Gil Gross Interview with Michael Siegel About Indybay Reporter's Case Against BART, 2/13/14

Bob Egelko
Updated 2:44 am, Thursday, February 13, 2014

(02-12) 17:43 PST SAN FRANCISCO -- A journalist who was arrested during protests against BART police in San Francisco can go to trial with his suit claiming that transit officers targeted him because of his critical coverage, a federal magistrate has ruled.

Bay Area Rapid Transit police apparently had grounds to arrest David Morse for allegedly blocking fare gates as part of a demonstration at the Powell Street station in September 2011, but about a dozen other journalists were among the protesters and were not arrested, U.S. Magistrate Jacqueline Corley said Tuesday.

She also noted that commanders had distributed a flyer to officers with photos of Morse and a protest organizer with instructions to arrest them if they broke the law.

A jury could conclude that Morse "was singled out, possibly to retaliate against him for his inflammatory articles," Corley said. She said it is illegal for police to punish reporters or anyone else for exercising their right of free speech.

Morse writes Internet articles, under the pen name of Dave Id, for Indybay, the San Francisco Bay Area Independent Media Center. He covered the fatal shooting of Oscar Grant at BART's Fruitvale Station in Oakland in 2009, the subsequent manslaughter conviction of Officer Johannes Mehserle, and the fatal shooting of Charles Hill, a homeless, knife-wielding man, at San Francisco's Civic Center Station in July 2011. His articles accused BART and its police of racism and cover-ups.

The September 2011 demonstration was called to protest those shootings and BART's cutoff of cell phone service during another demonstration the previous month.

Morse, wearing a press pass around his neck, entered the group of demonstrators, taking photos and making notes, but said he did not take part in chants, marches or other protest activities before Deputy Chief Dan Hartwig ordered his arrest.

Hartwig, with whom Morse had regularly spoken during past coverage, said Morse was an active participant but did not specify anything he did to block the fare gates or further the protest, Corley said. Morse, the first person arrested, was held at a police station in handcuffs for more than two hours - contrary to the usual police practice of citing protesters without arrest, Corley said. A judge later dismissed the charges against him.

The magistrate said police had evidence to justify his arrest - that Hartwig was "standing in a group of people who were forcing BART patrons to walk around them" - but must go to trial on his claim of retaliation.

Morse's lawyer, Michael Siegel, said the journalist believes his arrest, preceded by the police flyer, was ordered because "he was covering the issues very extensively and very critically."

Dale Allen, a lawyer for BART, said the agency was considering an appeal but was confident a jury would conclude that Morse was arrested for breaking the law, and "there was never any intent to retaliate."

By CHRIS MARSHALL

Friday, February 14, 2014
Last Update: 5:40 PM PT

SAN FRANCISCO (CN) - A jury must decide if transit police arrested a journalist covering a protest in retaliation for his criticism of the agency, a federal judge ruled.

Indybay newswire reporter David Morse says Bay Area Rapid Transit District (BART) police arrested him after a protest held in response to the shooting deaths of unarmed transit rider Oscar Grant in 2009 and transient Charles Hill in July 2011 and BART's decision to shut down cell phone service during an earlier protest.

The protesters allegedly gathered outside the fare gates of a downtown San Francisco station on Sept. 8, 2011, during the evening rush hour and walked around the area in front of the turnstiles chanting slogans. Morse claims he followed the group around taking pictures and making observations.

BART police encircled the group after warning that they would be arrested if they blocked the fare gates, told the protestors to leave the station or face arrest, and then selected Morse as the first person to be arrested, according to the ruling.

Instead of citing and releasing Morse as they did with other protesters arrested that day, BART officers arrested Morse and held him in custody, according to the suit.

Though BART Deputy Police Chief Brian Hartwig claims that Morse was an "active participant" who was part of the group that blocked fare gates, Morse claims he did not participate in the protest and did not block the fare gates. Video footage of the protest shows Morse taking pictures and moving with the group of protesters.

Another BART officer at the scene testified later that Morse's behavior was no different from that of other journalists covering the protests.

Morse claims he was the only journalist arrested at the Sept. 8 protest.

He says Hartwig decided to arrest him because he had written multiple articles heavily criticizing the department for the shootings deaths of Grant and Hill. In criticizing BART's handling of subsequent protests, Morse also allegedly called BART officials liars. Hartwig admitted to reading at least some of the articles.

BART created a flyer before the Sept. 8 protest identifying a leader of the protest group and plaintiff, whom BART discussed as an "active organizer" of a group of serial protesters and supposed collaborator with the protest leader. The flyer was distributed at the station and officers were ordered to arrest plaintiff or the protest leader if they were "inciting a riot or acting in a criminal manner," according to the ruling.

U.S. Magistrate Judge Jacqueline Corley ruled Tuesday that a jury should decide whether circumstantial evidence shows that Morse's arrest was retaliatory.

The ruling notes that Morse wrote many critical articles that "openly mocked and ridiculed the agency and its officers," of which the agency took note.

By creating the flyer and specifically naming Morse at briefings before the protest as someone who should be arrested if the protest was deemed illegal, BART "singled out" Morse, "possibly to retaliate against him for his inflammatory articles," according to the rulng.

While Hartwig claims he arrested Morse because of his active participation in the protest, Corley found that a "reasonable jury could find otherwise," noting that the officers released approximately a dozen other journalists who were covering the protest without a citation.

