police pulled up to the scene.

Morse remained on the scene and was arrested, even though he quickly informed them he was there as a journalist. Here is his account of the arrest.

He was charged with attempted arson of an inhabited structure, vandalism, participation in a riot, attempted burglary, threatening a university official, and two counts of assault with a deadly weapon against a police officer. 

All charges ended up dropped but police insisted on holding on to his photos as they tried to build a case against other suspects.

Morse had an impressive legal team made up of Photography is Not a Crime reader Geoff King as well as attorneys from the First Amendment Project.

Read the attorneys’ press release here that provides more details on the settlement.

Here is a question and answer interview I conducted with Morse through Facebook that I decided to cut-and-paste in its entirety.

Why do you think they deleted that one photo of them approaching the scene?

It's physical evidence that contradicts UC Berkeley's ongoing narrative that the protest was not one just where some people broke potted plants and light fixtures and cracked a couple of windows but rather some sort of lynch mob intent on murdering the Chancellor and UCPD officers. Some protesters had torches and so UC said that incendiary devices were thrown at the police car. I overheard one of my arresting officers telling other officers that night that she had to roll up the window of the squad car to prevent flames from entering the vehicle and burning her. I witnessed no such thing being right there as the first police arrived, and the final photo I shot showed the last few protesters running away as the police car actually reached the scene. But I was in general population of the Santa Rita jail when UC's PR machine went into overdrive the following morning, and then I had very serious felony charges hanging over my head for five days and a lengthy struggle to get my camera and photographs returned, so I was never able to tell the true story of what happened that night in a reasonably timely manner. My voice as a journalist was effectively silenced until the story no longer mattered to the corporate media which had fed on it non-stop for days. Now that news of the my settlement with the UC Regents has broken, UC Berkeley is saying that they believe "police acted responsibly and effectively to protect" Chancellor Birgeneau's mansion at the time, but I'd add that they acted quite effectively at maintaining exclusive control of the narrative.

How did you supposedly assault these cops to be charged with two counts of assault?

The police knew from the very beginning that this was not true, but it didn't matter to them. The first two officers saw me make a photograph of them as they rolled up. That's why they came after me saying they wanted my camera, because they believed it contained evidence of a crime, the vandalism at the Chancellor's house. But the charges were a twofer for UC Berkeley: one, they could grab my camera and get an illegal search warrant while my $132,000 bail kept me in jail unable to speak on my own behalf, and two, I was reduced to a crazed felon in the eyes of the media before my legal battles really began. Arnold Schwarzenegger, the governor at the time, was quoted as saying that the protest was a form of terrorism and, as my name and mugshot were a part of the saturation local news coverage at the time, I was therefore branded a terrorist in the eyes of the general public. After I was handcuffed and put in the patrol car that night, seven other people who were in the vicinity were also arrested and charged with the same five felonies and two misdemeanors. The DA filed no charges against any of us at our arraignment.

What was the deadly weapon?

The deadly weapon would have been a torch or torches thrown at police, I suppose. There were two officers in the first car that arrived.

How long did it take them to eventually return your memory card?

My camera until just a few months ago shot on mini-CDs. I think I bought it around 2004. Those CDs were cool when memory cards held less than 200mb, but as memory expanded exponentially and got much cheaper, that camera wasn't so cool any more. It was six months before I was able to get my CD back from UC. It was in June the following year when I prevailed in state court and was able to quash the ill-gotten search warrant with the amazing legal work of Geoff King and the First Amendment Project here in Oakland. Under state law, police are supposed to use a subpoena to seek unpublished photographic materials, which gives a photojournalist or anyone intent on publishing photographs a fair chance to argue in open court against handing them over to police. I was denied that opportunity. The affidavit UC police filed for the warrant was not only false and misleading, but I was in jail and had no opportunity to stand up for my rights as a journalist.

Did they ever make any arrests based on your photos?

No, there was nothing they could use against any of the other seven arrestees -- collectively, we were dubbed the UC8 at the time until the DA failed to file charges -- nor anyone else associated with the protest. UCPD did post blow-ups of my photos on their website, on a wanted-style web page seeking help identifying individuals who were in the march that night. I had never even seen my own photos until the warrant was quashed, so I wasn't sure if those were even my photographs on their wanted page until my photos were returned, because I had shot wide crowd shots and the photos posted online were close-ups of individuals in the march to the Chancellor's house. It was dark and things were moving fast when I made those photos. It was a matter of just 15 minutes between when I started shooting photos of a march and when I was in handcuffs in the police car. Unfortunately, though, UCPD also used one or two of my photographs to bring disciplinary charges against one or two students. One of them seemed to be holding a torch during the march and UC Berkeley said that was behavior unbecoming of a student and tried to deny housing and other benefits.

What kind of camera are you going to buy with your settlement?

Funny you ask. That was the one concrete thing I told myself from the very beginning that I would buy for myself if I prevailed with the civil suit. At some point in the next few months, I'll be looking to buy a decent HD videocamera, something I've never owned, always having shot in SD when I do video. I want the new one to be small enough that I can cover both speaking events and street demonstrations, something that will reasonably fit into a backpack along with a still camera. I've seen that JVC makes a series of cameras that record to MOV files, and that might be useful for me. I also intend to make a few charitable donations, including a healthy one to the NLG for all of the fine work they do. It was the NLG that originally represented the UC8 up until our arraignment.