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The San Francisco Police Department vs. Bryan Carmody

By Thomas R. Burke and Dan Laidman

San Francisco police made national news on May 10 when officers burst into a journalist's house using sledgehammers and kept him handcuffed for hours while they ransacked his home and office. It was a shocking attack on the free press that one might expect in a banana republic, not one of the nation's most liberal cities. But as it turned out, the events of May 10 were just the tip of the iceberg.

While investigating the leak of information about the mysterious death of the city's popular Public Defender, Jeff Adachi, the San Francisco Police Department ("SFPD") secured and executed five search warrants aimed at veteran journalist Bryan Carmody. Officials secretly monitored Mr. Carmody's electronic communications for months, and FBI agents joined the SFPD in trying to interrogate him about his sources.

This unprecedented conduct prompted an outcry from the national media and many prominent politicians, leading to a public apology by San Francisco's Chief of Police on May 24. On July 22, a San Francisco Superior Court Judge quashed the first search warrant, recognizing that the SFPD clearly violated California and federal law by targeting Mr. Carmody in this manner.

This article summarizes how the SFPD aggressively went after Mr. Carmody, the legal protections that SFPD brazenly violated, and how, months later, important questions remain unanswered as judges in San Francisco hear motions to quash the five warrants and unseal the affidavits that San Francisco police used to obtain them.

SFPD Pressured to Investigate Release of Report on Death of Public Defender Jeff Adachi

San Francisco is one of the few localities in the country with an elected public defender, and Jeff Adachi held the office since 2002. A one-time mayoral candidate, Adachi was a prominent San Francisco political figure known for his clashes with law enforcement. Therefore, after Adachi unexpectedly died at age 59 in February 2019, many blamed the SFPD when lurid details of his death were disclosed to the media.

The SFPD came under immediate scrutiny by Adachi's supporters, who vehemently complained that SFPD intentionally released a police report about the circumstances of Adachi's death. Joe Eskenazi, with Mission Local, a popular San Francisco news website, described the situation this way: "Photographs of an unkempt pied-à-terre and a sheetless bed and all manner of speculation about Adachi's home life were splayed about the Internet; details normally considered private and confidential were divulged to selected media sources. Adachi had a contentious relationship with the San Francisco Police Department, and it appears this was reciprocated by sullying him on the way out. Kicking a man when he's dead, so to speak ...."

Politicians sought to hold the SFPD accountable for the disclosure and demanded an investigation. But instead of looking inward the SFPD responded by investigating the press, focusing on a freelance reporter who did not have the benefit of institutional support from a major media organization.

Bryan Carmody – Veteran Bay Area Journalist

Bryan Carmody has worked full-time as a journalist since the early 1990s. As the founder and owner of North Bay News, Mr. Carmody and his associates report breaking news stories and distribute their reporting and video footage on a freelance basis to local, national, and international print, broadcast, and online media outlets. His work focuses on law enforcement and public safety issues and regularly appears on Bay Area television news broadcasts and print publications. Typically, Mr. Carmody works during night hours covering stories that the local media lack the resources to cover. He sells "packages" that include video and still footage of news events, along with public records and interviews conducted with news sources.

Importantly, Mr. Carmody has held an official press pass issued by the San Francisco Police Department for more than 16 years. When San Francisco Police had search warrants issued against him, Mr. Carmody possessed a 2019 SFPD press pass.

Mr. Carmody began investigating the death of San Francisco Public Defender Jeff Adachi on February 22, 2019 – the day Mr. Adachi died. In the course of his reporting, Mr. Carmody was given a copy of a San Francisco police report about Mr. Adachi's death from a confidential source. Mr. Carmody did not ask the source to provide him with the document, nor did he pay the source (or anyone else) for it. Consistent with standard journalistic practices, Mr. Carmody agreed not to reveal the source's identity, and despite enormous pressure and intimidation from the SFPD as well as the FBI, he has not done so. Mr. Carmody prepared a news report about Mr. Adachi's death based on interviews that he conducted, video footage that he shot, and documentary materials including the police report, and placed the package with three Bay Area television stations for broadcast to the public.

