When police on May 10 raided freelance cameraman Bryan Carmody’s home, they purportedly couldn’t get the doorbell to work. Then they brought out the sledgehammer. And they couldn’t get that to work, either.
It’s rare that such on-the-nose symbolism presents itself. But when the sledgehammer fits, wear it.
On Tuesday afternoon, San Francisco Police Department Chief Bill Scott addressed the media for 20 minutes in a hastily arranged press conference in an attempt to explain why his department saw fit to raid a journalist’s home and cart off his notes and equipment, sparking a national firestorm. Scott, to his credit, seemed reflective. He admitted that things could have probably been done better, and repeatedly said he wasn’t defending this move, only “explaining” it.
In that, however, he appears to be fighting a losing battle with the dictionary.
He may also be fighting a losing battle with the law — and, during this press conference, Scott evinced a less-than-solid grasp of the California “shield law” protecting journalists from exactly the sort of thing that happened here.
Carmody has, for decades, gathered video footage of shootings and fires and lethal zoo tiger attacks and sold it to local and national TV stations in his capacity as a freelance videographer. In the hours after the Feb. 22 death of Jeff Adachi he, by some alchemy, came into possession of the confidential (and salacious) police report detailing the public defender’s final hours. Carmody, by his own reckoning, sold this report to three local TV stations and those salacious details soon pervaded the airwaves and Internet.
This was, by Carmody’s account, a garden-variety leak. But, yesterday, in “explaining” the subsequent raid, Scott painted a more nefarious picture. He described Carmody as an alleged “active participant in a crime” — a purported “co-conspirator” in an internal SFPD ploy to leak that report for financial gain and to sully Adachi, a police watchdog.
This was, it seems, the raison d’être for Scott’s press conference: To impart the message that the May 10 raid was not, as widely reported, an external maneuver to discern who was Carmody’s internal source. Rather, it was part and parcel of the investigation of a so-called “co-conspirator” and “active participant in a crime.”
As such, the message the SFPD apparently hopes to impart is that it is not in the habit of marching, guns drawn, into the homes of San Francisco journalists to gather evidence against its own misbehaving employees. Rather, Scott emphasized, this was a special case. Carmody, he said, “crossed the line.”
That remains to be seen. But, with this misbegotten and clumsily executed raid, the San Francisco Police Department definitely crossed the line.
— San Francisco Police (@SFPD) May 21, 2019
The laws protecting journalists in this state are broad and unambiguous. They are more so than many would have assumed, including journalists such as your humble narrator.
Section 1070 of the state’s Evidence Code states that no print or TV journalist can be held in contempt for failing to turn over sources for both stories and “unpublished information.” Section 1524(g) of the state penal code is a blanket affirmation that a search warrant cannot be issued for any of the items described in Section 1070 of the Evidence Code.
And that’s it. This is so unambiguous because it’s meant to be. The laws regarding when and how officers can raid the home of a doctor or a lawyer or psychotherapist or clergyman are complex and lengthy. Not so with a journalist: The prohibition is broad, and as the arcana and carve-outs regarding doctors and priests and shrinks proves, that’s no accident.
The state’s shield law and related Section 1524(g) of the penal code, attorney Geoffrey King told me yesterday, “are absolute in their terms. The burden is on the state to show there’s an exception when you have such an incredibly clear statute.”
Clearly that burden has not yet been met. And, based upon Scott’s oratory yesterday, it’s not clear he fully understands what he’s in for. The chief cited Carmody’s Linkedin profile, which denotes that he is a freelance videographer and not employed by any of the outlets that received the leaked report. But this is irrelevant; freelance journalists are clearly and unambiguously covered by the shield law and 1524(g).
The chief also portrayed Carmody as someone driven by monetary gain and animus against Adachi. If so, that would make him an unsavory person. But that doesn’t on its own invalidate the shield law. It remains on the SFPD and, perhaps, an eventual prosecutor to prove that Carmody materially assisted in the illegal procurement and dissemination of this report.
Scott, yesterday, seemed uncharacteristically ill at ease. So perhaps he misspoke when he said, “The purpose of a search warrant is to have enough probable cause to further the investigation.” Rather, as King noted to us, “the standard to get a warrant is probable cause.” The chief’s statement is tautological.
As pressure mounted in the days after the May 10 raid, public officials, including Mayor London Breed, saw fit to recant their earlier support for this action. Breed urged the SFPD to carry on using “legal and appropriate means.”
Well, that would be superior to illegal and inappropriate means. But, all joking aside, this shouldn’t be an either/or. Even if — and this is a big if — the raid on Carmody’s home is eventually deemed legal, it’s damn near impossible for anyone to claim at this juncture that it was appropriate.
It was also unnecessary. A subpoena could have been issued on the specific materials in Carmody’s possession, and he and his counsel could’ve argued it out in open court with the city. Rather than political intrigue and secrecy and rampant speculation on what the SFPD did or did not tell Judges Victor Hwang and Gail Dekreon to obtain this warrant — and just what the judges were thinking — this procedure could have been handled transparently.
Carmody’s contention that he is protected by shield law would have been argued in open court rather than debated post-facto in the wake of a destructive raid authorized behind closed doors following ex parte arguments. If a judge ruled that, in obtaining the report, Carmody was not in the act of newsgathering — and not protected by the shield law — then his attempt to quash the subpoena would be unsuccessful. He would be made to turn his effects over or go to jail.
But that’s not how the SFPD rolled. Instead, it went the sledgehammer route. The rationales revealed at yesterday’s press conference appear to be the latest in a concatenation of legal, procedural, and public relations missteps.
As such, the SFPD’s heavy-handed actions have, paradoxically, elevated Carmody into a First Amendment hero and martyr. And this department’s confusion and flouting of the shield law may yet lead to a legal payout that would, by far, exceed whatever money Carmody collected by peddling that report.