San Francisco police on Tuesday allowed freelance video journalist Bryan Carmody to retrieve equipment and materials that officers seized from his home and office on May 10th, but the legal and political furor sprouting from the case, which has drawn national and international attention, is far from over.
Police officials apparently hoped the seized computers, cell phones, video gear, data storage equipment and other items contained clues to the identity of the officer(s) who leaked a police report containing sordid details on the sudden death in late February of Public Defender Jeff Adachi. Carmody sold the information to some local media, which aired it.
The department has drawn sharp criticism from journalist organizations, civil rights advocates and a growing list of public officials who say the raid and seizure violated the First Amendment and state shield laws establishing the right of journalists and news media to keep information source identities and unpublished/unaired materials private.
Chief William Scott reiterated at a press conference late Tuesday afternoon that there was “an ongoing criminal investigation into this matter.”
“We do believe that Mr. Carmody committed a crime and that’s what we’ve been investigating,” Scott said. The reason for the raid and seizure “is that we believe that he was complicit in committing crimes,” he said.
A news release previewing the press conference described the “crimes” as “the theft and sale of the Jeff Adachi police incident report.”
Under investigation, the news release said, are theft of the incident report and “unlawful dissemination” of confidential information obtained through the California Law Enforcement Telecommunication System, a high-speed messaging system in operation since 1970.
“Also, we believe the unauthorized release of the stolen report compromised, obstructed, and delayed the investigation,” the press release said.
But as David Snyder, executive director of the First Amendment Coalition advocacy group, told reporters on Tuesday, releasing or receiving information is not a crime though the officer(s) who fed the report to Carmody might have flouted Police Department policy. Under the California Public Records Act, police departments may release information, said Snyder, an attorney and former journalist.
How much data police copied or deleted from the confiscated items remains to be seen. Carmody could not be reached for comment.
Also unknown is whether the Police Department will contest motions by Carmody’s attorneys to compel the return of the items, to quash the two search warrants that authorized the May 10th actions and to order the public release of the department’s applications for the warrants.
The Bay City Beacon could not reach counsel Ronnie Wagner, who had represented the department at a pre-hearing court session on Tuesday morning, on the matter.
Superior Court Judge Samuel K. Feng, who is presiding over the case, said the release of the items to Carmody did not necessarily render moot the motion to compel their return. Feng is supervising judge of the court’s criminal division.
He gave the Police Department until May 31st to contest the various motions and Carmody’s attorneys until June 7th to rebut whatever challenges the department submits. He said he would announce on June 10th when the case would go to a formal hearing. Carmody did not attend Tuesday’s court session.
Journalists and other First Amendment advocates have rallied to Carmody’s cause since police officers handcuffed him for nearly six straight hours as they trashed his home and office and seized scores of items essential to his livelihood.
Thomas Burke, one of several attorneys affiliated with the First Amendment Coalition, which is leading Carmody’s legal fight, filed the motions to compel the return of the seized items, to quash the warrants and to unseal the warrant applications. The Reporters Committee for Freedom of the Press and the Society of Professional Journalists, Northern California chapter, joined in the motion to compel return of the confiscated items.
Burke is a partner in the law firm of Davis Wright Tremaine LLP.
The Reporters Committee also filed an amicus brief supporting Carmody’s effort to get his property back. The brief has 60 co-signatories including journalists associations, civil rights advocacy groups, and news outlets up and down the state and across the country.
Terry Francke, the general counsel of Californians Aware, wrote that the search warrants were “obtained by either misrepresentation by the police or a judicial disregard for the law protecting journalists’ confidential sources.” It might well have been both; the judges who issued the warrants were informed that Carmody is a journalist, according to news reports.
(Disclosure: I am active with the FAC, CalAware, the Society of Professional Journalists and the Pacific Media Workers Guild, a union representing staff and freelance journalists and other communications professionals. As Guild vice president-California, I co-authored a statement, along with co-chair David Bacon of the union’s Guild Freelancers unit, criticizing law enforcement’s conduct in the Carmody matter.)
The shield laws are established in Constitution Article I, Section 2(b), and Evidence Code Section 1070. And as Francke noted, state Penal Code Section 1524(g) “flatly forbids magistrates from issuing warrants to search ‘for any item or items described in Section 1070 of the Evidence Code.’”
If those who orchestrated and executed the raid and property seizure are to face any penalties for First Amendment and shield law violations, the impetus will likely have to come from somewhere other than the Police Department. Scott told the Police Commission on May 15th that the raid and confiscation were part of a “criminal investigation.”
But the department could face some heat from the commission and the Board of Supervisors, and has drawn sharp criticism from District Attorney George Gascón as well.
When Police Commissioner John Hamasaki asked Scott if he was “confident that the search warrants were issued in compliance with shield law and First Amendment protections,” the chief sidestepped the question, saying he was “confident” that police addressed “appropriate legal matters” in obtaining the warrants.
Scott admitted that police did not seek a prosecutor’s approval of the search warrant applications, though that information had to be pried from him. Asked about it by Commissioner Thomas Mazzucco, Scott said police often sought such approvals. When Mazzucco pressed him on whether the department asked for a prosecutor’s approval for the warrant applications in the Carmody case, Scott said, “No.”
A district attorney’s office spokesman said police may seek warrants directly from judges. The spokesman, Max Szabo, said the DA’s office had “no knowledge” of the Carmody case and was “not familiar with the evidence” that police cited to establish probable cause to obtain the warrants.
The Board of Supervisors’ longest-serving member, Aaron Peskin, blasted both the police and the judges who issued the warrants.
“[T]he State Penal Code clearly states that ‘no warrant shall issue’ to compel a journalist to disclose a source. The fact that the Superior Court nevertheless signed warrants authorizing police to conduct a raid on a journalist’s home and to confiscate their belongings boggles my mind,” Peskin said in a written statement on May 15th.
“Regardless, the police have clearly gone about this the wrong way,” the statement continued. “Last month, the Board of Supervisors held a hearing to hold the San Francisco Police Department accountable for its role in the release of confidential and highly sensitive, personal information related to former Public Defender Jeff Adachi’s tragic death, which I co-sponsored. That they took this as license to break down a journalist’s door with a sledge hammer is an obvious deflection from their own accountability.”
Some observers question why two agents from the Federal Bureau of Investigation were at the raid, but a local FBI spokesman said they did not participate in the police actions.
The spokesman, Prentice Danner, said the bureau would not comment beyond a statement issued after the raid, which said, “The FBI did not participate in the execution of an SFPD search warrant on Bryan Carmody’s residence. FBI agents did not participate in SFPD’s entry team nor the search team. Two FBI Special Agents were present in Mr. Carmody’s residence for approximately 10 minutes on May 10, 2019 for the purpose of interviewing him as a witness.”
Carmody did not answer their questions, according to press reports.
This article has been updated as of Wednesday, May 22nd, 9:58PM.
Richard Knee is a San Francisco-based freelance journalist.