UC Berkeley police settle with unlawfully arrested photographer for $162,500; more police training

Raymond Baldino | Reporter's Privilege | News | July 5, 2012

The University of California Berkeley Police Department has settled with an independent photographer who sued the department after he was arrested and had his photographs confiscated while covering a protest in 2009. As part of the $162,500 settlement, the department has also agreed to change its policies towards the media and train officers about journalists' legal protections.

David Morse, a photographer for the San Francisco Bay Area Independent Media Center (Indybay), was arrested at a demonstration on the University of California campus where dozens of protestors angry at university fee increases gathered outside the chancellor's home. According to news reports, some protestors carried torches and damaged the chancellor's property.

Morse repeatedly stated that he was a journalist, but the university police argued that because he carried a dated press pass at the time of his arrest, they had reason to believe he was not a journalist.

The university sought to use Morse's photos in the investigation of the incident, but, in 2010, an Alameda County Superior Court judge ruled that the photographs were illegally obtained under a search warrant because Morse was protected by California's shield laws. The court ordered the photographs returned.

Morse then brought a civil lawsuit against the university police for "improper arrest, imprisonment, and seizure of journalistic materials" according to his attorneys' press release about the settlement. The release states that Morse was charged with arson, vandalism, participation in a riot, attempted burglary, and threatening a university official.

Under the federal Privacy Protection Act of 1980, officials must obtain a subpoena before searching journalists or newsrooms, which gives journalists an opportunity to oppose release of the materials.The university police had used a search warrant to demand immediate access to Morse's photographs.

The university acknowledged no wrongdoing in its settlement with Morse but has agreed to update its policies and procedures towards journalists in the future. According to the press release, the university has acknowledged that federal law requires a subpoena rather than a search warrant to obtain unpublished journalistic materials.

In addition, the department has agreed to train its officers under the new policies that acknowledge the protections afforded journalists. The settlement is similar to the 2011 agreement between both the Minneapolis Police Department and U.S. Secret Service with Democracy Now journalists for their arrests at the 2008 Republican National Convention. In that lawsuit, the St. Paul Police department also agreed to train its officers in media relations.

According to David Greene, Morse's attorney, the lawsuit challenged a systemic policy of the university police of unlawfully targeting journalists in investigations. As an example, he mentioned an ongoing case involving the seizure of two Bay Area activist publisher groups' computers - the Long Haul and East Bay Prisoner Support Group - handled by the Electronic Frontier Foundation and the American Civil Liberties Union of Northern California.

"[This case] was about the UC police hav[ing] a reputation and a history of ignoring journalists' rights," he said. "David Morse was clearly a journalist, and there for journalistic purposes ... they didn't care that he was a journalist."

Calls placed to the university police as well as the department's attorneys in the Morse case were not immediately returned.

Editor's note: Morse's lead counsel were Terry Gross and Sarah Crowley of Gross, Belsky & Alonso. Greene is an attorney with Bryan Cave LLP.