SAN FRANCISCO (CN) - A jury must decide if transit police arrested a journalist covering a protest in retaliation for his criticism of the agency, a federal judge ruled.
Indybay newswire reporter David Morse says Bay Area Rapid Transit District (BART) police arrested him after a protest held in response to the shooting deaths of unarmed transit rider Oscar Grant in 2009 and transient Charles Hill in July 2011 and BART's decision to shut down cell phone service during an earlier protest.
The protesters allegedly gathered outside the fare gates of a downtown San Francisco station on Sept. 8, 2011, during the evening rush hour and walked around the area in front of the turnstiles chanting slogans. Morse claims he followed the group around taking pictures and making observations.
BART police encircled the group after warning that they would be arrested if they blocked the fare gates, told the protestors to leave the station or face arrest, and then selected Morse as the first person to be arrested, according to the ruling.
Instead of citing and releasing Morse as they did with other protesters arrested that day, BART officers arrested Morse and held him in custody, according to the suit.
Though BART Deputy Police Chief Brian Hartwig claims that Morse was an "active participant" who was part of the group that blocked fare gates, Morse claims he did not participate in the protest and did not block the fare gates. Video footage of the protest shows Morse taking pictures and moving with the group of protesters.
Another BART officer at the scene testified later that Morse's behavior was no different from that of other journalists covering the protests.
Morse claims he was the only journalist arrested at the Sept. 8 protest.
He says Hartwig decided to arrest him because he had written multiple articles heavily criticizing the department for the shootings deaths of Grant and Hill. In criticizing BART's handling of subsequent protests, Morse also allegedly called BART officials liars. Hartwig admitted to reading at least some of the articles.0000
BART created a flyer before the Sept. 8 protest identifying a leader of the protest group and plaintiff, whom BART discussed as an "active organizer" of a group of serial protesters and supposed collaborator with the protest leader. The flyer was distributed at the station and officers were ordered to arrest plaintiff or the protest leader if they were "inciting a riot or acting in a criminal manner," according to the ruling.
U.S. Magistrate Judge Jacqueline Corley ruled Tuesday that a jury should decide whether circumstantial evidence shows that Morse's arrest was retaliatory.
The ruling notes that Morse wrote many critical articles that "openly mocked and ridiculed the agency and its officers," of which the agency took note.
By creating the flyer and specifically naming Morse at briefings before the protest as someone who should be arrested if the protest was deemed illegal, BART "singled out" Morse, "possibly to retaliate against him for his inflammatory articles," according to the rulng.
While Hartwig claims he arrested Morse because of his active participation in the protest, Corley found that a "reasonable jury could find otherwise," noting that the officers released approximately a dozen other journalists who were covering the protest without a citation.
The judge also found 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."
The judge continued: "While Hartwig testified that 'legitimate' members of the media were journalists 'we could identify' as a member of the media, 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."
The judge also noted that Hartwig knew Morse was a journalist and ruled that the department might have retaliated against him by detaining him after his arrest rather than following normal procedure and citing and releasing him.
Morse had a right to be free from a retaliatory arrest even if there was probable cause for his arrest, according to the ruling.
The judge did toss a federal unlawful arrest claim and a state-law claim for false imprisonment, finding that Morse did not show that BART did not have probable cause to arrest him for allegedly blocking the fare gates.
The judge also ruled that a jury should decide Morse's claim for punitive damages.
Michael Siegel, an attorney with Siegel & Yee for Morse, said he was pleased with the order and that it "validates [Morse's] suspicion that BART focused its law enforcement resources on him after he decided to engage in critical journalism of BART police practices."
Citing the flyer, which included a picture of Morse, the Oakland lawyer said BART police "basically gave permission to arrest him despite knowing he was a journalist" while not arresting other journalists.
BART and Deputy Chief Hartwig are represented by Dale Allen Jr. of the law firm of Allen Glaessner & Werth in San Francisco.
Allen told Courthouse News: "We are pleased with the court's finding that Chief Hartwig had probable cause to order the arrest. That remains our position. It was never a retaliatory arrest. And Judge Corley believes it should go to the jury where we believe they will find it was not a retaliatory arrest."
An appeal is possible, Allen added.