SF Bay Area Indymedia indymedia
About Contact Subscribe Calendar Publish Print Donate

San Francisco | Indymedia | Police State and Prisons

Federal Judge Rules That Indybay Journalist Can Sue Bart Police For Retaliatory Arrest
by Dave Id
Wednesday Feb 12th, 2014 5:35 PM

For Immediate Release:
February 12, 2014


FEDERAL JUDGE RULES THAT JOURNALIST CAN SUE BART POLICE FOR RETALIATORY ARREST

- Journalist Reported on Issues Related to BART PD Killings of Oscar Grant and Charles Hill

- Journalist Was Targeted by BART PD Prior to and Arrested at Powell Street Station Protest

- Judge Rules Claim of First Amendment Retaliation May Proceed to Trial


San Francisco, California: On Tuesday, February 11, United States Magistrate Judge Jacqueline Scott Corley ruled that independent journalist David Morse — who suffered arrest while covering a "No Justice No BART" protest on September 8, 2011 — would be able to take his civil rights lawsuit against BART police to trial (see Order PDF below).

David Morse is a veteran journalist and long-time member of the San Francisco Bay Area Independent Media Center (Indybay). After the January 1, 2009, shooting death of Oscar Grant at the Fruitvale BART Station in Oakland, Morse became intensely involved in documenting the many responses to the killing, publishing hundreds of articles about demonstrations, public meetings, courtroom proceedings, BART board meetings, and state legislative hearings. Morse's reporting continued through 2011 with the BART police killing of Charles Hill, BART's deliberate shutdown of mobile phone service in San Francisco stations, and related protests.

On September 8, 2011, BART Deputy Police Chief Dan Hartwig selected David Morse for arrest during a protest at the Powell Street BART Station, a culminating act in BART's response to a series of escalating demonstrations which publicly embarrassed the agency. As Morse's Indybay postings successively described the public furor around the actions of BART and its police force, BART police commanders commissioned an intelligence officer to profile Morse, publish his photograph, and prepare officers to make his arrest. At the Powell Street Station demonstration itself, Morse continued his usual journalistic activities, only to find himself singled out for arrest, handcuffed, held in a police substation, and ultimately transported to San Francisco County Jail. Every other credentialed journalist was released from a police encirclement that day.

Magistrate Judge Jacqueline Scott Corley has now ruled that Morse has sufficient evidence to continue to pursue his First Amendment claim against Deputy Chief Hartwig for arresting him in retaliation for his extensive and critical reporting on their police department. Additionally, Judge Scott Corley has ordered that evidence in the case previously under seal be made available for public review (see Exhibit PDFs and media files below). A trial has been scheduled for September of this year.


Contact:
Michael Siegel, Siegel & Yee, (510) 839-1200


###


Background Information:

Indybay Journalist Arrested at #NoFare BART Protest in Powell Street Station, 9/8/11: photos
www.indybay.org/newsitems/2011/09/12/18690043.php

SF Judge Dismisses Charges Against BART's Powell Street Station Free Speech Arrestees, 6/4/12
www.indybay.org/newsitems/2012/06/05/18714844.php

Indybay Coverage of the Justice for Oscar Grant Movement
www.indybay.org/oscargrant



(25-page PDF)

If you read any of the documents posted herein, read this one. It's Magistrate Jacqueline Scott Corley's Order on Summary Judgment. The Order quotes extensively from this reporter's coverage of BART PD published here at Indybay.

To explain the plethora of documentation and media files below, the way a civil suit works is that a Plaintiff (this reporter) files a simple claim of legal wrongdoing, the named Defendants (BART) object, and then Plaintiff files the actual "complaint" or full civil suit, making the best case with facts known at the time. From there, in as few words as possible (and to be taken as the description of a non-lawyer), Defendants can file a motion to dismiss, which BART did not do in this case. Then there are Settlement Conferences where both parties meet with a settlement judge to try to figure out a way to avoid trial, and those went nowhere with BART. While those conferences are happening, both sides are already in the process of offering to each other whatever evidence they think they possess that is relevant to the case. That's called Disclosure, and revolves around something called Rule 26. Each side further requests documents/media that they are reasonably certain the other side possesses but has not turned over yet, and that's called Discovery. As part of he Discovery process, both sides are also entitled to call to Deposition whomever they want, which means lawyers asking questions for hours with the sessions transcribed for court records. In this case, our side deposed ten BART police officers and supervisors. BART deposed just this reporter. After Discovery is complete, the Defendant can file what is known as a Motion for Summary Judgment, in which they make their best case that the suit is without merit, using all of the evidence gathered to date, from Disclosure to Discovery and Depositions. Plaintiff then files an Opposition to arguments made in the Motion for Summary Judgment (MSJ), likewise using all relevant evidence available. Additionally, both sides make heavy use of citations of previous court decisions in their filings. Finally, the Defendant files a Reply to Plaintiff's Opposition, there is a hearing in court for MSJ oral arguments, and then the judge issues a ruling, declaring which elements of the case shall survive for possible trial. The files below are primarily Defendant's MSJ, Plaintiff's Opposition, and Defendant's Reply, along with supporting documentation used by both sides to make their cases.

