Photogs Don't Got no Stinkin' Rights: CHP
WILLITS, Calif. (CN) - California Highway Patrol officers unconstitutionally arrested a news photographer for covering a contested highway project, he claims in a lawsuit in Mendocino County Court.
Stephen E. Eberhard sued the California Highway Patrol, the California Department of Transportation (Caltrans), CHP Officers Christopher W. Dabbs, Kory A. Reynolds, Teddy M. Babcock, Capt. James T. Epperson, Patrol Chief Bridget T. Lott and Caltrans District 1 Director Charlie Fielder.
In his 34-page lawsuit, Eberhard accuses the agencies of "a pattern of harassment and intimidation," toward him and other journalists reporting on the controversial Willits Bypass Project.
He claims the CHP and Caltrans sought to undermine his professional reputation by falsely describing him as "part of a protest contingent."
To chill his First Amendment rights, CHP officers arrested him though he had broken no laws, delayed processing his arrest and wrongly jailed him, he says. Their conduct "would chill a person of ordinary fitness from continuing to engage in their constitutionally protected activities," according to the complaint.
Protesters who had illegally chained themselves to construction equipment were merely cited and released, Eberhard says in the lawsuit.
Eberhard was wearing press credentials from the Mendocino Sheriff's Department and The Willits News (TWN) when he was arrested on July 23, 2013.
The Willits Bypass Project is "a four-year, $210 million highway construction project involving a 5.9-mile-long, four-lane freeway around the City of Willits," according to the complaint. "It impacts an area known as the Little Lake Valley, a historical cultural resource site where thousands of American Indians once resided, and covers more than 80 acres of sensitive wetlands. The project, first proposed in the 1950s, necessitated issuance of one of the largest wetland fill permits in Northern California history.
"Construction on the project began in February of 2013 and involved, among other things, clearing the site of trees and vegetation and piling 85-foot long wick drains deep into the ground about every 5 feet to drain the wetland area. The project has prompted two lawsuits, one brought by conservation groups in the Northern District of California attempting to halt the project, and another that sought to enjoin the transfer of fill to the site, which was brought to the attention of the public by a photograph taken by Eberhard and published in TWN. Not surprisingly, the project has been highly controversial, sparking public debate and public protests, including but not limited to peaceful, picketing-style protests along the Highway 101 corridor, public lands adjacent to the site and on public land in the area of the project. Several individuals have been arrested after lengthy sit-ins in trees set to be removed as part of the project and others after chaining themselves to construction equipment to impede the project and in protest of it. Since construction on the project began in February 2013, more than 50 arrests, involving more than 30 individuals, have been made by CHP."
The Sherwood Valley Band of Pomo Indians "called upon the United States Congress to halt work on the project after Caltrans construction crews installed deep drains on what is believed to be part of a historical cultural site, possibly causing harm to cultural resources," the complaint states.
"Thus, the Willits Bypass Project is highly newsworthy and has been the subject of extensive media coverage, including but not limited to coverage by TWN, a bi-weekly newspaper circulated throughout the Willits area."
Eberhard claims the CHP has interfered with news reporters trying to cover the project and the public protests.
"When the press, including TWN editor Linda Williams, publisher Debbie Clark and photojournalist Eberhard, tried to cover these events they were threatened with arrest by CHP officers if they did not immediately leave the area, which was unmarked and without any fencing to impede access," the complaint states.
Eberhard went to the site in April to photograph the removal of five tree-sitters.
"When a CHP officer learned of his presence, he was told to leave," the complaint states.
Eberhard says he showed his press credentials to the officer, who told a commander via radio. The commander "told the officer to 'get him out of here' or words to that effect," according to the complaint.
Later that morning, the complaint states, an officer told Eberhard to move to the opposite side of Highway 101, where he could not see the arrests that were going on. A CHP publicity photographer "stood near the arrest activity and photographed Eberhard attempting to photograph the officers' treatment of the protesters as they struggled to arrest them," the complaint states.
