Judge Upholds Arrest of Photographer on Freeway

     (CN) – A police officer is immune from a reporter’s First Amendment claim, and the Oakland Tribune reporter was not protected from arrest for leaving his car to stand in a freeway to take photos of an accident, a federal judge in San Francisco ruled.




     “(C)ommon sense dictates that members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene,” U.S. District Judge Charles Breyer ruled.
     Raymundo Chavez claimed that an Oakland city police officer, identified only as “Officer Reynolds,” violated his constitutional rights by ordering him to get off a freeway, where he had stopped to photograph an accident on that road. Chavez said he prepared to leave, then refused when a Highway Patrol car arrived.
Chavez said Reynolds told him he “had to go back to [his] car and leave because [he] didn’t ‘need to take these kind of pictures.'”
     But Judge Breyer cited the circumstances and granted summary judgment.
     “The press has no First Amendment right to access accident or crime scenes if the general public is excluded. … Even assuming, as plaintiff contends, that the officers arrested plaintiff to prevent him from taking a photograph, he did not have a First Amendment right to take the photograph in the first place in the absence of evidence that the general public is allowed such access to accident sites, and this accident in particular. Plaintiff, however, does not offer any evidence that suggests that the general public had a right to exit their vehicles on the freeway and stand in the freeway to take photographs. His declaration assertion that at the time of his arrest he saw at least one other stopped vehicle with its occupant outside the car is insufficient. There is no evidence in the record as to what that person was doing; perhaps the person was a witness to the accident. Moreover, common sense dictates that members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene.
     “In the alternative, plaintiff contends that he has a valid claim for retaliation in violation of his First Amendment rights, that is, that the officers arrested him because he took the photographs, and in particular, the photograph of the approaching CHP car just before his arrest. His complaint, read liberally, does not include any such claim. Nevertheless, if he does not have a First Amendment right to take photographs while standing in the middle of the freeway in the first place, then arresting him for taking such photographs could not have been in retaliation for the exercise of his First Amendment rights.”

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