Reporter’s Arrest Claim Headed to Trial

     SAN FRANCISCO (CN) – A photojournalist’s lawsuit against the California Highway Patrol and the officer who arrested him as he covered a protest appears to be headed to trial, a federal judge said Wednesday.
     Stephen E. Eberhard sued the CHP, the California Department of Transportation and several officers and officials in April 2014, claiming he was unconstitutionally arrested while covering a protest against a highway project in Willits, Calif.
     Eberhard, who worked for the Willits News, was arrested on July 23, 2013 while reporting on a protest against the Willits Bypass.
     The $300-million project to reroute Highway 101 around the congested center of Willits in Mendocino County, is now 75 percent complete, according to a CalTrans spokesman.
     During a motion hearing Wednesday, U.S. District Judge James Donato asked why Eberhard was arrested and taken into custody instead of simply cited and fined for trespassing on CalTrans property.
     California Deputy Attorney General Micah Osgood offered two answers.
     He said defendant Officer Christopher W. Dabbs arrested Eberhard based on a standing order to arrest all unescorted protesters at the site.
     Osgood added that the statute allows officers to arrest people who are likely to reoffend, and that several protesters returned to the site after being cited.
     When pressed to answer which reason justified Eberhard’s arrest, Osgood chose the standing order, but could not say who issued it.
     “You’re telling me no one on the CHP side remembers who gave that order?” Donato asked.
     Donato said he was surprised to hear the state attorney argue that the sole motivation of Eberhard’s arrest was an order to arrest all protesters, given that Officer Dabbs had testified in a deposition that he arrested Eberhard because he had past encounters with him and knew he had “violated instructions in the past.”
     “You see why your ship is full of holes and rapidly sinking to the bottom of the sea?” Donato asked the prosecutor.
     Eberhard’s attorney, Duffy Carolan, said another CHP officer, Sgt. Steven Lott, cited and released protesters at the site, including two who had locked themselves to construction equipment.
     Carolan said CHP officers knew Eberhard was a journalist, not a protester, so there was no justification to arrest him on a standing order to detain protesters.
     “It sounds like there’s a fact dispute about whether other trespassers were cited and released,” Donato said.
     Turning to allegations that another defendant, CHP Officer Teddy M. Babcock, shoved and intimidated Eberhard while he covered the protest, Donato said Eberhard failed to prove Babcock deprived him of his constitutional rights.
     Because Babcock did not participate in Eberhard’s arrest, injure him or cause him to stop covering the protests, Donato said, there was no evidence Babcock had chilled his First Amendment rights.
     “A bad vibe is not enough,” Donato said. “You have to subject the plaintiff to First Amendment deprivation.”
     Another factual dispute centered on whether No Trespassing signs were posted when Eberhard was arrested. The state provided evidence of Google Maps images, showing signs were posted eight months before the arrest.
     But Carolan said: “There’s nothing to suggest that the sign was there the day of his arrest.”
     Early in the hearing, Donato suggested the number of factual disputes in the case will likely preclude him from granting the CHP’s motion for summary judgment.
     “You understand why this is not a summary judgment?” Donato asked. “There’s one fact dispute after another. … I had a strong sense these were all jury trial issues.”
     The attorneys told Donato their attempts to settle the case had failed. They said discovery of facts is complete, but the state plans to conduct expert discovery on police best practices.
     Donato set a trial date for Dec. 14, and with a nudge to the attorneys, said he has no plans to travel for the holidays.

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