The judge also found that Hartwig's comment to the media following the protest that no "legitimate" members of the press were arrested "suggests animosity towards plaintiff and plaintiff's reporting."

The judge continued: "While Hartwig testified that 'legitimate' members of the media were journalists 'we could identify' as a member of the media, 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."

The judge also noted that Hartwig knew Morse was a journalist and ruled that the department might have retaliated against him by detaining him after his arrest rather than following normal procedure and citing and releasing him.

Morse had a right to be free from a retaliatory arrest even if there was probable cause for his arrest, according to the ruling.

The judge did toss a federal unlawful arrest claim and a state-law claim for false imprisonment, finding that Morse did not show that BART did not have probable cause to arrest him for allegedly blocking the fare gates.

The judge also ruled that a jury should decide Morse's claim for punitive damages.

Michael Siegel, an attorney with Siegel & Yee for Morse, said he was pleased with the order and that it "validates [Morse's] suspicion that BART focused its law enforcement resources on him after he decided to engage in critical journalism of BART police practices."

Citing the flyer, which included a picture of Morse, the Oakland lawyer said BART police "basically gave permission to arrest him despite knowing he was a journalist" while not arresting other journalists.

BART and Deputy Chief Hartwig are represented by Dale Allen Jr. of the law firm of Allen Glaessner & Werth in San Francisco.

Allen told Courthouse News: "We are pleased with the court's finding that Chief Hartwig had probable cause to order the arrest. That remains our position. It was never a retaliatory arrest. And Judge Corley believes it should go to the jury where we believe they will find it was not a retaliatory arrest."

An appeal is possible, Allen added.

[Dave Id, targeted for arrest by BART Police]

 

After being penned like an animal and arrested inside an official “free-speech zone,” a San Francisco-area journalist has filed suit against BART, the Bay Area Rapid Transit Police Department, for planning his arrest ahead of time.

David Morse, known to the readers of Indybay.org as Dave Id, was arrested and held in jail along with dozens of protestors after documenting a protest at the Powell Street Station in 2011. Prior to the announced “No Justice No BART” 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.

After a BART officer grabbed a demonstration organizer by his backpack and lifted him off of the ground, BART’s 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.

But Morse later learned they had planned his arrest before the protest.

While the other credentialed journalists were released without arrest at the subway station, Morse was arrested and held at 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, who knew Morse and his work as a journalist covering BART.

Chief Hartwig’s “retaliatory animus” may end up costing BART in court, as a Federal Judge ruled last month that Morse can sue BART Police for their retaliatory arrest.

“They first tried to say that I was chanting and ‘marching’ along with protesters, deliberately blocking fare gates, and after more and more evidence came out, including their own video of me, they’ve changed their tune and now argue that just because I was there and people had to walk around me that I was rightly arrested,” said Morse.

Morse’s case was likely helped by the fact that officers admitted in depositions that they discussed arresting Morse in their planning meeting before the protest, and even printed his picture out on a flier prior to his arrest, which you can see above.

Morse is no stranger to the legal arena. After suing the UC Berkeley Police Department and receiving a $162,500 settlement in 2012 following an unlawful arrest that occurred while documenting a protest on campus, Morse is once again seeking damages from public employees paid to “serve and protect.”

BART has a notable history of serving the public, including tasing a man for no reason, murdering Oscar Grant, and killing homeless men Fred Collins and Charles Hill in separate incidents. Johannes 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 only 11 months.

While BART’s settlements to Grant’s family have yet to make a lasting impact on the culture of the department, and Morse hopes that his case teaches BART not “to penalize journalists with whom they disapprove,” the majority of the people arrested at the Powell Street protest chose not to file a lawsuit after being arrested on a pretense for exercising their free-speech in BART’s designated free-speech zone.

The idea of a free-speech zone in the first place is constitutional anathema to many. For those who find the police infringing further on their First Amendment rights, going the extra mile in court may be the step that makes all the difference. While Morse’s case, “is far from over, and victory is not guaranteed,” civil suits provide people with a way to teach police departments like BART that no one is above the law, and a potential payday for upholding free speech.

According to the judge’s ruling:

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 “maybe” discussed Plaintiff’s 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’s articles, including Fairow who testified that he read any of Plaintiff’s articles that had to do with the protests. Further, Fairow—who was personally criticized and mocked in at least two of Plaintiff’s articles—ordered the creation of a flyer depicting Plaintiff and Cantor as the primary subjects of the day’s 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.

Further, a reasonable trier of fact could find that Hartwig’s comment to the media following the protest that no “legitimate” members of the press were arrested, suggests animosity towards Plaintiff and Plaintiff’s reporting. While Hartwig testified that “legitimate” members of the media were journalists “we could identify” 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’s 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 “legitimate” member of the media because of the content of Plaintiff’s speech. A rational jury could further infer that this animosity carried over into Hartwig’s arrest of Plaintiff, which occurred only shortly before Hartwig made his comment.

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 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 “cite & release procedure” whereby the default for a misdemeanor arrest is cite and release. BART argues that Hartwig’s decision to not cite and release Plaintiff was nevertheless consistent with this policy because Plaintiff fell within an exception to that policy; namely, “[t]here was a reasonable likelihood that the offense(s) would continue or resume.” (Id. at Ex. B at “BART 019355.”) Hartwig testified that such a custodial arrest was necessary because Plaintiff and Cantor were “the reason for the emotion and passion” and once they were removed, “the center of that inner circle went silent to the point I stepped inside and they all sat down.”