Two months later, on April 11, two San Francisco Police Department officers came to Mr. Carmody's home and asked him to identify the source who allegedly gave him the police report concerning Mr. Adachi's death. Mr. Carmody refused to provide information about his sources, prompting the officers to threaten him that they would come back with a "federal grand jury subpoena." Mr. Carmody steadfastly refused to disclose his source's identity, and the officers left. Mr. Carmody did not have any further contacts with law enforcement for nearly a month until the morning of May 10, when nearly a dozen armed officers used sledgehammers to enter Mr. Carmody's home, and once inside, handcuffed and detained him for several hours while officers searched the premises and seized his belongings.

During the search of his home, two individuals who identified themselves as FBI agents took him into a separate room and, with no SFPD officers present, repeatedly asked him to reveal his confidential source. Mr. Carmody refused to do so. While searching his home, officers learned of Mr. Carmody's news office and obtained a second search warrant; they drove Mr. Carmody to his office on Fulton Street in San Francisco where they searched while Mr. Carmody remained in handcuffs. As a result of both searches, San Francisco Police confiscated 68 items, including multiple laptops, computers, cellphones, tables, hard drives, thumb drives, cameras, and reporters notebooks. Essentially, SFPD confiscated information and footage of every news investigation that Mr. Carmody had ever worked on in the past three decades.

May 11 Search Was, as it turns out, Last of Five Warrants Against Carmody

Coverage of San Francisco Police officers breaking into Mr. Carmody's home with sledgehammers to search his home became national and international news within days after the raid. However, unbeknownst to Mr. Carmody and the public at the time, shortly after Mr. Adachi's death – and several weeks before the raid of his home and office, SFPD secretly obtained the first of three search warrants to access Mr. Carmody's cell phone records. Three different San Francisco Superior Court Judges issued search warrants (on March 1, 13 and April 16) (collectively the "Communications Warrants") to Verizon and AT&T, who each provided cell phone service to Mr. Carmody.

Indeed, in a situation in which the SFPD was desperate to learn the identity of Mr. Carmody's confidential news source, the Communications Warrants present arguably an even more egregious violation of Mr. Carmody's constitutional rights than the brazen raid and search of his home and news office many weeks later. Without notice to him, the Communications Warrants allowed the SFPD to discover the telephone numbers of every individual that Mr. Carmody contacted (or who called him) through any of his cell phones as well as any text messages exchanged immediately after Mr. Adachi's death. They also gave the SFPD cell tower data, which the SFPD could have used to track Mr. Carmody's physical movement while he used his cell phones.

Warrants Were Barred by California and Federal Law

California Penal Code Section 1524(g) unequivocally provides that "[n]o [search] warrant shall issue for any item or items described in Section 1070 of the Evidence Code." (Emphasis added.) Evidence Code § 1070 contains California's statutory journalist's Shield Law, which is virtually identical to the Constitutional provision. See Evid. Code §§ 1070; Cal. Const., art. I, § 2(b). The Shield Law provides that a journalist "shall not be adjudged in contempt .... for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." Cal. Const., art. I § 2(b); Evid. Code § 1070 (italics added).

The purpose of the Shield Law is "to safeguard the free flow of information from the news media to the public, one of the most fundamental cornerstones assuring freedom in America." In re Willon, 47 Cal. App. 4th 1080, 1091 (1996) (quotation omitted). The California Supreme Court has recognized that the Shield Law is necessary in light of "the press' unique role in society," explaining that, "[a]s the institution that gathers and disseminates information, journalists often serve as the eyes and ears of the public. Because journalists not only gather a great deal of information, but publicly identify themselves as possessing it, they are especially prone to be called upon by litigants seeking to minimize the costs of obtaining needed information." Miller v. Superior Court, 21 Cal. 4th 883, 898 (1999) (quotations omitted). Not only is this burdensome, but using the power of the state to compel journalists to become investigative arms of one side of a legal dispute undermines their editorial independence and erodes the trust of their sources, which frustrates their ability to gather information to the ultimate detriment of the public. In recognizing this dynamic, the Supreme Court specifically noted that the "threat to the autonomy of the press is posed as much by a criminal prosecutor as by other litigants." Id. (original emphasis).