(3-page PDF)

Magistrate Judge Jacqueline Scott Corley begins as follows:

"[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 & n.7 (1978)

BART is the Defendant in civil suit. This motion references Exhibits and Declarations included below.

(28-page PDF)

(2-page PDF)

I, KEVIN P. ALLEN, declare as follows:

1. I have personal knowledge of the following facts, and could and would testify competently thereto if called upon to do so.

2. I am an attorney at law duly licensed to practice before all courts of the State of California and before the United States District Court for the Northern District of California, and am employed as an associate with the law firm of Low, Ball & Lynch, attorneys of record herein for defendants SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT ("BART") and BART DEPUTY POLICE CHIEF DAN HARTWIG.

3. A true and correct copy of the relevant portions of the deposition transcript of Daniel Hartwig, taken in the above-captioned action on October 15, 2013, is attached hereto as Exhibit "A."

4. A true and correct copy of the relevant portions of the deposition transcript of David Morse, taken in the above-captioned action on October 15, 2013, is attached hereto as Exhibit "B."

5. A true and correct copy of the relevant portions of the deposition transcript of Kenton W. Rainey, taken in the above-captioned action on November 6, 2013, is attached hereto as Exhibit "C."

6. A true and correct copy of the relevant portions of the deposition transcript of Shane Coduti, taken in the above-captioned action on November 5, 2013, is attached hereto as Exhibit "D."

7. A true and correct copy of the relevant portions of the deposition transcript of Benson Fairow, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit "E."

8. A true and correct copy of the relevant portions of the deposition transcript of Ken Dam, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit "F."

9. A true and correct copy of the relevant portions of the deposition transcript of Michael D. Hayes, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit "G."
§EX. A: DEPOSITION OF DEPUTY CHIEF DANIEL O. HARTWIG
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(24-page PDF)
§EX. B: DEPOSITION OF DAVID MORSE
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(23-page PDF)
§EX. C: DEPOSITION OF CHIEF KENTON W. RAINEY
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(8-page PDF)
§EX. D: DEPOSITION OF SHANE R. CODUTI
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(7-page PDF)
§EX. E: DEPOSITION OF DEPUTY CHIEF BENSON H. FAIROW
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(9-page PDF)
§EX. F: DEPOSITION OF KEN DAM
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(5-page PDF)
§EX. G: DEPOSITION OF LIEUTENANT MICHAEL D. HAYES
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(4-page PDF)
§DECLARATION OF CHIEF KENTON W. RAINEY
by Dave Id Wednesday Feb 12th, 2014 5:58 PM

(4-page PDF)

(2-page PDF)

Note that the judge did not make use of this proposed order and instead issued a thorough 25-page ruling.

(30-page PDF)

David Morse is the Plaintiff in the case. This motion in Opposition to the Defense's MSJ references Exhibits and Declarations included below.

(5-page PDF)

I, MICHAEL SIEGEL, declare:

1. I am an attorney admitted to practice before the courts of the State of California, as well as before the United States District Court for the District of Northern California. I am an associate with the law firm of Siegel & Yee, which represents plaintiff David Morse in this matter. This declaration is submitted in response to defendants' motion for summary judgment or summary adjudication.

2. A true and correct copy of the relevant portions of the deposition transcript of Daniel Hartwig, taken in the above-captioned action on October 15, 2013, is attached hereto as Exhibit A.

3. A true and correct copy of relevant portions of confidential exhibits utilized at the deposition of Daniel Hartwig, taken in the above-captioned action on October 15, 2013, is attached hereto as Exhibit B.

4. A true and correct copy of the relevant portions of the deposition transcript of Shane Coduti, taken in the above-captioned action on November 5, 2013, is attached hereto as Exhibit C.

5. A true and correct copy of the confidential exhibit 25 utilized at the deposition of Shane Coduti, taken in the above-captioned action on November 5, 2013, is attached hereto as Exhibit D.

6. A true and correct copy of relevant portions of the deposition transcript of Benson Fairow, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit E.

7. A true and correct copy of the confidential exhibit 2 utilized at the deposition of Benson Fairow, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit F.

8. A true and correct copy of the relevant portions of the deposition transcript of Steven Coontz, taken in the above-captioned action on December 2, 2013, is attached hereto as Exhibit G.

