On March 1 a federal jury ruled TWN photojournalist Steve Eberhard failed to prove that the actions of three California Highway Patrol officers in 2013 were specifically aimed at “chilling” his First Amendment newsgathering rights. Eberhard’s photos were part of the locally intense media coverage about the Willits bypass construction and protests and were widely featured in The Willits News, the Ukiah Daily Journal, the Fort Bragg Advocate, Chico Enterprise Record, the Eureka Times Standard, KGO ABC news and the Santa Rosa Press Democrat, among others.
The jury had to determine, based on a “preponderance of evidence” presented in the 5 day trial, whether the officers acted “under color of law” and that “the Officer’s action would chill or silence a person of ordinary firmness from future First Amendment activities; and causing the chilling effect was a substantial or motivating factor for the Officer’s action.”
In the jury instructions, US District Judge James Donato stipulated as fact that the CHP officers were acting under the color of law; that Kory Reynolds and Christopher Dabbs arrested Eberhard on July 23, 2013 for misdemeanor trespass and that there had been a meeting on April 12, 2013, between Caltrans representative Phil Frisbie and TWN editor and publisher to discuss access to the Willits bypass construction site.
During trial testimony the third officer, Teddy Babcock, admitted he “made physical contact” with Eberhard on May 21, 2013 at the construction site. Eberhard was wearing a hard hat and vest and was authorized to be at that location by his Caltrans escort. Eberhard testified Babcock shoved him from behind while taking photos on the Willits bypass project site.
Babcock asserted he “made physical contact” out of a concern for Eberhard’s safety, while Eberhard contended the incident was in retaliation for several prior interactions with Babcock associated with the Willits bypass. Under cross-examination, Babcock stated he did not push Eberhard and that he did not confront the two other persons taking photos in the same location.
Dabbs and Reynolds testified that when they arrested Eberhard on July 23, 2013 they believed he had violated trespassing laws. While the protocols Caltrans and CHP had provided officers at the Willits bypass site stipulated they should attempt to minimize arrests by having officers read a formal dispersal order and then provide an opportunity for the protesters to leave; the officers did not deem these protocols applied to the photojournalist. Their understanding was that any member of the media had to have a Caltrans escort or be subject to arrest.
The day of the arrest, a group of protesters, carrying a banner, were on the bypass site more than an hour prior to Eberhard’s arrival. As demonstrated in an amateur video of the event, CHP officers read them the official dispersal order and over a period of about 20 minutes, the group backed out of the construction zone. Two other protesters remained on the job site chained to the equipment.
Eberhard came to the site after receiving a tip about the protest. On the video he is seen approaching Dabbs and shaking his hand and 43 seconds later he is being handcuffed.
Based on testimony, Eberhard approached the first officer on the site, introduced himself, told Dabbs he had called and left a message for a Caltrans escort and asked to photograph the persons chained to equipment. Dabbs told Eberhard he needed to leave or he would read him the dispersal order and arrest him if he failed to leave after that. Eberhard said he would leave if Dabbs read the dispersal order. Dabbs was in the process of taking out his cell phone to pull up the dispersal order when Reynolds arrested Eberhard. The 128 word dispersal order was issued to each CHP officer as part of the Ukiah CHP Operations Plan and takes about 50 seconds to read.
Eberhard testified that Reynolds came from behind and began handcuffing him. Reynolds asserted in his testimony that he told Eberhard to leave and gave him an opportunity to leave but Eberhard kept talking. Dabbs could not recall what Reynolds said. All in less than 43 seconds from Eberhard’s handshake with Dabbs.
Eberhard was the only person booked into Mendocino County Jail for the incident. The two protestors chained to the equipment were merely cited and released. None of the protesters, who had been on the site for a significant period of time were either arrested or cited.
Deputy Attorney General Harry T. (Chip) Gower, III asserted that the officers’ conduct was due to where the actions occurred rather than why. While he continued to assert that Eberhard was trespassing at the time of his arrest, the Mendocino County District Attorney’s Office and Judge Donato did not agree. Donato in a November 2015 ruling stated, “whether Eberhard actually violated (the trespassing statutes)... is rather doubtful.” The DAs office refused to file trespassing charges.
One of the keys to determining whether any animus directed toward Eberhard by the officers was due to media coverage of the bypass project, was the testimony, under oath, by Reynolds, Dabbs and Babcock that they had not seen nor discussed any of the media coverage of the bypass containing Eberhard’s photos prior to their actions.
Construction began on the nearly $200 million Willits bypass project in March 2013. The early days of construction were met wth numerous protests, including tree sitters and persons blocking Caltrans and contractor access and protesters locking themselves to trees and equipment. The CHP arrived with a substantial force in March 2013 and have provided security for the bypass site since. Protests continued through 2015. The roadway is expected to complete in September 2016.
(Courtesy, The Willits News)