top
San Francisco
San Francisco
Indybay
Indybay
Indybay
Regions
Indybay Regions North Coast Central Valley North Bay East Bay South Bay San Francisco Peninsula Santa Cruz IMC - Independent Media Center for the Monterey Bay Area North Coast Central Valley North Bay East Bay South Bay San Francisco Peninsula Santa Cruz IMC - Independent Media Center for the Monterey Bay Area California United States International Americas Haiti Iraq Palestine Afghanistan
Topics
Newswire
Features
From the Open-Publishing Calendar
From the Open-Publishing Newswire
Indybay Feature

Ninth Circuit Decision Limits Freedom of the Press

by Civil Liberties Defense Center
Ninth Circuit Court of Appeals Holds that Journalist is Subject to Arrest for Jaywalking While Filming an Incident from the Side of a Blocked Off Street

‘Unpublished’ Decision Restricting Freedom of the Press is Still Precedent Setting.
0_0_1_att856a6_jpg.jpg
 


 

Contacts:

    Lauren Regan, Atty & Exec. Dir., CLDC, 541-687-9180

    Ben Rosenfeld, Atty & Board Member, CLDC, 415-285-8091

 

 

For Immediate Release

October 13, 2010

 

Ninth Circuit Court of Appeals Holds that Journalist is Subject to Arrest for Jaywalking
While Filming an Incident from the Side of a Blocked Off Street

 

‘Unpublished’ Decision Restricting Freedom of the Press

is Still Precedent Setting

 


 

            San Francisco, CA:  A credentialed reporter, who was prominently displaying a press pass issued by the very police agency who arrested him, can be lawfully arrested for jaywalking simply for standing in a parking indentation/turnout while filming an incident on a street blocked off to traffic, according to a decision issued yesterday by the United States Court of Appeals for the Ninth Circuit.  (Burdett v. Reynoso, et al., Appeal No. 08-15159.)

 

            On March 20, 2004, Mark Burdett was covering an antiwar march for Indybay.org, an independent news website.  He was wearing a San Francisco Police Department issued press pass on a chain around his neck.  During a splinter march escorted by police, officers tried to grab Noah Shepardson-Brewster, a protester who had been dancing down the middle of Jones Street alongside the march.  Police chased Shepardson-Brewster into Market Street as the crowd continued into the street and police blocked it off to vehicles.  Burdett stood just off the curb in a parking indentation/turnout on Market Street, filming from about 33 feet away as police piled on Shepardson-Brewster and broke his arm.

 

            While Burdett was filming Shepardson-Brewster’s arrest, someone unknown ran past Burdett and knocked over a police motorcycle next to him.  Officer Mark Shea (#2092) reacted to the sound of the motorcycle falling over and charged Burdett, accusing him of knocking it over.  Burdett repeated several times that he didn’t do it, but offered no resistance, while others in the crowd yelled that police had the wrong guy.  Shea dragged Burdett to the curb where other officers joined him in forcing Burdett down and flipping him onto his face, causing a large bruise on his forehead.  Officers then manhandled the non-resisting Burdett while handcuffing him, including Steven Smalley(#1885), who deliberately bent Burdett’s thumb back and broke or sprained it.

 

            Realizing their mistake, but intent nonetheless on cover-up, the police then arrested Burdett – not for knocking over the motorcycle, but for jaywalking.

 

            “The Court’s decision undermines First Amendment protected press freedom and Fourth Amendment safeguards against false arrest and excessive force,” said Ben Rosenfeld, Burdett’s attorney.  “It is bad news for anyone who wants to believe the Constitution or the federal courts actually protect people from police abuse.”

 

            Although the Ninth Circuit designated its decision “not appropriate for publication” and “not precedent,” there is no longer any such thing as an unpublished decision in the federal court system, Rosenfeld points out, citing the Court’s own rules.  Federal Rule of Appellate Procedure 32.1(a) states: “A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like; and (ii) issued on or after January 1, 2007.”  Therefore, the decision sets precedent notwithstanding the disclaimer of the three judges who authored it (Ninth Circuit Judges Ferdinand Fernandez and Barry Silverman, and District Judge Kevin Duffy from the Southern District of New York).