Indisputably, the materials that the SFPD forcibly seized from Mr. Carmody fit squarely within the scope of the Shield Law, which renders the search warrants invalid under Penal Code § 1524(g). By its plain terms the Shield Law broadly applies to any and all unpublished editorial materials. As the California Supreme Court explained in Delaney v. Superior Court, 50 Cal. 3d 785 (1990):

The language of article I, section 2(b) is clear and unambiguous .... The section states plainly that a newsperson shall not be adjudged in contempt for 'refusing to disclose any unpublished informa­tion.' ... The use of the word 'any' makes clear that article I, section 2(b) applies to all information, regardless of whether it was obtained in confidence. Words used in a constitutional provision 'should be given the meaning they bear in ordinary use.' In the context of article I, section 2(b), the word 'any' means without limit and no matter what kind.

Id. at 798 (emphasis added; internal citations omitted); accord New York Times Co. v. Superior Court, 51 Cal. 3d 453, 461-62 (1990) (unpublished photographs of public event protected).

The Shield Law thus immunizes from compelled disclosure any information received, or materials generated or compiled, during the newsgathering process that have not actually been published or broadcast. Id. Accord Miller, 21 Cal. 4th at 897 ("the shield law applies to unpublished information whether confidential or not"); Fost v. Superior Court, 80 Cal. App. 4th 724, 735 (2000) ("the shield law explicitly provides that unpublished information remains protected 'whether or not related information has been disseminated'").

Mr. Carmody enjoys absolute protection under the Shield Law against the warrants executed by SFPD. The California Supreme Court made clear in Miller that the only interest to be balanced against a journalist's Shield Law rights is the right of a criminal defendant to a fair trial; in all other instances the Shield Law is absolute. See Miller, 21 Cal. 4th at 896-97 (Shield Law is absolute for a non-party reporter subpoenaed by the People in a criminal case and is not balanced against any competing interest of the prosecution); People v. Vasco, 131 Cal. App. 4th 137, 158 (2005) ("[t]he prosecution has no due process right to overcome a newsperson's shield law immunity and force disclosure of unpublished information, even if the undisclosed information is crucial to the prosecution's case"); New York Times, 51 Cal. 3d at 461 (Shield Law absolute for non-party reporters in civil litigation).

Because the San Francisco Police Department sought unpublished information from Mr. Carmody (e.g., the identity of the confidential source who gave him the SFPD report) to assist with a criminal investigation and potential prosecution, there is no countervailing interest capable of overcoming his rights, and the Shield Law is absolute. See Miller, 21 Cal. 4th at 896-97.

SFPD obtained the Communications Warrants by materially misleading the judges who issued the three cell phone warrants. The notices – which Mr. Carmody only learned of many weeks after the warrants were executed – purport to describe the "[n]ature of [the] investigation" but do not contain any mention that Mr. Carmody is a journalist or that the police report at issue was obtained and disseminated to the public in the course of news reporting. SFPD Chief Bill Scott's official statement on May 24, 2019 appears to confirm that SFPD omitted this key information when it sought these warrants. ("I am specifically concerned by a lack of due diligence by department investigators in seeking search warrants and appropriately addressing Mr. Carmody's status as a member of the news media.").

In obtaining the Communications Warrants the SFPD also flouted a California law that specifically ensures that journalists receive notice before their editorial materials are disclosed by a third party such as a phone carrier. See C.C.P. § 1986.1. The statute expressly states that "a party issuing a subpoena in any civil or criminal proceeding to a third party that seeks the records of a journalist shall" provide notice "at least five days prior to issuing the subpoena" except in certain limited exigent circumstances. C.C.P. § 1986.1(b)(2) (emphasis added). The notice must include specific information including "why alternate sources of information are not sufficient." Id. None of these procedures were followed. No exigent circumstances exception is available since the SFPD obtained these warrants over a period of six weeks in March and April, then waited another month to execute the home and office searches on May 10.

