SAN FRANCISCO (CN) – A jury heard opening statements and testimony Monday from two state troopers on the first trial day of a news photographer’s false arrest suit against the California Highway Patrol.
Stephen Eberhard says three CHP officers intimidated and arrested him to retaliate for his covering protests of a highway project in Mendocino County.
The state says the officers were simply “doing their jobs” and arrested Eberhard because he was trespassing.
Eberhard sued the CHP , the Department of Transportation, or Caltrans, and officials and officers from both agencies in April 2014. Caltrans was dropped from the suit in December, but Eberhard is still pursuing claims against the CHP, two officers who arrested him and a third officer who shoved him away from a construction zone in what Eberhard calls intimidation and harassment.
He says his arrest on July 23, 2013 was a blatant effort to chill his First Amendment rights and to stifle coverage of the Willits Bypass Project.
The $300-million project to reroute 6 miles of Highway 101 around the often-congested town center of Willits in Mendocino County became a target for environmental protests when construction began in the spring of 2013.
The Society of Professional Journalists – Northern California honored Eberhard with its first Photojournalist Award in 2015, recognizing his “efforts to document protests” against the project “after enduring months of harassment from police for his coverage.”
In his opening statement, state prosecutor Harry Gower III said jurors will see and hear evidence that the officers who arrested Eberhard “did not care about the pictures he was taking” and arrested him for one reason alone – because he was trespassing.
Gower said Eberhard and his employer, The Willits News, were well aware of a policy requiring members of the media be accompanied by a Caltrans escort and wear a hard hat and reflective vest to enter the construction site.
Eberhard’s attorney, Duffy Carolan, did not deny that Eberhard knew the policy existed, but said he was treated differently than other trespassers, most of whom were given warnings, citations and released, but not arrested.
The Highway Patrol described its relationship with journalists covering the protests as “a boxing match” the month before Eberhard was arrested, Carolan told jurors in her opening statement.
“When CHP believes it’s in a boxing match with the media, it’s the messenger that’s going to go down every time,” she said.
Protesters who had chained themselves to construction equipment were given citations and released, but Eberhard was arrested and held in jail for hours, she said.
“We think the evidence in this case will show Mr. Eberhard was singled out because what he was doing on the site in the months preceding his arrest,” Carolan said.
Gower told jurors the case is not about “whether Mr. Eberhard was treated like a protester,” and that Eberhard was arrested because he was trespassing in violation of a clearly communicated Caltrans policy.
The prosecutor said he will emphasize four points at trial: that Eberhard violated the Caltrans escort policy, that he was arrested for trespassing, that he cannot prove the officers had a retaliatory intent, and that Eberhard suffered no injuries from the arrest.
Anticipating the state’s argument on injuries, Carolan told the nine-member jury the case is about principles, not an attempt to get damages from the state.
“CHP will say this is not a high damages case, but Mr. Eberhard was shamed and humiliated in his small community,” she said. “He was made out to be a criminal, not a credible, unbiased journalist. Mr. Eberhard is here primarily to vindicate his rights.”
Willits, pop. 5,000, is about 20 miles northwest of Ukiah, the Mendocino County seat.
Push Came to Shove
The first witness to testify, CHP Officer Teddy Babcock, admitted he shoved Eberhard out of a construction zone on May 21, 2013.
Babcock said he “turned” Eberhard and “pushed” him away from an area where construction workers were driving piles into the ground because Eberhard refused to obey his order to leave the “dangerous” construction zone.
Carolan zoomed in on a photo Eberhard took that day, showing two other people taking photos in the cordoned-off area, who did not appear to be subject to the same orders or aggressive tactics as her client.
“You never shoved anyone else during the bypass construction in the same manner as you did Eberhard that day?” Carolan asked.
Babcock acknowledged he had not shoved other trespassers in the same manner.
Carolan cited an earlier incident, in May, when Babcock ordered Eberhard to step away from two protesters as they were forced into a police car, preventing him from snapping a photo of the arrest.
The attorney said only Eberhard was forced to leave the area where the protesters were being arrested, because of who he was and the job he was doing.
Babcock said he remembered Eberhard “being there” during that arrest but that he did not recall him taking pictures.
On cross examination, Gower asked Babcock if he ever read The Willits News, saw Eberhard’s pictures or discussed Eberhard with any other CHP officers or Caltrans officials. Babcock answered, “Not that I recall,” to all those questions.
Babcock said he did not care that Eberhard was taking photos of him as he did his duty as an officer.
“They tell us at the police academy, ‘You’re there to do a job,'” Babcock said. “People take pictures of you all the time.”
As for the pushing incident, Babcock said, Eberhard was walking toward a crane after entering a cordoned-off, dangerous construction zone without a Caltrans escort.
Babcock said he yelled at Eberhard to come back, but Eberhard looked back at him and ignored his order.
“I caught up to him and stopped him because I didn’t want him to get hurt,” Babcock said.
Eberhard has said in court filings that he was given permission to take photos of the first piles being driven for the construction project that day.
Babcock denied that he acted more aggressively toward Eberhard because he had taken photos of him arresting protesters in the weeks before that incident.
Arresting Officer Testifies
Next to testify Monday was CHP Officer Christopher Dabbs, one of the two who arrested Eberhard on July 23, 2013.
A videographer captured the initial interaction between Dabbs and Eberhard, before the arrest. Dabbs shakes Eberhard’s hand in the video in what appears to be a friendly interaction.
Dabbs said he asked Eberhard what he was doing on the site and asked him to leave. Eberhard told Dabbs he would leave as soon the officer read him a dispersal order, which CHP officers were told to read as a warning to trespassers before making any arrests on the construction site.
As Dabbs was looking up the dispersal order on his phone, another CHP officer, Kory Reynolds, came over and interrupted him.
Carolan asked Dabbs if he remembered what Eberhard said to Reynolds at that moment.
“He told Officer Reynolds, ‘I was going to leave. Officer Dabs offered to read the order to me. I told him I was going to leave,'” Carolan said, asking Dabbs to confirm it.
Dabbs said he did not recall what Eberhard said at that time.
Carolan asked Dabbs if he remembered Eberhard complaining about his shoulders being in pain while he sat in the back of a police car with his hands cuffed for an hour.
Dabbs said he did not recall.
“And you told him, ‘You should have thought about that before coming out here’?” Carolan asked.
The first day of trial ended on that note, with Dabbs responding that he did not recall saying that to Eberhard: “That’s not something I would typically say.”
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