Chief Bill Scott. Photo by Nikka Singh

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.

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. 

Stop — hammer time. Freelance cameraman Bryan Carmody posted these surveillance images of San Francisco police officers’ Friday raid of his home on social media. It is, to put it mildly, not a good look.

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.  

Joe Eskenazi

Joe was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. “Your humble narrator” was a writer and columnist for SF Weekly from 2007 to 2015, and a senior...

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9 Comments

  1. Will we ever know what was presented to the judges and/or the basis for their decision to issue warrant?

  2. Campers,

    In this Age of Trump the devils are freed to prey upon Saints.

    I spent a couple of hours yesterday at the DOJ @850 Bryant watching
    the effects of a rogue police operation designed to further denigrate
    the reputation of my 20 year friend and comrade, Jeff Adachi.

    This evening at 6:30pm I’ll be at whatever school the D-Triple C is
    meeting at where the #1 item on their agenda is to smear the name
    of my good friend, Angela Alioto.

    That’s on Turk Street and only wonks will attend.

    I’ll be there but frankly, as I age, it pisses me to have to even
    leave my chair to defend my friends from these types of
    opportunistic and scurrilous attacks on their betters by agencies
    that have a platform form from which to toss their chamber pots,
    be it from the D-Triple C stage or the podium allotted to the
    the Chief of Police.

    Hey, I love David Campos and have supported him in numerous
    runs for office.

    He and I are pretty much simpatico on political stands.

    I am much closer to the lady that ‘Joe Fire’ used to call …

    ‘Double-AA’ … Angela Alioto with whom I seldom agree on
    major political agendas.

    Bottom line is that Angela is a great person whose career
    is a solid history of working for civil rights and two of my
    three grandkids are African-Americans and Angela was my
    friend way before they were eve born.

    Hell, she brought he and my daughter up (he once turned
    an unassisted triple-play in the little leagues – only been
    done 14 times in 150 years in the bigs) …

    Brought him up to her ranch to school him in riding horses.

    Frankly, I’m tired of defending my best friends and family
    from attacks by right-wing hateful bigots only trying to get
    a little more spotlight for themselves.

    I’m almost helpless to help them.

    I mean, what can I possibly do?

    All I have here is an audience and a keyboard and the internet.

    Hmmm.

    Go Giants!

    h.

    1. First of JEFF Adachi was a criminal. SF is better without him. He was truly an evil person who was making the streets less safe. Rouge police operation? Are you kidding me? SF has to literally be the hardest place in these United States to be a cop.

      I’m not defending them is this warrant but seriously if you are hitching your wagon so Adachi you already are suspect.

  3. Why do you extreme left-wing loony tunes try to pin every Democrat screw-up on The President? President Trump had nothing to do with the no-nothing SF Democrat supervised police taking a schlege hemmer to the door in violation of the law. President Trump also had nothing to do with Angela Alioto shooting off her foul mouth when, given her years of experience, she should have known better.

  4. This is a very broad and only partially informed analogy.

    Comparing these parties with those involved in the Russian election meddling, Carmody’s source would seem to equate with Russian intelligence agency which illegally obtained the DNC’s files and he with the intermediaries who conveyed them to Wikileaks.

    Are they not all under Mueller’s indictments?

    Orland

    1. Orland — 

      This analogy is not made in the article. Are you certain you’re commenting on the right article?

      JE

  5. Any intelligent being in this city automatically disregards any argument that *right-off-the-bat* , first words include “Trump” .

    Nowhere in any of this situation is Trump even close to being a participant.

    I find it hard to stay politically neutral in San Francisco. The Democrats’ position always blames Trump as the cause of anything bad in the world. Democrats in San Francisco are straight up bullies and cannot let others form their own opinions without harassment, meltdowns, and bullying.

    Don’t believe me? Then as a test: Go put on a ‘Make America Great Again’ hat and walk into any bar. Let me know how tolerant people treat you, if you don’t get assaulted first.

    This example is why people secretly vote for Trump –because they are sick of the unfairness and bullying in having a different opinion.

    This is ironic because at the entrance of some of the businesses in San Francisco, there is sometimes a sign reminding patrons that any sexual orientation is welcome, any race is welcome, and no violence or intolerant behavior is accepted.

    As long as you contribute to the echo chamber, you may stay. Otherwise, you are not even able to debate about it without being called names and possibly assaulted by these people.

  6. Joe, I’d like to know more about any political pressure put on SFPD officials to identify the leak source and whether it included sentiment to harass and smear Carmody as well.

    Who in City Hall conveyed the messages to Scott and his staff and who directed that messages be sent? What legal role does City Hall have to manage and direct police investigations in the normal course of business? Are communications between City Hall and SFPD involving specific investigations required to be documented and part of the public record under FOIA?

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