A recent federal court decision underscores the problems faced by California journalists covering accident or crime scenes.1
In Chavez v. City of Oakland, No. C 08-04015 CRB (N.D. Cal. June 2, 2009), U.S. District Judge Charles Breyer found that an Oakland police officer did not violate a newspaper photographer’s First Amendment rights by detaining him after he attempted to take photographs at the site of a freeway crash. The ruling, however, did not address California law, which provides greater protection for the rights of the press to report and photograph at disaster and accident sites.
The case involves Oakland Tribune photographer Ray Chavez, who encountered a serious accident while driving on a Bay Area freeway in 2007. With traffic blocked, Chavez left his car on the freeway and went to photograph the scene. After about 15 minutes, an Oakland police officer ordered him to leave. Chavez then asserted his right to cover the accident, but after a brief exchange the officer arrested him, saying “You don’t need to take these kinds of pictures.”
Chavez was handcuffed, forced to sit on the pavement near the overturned car for approximately 30 minutes, and then released with a citation. He sued the officers involved and the City of Oakland, alleging that they violated his First Amendment rights and that his arrest was without probable cause.
First and Fourth Amendment claims
On the First Amendment claim, the court ruled that the Oakland police officer’s conduct in arresting Chavez did not violate the First Amendment because Chavez—and other general members of the public—did not have a right to be there. “[C]ommon sense dictates,” Judge Breyer wrote, “that members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene.”
The court asserted that by leaving his vehicle in the middle of the freeway Chavez had hampered rescue efforts. It credited the Oakland officer’s testimony that an Oakland Fire Department vehicle had to maneuver around Chavez’s vehicle to reach the accident scene. The court, however, left open the possibility that a journalist who parked on the side of the freeway to report and photograph at an accident scene could, if arrested, maintain a claim for violation of First Amendment rights.
The court also rejected Chavez’s claim that police violated his Fourth Amendment rights by arresting him without probable cause. Chavez argued that when he asserted his right to be at the scene as a member of the press after he was asked to leave, he was not disobeying a command.
The court disagreed, finding that the officer directed Chavez to move his car three times. After the first time, rather than obey the order, the court noted, Chavez asserted his right “to leave his car unattended in a freeway lane while he took photographs.”2
From this assertion, the court concluded that a reasonable officer in this officer’s position “could have believed that this conduct alone was a willful refusal to comply with an order of [an] uniformed police officer.” (Emphasis added.) The court thus found probable cause to arrest Chavez for refusing to comply with the officer’s order.
As for Chavez’s state law claims, the court dismissed them without prejudice, meaning that Chavez still may be able to bring an action against the Oakland officer in state court for denying him access to the accident scene.
California has granted members of the media access privileges above and beyond what the First Amendment to the U.S. Constitution and Article 1, Section 2 of the California Constitution have been found to require. Through California Penal Code § 409.5(d), the California Legislature has mandated that officers allow “duly authorized representatives of any news service, newspaper, or radio or television station or network” access to disaster and accident sites closed to the general public.
In Leiserson v. City of San Diego, 184 Cal. App. 3d 41 (1986), the California Fourth District Court of Appeal interpreted the law to mean that “press representatives must be given unrestricted access to disaster sites unless police personnel at the scene reasonably determine that such unrestricted access will interfere with emergency operations.” If police do restrict access, they can do so “for only so long and only to such an extent as is necessary to prevent actual interference.”
It is important to note, however, that this holding applies to accident or disaster sites; if the police officers reasonably believe the site is a crime scene, the police have more leeway in blocking press access.
In light of the court’s ruling in Chavez, journalists should take additional care in their conduct at accident sites and in their dealings with police. They should do their best to avoid interfering with emergency operations, and to obey orders given by offices on the scene. In Chavez, Judge Breyer seemed especially troubled that the photographer left his car on the freeway when he went to photograph the scene and did not move it immediately upon being ordered to do so, which a member of the public would be expected to do in the same situation.
Most troubling for the press is that police agencies may attempt to use the Chavez case to claim that assertion of the journalist’s right to cover the accident scene provides probable cause for arresting the journalist.
While Judge Breyer’s determination of the probable cause issue in Chavez was more nuanced (it was not Chavez’s assertion of rights to cover accident scenes per se that provided the probable cause but his assertion that he had a right to leave his car on the freeway to cover the scene), it would be prudent for California journalists going forward to make every effort to assert their rights before an officer gives an order to leave the scene.
If an order is given, the journalist should make clear that he or she is complying with the order but believes the order violates his or her rights under the Penal Code § 409.5(d). The journalist also may request the contact information for a superior officer or the department’s public information officer, whom the reporter may then ask for a reassessment of the access issue.