By Thomas R. Burke and Dan Laidman
San Francisco police made national news 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 United States’ most liberal cities. As it turned out, the search was just the tip of the iceberg. While investigating the leak of information about the death of the city’s popular public defender, Jeff Adachi, the police executed five search warrants aimed at veteran journalist Bryan Carmody. Officials secretly monitored Carmody’s electronic communications for months, and FBI agents joined the police in trying to interrogate him about his sources.
This unprecedented conduct prompted a public outcry, leading to an apology by the chief of the San Francisco Police Department (“SFPD”). Judges now have quashed all five search warrants, recognizing that police violated California and federal law by targeting Carmody. This article summarizes how the SFPD aggressively pursued Carmody, the legal protections it violated, and how, months later, important questions remain.
The Death of the San Francisco Public Defender
San Francisco is one of few localities with an elected public defender, an office Adachi had held since 2002. A one-time mayoral candidate, Adachi was known for his clashes with law enforcement. After Adachi unexpectedly died at age 59 early this year, many blamed the SFPD when lurid details of his death became public. 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 SFPD, and it appears this was reciprocated by sullying him on the way out. Kicking a man when he’s dead, so to speak. . . .” Politicians demanded an investigation. But instead of looking inward, the SFPD focused on a freelance reporter who did not have institutional support from a major media organization.
Warrants to Search Veteran Journalist’s Home, Office, and Phone Records
Carmody has been a full-time journalist since the early 1990s. The founder and owner of North Bay News, he and his associates report breaking news and distribute their reporting and video footage to media outlets. Carmody’s work focuses on law enforcement and public safety issues and regularly appears in Bay Area television news broadcasts and print publications. Importantly, Carmody has held an SFPD press pass for more than 16 years.
Carmody began investigating Adachi’s death the day it happened. During his reporting, he received a copy of a San Francisco police report about Adachi’s death from a confidential source. Carmody did not ask for or pay for the source to provide the document. Consistent with standard journalistic practices, Carmody agreed not to reveal the source’s identity, and despite enormous pressure, he has still not done so. Carmody prepared a news report about Adachi’s death, which three Bay Area stations broadcast to the public.
Two months later, on April 11, two SFPD officers visited Carmody at home and asked him to identify his source. When he refused, officers threatened to come back with a “federal grand jury subpoena.” Carmody did not have any more contacts with law enforcement for nearly a month until May 10, when nearly a dozen armed officers used sledgehammers to enter his home and handcuff and detain him for several hours while they searched and seized his belongings. During the search, two individuals who identified themselves as FBI agents took him into a separate room and repeatedly asked him to reveal his confidential source. Carmody refused. Officers executed a second search warrant of Carmody’s offices, again with him in handcuffs. All told, the SFPD confiscated 68 items, effectively comprising information and footage of every news investigation on which Carmody had worked in the past three decades.
The search made national and international news within days. But the SFPD had secretly obtained the first of three search warrants several weeks earlier, this time to access Carmody’s cell phone records. Three different judges issued warrants to Verizon and AT&T, which each provided Carmody cell phone service. The warrants present arguably an even more egregious violation of Carmody’s constitutional rights than the brazen raid and search of his home and news office. Without notice, the warrants allowed the SFPD to discover the telephone numbers of every individual Carmody contacted (or who called him) through any of his cell phones, as well as any text messages he exchanged immediately after Adachi’s death. They also gave the SFPD cell tower data, which could have been used to track Carmody’s physical movement.
Constitutional Issues with the Warrants
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 its state constitutional provision. See Evid. Code §§ 1070; Cal. Const., art. I, § 2(b). Under the Shield Law, 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.
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). Indisputably, the materials the SFPD seized fit squarely within the scope of the Shield Law, which renders the warrants invalid under Penal Code § 1524(g). By its plain terms, the Shield Law broadly applies to any and all unpublished editorial materials, regardless of whether they are obtained in confidence, or whether related information is published. See Delaney v. Superior Court, 50 Cal. 3d 785, 798 (1990). Consequently, Carmody enjoys absolute protection against the warrants executed by SFPD.
Notably, the SFPD obtained the initial phone warrant by materially misleading the court. It failed to disclose that Carmody is a journalist or that the police report was obtained and disseminated in the course of news reporting. In obtaining the phone warrants, the SFPD flouted a California law that 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 notice must include specific information, including “why alternate sources of information are not sufficient.” Id. None of these procedures were followed. Nor were there exigent circumstances, since the SFPD obtained the warrants over a period of six weeks, then waited another month to search Carmody’s home and office.
Carmody is also protected under 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). The reporter’s privilege ensures that “compelled disclosure from a journalist must be a last resort after pursuit of other opportunities has failed.” Id. 1297-98 (emphasis added).
Further, the seizure of 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).
Quashing the Search Warrants and Unsealing the Affidavits Used to Get Them
On July 18, San Francisco Superior Court Judge Rochelle C. East quashed the first of the three cell phone warrants, rendering any information learned through the warrant unusable 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 Carmody was a journalist or that he had an SFPD press pass.
On August 2, three other San Francisco Superior Court Judges granted Carmody’s motion to quash each of the warrants they had authorized, and ordered the SFPD to destroy and not to use any information they had obtained. One judge rejected the SFPD’s request that the original copy of the disputed SFPD report not be returned to Carmody without redacting certain information.
At the July 18 hearing, Judge East also granted a motion to unseal the affidavit the SFPD submitted to her to support the warrant. The court redacted only a single paragraph, after the SFPD insisted (without irony) that if disclosed, it would identity a confidential police informant. But the evening of August 2, the San Francisco Chronicle published the full paragraph. Although the report did not identify any individual, it did show that the SFPD Chief’s spokesman told investigators Carmody had sold television stations copies of the disputed police report. This disclosure prompted the SFPD to ask three judges to conduct their own in camera hearings. Ultimately each also unsealed the vast majority of the SFPD affidavit supporting the warrants they had approved. The affidavit made no mention of Carmody’s possession of an SFPD press pass. Moreover, a police officer deceptively described 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.” However, the judges who authorized the searches of Carmody’s home and office were told by police in the affidavits that Carmody regularly sold news stories to media outlets.
On August 16, the court quashed the fifth and final search warrant.
Although more information about the SFPD’s actions may continue to emerge, the Department’s unprecedented actions present several unanswered questions: When the police first visited 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”? Why did federal agents question him about his confidential source? Did the Department of Justice approve of this conduct, in violation of the Department’s guidelines regarding its conduct with journalists? These important questions—and others—remain unanswered.
Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine. Dan Laidman is counsel with the firm in its Los Angeles Office. They represent Bryan Carmody.