A confrontation between a journalist and a Blackwater official wasn’t prompted by weapons fire in Iraq, but by a wildfire near San Diego. Veteran freelance journalist Miriam Raftery, who accompanied a photographer shooting extensive fire coverage in San Diego County’s back country last week, got this Blackberry note early Saturday afternoon from Brian Bonfiglio, a vice president of Blackwater USA:

    Its been brought to my attention that in your own words you knowingly entered the
Kreutzkamp Ranch (referred to as Blackwater property) and did so without the property owners permission.
    If the information I received is inaccurate please let me know as soon as possible.
    As I am sure you are aware, even with press credentials and covering the Harris Fire, unless a property owner provides his authorization private citizens cannot, by law, enter property, especially posted "no trespassing" property.
    Please clear this up for me when time permits – I am certain there is more to this than what I was informed.
Thank you,

Raftery responded that evening:

Brian –
    In covering disasters within evacuation zones it is common practice for law enforcement or fire authorities to grant permission to media to takephotos. TV reports are filled with images this week of reporters standing on lawns, backyards, and even on charred rubble of homes in evacuated areas, clearly without owners’ permission.  There is no standard I’ve ever been advised of in 20+ years of newspaper reporting that requires such permission in a disaster situation, and clearly a wildfire is within that definition.
    As a former writer for the Union Tribune, which has legions of attorneys vetsuch matters, I can assure you that the UT has run many photos taken onprivate property without owner’s permission in evacuated areas during previous wildfires. 
    There was a fire truck stopped at the gate and a lot of charred debris as firefighters were dousing a hot spot close by the gate.  No "no trespassing" sign was visible but even if there had been, such would not pertain in a disaster where officials gave permission for media to visit, particularly since fire officials acknowledged our press passes and granted an interview on progress fighting the fire.
    Moreover the photographer and I did not enter any buildings or intrude beyond obtaining a vantage point to photograph the fire and burned areas with a telephoto lens to document the fire for newspapers, news websites and local list serves, keeping area residents informed of the fire’s path.

Bonfiglio then answered:

   The owners representative and attorney contacted me today. I will defer and send your POC information to them. To my understanding there was some looting that took place on the ranch and in the end it was clearly stated to me that under no circumstances is anyone allowed to enter onto anothers property unless permission is granted.

    I spoke with CALFIRE today about this and they said they would look into it but as an SOP they do not allow civilians to accompany them onto any property.
    At the request of the owners Rep I will be reaching out to the SO and Highway Patrol further, as well Chief Nissens office to determine what, if any, suppport / permission was provided by fire fighters for you to access property, but that permission was not granted by the owner.
    In speaking with the owners attorney it was disturbing to them that you found it appropriate to publish pictures that showed that you were clearly on private land that you were not authorized to be on.
    At the end of the day I will do whatever is requested of me by the property owner and his attorney. I have turned over emails from you stating that that you were on (blackwater property) when not authorized to be on.
    I am not at the front of this, but have made it clear to the SO and Highway Patrol that I have never granted permission to you to access the property.
R / Brian

He shortly thereafter added:

I received your initial email.
    As I am certain you can understand this is not a case of rubble or youstanding in someones yard.         You accessed a private onwers property at least a mile into his land based on your pictures and statement. As you can imagine you would not appreciate someone entering your property if you owned land similar to the current property owner.
    Again, I will do no more – no less than asked of me, but I was asked by the property owners attorney to provide any POC info I have for the new editor of the East County Californian since you write for them.
    Its certainly your choice, but based on what I know I think it very appropriate for you to draft a letter of appology to the property owner and to be cautious concerning what you publish.
    Its totally your call – not mine. I am just trying to be helpful.