 

            “The rule is a good one,” says Rosenfeld.  “It prevents courts from hiding behind a curtain when they commit injustices themselves.  Query why any judge confident in his/her opinion would want it unpublished?  The country ought to know that many judges today are intent on fortifying police powers and immunities, not protecting civil liberties.  If people want to do something about it, they’ll need to look to other remedies, including other branches of government, to fix the damage being done by the courts.”

 

            Commenting on the decision which now strips him of the ability to sue to redress his own false arrest, Mr. Burdett said: "We can’t let the courts stand in the way of the vital work of independent journalism.  Independent reporters will continue to fight for the right to carry out our work free from the seizure of our reporting materials, and from arbitrary arrest and physical attack by police.”

 

            Rosenfeld agrees that “the Court’s decision is unsuitable for publication because it’s unsuitable for free society.”  He says “it confirms many people’s disgust that courts today exist to launder the bad behavior of the rich, the powerful, and the police, no matter what long term damage this does to society as a whole.”

 

 

            (Photos and other documentation available on request.)

 

 

- 30 -


§attachment 1
by via e-mail
0_1_pr__burdett_decision__11_13_10_pdf.pdf_600_.jpg
Add Your Comments

Comments (Hide Comments)
by chron report
Bob Egelko, Chronicle Staff Writer
San Francisco Chronicle October 13, 2010 05:08 PM

(10-13) 17:08 PDT SAN FRANCISCO -- A reporter who said he was wrongly seized and roughed up by San Francisco police while filming a protest can't sue for damages because he was standing in the street and could have been arrested for jaywalking, a federal appeals court has ruled.

Mark Burdett was covering a demonstration against the Iraq war in March 2004 for the Indybay news collective and said he stepped into Market Street to videotape police tackling a protester.

While he was standing near the curb, Burdett said, an officer falsely accused him of knocking down a motorcycle and grabbed him.

Other officers threw him to the ground face-first, pummeled him and broke his camera, and one broke his thumb while handcuffing him, Burdett said. After prosecutors decided not to charge him, Burdett sued the officers for false arrest and excessive force.

A federal court jury awarded him a token $1 in damages against the arresting officer but rejected the other excessive-force claims in 2007. On Tuesday, the Ninth U.S. Circuit Court of Appeals upheld a magistrate's decision to dismiss the claim of wrongful arrest.

Although the facts remain disputed - one officer said he saw Burdett crossing the street, while the reporter said he was close to the curb when he was arrested - both sides agree that he was in the street and not in a crosswalk, the three-judge panel said.

That means police had at least reasonable grounds to believe Burdett was jaywalking, and therefore they can't be sued for false arrest, the court said. Police did not initially accuse Burdett of jaywalking, but later cited the alleged offense as grounds for dismissing his lawsuit.

Burdett's lawyer, Ben Rosenfeld, said Wednesday that police had concocted the claim of jaywalking - in a street that had been closed to traffic and was filled with police, protesters and other journalists - because they couldn't charge the reporter with knocking over the motorcycle.

The ruling is "bad news for anyone who wants to believe the Constitution or the federal courts actually protect people from police abuse," Rosenfeld said.

But Deputy City Attorney Ronald Flynn said the courts have ruled that police can't be sued for false arrest if they had any reason to take someone into custody. In this case, he said, the officers had ample grounds to arrest Burdett for jaywalking and other offenses.


by AP report
The Associated Press
Posted: 10/14/2010 06:15:39 AM PDT

SAN FRANCISCO—A federal appeals court says a reporter who was allegedly roughed up by San Francisco police while filming a protest cannot sue the department for wrongful arrest.

The Ninth U.S. Circuit Court of Appeals on Tuesday upheld a lower court ruling dismissing Mark Burdett's false arrest claim.

The appeals court said Burdett was standing in the street, so police could have arrested him for jaywalking.

