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Indybay Reporter Files Supreme Court Appeal in Civil Rights Case
by mark
Thursday Feb 24th, 2011 4:02 AM
On Tuesday, Feb. 22nd, Indybay reporter Mark Burdett filed an appeal with the U.S. Supreme Court in a federal civil rights lawsuit stemming from his 2004 arrest for "jaywalking" while covering an antiwar protest in San Francisco. The story was featured on the Feb. 23rd episode of The Colbert Report.

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On March 20, 2004, the first anniversary of the U.S. invasion of Iraq, tens of thousands of protesters took to the streets of San Francisco to protest a murderous, unjust and illegal war[1]. During a spontaneous march from Civic Center towards downtown featuring the famed marching band Infernal Noise Brigade, San Francisco police surrounded and mass-arrested scores of protesters in the middle of Market Street. Later, police beat with batons and violently arrested smaller groups of demonstrators, breaking the arm of one protester while he was in a choke hold.

While filming the latter incident from a parking turnout, I was wrongly accused of knocking over a police motorcycle and slammed face first onto the pavement by riot police, who proceeded to break my thumb while seizing my camera equipment and handcuffing me. One officer actually asked me twice during the arrest, "Do you want me to break your thumb?" While being assaulted and arrested, I wore a clearly-visible official press credential issued by the very same SFPD. I was booked into jail on a raft of cover charges, including jaywalking, which were later dropped by prosecutors.

In a series of recent civil rights cases[2], the U.S. Supreme Court has permitted the "custodial arrest" of people for petty offenses. In an October 2010 ruling on my appeal, the Ninth Circuit Court of Appeals carried this precedent to an absurd extreme -- -- finding that police have absolute probable cause to arrest a credentialed reporter for "jaywalking," while standing in a parking turnout, on a street blocked to traffic, during an antiwar march, filming the violent arrest of a protester.

On Feb. 23rd, the story was featured on The Colbert Report:

[1] Indybay coverage of March 20, 2004:,,
[2] Civil rights whittled away by the Supreme Court in recent years:,,
§The Colbert Report: Nailed 'Em
by Colbert Nation Thursday Feb 24th, 2011 1:20 PM

Comments  (Hide Comments)

by al-masakin
Thursday Feb 24th, 2011 6:17 AM
It's a police state. I would love to have been in a position to have filed court cases on my own behalf for the very very many violations of my First Amendment and other rights, but to tell you the truth I've really given up hope that America can some how be fixed, that leagal or even protest action can make America better and instead look forward to either drinking the proverbial hemlock or standing back and watching it fall.
by cp
Thursday Feb 24th, 2011 7:08 AM
Wow. Way to go Mark + off-camera attorney!

How did they find your story?

It's pretty amazing how many hours were involved in bringing that through the court system, and now I guess a point is scored.
by Eileen
Thursday Feb 24th, 2011 7:37 PM
Good luck with your case; after seeing the report on Colbert last night, I was really glad to see that you're pushing it further. It's horrifying to me that someone would be arrested for "jaywalking" -- walking is as precious and fundamental a right as free speech (or any other right) and the denial of pedestrian access to streets is a problem in itself. It would be very interesting to know exactly how many other pedestrians have been arrested for "jaywalking," and exactly how many drivers have been arrested for failure to stop for a ped -- my guess, on the latter, would be 0. Maybe they're arrested for hitting someone, but clearly you were singled out for arrest based on political motivations.

One suggestion: In reading through the cert petition, the one point that bothers me is that you seem to be buying into the idea that true "jaywalkers" could/should be arrested, and that your arrest was wrong because you weren't jaywalking. Maybe I'm misreading the argument, but would just suggest that you might take a look at Peter Norton's book, "Fighting Traffic, ; it is a really interesting history in itself -- of how street use was taken from all users and handed over to drivers -- and also gives a history of what the term jaywalking originally meant and how it was manipulated by powerful interests into its current use. Here are a few links to articles discussing the book and another article:

Rebecca Solnit's book, "A History of Walking," is also very interesting.

Again, good luck with the case.
by anon
Thursday Mar 3rd, 2011 9:17 AM
So I was wondering if you have anything else I can do instead of signing a petition. I guess I don't like filling out one of those forms solely because I am giving my privacy right away with the number, name, email, etc. As if "officials" will listen to those flimsy papers anyway in my opinion... But do you have any thing else I could do in support?
by -A-
Friday Mar 4th, 2011 11:07 AM
I remember this incident. Maybe if we would have camped out in the streets and refused to go anywhere and resisted arrest and fought back like the Egyptians and Greeks, we might have been able to end the Iraq War through a regime change. Change comes only when those who are spirited and persistent are willing to put their bodies on the line at all costs and stick with it both violently and non violently.

May we learn from our mistakes of the past and gain just a little bit of inspiration from others for what we could have done yesterday and what we could be doing today and tomorrow rather than what we've been doing the entire time. Sticking with it in the face of police repression isn't easy but somewhere along the line if we choose not to fight today, we could be forced to fight tomorrow. "Only at the precipice do we change." Seems like that's the case.

The choice is up to you what kind of world you want to live in. The police are merely nothing but people dressed up as non people there to serve the interests of big business/capitalism. The minute everyone stops resisting the police is the minute everyone stops resisting the system as a whole for they are the guard dogs who keep us in line everyday so a system can properly function everyday whether we like it or not.

Yes we are learning.

I hope.
by (A)
Saturday Feb 25th, 2012 8:03 AM
Anon, lets not be fooled. Your identity is not hidden from the govt by having an anonymous name on the internet. I would say posting here is just as likely to get you tagged as filing out a petition. I'm not saying using anon for a name is bad, or that petitions are always a great agent of change. "They" have already admitted to watching sites, monitoring Facebook etc. All they need is your IP address.