After being penned like an animal and arrested inside an official “free-speech zone,” a San Francisco-area journalist has filed suit against BART, the Bay Area Rapid Transit Police Department, for planning his arrest ahead of time.
David Morse, known to the readers of Indybay.org as Dave Id, was arrested and held in jail along with dozens of protestors after documenting a protest at the Powell Street Station in 2011. Prior to the announced “No Justice No BART” demonstration, BART decided to shut down over one half of the Powell Street station, forcing the crowd of demonstrators, media, and passengers into a small section of the station. BART riot police then surrounded dozens of demonstrators and journalists for arrest.
After a BART officer grabbed a demonstration organizer by his backpack and lifted him off of the ground, BART’s riot police circled the demonstrators from all directions and trapped the entire group of protesters and media. Police claimed the suspects were blocking the movements of people within the subway station.
But Morse later learned they had planned his arrest before the protest.
While the other credentialed journalists were released without arrest at the subway station, Morse was arrested and held at San Francisco city jail. Morse, who has written about BART for years, believes he was singled out specifically for arrest by BART Police Deputy Chief Dan Hartwig, who knew Morse and his work as a journalist covering BART.
Chief Hartwig’s “retaliatory animus” may end up costing BART in court, as a Federal Judge ruled last month that Morse can sue BART Police for their retaliatory arrest.
“They first tried to say that I was chanting and ‘marching’ along with protesters, deliberately blocking fare gates, and after more and more evidence came out, including their own video of me, they’ve changed their tune and now argue that just because I was there and people had to walk around me that I was rightly arrested,” said Morse.
Morse’s case was likely helped by the fact that officers admitted in depositions that they discussed arresting Morse in their planning meeting before the protest, and even printed his picture out on a flier prior to his arrest, which you can see above.
Morse is no stranger to the legal arena. After suing the UC Berkeley Police Department and receiving a $162,500 settlement in 2012 following an unlawful arrest that occurred while documenting a protest on campus, Morse is once again seeking damages from public employees paid to “serve and protect.”
BART has a notable history of serving the public, including tasing a man for no reason, murdering Oscar Grant, and killing homeless men Fred Collins and Charles Hill in separate incidents. Johannes Mehserle, the BART officer who shot Grant in the back while another officer had Grant pinned to the ground, was released from prison after serving only 11 months.
While BART’s settlements to Grant’s family have yet to make a lasting impact on the culture of the department, and Morse hopes that his case teaches BART not “to penalize journalists with whom they disapprove,” the majority of the people arrested at the Powell Street protest chose not to file a lawsuit after being arrested on a pretense for exercising their free-speech in BART’s designated free-speech zone.
The idea of a free-speech zone in the first place is constitutional anathema to many. For those who find the police infringing further on their First Amendment rights, going the extra mile in court may be the step that makes all the difference. While Morse’s case, “is far from over, and victory is not guaranteed,” civil suits provide people with a way to teach police departments like BART that no one is above the law, and a potential payday for upholding free speech.
According to the judge’s ruling:
It is undisputed that Plaintiff published numerous stories that were, at best, critical of BART and BART police officers, in particular. Plaintiff openly mocked and ridiculed the agency and its officers. These declarations did not go unnoticed at BART. For instance, Hartwig testified that he “maybe” discussed Plaintiff’s articles with Fairow and Chief Rainey. (Dkt. No. 64-1, Ex. A at 43:1-15.) Four other officers also testified they read at least some of Plaintiff’s articles, including Fairow who testified that he read any of Plaintiff’s articles that had to do with the protests. Further, Fairow—who was personally criticized and mocked in at least two of Plaintiff’s articles—ordered the creation of a flyer depicting Plaintiff and Cantor as the primary subjects of the day’s protest. The flyer was discussed and handed out to officers at a briefing the day of the protest. While Hartwig denies he was at the briefing, two other officers testified that he was in attendance. The officers were told that if either Plaintiff or Cantor was witnessed violating the law, he was to be arrested. In other words, Plaintiff was singled out, possibly to retaliate against him for his inflammatory articles.
Further, a reasonable trier of fact could find that Hartwig’s comment to the media following the protest that no “legitimate” members of the press were arrested, suggests animosity towards Plaintiff and Plaintiff’s reporting. While Hartwig testified that “legitimate” members of the media were journalists “we could identify” as a member of the media (Dkt. No. 64-1, Ex. A at 132:11-13), Plaintiff would have presumably fallen into this category since Plaintiff testified that he was wearing his press credentials around his neck during the protest and while he was being arrested. Moreover, it is undisputed that Hartwig knew Plaintiff was a journalist, and, as discussed above, there is evidence that Plaintiff’s conduct at the protest did not go beyond that of other journalists at the protest who were not arrested. A rational jury could thus infer that Hartwig did not consider Plaintiff a “legitimate” member of the media because of the content of Plaintiff’s speech. A rational jury could further infer that this animosity carried over into Hartwig’s arrest of Plaintiff, which occurred only shortly before Hartwig made his comment.
A reasonable trier of fact could also call into question the motivations underlying the arrest given that Plaintiff was subject to a custodial arrest, rather than the cite-and-release procedure used for other arrestees at the protest. (See Dkt. No. 64-1, Ex. A at 143:6-12 (Hartwig testifying that some non-journalists were cited and released).) Further, BART procedures for crowd control include a “cite & release procedure” whereby the default for a misdemeanor arrest is cite and release. BART argues that Hartwig’s decision to not cite and release Plaintiff was nevertheless consistent with this policy because Plaintiff fell within an exception to that policy; namely, “[t]here was a reasonable likelihood that the offense(s) would continue or resume.” (Id. at Ex. B at “BART 019355.”) Hartwig testified that such a custodial arrest was necessary because Plaintiff and Cantor were “the reason for the emotion and passion” and once they were removed, “the center of that inner circle went silent to the point I stepped inside and they all sat down.”