Freelancer who peddled lurid Jeff Adachi police report has been rendered a First Amendment hero by grotesque police overstep
The San Francisco Police Department, never one for subtlety, took a literal sledgehammer to the door of a freelance TV cameraman Friday. A phalanx of armed cops served a search warrant and carted off a goodly number of Bryan Carmody’s possessions in the latest bizarre reverberation following the sudden and unexpected February death of public defender Jeff Adachi.
This was a transcendently heavy-handed and misguided move, and one that produced a number of toxic byproducts. For one, Carmody — who obtained the leaked Adachi police report and peddled it around town, selling it to a purported three TV stations — has been lionized and transformed into a First Amendment hero and martyr.
The city of San Francisco, and its police department, should be deeply embarrassed. Mere hours after Adachi succumbed, the police report had been improperly leaked, ostensibly by cops who despised him. Its tawdry details oozed about the Internet — supplementing phone calls members of the press received bandying about additional tawdry details, many of which proved to be unsubstantiated. After being called on the carpet for this, the SFPD’s response has been to hit hard at the outside man, storming the home of a freelance TV cameraman. (Despite what you’ve seen on Law & Order, the District Attorney was not consulted prior to this raid).
It’s actually impressive for the SFPD to botch this so badly at both ends. This action was not one that evinced strength or competence; the department, unable to maintain internal control, responded by launching an external show of force.
If the SFPD’s internal investigation is going well, this is an odd way of signaling that.
As the rancid cherry atop this putrid sundae, whatever information about the source of that SFPD leak the department’s internal affairs officers gleaned via raiding Carmody may well be rendered null and void. That’s what happened previously when the SFPD attempted to use a warrant to pry away material from a journalist and was smacked down in court.
In a way, it all may be sadly fitting. “If the police department was more professional,” said a longtime Adachi colleague with a sigh, “Jeff wouldn’t have had all those wins.”
California’s “shield law” protecting journalists is strong enough and specific enough that First Amendment lawyers initially figured that the judges who signed the warrants entitling Friday’s raid on Carmody’s home and office, Victor Hwang and Gail Dekreon, hadn’t been informed that he’s a journalist.
But that apparently isn’t so. Your humble narrator has learned that they purportedly knew full well that he is a credentialed journalist.*
Well, that’s odd. 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 yet two judges — two — signed off on those warrants.
Attorney and UC Berkeley lecturer Geoffrey King predicts they will be overruled. It’s happened in the past, right here in the city: In 2009, he points out, the SFPD executed a warrant to wrest photographs of a murder scene away from a student photojournalist — and a judge, citing the shield law, later rescinded it. The police were forced to return “photographs, files, cameras, and DNA evidence” hauled off from the journalist’s home (This being San Francisco, the SFPD attempted to fire the cop who was reluctant to serve the search warrant because he maintained it was illegal).
In 2010, King personally represented independent journalist David Morse, and argued that the University of California Police deployed a warrant to improperly search Morse’s camera and seize his photos. A judge agreed.
We may yet learn the judges’ rationale. Today, it remains a mystery. The claim that Carmody isn’t a journalist doesn’t work. He’s been gathering video footage of crime scenes, emergencies, and other TV news staples for decades.
“Everybody else was outside of the zoo. He was inside of the zoo,” recalls a veteran TV journalist of how Carmody scored exclusive video of the Christmas 2007 deadly tiger rampage at the San Francisco Zoo. “He has an unmarked car. He’s friends with the cops. He gets a little closer than the rest of us. … We depend on him for the pictures, and then we run out and verify all the information. He points his camera at the cops-and-robbers shit we all live on.”
Perhaps the judges simply felt that even if Carmody is a journalist, what he was doing — peddling a leaked police report to whomever would pay — wasn’t journalism. That it was more akin to fencing stolen goods than working a story.
Needless to say, Carmody disagrees with this notion. “I reject the characterization of me ‘selling’ the report,” he says. “We put packages together.” Those can include “video, inside information, off-the-record interviews, on-the-record interviews, the whole deal … sometimes they include documents.”
For a freelance cameraman — a stringer — to hawk these “packages” is the epitome of normal, Carmody says.
And yet, a TV editor who received Carmody’s Adachi “package” tells me it contained “very limited video. It was mostly photos of the police report.”
Buying documents — which, unlike the photos and videos Carmody takes, have an uncertain chain of custody — is a hinky practice, TV reporters, editors, and executives say.
“I cannot think of a time when any news organization I was involved with agreed to pay for leaked documents,” Dan Rosenheim tells me. He served as the city editor and managing editor of the Chronicle for nine years before 22 years atop KRON and KPIX. “I’m not taking a position on the rightness or wrongness of that. But it’s not common practice.”
And yet, neither is taking a sledgehammer to a journalist’s door and confiscating his effects. And, regardless of what you think about Carmody or his methods, this was the wrong move. The full-throated nationwide outcry among journalists and the battalions of rabid online comments comparing San Francisco’s government to Red China were utterly and totally predictable. The SFPD ceding Carmody leverage and righteousness and exposure and a platform he’d never have otherwise had was also utterly and totally predictable.
But this was also the wrong move legally. And the unnecessary move.
“Get a subpoena: That’s what they should have done if they felt they had a good legal argument,” explains King. Get a subpoena and fight it out in court, in broad daylight. “The distinct danger of search warrants is that they’re entirely one-sided and secured behind closed doors — which is not consistent with a free and open press where journalists can do their jobs.”
Carmody agrees: “They should’ve dragged me in front of a judge who’d say, ‘You need to hand over those documents or I’ll put you in jail.’ And I’d have done it.” He pauses. “They should’ve handled this in court. Like adults.”
Oof. This SFPD investigation deserves its own investigation. Who, indeed, watches the watchmen? Adults, hopefully.
*An affidavit unsealed on July 23 reveals that the SFPD in fact obfuscated regarding Carmody’s profession and did not state that he is a journalist. Of note, the police, judges, or anyone using Google could discern he is a working journalist in two minutes’ time.
What information, if any, was communicated orally is not known.
An affidavit unsealed in early August, however, reveals that Judge Victor Hwang was given ample information indicating that Carmody was a freelance journalist.