The San Francisco Chronicle reports that Burdett was filming a protest against the Iraq war in March 2004 for the Indybay news collective when an officer accused him of knocking over a motorcycle. He says other officers threw him to the ground and pummeled him while handcuffing him.

Burdett's lawyer, Ben Rosenfeld, says police later concocted the claim that Burdett was jaywalking.

by Courthouse news report
Thursday, October 14, 2010Last Update: 4:51 PM PT

By ELIZABETH BANICKI

(CN) - A San Francisco reporter who claims police falsely arrested him and broke his thumb while he was filming an anti-war protest can't sue for damages, the 9th Circuit ruled, because the officers "had probable cause ... to arrest [him] for jaywalking."

Reporter Mark Burdett was covering an Iraq war protest for Indybay in March 2004 when he said he stepped into Market Street to film an officer tackling a protester.

Burdett said another officer falsely accused him of knocking down a motorcycle, and police soon threw him face-first to the ground and beat him, breaking his camera and one of his thumbs while handcuffing him.

Burdett was not prosecuted over the incident. He later sued the officers for excessive force and false arrest.

Despite conflicting accounts of where exactly Burdett was in the street -- he claimed his was close to the curb, and the officers said he was in the middle of the street -- a jury awarded a token $1 in damages against the arresting officer but dismissed Burdett's excessive-force claim.

The 9th Circuit upheld a magistrate judge's decision to dismiss the false arrest and excessive force claims

"Viewing the evidence in the light most favorable to Burdett, the Arresting Officers had probable cause, or at least a reasonable belief that probable cause existed, to arrest Burdett for jaywalking," the appellate panel wrote.

Burdett was not initially accused of jaywalking, but police later cited him for it as grounds for dismissing his lawsuit.

by at chron...
mistersmith22
5:58 PM on October 13, 2010

If it was okay to wail on this guy for jaywalking, then it must be okay to violently restrain and handcuff all jaywalkers, right? Since it's obviously NOT okay to forcibly restrain all jaywalkers it shouldn't be used for a defense here. This really bugs me. But it shows something important: the weapons police fear the most? Cameras. And Americans need to use them.

---------
leo_marin
6:14 PM on October 13, 2010

Power structure looking out for itself. Jaywalking? It's almost funny that these people can just make up things like this and still hold their heads up in public. My respect for and faith in our legal system is pretty much gone. I consider it incredible luck when it works out and I thank God, literally.

The cops who did that should be reprimanded and in some cases fired or sent to jail for assault and battery. The judges fired and stripped of all pensions. If I were calling the shots, that's what would happen. But we don't seem to call the shots.

---------
lu3ke
5:33 PM on October 13, 2010

Wow, that is a pretty terrible ruling. I was there on that day, and the streets were closed to traffic and filled with people (protesters, police and journalists). How can you jaywalk on a closed street? Are people wandering the streets on "Sunday Streets" in the city also jaywalking?
by ntuit
In another case, the US Supreme Court refused to hear an appeal of two individuals who were ejected from a George W. Bush appearance in Colorado in 2005 because they had a bumper sticker on their car that said "No More Blood For Oil." They did nothing to disrupt the speech in Denver or cause any disruption of the event. The court has now paved the way to exclude anyone with different opinions than those of the President and his allies. IS THIS THE END OF EVEN THE APPEARANCE OF A DEMOCRACY WITH FREE SPEECH? These rulings are tearing away the veil so that we now see clearly what "THIS" truly is. It is not a democracy with free speech.


http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/10/12/national/w071325D99.DTL
by D. Boyer
Wow, this development is bad. I like Ben Rosenfeld, but he must have made a mistake somewhere somehow. This seems like an open and shut case, BUT?????
We are 100% volunteer and depend on your participation to sustain our efforts!

Donate

$90.00 donated
in the past month

Get Involved

If you'd like to help with maintaining or developing the website, contact us.

Publish

Publish your stories and upcoming events on Indybay.

IMC Network