9. A true and correct copy of the confidential exhibit 35 to the deposition of Steven Coontz, taken in the above-captioned action on December 2, 2013, is attached hereto as Exhibit H. Exhibit H consists of a single audio file, in .wav format, that is a copy of a Computer Assisted Dispatch (CAD) recording of Lieutenant Coontz speaking over police radio during the protest in question.

10. A true and correct copy of the relevant portions of the deposition transcript of Michael D. Hayes, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit I.

11. A true and correct copy of relevant portions of the confidential exhibit 24 to the deposition of Michael D. Hayes, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit J.

12. A true and correct copy of relevant portions of the deposition transcript of Ken Dam, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit K.

13. A true and correct copy of relevant portions of confidential exhibits utilized at the deposition of Ken Dam, taken in the above-captioned action on October 16, 2013, is attached hereto as Exhibit L.

14. A true and correct copy of relevant portions of the deposition transcript of Kenton Rainey, taken in the above-captioned action on November 6, 2013, is attached hereto as Exhibit M.

15. A true and correct copy of relevant portions of the deposition transcript of Edward Schlegel, taken in the above-captioned action on November 6, 2013, is attached hereto as Exhibit "N."

16. As part of the discovery in this matter, BART has provided to my client video footage captured by BART closed circuit television (CCTV) cameras. I have attached as Exhibit O a true and correct copy of relevant portions of BART CCTV footage as Exhibit O. Exhibit O is a an .mpg file and has been provided as a file on a disk that has been 627lodged with the Court and provided to defendants. The original title of this video file was "BART CCTV 28-22-30-22 C_05 PPS-C-S PTZ 080911 _122-128."

17. Exhibit O shows the role of David Morse during the protest in question. Mr. Morse is visible towards the center of the frame. He can be located as being behind the individual (Christopher Cantor) who is using a rolled-up piece of paper as a megaphone. Mr. Morse is behind Mr. Cantor and to the right. He is a white man with a beard and ponytail, and he is holding a camera.

18. I have attached as Exhibit P another true and correct copy of relevant portions of BART CCTV footage. Exhibit P is an .mpg file and has been provided as a file on a disk that has been lodged with the Court and provided to defendants. The original title of this video file was "BART CCTV 28-22-30-22 C_05 PPS-C-S PTZ 080911 _122-128."

19. Exhibit P shows the role of David Morse during the protest in question. At the beginning of this clip, Mr. Morse is visible towards the center of the frame. He is a white man with a beard and ponytail, and he is holding a camera.

20. I have attached as Exhibit Q another true and correct copy of relevant portions of BART CCTV footage Exhibit Q is an .mpg file and has been provided as a file on a disk that has been lodged with the Court and provided to defendants. The original title of this video file was "BART CCTV 28-22-30-22 C_05 PPS-C-S PTZ 080911 _122-128."

21. Exhibit Q shows the role of David Morse during the protest in question. At the beginning of this clip, Mr. Morse is visible towards the center of the frame. He is a white man with a beard and ponytail, and he is holding a camera. In the frame he is immediately above an individual wearing a red sweatshirt with a hood.

22. BART has also produced audio files pursuant to discovery. I have attached as Exhibit R a true and correct copy of an audio file produced by BART, that was captured as part of BART's computer assisted dispatch (CAD) system. The audio file reveals that an officer announced, via CAD, that the "dispersal order" had been given at 5:26 p.m. The original title of this audio file was "F1309090058199000011r.wav."
§EX. A-C: DEPOSITION OF DANIEL O. HARTWIG and Related Exhibits
by Dave Id Wednesday Feb 12th, 2014 9:12 PM

(167-page PDF)

Deposition supporting documents include: BART PD POLICY 459 (Tactical Team & Crowd Control, plus Media); BOLO featuring Krystof and Dave Id; BART's protest timeline based upon CAD/radio reports; photograph by Beck Diefenbach showing police line, not protesters or reporters, blocking fare gates (http://www.sfgate.com/bayarea/article/BART-protesters-arrested-Powell-Station-closed-2310457.php#photo-1817056); Hartwig's IA interview regarding my arrest; BART PD's CAD/radio records for the protest; email between BART officer Shane Coduti and Hartwig; Hartwig google alert with Dave Id article on Charles Hill; and the Deposition of Shane Coduti (officer ordered to arrest David Morse by Hartwig).

Note that BART officially insists the "wanted" flier was not a BOLO (Be On the LookOut), but that is how their own Internal Affairs officers referred to the document. Officially, for the purposes of this case, BART refers to it as an "informational flier" distributed to officers prior to the Powell Street demonstration with no specific guidance on what officers were to do with the information other than supposedly to be on the lookout for Dave Id and Krystof.

