Judge orders UC police to hand over journalist’s photographs

David Morse has covered hundreds of Bay Area protests for Indybay.
photo courtesy Indybay

Remember when a crowd of angry student protesters surrounded the home of UC Berkeley Chancellor Robert Birgeneau last December, and broke some windows? And then Gov. Arnold Schwarzenegger called them terrorists?

That eventful night touched off a months-long court battle for David Morse, a journalist who was arrested at the chancellor's residence along with seven protesters but later had his charges dropped entirely. After a June 18 court ruling in his favor, Morse will finally have his photographs from the protest returned to him.

The win signifies a major victory for the First Amendment Project, which represented him pro bono, and strengthens the principle that journalists' unpublished photographs and information should not be seized by police and used for law-enforcement purposes.

Morse was at the fiery Dec. 11 march not to protest, but to report on it for Indybay, the San Francisco Bay Area Independent Media Center. He wore a press badge, and repeatedly identified himself as a reporter to University of California police officers when they detained him. Nonetheless, campus police seized his camera and arrested him, initially charging him with several felonies. “They said to me, ‘you were taking pictures of us. We want your camera,’” Morse recalled.

As the scene at the chancellor’s residence made headlines the following morning, Morse was sitting in jail in Santa Rita. "My voice as an eyewitness was completely silenced," he told the Guardian when we interviewed him for an earlier story.

His charges were dropped, and his camera was returned within a few weeks. However, he’s been in court for about six months trying to get his digital photos back. 

State law prohibits the issuance of search warrants for unpublished journalistic materials. The idea behind this is to protect journalists from serving law enforcement's agenda against their will, which could limit the flow of information by causing sources to clam up. Yet the UC police department obtained a search warrant for Morse’s unpublished photos, which were stored on a memory disc seized along with his camera.

The First Amendment Project stepped in on his behalf. FAP attorney Geoff King said the affidavit that triggered the issuance of the warrant failed to mention that Morse had identified as a journalist. It was a strange omission, King said, since the police report included several references to Morse’s assertion that he was there as a reporter. Since the affidavit didn't describe Morse as a journalist, the judge had no way of knowing that the warrant was illegal.

On June 18, Morse and FAP claimed victory as an Alameda Superior Court judge quashed the warrant. The court also ordered UCPD to return all of Morse's photographs, including any copies, and to declare under oath what other agencies had received copies.

While the decision is a major win for press freedom, UC police used the illegally obtained photographs for their own purposes in the interim. Morse’s photos of activists were uploaded onto a "Wanted" website maintained by UCPD, but have since been removed, King said. The university has also indicated that it wanted to use the photos in a series of disciplinary hearings targeting students who engaged in on-campus activism protesting tuition hikes.

In a San Jose Mercury News article, UCPD Capt. Margo Bennett was quoted as saying the department has not considered changing the way it deals with journalists.