Highway Patrol On Trial
by Nicholas Iovino, March 2, 2016
A jury heard opening statements and testimony last Monday from two state troopers on the first trial day of a news photographer's false arrest suit against the California Highway Patrol in Federal District Court in San Francisco.
Stephen Eberhard says three CHP officers intimidated and arrested him to retaliate for his covering protests of a highway project in Mendocino County.
The state says the officers were simply "doing their jobs" and arrested Eberhard because he was trespassing.
CHP officers at the Willits Bypass site, September 2013. (photo by Steve Eberhard/The Willits News)
Eberhard sued the CHP, the Department of Transportation, or Caltrans, and officials and officers from both agencies in April 2014. Caltrans was dropped from the suit in December, but Eberhard is still pursuing claims against the CHP, two officers who arrested him and a third officer who shoved him away from a construction zone in what Eberhard calls intimidation and harassment.
He says his arrest on July 23, 2013 was a blatant effort to chill his First Amendment rights and to stifle coverage of the Willits Bypass Project.
The $300-million project to reroute six miles of Highway 101 around the often-congested town center of Willits in Mendocino County became a target for environmental protests when construction began in the spring of 2013.
The Society of Professional Journalists-Northern California honored Eberhard with its first Photojournalist Award in 2015, recognizing his "efforts to document protests" against the project "after enduring months of harassment from police for his coverage."
In his opening statement, state prosecutor Harry Gower III said jurors will see and hear evidence that the officers who arrested Eberhard "did not care about the pictures he was taking" and arrested him for one reason alone — because he was trespassing.
Gower said Eberhard and his employer, The Willits News, were well aware of a policy requiring members of the media be accompanied by a Caltrans escort and wear a hard hat and reflective vest to enter the construction site.
Eberhard's attorney, Duffy Carolan, did not deny that Eberhard knew the policy existed, but said he was treated differently than other trespassers, most of whom were given warnings, citations and released, but not arrested.
The Highway Patrol described its relationship with journalists covering the protests as "a boxing match" the month before Eberhard was arrested, Carolan told jurors in her opening statement.
"When CHP believes it's in a boxing match with the media, it's the messenger that's going to go down every time," she said.
Protesters who had chained themselves to construction equipment were given citations and released, but Eberhard was arrested and held in jail for hours, she said.
"We think the evidence in this case will show Mr. Eberhard was singled out because what he was doing on the site in the months preceding his arrest," Carolan said.
Gower told jurors the case is not about "whether Mr. Eberhard was treated like a protester," and that Eberhard was arrested because he was trespassing in violation of a clearly communicated Caltrans policy.
The prosecutor said he will emphasize four points at trial: that Eberhard violated the Caltrans escort policy, that he was arrested for trespassing, that he cannot prove the officers had a retaliatory intent, and that Eberhard suffered no injuries from the arrest.
Anticipating the state's argument on injuries, Carolan told the nine-member jury the case is about principles, not an attempt to get damages from the state.
"CHP will say this is not a high damages case, but Mr. Eberhard was shamed and humiliated in his small community," she said. "He was made out to be a criminal, not a credible, unbiased journalist. Mr. Eberhard is here primarily to vindicate his rights."
Willits, pop. 5,000, is about 20 miles northwest of Ukiah, the Mendocino County seat.
Push Came to Shove
The first witness to testify, CHP Officer Teddy Babcock, admitted he shoved Eberhard out of a construction zone on May 21, 2013.
Babcock said he "turned" Eberhard and "pushed" him away from an area where construction workers were driving piles into the ground because Eberhard refused to obey his order to leave the "dangerous" construction zone.
Carolan zoomed in on a photo Eberhard took that day, showing two other people taking photos in the cordoned-off area, who did not appear to be subject to the same orders or aggressive tactics as her client.
"You never shoved anyone else during the bypass construction in the same manner as you did Eberhard that day?" Carolan asked.
Babcock acknowledged he had not shoved other trespassers in the same manner.
Carolan cited an earlier incident, in May, when Babcock ordered Eberhard to step away from two protesters as they were forced into a police car, preventing him from snapping a photo of the arrest.
The attorney said only Eberhard was forced to leave the area where the protesters were being arrested, because of who he was and the job he was doing.