R / Brian

She responded:

Brian –
    I never left the road and was clearly within view of firefighters at all times.  I showed a press pass and was waved in. Had anyone denied entry I would have honored that request. If you are suggesting I had anything to do with looting, I can assure you that won’t hold water either.  I brought relief supplies up with me and had witnesses who unloaded those few items in my car shortly after I left your site.  They could attest that I had nothing else, and I find your suggestion that a journalist would engage in looting to be extremely offensive. 
    This appears to be a blatant attempt at intimidation of the press and an effort to infringe 1st amendment rights to cover a breaking news story with pubic safety implications.  I would suggest that you not engage in legal harassment or threaten frivolous litigation.  The last time a major company attempted to intimidate me, National Writers Union provided legal support and obtained a settlement in my favor for a very large sum.  I have no wish for any legal entanglement, but will vigorously defend the rights of journalists to cover breaking news if pressed. 
    No judge in his or her right mind would rule that reporters or photographers may only cover wildfires in an evacuation zone with property owners’ permission.   

Bonfiglio’s final message, sent shortly after 9 that evening, said:

    For the record – I’m positive that taking photos is not the issue. Its trespassing on property that was still an active business and residence. (Jhat was confirmed in writing by CDF in writing. 
    Also, for the record, its my opinion that you were not looting (my opinion) but that you knew that you did not have permission to access the chicken ranch.
    To be honest – there is nothing to see, no secrets to find, but trespassing is trespassing and against the law.
    Let’s also be honest with each other that as a whole the east county californian editors (certainly your new boss) is tired of the Blackwater stories and I suspect will not stand behind trespassing on property that should clearly not be entered (so says CALFIRE). Your trespassing had nothing to do with journalism and everthing to do with providing pictures and text to anti- Blackwater opposition. But again, I could personally care less about pictures.   
    Do what you think is best, but I’m certain that there will be little support for trespassing to include from the
east county californian senior staff – Although I maybe wrong.
    Miriam, I am always available to talk with you and as I expressed to you the very first time you called, from what I was first told you can write balanced articles, so if there is any issue you want to discuss I am always open to your calls.
R / brian

Raftery’s comment to me in forwarding these messages for reaction was:

In this one they attempt to intimidate me by suggesting they will complain to my editor of bias, which is absurd. I posted the photos on more than one listserve that were all keeping the public informed about the progress of the fires, and actually the first to post them was a conservative-owned land use forum site; the photos also went to an East County progressive site that has been tracking the Blackwater issue and has many readers in the immediate vicinity of the fire, so clearly a compelling public safety reason to disseminate that news quickly.  Photos and a more detailed story were submitted to two East County newspapers.

The backstory to all this tension is that some local residents have recently been vocally resisting Blackwater USA’s attempt to get planning officials’ permission for a rural training center on its undeveloped property near the small East San Diego County community of Potrero,  just a few miles from the Mexican border.

So Who’s Right?

Who’s right on the trespass question?  Both—but the journalist is closer to the more practical answer. California law makes trespass either a criminal offense or the basis for a civil damages lawsuit or—depending on the facts—possibly both.  There are several varieties of the crime of trespass in the Penal Code, but the one most relevant here, Section 602.8, makes it an infraction with a first offense fine of $75 for “any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, willfully enters any lands . . . belonging to . . . another . . .”   But subdivision (c) of this section states that no such trespass is committed by “any person on the premises who is engaging in activities protected by the California or United States Constitution.” It’s not hard to see why journalists have not been prosecuted for trespass in California.

As for the civil action for damages, there must be actual injury of some kind—either to the land or in the form of physical or mental suffering of the owner or tenant—to make a trespass to real property a matter for litigation.  The only example I can find in the case law to date of a journalist’s civil liability for trespass was triggered by the broadcast of video shot in the sickroom of a dying man’s house; a TV crew, present in the home without the residents’ permission, had taped an unsuccessful resuscitation attempt by paramedics.  It was the later broadcast that caused the mental distress to the man’s widow (who had no idea until then that the TV crew had been in the home), but the court considered her suffering proximately caused by the trespass. This and a few other cases have created the clearest hard-and-fast rule for journalists concerning trespass and intrusion: never enter a home without the residents’ express permission, and always leave if and when they tell you to. 

But when it comes to undeveloped rural land, the question is not so much whether this or that entry amounts to a trespass (it may) but whether the result is the degree and kind of injury to the owner/tenant that makes going to court worthwhile.