SAN FRANCISCO (CN) – The California Highway Patrol damaged a news photographer’s reputation by arresting him as he covered a protest against a Northern California highway project, the newspaper’s longtime publisher testified Tuesday.
On the second trial day of photojournalist Stephen Eberhard’s false arrest suit against the CHP, Debbie Clark testified that the assault and arrest tarnished his reputation and that of the newspaper. Clark retired two years ago after 33 years at The Willits News, the small community’s weekly newspaper of record.
“It seemed as though he had been targeted, and we were concerned if he would be able to continue to cover the news,” Clark said. A CHP officer acknowledged in court Monday that he pushed Eberhard away from a construction zone in May 2013.
Clark said that covering the Willits Bypass Project – a $300-million, 6-mile rerouting of Highway 101 in Mendocino County – was crucial to her newspaper and community.
“This was one of the largest Caltrans projects in the state to be undertaken in many decades,” Clark said in court. “It also had a great impact environmentally due to the fact that it was going to be impacting one of the greatest wetlands in the state of California.”
When a SWAT team descended on the small town in 2013 to remove environmental protesters occupying the site, reporters had to place themselves in harm’s way to cover the major news event, she said.
The confrontation caused the newspaper to seek an arrangement with the state Department of Transportation, or Caltrans, to allow its reporters access to the site to cover news events, including construction milestones and protests.
In response, Caltrans drafted a policy requiring members of the media to contact a Caltrans official to escort them on the site. Reporters also had to wear hardhats and reflective vests while on site.
“Caltrans was supposed to make every effort to come to the site and be with a reporter when we called,” Clark testified. “We said we would do everything we could to accommodate this arrangement, but news doesn’t always happen between 9 and 5.”
Eberhard was arrested at about 6:30 a.m. on July 23, 2013, as he tried to snap photos of two protesters who had locked themselves to construction equipment.
Deputy Attorney General Micah Osgood asked Clark if anyone at Caltrans ever told her the media access policy applied only during business hours.
“No one told us that it didn’t apply around the clock,” Clark replied.
Osgood showed Clark an email that Caltrans District 1 Public Information Officer Phil Frisbie Jr. sent to her and other newspaper employees on May 20, 2013.
In the email, Frisbie voiced concern that Eberhard had entered the construction site at around 7 a.m. to photograph and interview protesters who had locked themselves to equipment that morning.
Eberhard had left a message with his Caltrans escort, who was not immediately available to join him on the site, according to the email.
“I want to make it clear again that we will not ask CHP to provide Steve with special treatment,” Frisbie wrote in the email. “If he is in our construction area and not escorted, he is trespassing and subject to arrest like anyone else.”
Prosecutors say officers were well within their rights to arrest Eberhard two months after that email because he violated the clearly communicated access policy.
But Eberhard’s attorney, Duffy Carolan, said that CHP guidelines instruct officers not to arrest people for misdemeanors such as trespassing, unless special circumstances apply.
The two arresting officers – Christopher Dabbs and Kory Reynolds – cited an exception to the rule that says officers can arrest people for misdemeanors if they suspect the person will “continue or resume” the offense.
Carolan batted that one away, saying Eberhard had told the officers he was willing to leave the site. He asked Dabbs to read him a dispersal order, which CHP officers were told to read to trespassers to put them on notice and give them a chance to leave before being arrested.
As Dabbs searched for a copy of that order on his cellphone, Officer Reynolds walked over to Eberhard, refused to read the order and arrested the photographer and had his cameras seized, according to the officers’ testimony on Monday.
Clark told the jury that before Eberhard was arrested, he was “highly revered” in Willits and appreciated for his avid volunteerism and dedication to the community.
His arrest opened the floodgates to community members who supported the Willits Bypass, who wrote defamatory comments on Facebook, painting him as an ally of the protesters rather than a credible, unbiased reporter, Clark said.
“These are people whose opinions are respected in the community, so when you have sheriff’s deputies and Rotarians saying things like, ‘They’re a liar, a criminal. They’re scum. They’re George Zimmerman with a camera,’ that you’re a photographer that’s been embedded with the protesters, these kinds of things rock your credibility, and they’re very harmful and very hurtful and put you under a great deal of stress,” Clark said.
Clark said she has known Eberhard for about 12 years. She worked for The Willits News as a reporter before she became its publisher.
Boxing Match with Media
Also testifying Tuesday was CHP Sgt. Steve Lott, who was asked about his comments, captured on a police dash cam recording, in which he described the Highway Patrol’s relationship with the media as “a boxing match.”
“Here’s the whole thing with the media,” Lott says in the muffled audio of the video recording from July 2013. “Some higher-rank officer was publicizing the first people arrested would always be the media in order to keep it from being documented. … That’s why I’m saying, limit your conversations with the general public. … This is how we deal with the media, you know what I mean?”
Lott, a higher-ranking officer who was present the morning Eberhard was arrested, told the jury that his conversation with co-defendant CHP Officer Teddy Babcock was taken out of context and based on a rumor he heard from other officers.
Lott said he was simply conveying to Babcock that he should follow the chain of command to communicate with the media and the public.
“My analogy about the boxing match was not directed only to communication with the media,” Lott testified. “It was regarding communication in general.”
During cross-examination by the state, Lott added context to his comments, saying his discussion with Babcock came about when he tried to explain why he did not inform two protesters locked to equipment that they would be subject to arrest as soon as they unlocked themselves.
“[Babcock] expected me to let them know they could be cited and released [if they negotiated],” Lott said. “I said, ‘No, that was not going to happen.’ Whenever you have a situation with someone engaged in criminal activity, it’s not law enforcement’s duty to help them with their negotiations.”
When asked why he decided not to intervene in Eberhard’s arrest on the morning of July 23, Lott said he did not deem the arrest unlawful because Eberhard was on the site without an escort, in violation of Caltrans policy.
Asked about the CHP policy that officers should cite and release people for misdemeanors such as trespassing, Lott said it was more a recommendation than a policy.
“It says ‘should’ cite,” Lott said. “‘Should’ is not a ‘shall.’ Anything officers are required to do is ‘shall,’ and there’s no option.”
All four CHP officers who have testified at the trial so far – Lott, Babcock, Dabbs and Reynolds – said they never read local news articles that portrayed the Highway Patrol in a negative light before Eberhard’s arrest.
All four officers testified that they never read The Willits News, never saw Eberhard’s photos before he was arrested and never intended to retaliate against him for the photos he shot.
Nonetheless, Eberhard’s legal team will try to prove that officers were motivated by retaliation and a desire to chill his Fist Amendment rights when they assaulted and arrested him.
The trial will resume on Thursday.
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