The SFPD raided journalist Bryan Carmody's home supposedly to find information that would lead them to one of its own officers. Carmody is a stringer and had shopped around a copy of the police report someone inside the SFPD leaked to him. None of this is criminal. Nothing about Carmody's information-gathering fell outside of the law. If anyone broke the law, it was the officer or PD employee who gave him the report.
That fact notwithstanding, officers showed up at Carmody's house and -- after waging a losing battle with an impressive front gate -- handcuffed him for six hours while confiscating $10,000-worth of electronic devices and computers. It's safe to assume these items contained plenty of information Carmody had gathered from other sources, as well as information about those sources. Again, this search and seizure violated the state's journalist shield law, if not the US Constitution itself.
Carmody has released security footage of the SFPD's arrival. One can only assume his front gate will be facing obstruction of justice charges.
This case has numerous disturbing aspects, starting with the leak itself. Jeff Adachi was an elected public defender and a fierce critic of local law enforcement. This likely motivated the leak of the police report, which alleged Adachi had died of a possible cocaine overdose while enjoying the company of a woman who wasn't his wife. A chance to smear a vocal opponent of law enforcement abuses was too good to pass up.
When the news first broke, city officials claimed law enforcement did nothing wrong. These were knee-jerk assertions but that doesn't excuse officials for responding this badly when confronted with unexpected (and unexpectedly bad) news.
Now that everyone's given it a bit more thought, the SFPD is on its own, bereft of high-level defenders.
The [San Francisco] Board of Supervisors’ longest-tenured member, Aaron Peskin, blasted both the police and the judges who issued the warrants.
“[T]he State Penal Code clearly states that ‘no warrant shall issue’ to compel a journalist to disclose a source. The fact that the Superior Court nevertheless signed warrants authorizing police to conduct a raid on a journalist’s home and to confiscate their belongings boggles my mind,” Peskin said in a written statement on May 15.
“Regardless, the police have clearly gone about this the wrong way,” the statement continued. “Last month, the Board of Supervisors held a hearing to hold the San Francisco Police Department accountable for its role in the release of confidential and highly sensitive, personal information related to former Public Defender Jeff Adachi’s tragic death, which I co-sponsored. That they took this as license to break down a journalist’s door with a sledgehammer is an obvious deflection from their own accountability.”
The mayor has also issued a new statement, undoing the "I'm sure the cops were doing the right thing" assertions they made right after the news broke. Mayor London Breed walked back support of the SFPD, but still hedged a bit when it came to criticizing the judges who had approved the search warrant.
[T]wo judges issued the search warrant, and I have to believe that the judges’ decision was legal and warranted, and therefore so was the search.
Whether or not the search was legal, warranted and appropriate, however, is another question.
And the more we learn, the less appropriate it looks to me.
How appropriate the search was remains to be seen. The search warrant application remains sealed. The only upshot of this search backfiring so spectacularly is that the SFPD is returning Carmody's property to him -- likely months before it would have if this had managed to fly under the radar.
More surprisingly, the District Attorney's office has turned against the SFPD and is openly questioning the search of Carmody's home.
My office has not seen the warrant or the facts upon which it was based, but absent a showing that a journalist broke the law to obtain the information that police are looking for, I can’t imagine a situation in which a search warrant would be appropriate.
Even if there were such a showing, however, no search should have been conducted without the use of a special master. Journalists have multiple sources to whom they owe confidences, similar to an attorney who has multiple clients to whom they owe attorney-client privilege.
Seizing the entire haystack to find the needle risks violating the confidences Mr. Carmody owes to all his sources, not just the person who leaked the police report.
The SFPD has stepped in it... hard... with both jackboots. Carmody was originally questioned by the SFPD prior to the raid but refused to provide any answers and asked to speak to a lawyer. It should have ended there. But rather than raid the homes of suspects wearing badges, it chose to violate state law by raiding the home of an uncooperative journalist.
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