In addition to the absolute protection offered by the Penal Code and California's Shield Law, Mr. Carmody also is protected under the privilege created by the First Amendment to the U.S. Constitution and Article I, Section 2(a) of the state constitution, which California courts recognize as an independent ground for rejecting compelled disclosure of unpublished editorial information. See Mitchell v. Superior Court, 37 Cal. 3d 268, 277-279 (1984). Like the Shield Law, the reporter's privilege protects against the compelled disclosure of both confidential and non-confidential information. See Shoen v. Shoen, 5 F.3d 1289, 1294 (9th Cir. 1993) ("Shoen I"). The reporter's privilege ensures that "compelled disclosure from a journalist must be a last resort after pursuit of other opportunities has failed." 5 F.3d at 1297-98 (emphasis added).

That Mr. Carmody is a freelance journalist is of no moment. In California, it has been settled law for nearly 30 years that the Shield Law applies to freelance journalists like Mr. Carmody. In People v. Von Villas, 10 Cal. App. 4th 201 (1992), the Shield Law defeated a subpoena seeking a freelance writer's notes and interview tapes in connection with articles that he wrote for Hustler and Los Angeles Magazine. Id. at 228. The court held that the "constitutional provision plainly encompasses [his] position as a freelance writer," and it rejected an argument that the Shield Law should apply only to information that he gathered after entering into a contract to sell his article to one of the magazines. Id. at 231-32. The court explained that the journalist "had been a reporter or freelance writer for some 13 years prior to his involvement with the instant articles. The clear language of article I, section 2, subdivision (b) provided him with newsperson's shield protection both before and after the execution of the written Hustler contract." Id. at 232 (emphasis added). See also, O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006) (broadly interpreting the Shield Law to include an online blogger who wrote about Apple products in litigation in which Apple attempted to force the blogger to reveal his sources).

Search Warrants Also Violated Federal Law Enacted After Zurcher v. Stanford Daily

The seizure of Mr. Carmody's editorial materials also violated the federal Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa et seq. (the "PPA"). Like California's Penal Code § 1524(g), the PPA creates a "subpoena-first rule" for government searches directed at journalists which "generally prohibits government officials from searching for and seizing documentary materials possessed by a person in connection with a purpose to disseminate information to the public." Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112, 1120-21 (N.D. Cal. 2011) (quotation omitted). The statute broadly applies both to editorial "work product" and any other "documentary materials," and it applies whenever the target of a search is "reasonably believed to have a purpose to disseminate to the public" information in a "newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. §§ 2000aa(a)-(b).

This federal law, which applies to state and local officials, "presents a straightforward statutory scheme for protecting those engaged in information dissemination from government intrusion by prohibiting searches and seizures of documentary materials except where government officials have a reasonable belief that a statutory exception applies." Citicasters v. McCaskill, 89 F.3d 1350, 1355 (8th Cir. 1996) (local prosecutor could be held liable under PPA based on seizure of videotape from television station); Morse, 821 F. Supp. 2d at 1121 (journalist whose camera was seized could bring PPA claim against chief of UC Berkeley police department); see also Smith v. Fair Employment & Hous. Comm'n, 12 Cal. 4th 1143, 1236 n.11 (1996) (recognizing the PPA's effect of "restricting the ability of government investigators to obtain documents from the media").

Quashing the Warrants and Unsealing Affidavits Supporting Issuance of Warrants

On July 18, San Francisco Superior Court Judge Rochelle C. East quashed the first of the three Communications Warrants that were issued involving Mr. Carmody, rendering any information SFPD learned through the warrant unavailable for any purpose. During the hearing on the motion to quash, Judge East revealed that she was not made aware when she signed the search warrant that Mr. Carmody was a journalist or that he possessed a current San Francisco Police press pass, noting that "the warrant should not have been issued."

