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Reporter v. Highway Patrol Case Heads to Trial

     SAN FRANCISCO (CN) - A news photographer's claim that the California Highway Patrol arrested him illegally while he covered a protest against a highway project will go to trial, a federal judge ruled Monday.

Stephen E. Eberhard sued the California Highway Patrol, the California Department of Transportation and several officers and officials in April 2014, alleging false arrest and other constitutional violations.

Eberhard, who reported for the Willits News, was arrested in July 2013 as he covered a protest against the Willits Bypass Project, a four-lane rerouting of Highway 101 around the notoriously congested center of Willits in central Mendocino County. It can take rush hour traffic 30 minutes or more to get through downtown in the city of about 5,000.

U.S. District Judge James Donato on Monday denied the Highway Patrol's motion for summary judgment, allowing Eberhard to press his claims that the agency and three officers sought to chill his First Amendment rights .

But Donato found that CHP Officers Christopher Dabbs and Kory Reynolds could not be held liable for the false arrest claims because they "reasonably believed" they had probable cause to make the arrest.

The officers testified that "No Trespassing" signs were posted in the area, and testimony from both sides showed that Eberhard and his employer knew Caltrans had issued an order requiring members of the media to be escorted by an official to enter the site.

"Under the totality of these circumstances, which were known to all key players, Officer Dabbs and Reynolds reasonably believed they had probable cause to arrest Eberhard for trespass," Donato wrote. "Consequently they are entitled to qualified immunity."

Donato found that too many factual disputes exist for him to issue summary judgment on Eberhard's claims that the officers were motivated by a desire to retaliate against him for exercising his First Amendment rights.

Eberhard says the officers knew he was a journalist and were aware of his public criticism of the project when they arrested him. He said the officers cited and released other protesters for trespassing that day, but that he was singled out, arrested, and locked in jail for two hours because of his work as a journalist.

The arresting officers offered two reasons on why he was arrested rather than cited and released. Dabbs claimed in a declaration that the arrest was made because officers were given an order to arrest all trespassers on the site that day. Reynolds said the arrest was made because Eberhard had violated trespassing laws in the past.

"The competing facts and inferences in these narratives are enough to deny summary judgment," Donato ruled. "Eberhard has set forth enough for a rational jury to find that his First Amendment rights were chilled and that the officers acted out of a desire to cause a chill."

The judge denied summary judgment on claims that CHP Officer Teddy Babcock intimidated and shoved Eberhard as he tried to cover the project in April and May 2013.

Although Babcock had complained about the press being on site, his aggressive action could have been triggered by a concern for Eberhard's safety rather than a desire to chill his rights, Donato wrote. That determination must be made by a jury.

The judge ruled against Eberhard on claims that CHP Capt. James Epperson is liable for First Amendment violations.

Although Epperson wrote in an email that media access to the worksite "may be counterproductive and actually assisting the protesters," Donato found Epperson was not personally involved in a direct way with the alleged intimidation or arrest.

Donato threw out claims that the CHP could be held liable as an agency under federal law, but found that it could be liable for the First Amendment violations under state law.

During a hearing on a motion for summary judgment in September, Donato set a trial date of Dec. 14, and with a nudge toward getting the attorneys to try settling the case, added that he has no plans to travel for the holidays.

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