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 on October 12th by the U.S. Court of Appeals for the Ninth Circuit.

On March 20, 2004, Mark Burdett was covering an antiwar march for Indybay. He was wearing a San Francisco Police Department issued press pass on a chain around his neck. While Burdett was filming the arrest of a protester, 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.

Commenting on the decision which now strips him of the ability to sue to redress his own false arrest, Mark 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.” His attorney, Ben Rosenfeld, says the ruling “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.”

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