A federal appeals court dismissed claims of wrongful arrest brought by a reporter attempting to film an Iraq war protest. Police had claimed he was jay walking when they grabbed him, threw him to the ground and handcuffed him, breaking his thumb. -db
San Francisco Chronicle
October 14, 2010
By Bob Egelko
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.
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