Babcock said he remembered Eberhard "being there" during that arrest but that he did not recall him taking pictures.
On cross examination, Gower asked Babcock if he ever read The Willits News, saw Eberhard's pictures or discussed Eberhard with any other CHP officers or Caltrans officials. Babcock answered, "Not that I recall," to all those questions.
Babcock said he did not care that Eberhard was taking photos of him as he did his duty as an officer.
"They tell us at the police academy, 'You're there to do a job,'" Babcock said. "People take pictures of you all the time."
As for the pushing incident, Babcock said, Eberhard was walking toward a crane after entering a cordoned-off, dangerous construction zone without a Caltrans escort.
Babcock said he yelled at Eberhard to come back, but Eberhard looked back at him and ignored his order.
"I caught up to him and stopped him because I didn't want him to get hurt," Babcock said.
Eberhard has said in court filings that he was given permission to take photos of the first piles being driven for the construction project that day.
Babcock denied that he acted more aggressively toward Eberhard because he had taken photos of him arresting protesters in the weeks before that incident.
Arresting Officer Testifies
Next to testify Monday was CHP Officer Christopher Dabbs, one of the two who arrested Eberhard on July 23, 2013.
A videographer captured the initial interaction between Dabbs and Eberhard, before the arrest. Dabbs shakes Eberhard's hand in the video in what appears to be a friendly interaction.
Dabbs said he asked Eberhard what he was doing on the site and asked him to leave. Eberhard told Dabbs he would leave as soon the officer read him a dispersal order, which CHP officers were told to read as a warning to trespassers before making any arrests on the construction site.
As Dabbs was looking up the dispersal order on his phone, another CHP officer, Kory Reynolds, came over and interrupted him.
Carolan asked Dabbs if he remembered what Eberhard said to Reynolds at that moment.
"He told Officer Reynolds, 'I was going to leave. Officer Dabbs offered to read the order to me. I told him I was going to leave,'" Carolan said, asking Dabbs to confirm it.
Dabbs said he did not recall what Eberhard said at that time.
Carolan asked Dabbs if he remembered Eberhard complaining about his shoulders being in pain while he sat in the back of a police car with his hands cuffed for an hour.
Dabbs said he did not recall.
"And you told him, 'You should have thought about that before coming out here'?" Carolan asked.
The first day of trial ended on that note, with Dabbs responding that he did not recall saying that to Eberhard: "That's not something I would typically say."
Big Trial for a Small-Town Newspaper
The newspaper's longtime publisher testified Tuesday.
On the second trial day of photojournalist Stephen Eberhard's false arrest suit against the CHP, Debbie Clark testified that the assault and arrest tarnished his reputation and that of the newspaper. Clark retired two years ago after 33 years at The Willits News, the small community's weekly newspaper of record.
"It seemed as though he had been targeted, and we were concerned if he would be able to continue to cover the news," Clark said.
Clark said that covering the Willits Bypass Project — a $300-million, 6-mile rerouting of Highway 101 in Mendocino County — was crucial to her newspaper and community.
"This was one of the largest Caltrans projects in the state to be undertaken in many decades," Clark said in court. "It also had a great impact environmentally due to the fact that it was going to be impacting one of the greatest wetlands in the state of California."
When a SWAT team descended on the small town in 2013 to remove environmental protesters occupying the site, reporters had to place themselves in harm's way to cover the major news event, she said.
The confrontation caused the newspaper to seek an arrangement with the state Department of Transportation, or Caltrans, to allow its reporters access to the site to cover news events, including construction milestones and protests.
In response, Caltrans drafted a policy requiring members of the media to contact a Caltrans official to escort them on the site. Reporters also had to wear hardhats and reflective vests while on site.
"Caltrans was supposed to make every effort to come to the site and be with a reporter when we called," Clark testified. "We said we would do everything we could to accommodate this arrangement, but news doesn't always happen between 9 and 5."
Eberhard was arrested at about 6:30 a.m. on July 23, 2013, as he tried to snap photos of two protesters who had locked themselves to construction equipment.
Deputy Attorney General Micah Osgood asked Clark if anyone at Caltrans ever told her the media access policy applied only during business hours.
"No one told us that it didn't apply around the clock," Clark replied.
