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DILLON v. CITY & CTY. OF SAN FRANCISCO

October 19, 1990

PATRICK DILLON, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants



The opinion of the court was delivered by: PATEL

 MARILYN HALL PATEL, UNITED STATES DISTRICT JUDGE

 The plaintiff, Patrick Dillon, was arrested by San Francisco police officers on September 22, 1988. Plaintiff maintains that the arresting officers violated his constitutional rights by using excessive force in executing his arrest. While the plaintiff originally brought causes of action under the Civil Rights Act of 1864, 42 U.S.C. § 1983 and California tort law, plaintiff's counsel dismissed the state law claims at a hearing on September 28, 1990.

 The parties are presently before this court on a motion to quash a subpoena served by plaintiff on Gerald McEowen, a cameraman who witnessed the arrest and alleged beating of Mr. Dillon. Having considered the papers submitted and the oral arguments of the parties, the court denies the motion to quash.

 BACKGROUND

 This suit was initially brought by the plaintiff in state court. It was subsequently removed by the defendants to this court pursuant to 28 U.S.C. § 1441(b). The plaintiff's complaint stems from events which occurred on September 22, 1988, when Patrick Dillon was arrested by San Francisco Police Sergeant Roger Battaglia and Officer Christopher Cunnie. Officers Battaglia and Cunnie were named as defendants in the complaint, along with the City of San Francisco and San Francisco Police Chief Frank Jordan. *fn1"

 In the early hours of September 22, 1988, Patrick Dillon's home in the Haight-Ashbury neighborhood of San Francisco caught fire. After being trapped in an enclosed yard area for some time, Mr. Dillon and his family were eventually rescued by firefighters. Mr. Dillon returned to the scene of the fire shortly after 7:00 A.M. to retrieve whatever family belongings remained. After briefly inspecting his apartment, plaintiff left the severely damaged building and passed through an area which apparently was closed to the public for safety reasons.

 While walking through the restricted zone, the plaintiff was approached by Sergeant Battaglia, who intended to either remove Mr. Dillon from the area or to advise him to leave. An altercation ensued between the plaintiff and Sergeant Battaglia. Mr. Dillon contends that he was grabbed from behind by Sergeant Battaglia and that Battaglia began punching him, despite the fact that Mr. Dillon allegedly offered to cooperate. The plaintiff claims that he was then hit on the head from behind by Officer Cunnie. Plaintiff alleges, and defendants concede, that Sergeant Battaglia struck Mr. Dillon in the face with a bullhorn. Defendants, however, contend that all actions taken by the officers were necessary to effect the arrest of the plaintiff and were in self-defense. The plaintiff was eventually handcuffed and taken to a local hospital for treatment of facial lacerations prior to booking at San Francisco County Jail.

 Gerald McEowen is a cameraman employed by KRON-TV, Channel 4 of San Francisco. On the morning of September 22, 1988, Mr. McEowen was on assignment in the Haight-Ashbury neighborhood filming the aftermath of the fire. While there, he witnessed the alleged beating of the plaintiff by the defendant police officers. Mr. McEowen attempted to film the incident, but was unable to do so due to a mechanical problem with his video camera.

 Plaintiff subpoenaed Mr. McEowen to testify as an eyewitness to the altercation. Counsel for Mr. McEowen and KRON-TV filed a motion to quash the subpoena on the grounds that compelling a cameraman to testify as to his personal observations in such a case would violate the first amendment of the United States Constitution, article I, section 2(b) of the California Constitution, and California Evidence Code § 1070.

 This court heard oral argument on the motion to quash the subpoena on September 27, September 28 and October 1, 1990. At the September 28 hearing, plaintiff's counsel proffered that, in addition to testifying as an eyewitness, Mr. McEowen would testify that firefighters at the scene warned defendants Battaglia and Cunnie to stop beating the plaintiff because their actions were being videotaped and that, when the police officers failed to heed the warning, the firefighters intentionally prevented Mr. McEowen from videotaping by obstructing his view. Two of the witnesses scheduled to testify for the defense are firefighters who were at the scene of the incident.

 DISCUSSION

 At the inception of this motion, this case involved Federal constitutional and state tort claims. Thus, the motion initially focused on the California shield law. The plaintiff subsequently voluntarily dismissed his state claims against the defendant, leaving his 42 U.S.C. § 1983 cause of action as the sole remaining claim in this case.

 Counsel for Mr. McEowen contends that, despite the fact that this is now an action based entirely on a federal question, this court must still apply both federal and state law with regard to evidentiary privileges. In fact, it is essentially the state shield law that is urged by the subpoenaed party. Even after dismissal of the state claims, counsel continues to argue this position because there are no applicable federal statutes and federal authority on the issue is unclear. Counsel therefore maintains this court must look to article I, section 2(b) of the California Constitution and California Evidence ...


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