A few days later, Eberhard was photographing police activity when an officer told him he "had to get clearance from Caltrans." But "When Eberhard followed up with Caltrans at the Willits office later that day, he was told it was CHP's call."
Willits News Williams and Caltrans media representatives made arrangements for a Caltrans media escort to accompany News reporters and photographers at the project site during business hours. The News did not agree to limit newsgathering to business hours or to report only with an escort present, the complaint states.
Nevertheless, Eberhard says, throughout May and June, officers continued to tell him and other News staff that they would be arrested for photographing arrests.
Early in the morning of July 23, a group of protesters entered a gated area and two chained themselves to equipment. CHP officers read a dispersal order and the protesters backed up to the gate entrance. "No arrests were made of these protesters, and they remained near gate 6 along the shoulder of Highway 101 for several hours," the complaint states.
When Eberhard arrived, Officer Dabbs "told Eberhard that he was not allowed on the site without an escort," according to the complaint. Dabbs said he would read the dispersal order to Eberhard, after which Eberhard would have to leave or be arrested. Eberhard agreed to leave after Dabbs read the dispersal order. But while Dabbs was looking for it in his cell phone, Officer Kory Reynolds grabbed Eberhard's wrist and both officers arrested him, according to the complaint.
Eberhard says the officers handcuffed him, took his cameras, cell phone and reporter's notepad, put him in a patrol car and took him to jail without reading him his Miranda rights.
"When they arrived at the jail, a sheriff's deputy came out to greet arresting officer Dabbs. Dabbs, who knew Eberhard was a journalist, told the deputy that he had 'another protester in the back.' Eberhard said, 'I am not a protester, I am the press.' The deputy did not respond." Eberhard was released around noon.
"The two protesters who chained themselves to the wick drain on the construction site that morning, causing construction delays, interfering with the property owner's property rights and necessitating the law enforcement response, were cited by CHP and released at the scene," the complaint states.
"Despite knowing the true facts, Dabbs prepared an undated narrative to the arrest report full of numerous falsehoods," according to the complaint.
"Not surprisingly, Eberhard's arrest and incarceration were met with universal rebuke by the journalism community throughout California. Numerous editorials were published condemning the actions of CHP in arresting Eberhard for doing his job and attempting to photograph newsworthy events."
In response to the bad press, CHP Chief Bridgett Lott and Caltrans District 1 Director Charlie Fielder wrote an inaccurate letter to the editor, which was "published in numerous newspapers in California," according to the complaint.
The Society of Environmental Journalists (SEJ) wrote a letter to CHP Commissioner Joseph A. Farrow protesting Eberhard's arrest. Chief Lott wrote a response to the Society stating that Eberhard "was on site as part of a protest contingent ... Though originally acting as part of a group of protesters, when all the other protesters had left the site as requested, Mr. Eberhard remained. He was given additional time to leave but chose not to ..."
Eberhard says: "These statements were false and known to be false when stated but nevertheless were published for the purpose of further intimidating and chilling the exercise of Eberhard's state and federal constitutional rights and in further retaliation for his legitimate newsgathering activities."
In an article on its website, SEJ says, "After reading CHP's account of the incident in its letter to SEJ, Eberhard called various parts of it 'bullshit,' 'fabrication,' 'bogus,' and 'just not true at all.'"
Eberhard seeks statutory, compensatory and punitive damages for violations of the First, Fourth and Fourteenth Amendments, the Privacy Protection Act of 1980, false arrest, false imprisonment, violation of the Civil Rights/Bane Act, unnecessary delay in processing his arrest and releasing him, and intentional infliction of emotional distress.
Representatives of Caltrans and CHP were not available for comment over the weekend. Counsel for Eberhard was not available for comment.
Eberhard is represented by Duffy Carolan with Jassy, Vick and Carolan, in San Francisco.