Osgood showed Clark an email that Caltrans District 1 Public Information Officer Phil Frisbie Jr. sent to her and other newspaper employees on May 20, 2013.
In the email, Frisbie voiced concern that Eberhard had entered the construction site at around 7 a.m. to photograph and interview protesters who had locked themselves to equipment that morning.
Eberhard had left a message with his Caltrans escort, who was not immediately available to join him on the site, according to the email.
"I want to make it clear again that we will not ask CHP to provide Steve with special treatment," Frisbie wrote in the email. "If he is in our construction area and not escorted, he is trespassing and subject to arrest like anyone else."
Prosecutors say officers were well within their rights to arrest Eberhard two months after that email because he violated the clearly communicated access policy.
But Eberhard's attorney, Duffy Carolan, said that CHP guidelines instruct officers not to arrest people for misdemeanors such as trespassing, unless special circumstances apply.
The two arresting officers — Christopher Dabbs and Kory Reynolds — cited an exception to the rule that says officers can arrest people for misdemeanors if they suspect the person will "continue or resume" the offense.
Carolan batted that one away, saying Eberhard had told the officers he was willing to leave the site. He asked Dabbs to read him a dispersal order, which CHP officers were told to read to trespassers to put them on notice and give them a chance to leave before being arrested.
As Dabbs searched for a copy of that order on his cellphone, Officer Reynolds walked over to Eberhard, refused to read the order and arrested the photographer and had his cameras seized, according to the officers' testimony on Monday.
Clark told the jury that before Eberhard was arrested, he was "highly revered" in Willits and appreciated for his avid volunteerism and dedication to the community.
His arrest opened the floodgates to community members who supported the Willits Bypass, who wrote defamatory comments on Facebook, painting him as an ally of the protesters rather than a credible, unbiased reporter, Clark said.
"These are people whose opinions are respected in the community, so when you have sheriff's deputies and Rotarians saying things like, 'They're a liar, a criminal. They're scum. They're George Zimmerman with a camera,' that you're a photographer that's been embedded with the protesters, these kinds of things rock your credibility, and they're very harmful and very hurtful and put you under a great deal of stress," Clark said.
Clark said she has known Eberhard for about 12 years. She worked for The Willits News as a reporter before she became its publisher.
Boxing Match with Media
Also testifying Tuesday was CHP Sgt. Steve Lott, who was asked about his comments, captured on a police dash cam recording, in which he described the Highway Patrol's relationship with the media as "a boxing match."
"Here's the whole thing with the media," Lott says in the muffled audio of the video recording from July 2013. "Some higher-rank officer was publicizing the first people arrested would always be the media in order to keep it from being documented. ... That's why I'm saying, limit your conversations with the general public. ... This is how we deal with the media, you know what I mean?"
Lott, a higher-ranking officer who was present the morning Eberhard was arrested, told the jury that his conversation with co-defendant CHP Officer Teddy Babcock was taken out of context and based on a rumor he heard from other officers.
Lott said he was simply conveying to Babcock that he should follow the chain of command to communicate with the media and the public.
"My analogy about the boxing match was not directed only to communication with the media," Lott testified. "It was regarding communication in general."
During cross-examination by the state, Lott added context to his comments, saying his discussion with Babcock came about when he tried to explain why he did not inform two protesters locked to equipment that they would be subject to arrest as soon as they unlocked themselves.
"[Babcock] expected me to let them know they could be cited and released [if they negotiated]," Lott said. "I said, 'No, that was not going to happen.' Whenever you have a situation with someone engaged in criminal activity, it's not law enforcement's duty to help them with their negotiations."
When asked why he decided not to intervene in Eberhard's arrest on the morning of July 23, Lott said he did not deem the arrest unlawful because Eberhard was on the site without an escort, in violation of Caltrans policy.
Asked about the CHP policy that officers should cite and release people for misdemeanors such as trespassing, Lott said it was more a recommendation than a policy.
"It says 'should' cite," Lott said. "'Should' is not a 'shall.' Anything officers are required to do is 'shall,' and there's no option."
All four CHP officers who have testified at the trial so far — Lott, Babcock, Dabbs and Reynolds — said they never read local news articles that portrayed the Highway Patrol in a negative light before Eberhard's arrest.
