Reporter’s Beef With CHP Now in Jury’s Hands

     SAN FRANCISCO (CN) – A reporter who was arrested while covering a state highway project sued the California Highway Patrol to vindicate his rights, not to get money from the state, his lawyer told jurors in her closing statement Monday.
     Stephen Eberhard sued one officer that shoved him and two that arrested him in 2013 as he covered construction work and protests at the Willits Bypass Project, a $300-million rerouting of six miles of Highway 101 in Mendocino County.
     “This lawsuit is not about making money,” Eberhard’s attorney Duffy Carolan told jurors. “It’s about vindicating Mr. Eberhard’s First Amendment rights.”
     Though monetary damages are not the primary goal of the suit, Carolan said her client is entitled to compensation for months of emotional distress he suffered after his arrest, compounded by false information the CHP later put out in press releases, she said.
     “They are piling on, compounding the harm,” Carolan said. “How do you calculate that? Some would say $20,000. Some would say $150,000. I’m going to leave it to you.”
     State prosecutor Harry “Chip” Gower III urged the jury not to get distracted by “red herrings” like the post-arrest CHP letters or a police sergeant’s comment that journalists would be “the first” to get arrested during protests.
     “Mostly you hear Ms. Carolan talking about what other people did,” Gower said. “There’s no beef in this case – no beef, no substance. She’s throwing up things about other people to distract you from the only incidents at issue in this case.”
     Those two incidents occurred on May 21, 2013, when CHP Officer Teddy Babcock shoved Eberhard as he tried to take photos of construction work and on July 23 that year when CHP Officers Christopher Dabbs and Kory Reynolds arrested Eberhard as he tried to snap photos of two protesters that locked themselves to construction equipment.
     Carolan outlined a pattern of events surrounding the two incidents, which she said proves the officers intended to retaliate against her client and chill his First Amendment rights.
     She played a police dash cam recording of a conversation between CHP Sgt. Steve Lott and Babcock that took place one week after Eberhard’s arrest. In that recording, Lott refers to a June 12 incident in which CHP Sgt. Braden Moffett told Eberhard and a videographer they would be the first two arrested during a protest, even though they had permission to be on site with an escort from the state Department of Transportation, or Caltrans.
     “Whether or not they felt that way about the media, they shouldn’t have said it out loud,” Lott said in the recording.
     Instead of stressing the need to respect the right of the press to do its job, the police sergeant instead emphasized not to “get caught” when suppressing press freedoms, Carolan argued.
     Gower re-focused the jury’s attention on the two incidents in question and said Eberhard was not targeted because of what he was doing, but rather because of where he was doing it.
     “When you look at the evidence, the reason they did these things was not to discourage him from taking photos,” Gower said. “Officers Dabbs and Reynolds arrested Mr. Eberhard because he was trespassing. Officer Babcock pushed him because he was in an unsafe area.”
     Gower played for the jury video from Eberhard’s deposition testimony, in which the photographer acknowledged he knew Caltrans did not want him on the construction site without an escort.
     Gower also refreshed the jury’s memory with an email they saw last week sent by Caltrans to The Willits News on May 20, 2013, saying Eberhard would be subject to arrest if he was caught on the site without an escort.
     Carolan countered that Eberhard had his escort meet him within the footprint of the construction site numerous times in the past. She said the CHP also violated its own policy by arresting her client for misdemeanor trespassing, instead of citing and releasing him, and not reading him a dispersal order and giving him a chance to leave the site voluntarily.
     One week after Eberhard’s arrest, Babcock was again “begging to arrest” him for being close to a boundary along the site on July 30, even though several other individuals were standing in the same spot, Carolan said.
     “We can’t get into the heads of the defendants, but the evidence before you is overwhelming,” Carolan said. “They still don’t get it that you can’t use your authority to stifle First Amendment freedoms. They disregarded their own media relations policy and their own operations plan. That’s evidence of retaliatory intent.”
     Citing the officers’ testimony that they never saw Eberhard’s photos, never read The Willits News or articles that portrayed the CHP in a negative light, Gower concluded that the officers had no reason to retaliate against the photographer.
     “It would have been easy for Mr. Eberhard to avoid being arrested,” Gower said. “All he had to do was wait at the gate. He could have gotten all the pictures he wanted from the roadway.”
     Gower added that when Babcock pushed Eberhard away from a construction zone where a pile was being driven, even though Eberhard was given permission to be there, the officer was using “minimal force” to remove the photographer from an unsafe area.
     Had officers had not taken those actions, the same parties would likely be in court for a different reason – because Eberhard could have gotten hurt, and the officers would be blamed for failing to do their jobs and secure the dangerous construction site, he argued.
     Both sides wrapped up their closing arguments at about 11 a.m. on Monday.
     The nine-member jury must now decide whether the three officers intentionally used their authority to violate Eberhard’s rights under the First Amendment of the U.S. Constitution and California’s Bane Civil Rights Act.

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