On August 2, three other San Francisco Superior Court Judges – Judges Christopher C. Hite (who issued one of the three cell phone warrants), Gail Dekreon (who issued the warrant for Mr. Carmody's home and personal cell phone) and Victor M. Hwang (who issued the final warrant for Mr. Carmody's office) – individually and collectively granted Mr. Carmody's motion to quash each of these warrants. Following Judge East, relying on California Penal Code § 1546.4, each of them also ordered the SFPD to destroy and not to use any and all information obtained by the warrants. Addressing SFPD's insistence that the original copy of the disputed SFPD report not be returned to Mr. Carmody without first redacting certain information that SFPD insisted was protected by statute, after an in camera inspection, Judge Hwang also ordered the original report returned to Mr. Carmody without any redactions.

At the July 18 hearing, San Francisco Judge East also granted a motion by several free speech organizations to unseal the affidavit SFPD submitted to her to support the issuance of the warrant. The Court redacted only a single paragraph of the affidavit after SFPD insisted (without irony) that if disclosed, it would identity a confidential police informant. Had SFPD fully disclosed Mr. Carmody's status as a journalist and the context surrounding the disclosure of the report to the San Francisco Superior Court judges who issued these warrants, they clearly would have been barred as a matter of law by Penal Code § 1524(g) and the federal PPA. There can be no doubt under the circumstances that SFPD's material omissions were recklessly inaccurate at best, and deliberately false at worst. See People v. J'ouvert, 118 Cal. App. 3d 637, 650 (1981) ("[I]f the omission was intentional with the purpose of deceiving the magistrate or if the affiant recklessly disregarded the accuracy and completeness of the affidavit, the warrant is quashed automatically").

The evening before the August 2 hearings, the San Francisco Chronicle published the full paragraph that Judge East had ordered redacted. The Chronicle noted that nothing within the redacted portion identified the name of any individual. It did however show that the SFPD Chief's spokesman told investigators that Mr. Carmody had sold television stations copies of the disputed police report. This disclosure prompted SFPD to ask Judges Dekreon, Hite and Hwang to conduct their own in camera hearings. Ultimately, each of them also ordered to be unsealed, the vast majority of the SFPD affidavit that each of them reviewed to support the search warrants they originally approved.

Unsealed, the 11-page affidavit made no mention of Mr. Carmody's possession of a current SFPD press pass. Moreover, San Francisco Police Officer Joseph Obidi deceptively described Mr. Carmody as a "Freelance Videographer/Communications Manager," adding, "Bryan Carmody is not currently employed by any of the news organizations that obtained the death investigation report." Later versions of this same affidavit will soon be released – based on the orders of Judge Dekreon, Hite and Hwang – and will likely shed more light on SFPD's actions during the months of March through May.

Many Unanswered Questions Remain

Although more information about SFPD's actions may continue to emerge as the fifth and final search warrant is reviewed by San Francisco Superior Court Judge Joseph Quinn on August 16, until then, the San Francisco Police Department's unprecedented actions present several unanswered questions.

For one, when San Francisco Police first visited Mr. Carmody at his home – a month before they came back with sledgehammers to execute the search warrant – why did they threaten to return "with a federal grand jury subpoena" as Mr. Carmody specifically recalls? Why the emphasis on a federal inquiry by San Francisco police? Relatedly, why did FBI agents question Mr. Carmody about the identity of his confidential source as he sat handcuffed in his home on May 11th? Did the U.S. Attorney General approve of this conduct – or did the Justice Department ignore the Department's guidelines regarding its conduct with journalists? These important questions – and others – remain currently unanswered.

Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine LLP. Dan Laidman is Counsel with the firm in its Los Angeles Office. They represent Bryan Carmody regarding the search warrants issued by the San Francisco Police Department.

 
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