(1-page PDF)
§EX. D-I: Supporting documents
by Dave Id Wednesday Feb 12th, 2014 9:12 PM

(104-page PDF)

Documents include: Coduti's arrest report for David Morse, with narrative; David Morse's citation for violation of PC369i (marked incorrectly as infraction rather than misdemeanor); Deposition of Deputy Chief Benson Fairow (who ordered creation of BOLO with Dave Id); BART PD's Operations Order (planning document) for Powell Street protest; Depostion of Lt. Steve Coontz (carried red bullhorn to make public announcements, made radio transmissions, ordered police lines); and the Deposition of Lt. Michael Hayes (who stated Coduti had problems with probable cause for arrest of David Morse).

Note that individuals' phone numbers, email addresses, dates of birth, etc, have been redacted here, and in other documents attached, for both this reporter and BART officers.
§EX. J-N: Further supporting documents
by Dave Id Wednesday Feb 12th, 2014 9:12 PM

(69-page PDF)

Documents include: Lt. Michael Hayes IA interview regarding arrest of David Morse; Deposition of officer Ken Dam (created BOLO); Ken Dam email sending other officers BOLO and photobook of previously arrested protesters; Ken Dam IA interview regarding arrest of David Morse; Ken Dam "intel" update on Powell Street protest; Deposition of BART PD Chief Kenton Rainey; and the Deposition of officer Edward Schlegel.
Copy the following to embed the movie into another web page:
download video:

_ex_o___bart_cctv_28-22-30-22_c_05_pps-c-s_ptz_080911__122-128.mpg (41.1MB)

(video 2:00)

Note that BART's CCTV has no audio.
Copy the following to embed the movie into another web page:
download video:

_ex_p__bart_cctv_33-51-34-48_c_05_pps-c-s_ptz_080911__122-128.mpg (18.9MB)

(video :57)
Copy the following to embed the movie into another web page:
download video:

_ex_q__bart_cctv_36-45-38-00_c_05_pps-c-s_ptz_080911__122-128.mpg (25.6MB)

(video 1:15)
Listen now:

Embed code:
Download audio:
Download audio
_ex_r__f1309090058199000011r.wav 312.6 KB

(audio :20)

(17-page PDF)
§Ex. A-H: Supporting Documents
by Dave Id Wednesday Feb 12th, 2014 9:12 PM

(72-page PDF)

Includes the following articles by this reporter: No Justice No BART Demands Accountability at MacArthur Station, Oakland, 4/2/09: video; Johannes Mehserle Preliminary Hearing Transcripts - Days 5-7, May 27th-June 4th, 2009; BART Police Oversight Vs. Every Cop Union in the State; Police Chief Gee Out; and a Rumor; CA Assembly Hearing on BART's Deeply Inept, Reckless, and Corrupt Police Force, 10/20/09: audio and PDFs; Oscar Grant Family Attorney John Burris Confronts BART's Bad Faith Attacks, 2/5/10: video; Justice for Charles Hill BART Action Shuts Three Stations in San Francisco: photos, 1 of 2; BART Pulls Plug on Cell Phone Antennas - You Can Always Count on BART to Step In It; BART Hates Free Speech, Anonymous #OpBART Protest, Civic Center station, 8/22/11: video; and The Real Safety Threat? BART Encouraging Violence Against Protesters.
§Ex. I-Q: Further Supporting Documents
by Dave Id Wednesday Feb 12th, 2014 9:12 PM

(20-page PDF)

Documents include: Dave Id photos from Powell Street protest, September 8, 2011.

(2-page PDF)

This was filed as per a "protective order" previously agreed upon by Plaintiff and Defense, largely in order to keep BART police documents under seal. Magistrate Judge Jaqueline Scott Corley, however, ruled that all supporting documents must be available for public review (see JUDGE'S ORDER DENYING PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE UNDER SEAL above).

(2-page PDF)

Regards submitting longer, contiguous portion of CCTV for purposes of Plaintiff Opposition to MSJ, rather than just the three clips shown above which were initially submitted as Exhibits. The Defense objected to short clips being used and even suggested that their own CCTV be thrown out as evidence in the case.
Copy the following to embed the movie into another web page:
download video:

_ex_a__bart_cctv_c_05_pps-c-s_ptz_080911__122-128.mp4 (208.6MB)

(video 52:27)

This is a reduced file-size version of video BART provided in Discovery and then Plaintiff submitted as an Exhibit in Opposition filing.

Note that BART's CCTV has no audio.

(18-page PDF)

After this Reply to Plaintiff's Opposition, there was a hearing in federal court on Summary Judgment on Thursday, February 6. At the hearing, Magistrate Judge Jacqueline Scott Corley telegraphed what her decision would be, but was open to oral argument from both sides. She then issued her formal written Order on February 11.