All four officers testified that they never read The Willits News, never saw Eberhard's photos before he was arrested and never intended to retaliate against him for the photos he shot.
Nonetheless, Eberhard's legal team will try to prove that officers were motivated by retaliation and a desire to chill his First Amendment rights when they assaulted and arrested him.
The trial will resume on Thursday.
(Courtesy, Courthouse News Service)
Jury Sees CHP Emails In False-Arrest Trial
The California Highway Patrol asked state transportation officials to deny media access to a construction site and had Caltrans tip off police when reporters were coming, jurors heard Thursday in a news photographer's false arrest lawsuit against the CHP.
Jurors saw emails exchanged by CHP officers and the Department of Transportation, or Caltrans, on the third day of the Highway Patrol's trial in Stephen Eberhard's false arrest claim.
Eberhard sued the Highway Patrol and three officers who assaulted and arrested him in 2013 as he covered protests against a highway project in Northern California.
Eberhard says officers damaged his reputation and tried to chill his First Amendment rights to stop him from covering protests against the Willits Bypass Project, a $300-million job to reroute 6 miles of Highway 101 in Mendocino County. Rush hour traffic could clog the town of 5,000 people with half-hour waits.
Then-CHP Capt. James Epperson, now an assistant chief, asked Caltrans media escort Matt McKeon to alert police each time reporters planned to cover the construction project, according to an email McKeon sent on May 13, 2013.
"Capt. Epperson requested that in the future we give officers a heads up if we are going to the site," McKeon wrote in the email. "We also got the impression that he would prefer that press access be somewhat limited."
That email was sent the same day CHP officers arrested three protesters at the project site. One of the arrests was captured on video and promptly posted on YouTube.
Epperson, who testified Thursday, said he did not request the "heads up" to control or stifle media coverage, but to make sure police knew who was authorized to be in the work zone. "In an operation like this, communication is key," Epperson told the jury. "One of the things we needed to communicate was who is allowed out there and who is not allowed out there."
In an email Epperson sent to a superior officer that same day, he said he had spoken with a Caltrans construction supervisor about the media's filming arrests, and commented that may be "counterproductive and actually assisting the protestors."
A few weeks later, when officers were preparing to remove a protester [Will Parrish] who had occupied a tall piece of digging equipment [the “stitcher”] for 11 days, CHP asked Caltrans to deny the press access to the site, so that the protester's removal and arrest would not be seen by the public.
"I told Steve we would not be able to provide access to the site today," McKeon wrote in an email on July 1, 2013. "CHP requested we not provide access to the site today. Obviously, [Eberhard] was not very happy."
On the witness stand, Epperson said he asked Caltrans to deny the press access that day not to stop Eberhard from documenting the removal and arrest of a protester, but for safety reasons.
"To have press or anyone interrupt in the middle of enforcement contact … when we're engaged in something like this, we prefer that we can have control of our enforcement action," Epperson said.
Photographer's Wife Testifies
Also Thursday, Eberhard's wife of 35 years, Lana Eberhard, told the jury that her husband's arrest sent him into a deep depression that took him months to crawl out of.
The photographer, who moved to Willits with his wife in 2002, was arrested on the morning of July 23, 2013 as he tried to snap photos of two protesters who had chained themselves to construction equipment.
"He was embarrassed. He was humiliated. He was depressed. He was sleepless, restless, constantly in motion," Eberhard's wife said. "All he could talk about was the arrest. It lasted for months."
After the arrest, her husband stopped observing his usual rituals — eating breakfast at a downtown café each morning, chatting with people at local businesses and going to see live music at the town pub's open mike night each Wednesday.
"He was embarrassed to see people and didn't want to talk about the arrest," his wife said.
Being forced to sit in the back of a police car for more than an hour with his hands cuffed, windows closed and seats against his knees re-triggered a condition that Lana thought her husband had overcome years earlier, she said.
"I knew he had claustrophobia years ago, but it wasn't a big deal until he was arrested," Lana said.
On cross-examination, state prosecutor Harry "Chip" Gower III asked Lana if the couple's friends ever criticized her husband because of his arrest or if he lost any friends as a result of it.
She answered, "No."
Gower asked if she used to refer to her husband as "the unofficial mayor of Willits" because of his popularity in the community.
