A federal jury in San Francisco today rejected a journalist’s claim that he was unfairly arrested during a 2011 protest at a BART station in retaliation for articles critical of the transit agency.
David Morse, a member of the San Francisco Bay Area Independent Media Center, sued now-retired BART Deputy Police Chief Dan Hartwig in 2012 to challenge his arrest during a protest at the Powell Street station in San Francisco on Sept. 8, 2011.
Hartwig, the supervising officer during the incident, ordered Morse to be arrested for allegedly blocking a fare gate in violation of a state law that prohibits interference with the safe and efficient operation of a railroad.
Morse had written a series of articles criticizing BART police in the previous two-and-a-half years, beginning at the time of the fatal shooting of Oscar Grant III by then-BART police Officer Johannes Mehserle at an Oakland station on New Year’s Day in 2009.
He claimed he was unconstitutionally targeted for arrest because he had exercised his right of free speech as a journalist.
Hartwig, who was represented in the case by BART lawyers, did not dispute that Morse is a journalist, but claimed he was breaking the law by blocking the fare gate along with other protesters.
After four days of trial and one day of deliberation, a seven-member civil jury in the court of U.S. Magistrate Judge Jacqueline Scott Corley unanimously returned a verdict exonerating Hartwig.
Morse’s lawyer, Dan Siegel, said, “We’re disappointed,” but said no decision has been made on whether Morse will appeal.
BART attorney Dale Allen said, “There was no evidence of any animosity going from Deputy Chief Hartwig toward David Morse.”
The demonstration was aimed at protesting Grant’s death, the fatal shooting of Charles Hill by a BART officer in San Francisco in 2011, and BART’s decision to cut off cellphone service during previous demonstrations.
After being arrested, Morse was handcuffed, detained at a police substation for more than two hours and then cited and released. A judge dismissed charges against him nine months later.
In a pretrial ruling in February, Corley dismissed two other claims in which Morse alleged he was unlawfully arrested and falsely imprisoned.
Corley said Hartwig had probable cause for the arrest because of the “undisputed fact” that Morse “was in the group of protestors that caused BART patrons to be diverted on their way to the fare gates.”
But Corley said a jury should decide whether Hartwig had an improper, retaliatory motive for ordering the arrest.
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