"I have said that," she acknowledged with a smile.
Gower asked if the couple is still welcome at community events and if people still want to shake her husband's hand at those events, and she said he was.
Gower's questions appeared to be part of a strategy to downplay the injuries Eberhard claims to have suffered.
Before the day ended, one juror wrote a final question for Lana, asking if her husband ever saw a medical doctor for treatment of the depression and anxiety he suffered after the arrest.
She said her husband did not seek treatment from a doctor.
Stephen Eberhard was expected to testify Friday.
(Courtesy, Courthouse News Service)
Press Rights Ignored by Cops
State police treated the media like an enemy and made no distinction between journalists and environmental protesters they were removing and arresting at a highway construction site, a news photographer testified Friday.
In the final day of witness testimony in his false-arrest trial against the California Highway Patrol, photojournalist Stephen Eberhard said officers subjected him to a pattern of intimidation, threats and harassment to deter him from covering one of the state's largest highway projects in decades.
"They treated us like we weren't press," Eberhard told the jury on Friday. "We were protesters. That's the way we were treated many times."
Eberhard sued the CHP and three officers that assaulted and arrested him as he covered the Willits Bypass Project, a $300-million rerouting of Highway 101 in the Northern California town of Willits.
After arresting Eberhard for trying to snap photos of two protesters that locked themselves to construction equipment on July 23, 2013, the arresting officer, co-defendant Christopher Dabbs, told a jailer, "I've got another protester for you," Eberhard testified Friday.
The newsman said he made a point to remind Dabbs that he was an objective newspaper photographer, not a protester.
While Eberhard and an independent videographer covered another protest on June 12, CHP Sgt. Braden Moffett looked at the two journalists and told them they would be the first two arrested even though they were accompanied by an official escort from the state Department of Transportation, or Caltrans.
A few weeks later, Eberhard drove down to the construction site with his wife when an unknown CHP officer approached his car and recognized him, he said.
Eberhard's wife Lana testified in court Thursday that the officer's facial expression immediately changed when he realized her husband was the journalist that had been taking photos of police arresting protesters at the site.
"His face just hardened and his demeanor changed, and there was this hostility" Lana Eberhard said of the officer. "You could just sense it. He said, 'If you don't leave the area, you'll be arrested.'"
Earlier this week, co-defendant and CHP officer Teddy Babcock admitted he shoved Eberhard four times as the newsman tried to shoot photos of construction work at the project site on May 31, 2013.
"I was afraid he might assault me again," Eberhard said. "I was pretty shook up. I was not expecting any officer of the law to attack me like that, and while I'm taking photos."
Babcock said he took that action because the area was unsafe, but Eberhard claims Babcock was retaliating against him for a previous encounter. A few weeks earlier, Eberhard had asked Babcock why he yelled at him and no one else to back far away from an area where two people were being arrested — preventing Eberhard from snapping a photo of the event.
Babcock folded his arms and said, "I'm not saying another word," according to Eberhard.
"My impression is that he is a hot-head and knew he shouldn't say anything further," Eberhard said.
On cross-examination, state prosecutor Harry "Chip" Gower III asked Eberhard if anyone from Caltrans ever told him he could access the construction site without an escort.
Gower played a video of Eberhard's deposition testimony, in which Eberhard acknowledged he knew Caltrans did not want him entering the site without an escort.
The day Eberhard was arrested on July 23, 2013, he had called his escort and asked him to meet him at the site, but he did not have an escort with him at the time.
Gower also asked Eberhard if he felt he could manipulate younger officers like Dabbs, who were less familiar with the ropes, into letting him come onto the site and take photos when he had no authorization to do so.
The state prosecutor also pointed out that Eberhard still has many friends and strong ties to civic organizations in the community, downplaying the damages to Eberhard's reputation that he claims he suffered as a result of the arrest.
Friday was the fourth day of the trial and the last day of witness testimony.
Closing arguments and jury deliberations were expected to begin Monday.
US District Judge James Donato instructed the nine-member jury that it must decide if Babcock, who pushed Eberhard, and the two arresting officers — Dabbs and Kory Reynolds — were motivated to retaliate against Eberhard or chill his First Amendment rights when they assaulted and arrested him.
(Courtesy, Courthouse News Service, San Francisco)