SFPD Finally Admits The Search Of A Journalist's Home Over A Leaked Document Was Probably Illegal

from the at-least-a-day-late-and-several-dollars-short dept

The raid of stringer Bryan Carmody's home by the SFPD has detonated directly in the face of the department. After someone in the department leaked a police report in an effort to smear a prominent public defender following his unexpected death, an internal investigation was opened to determine which SFPD employee was the source of the leak.

This internal investigation quickly went external. Bryan Carmody had shopped copies of the police report to a few news stations, which resulted in the SFPD raiding his home and seizing $10,000 of his equipment, including phones, laptops, and storage devices.

After a brief round of "this is all by the book" by a number of SF officials, it soon became apparent this was not at all by the book. In addition to Carmody's First Amendment protections, the stringer was also likely shielded by state law, which forbids searching and seizing journalists' property for the sole purpose of trying to identify a source.

The mayor walked back her statement defending the SFPD for its actions. So did a couple of council members. The District Attorney delivered the harshest criticism of the police force, saying he couldn't imagine a situation where this search would have been appropriate.

At long last, the department itself is coming around to how much it fucked this whole thing up. A qualified apology has been delivered, as Evan Sernoffsky reports for SF Gate.

After two weeks of growing outrage, San Francisco Police Chief Bill Scott apologized Friday for raiding a journalist’s home and office in a bid to unmask a confidential source, admitting the searches were probably illegal and calling for an independent investigation into the episode.

Police “should have done a better job,” Scott said in an interview with The Chronicle. “I’m sorry that this happened. I’m sorry to the people of San Francisco. I’m sorry to the mayor. We have to fix it. We know there were some concerns in that investigation and we know we have to fix it.”

Among Chief Scott's concerns are the possibility the search warrants didn't specify Carmody's occupation. It seems clear they didn't. If they did, they likely would have been rejected as impermissible under state law, not to mention the First Amendment.

“One of the issues that I saw in this is in the initial warrants,” he said. “There’s one that’s particularity troubling and concerning. The issue is the clarity in the warrant. The description of what his role entails as a journalist — there should have been more clarity there. That is going to be a concern that has to be explored further.”

Scott has seen the underlying documents, so this hedging is a little disingenuous. But it's probably necessary, at least from the department's perspective. The SFPD is likely planning its defense against Carmody's inevitable lawsuit, so it does the agency no favors if the chief states plainly officers conducted illegal searches using warrants obtained untruthfully. The SFPD may also be holding out hope the judge presiding over the coming lawsuit will find stringers aren't journalists, but that eventuality seems unlikely.

Furthermore, "issue of clarity" just sounds like fancy words for lying. It's incredibly unlikely the officers didn't know what Carmody did for a living. Stringers are fixtures at crime scenes, car accidents, and other emergency calls. This information appears to have been downplayed in the affidavit, if not omitted completely.

The independent investigation could lead to additional charges. Not only will this investigation try to find the source of the leak, but it's going to go after the officers who used a bogus affidavit to violate the state's journalist shield law. The end result of all of this is the stripping away of another layer of trust and a widening of the gap between the police and the policed.

Filed Under: 1st amendmentbill scott, 4th amendment, bryan carmody, journalism, san francisco, searches, sfpd, warrant


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  • icon
    Stephen T. Stone (profile), 28 May 2019 @ 3:47pm

    And now we wait for the local police union to whine about how unfair all of this is…for the cops.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 May 2019 @ 3:49pm

    "probably illegal"

    And a whole bunch of people signed off on doing this & failed at every possible level.
    How about some transparency for everyone to see how badly they went out of their way to break the law so that when they get charged & fired the arbitrator can't put them back on the force.
    Will this incident be recorded on their discipline records so the public can be away of officers willing to ignore the law when it suits them & the danger interacting with them could lead to?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 May 2019 @ 5:45pm

      Re:

      "And a whole bunch of people signed off on doing this "

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 May 2019 @ 6:09pm

        Re: Re: judge did it

        the judge who actually issued that illegal search warrant is the primary guilty party here -- but notice he/she is totally unmentioned and given a free pass here.

        hard legal requirement for judicial issuance of all warrants is a key safeguard of citizen rights.
        Judges are supposed to carefully scrutinize police warrant applications and ask incisive questions.

        Obvious question would be: WHY do you think this guy has a copy of the leaked SFPD report.
        A credible reply would immediately indicate a journalist complication to this proposed search.
        A vague reply would immediately indicate something fishy.

        Judges are not supposed to be rubber-stamps for police paperwork -- nor naive children who are easily fooled by ordinary cops.

        reply to this | link to this | view in chronology ]

        • identicon
          R,og S/, 29 May 2019 @ 8:25am

          Re: Re: Re: judge did it

          hahahaha.
          🤑👮🤐

          what judges are supposed to be, versus the polutical watch fobs that they ACTUALLY ARE ... LOL

          reply to this | link to this | view in chronology ]

        • identicon
          Whoever, 29 May 2019 @ 10:49am

          Re: Re: Re: judge did it

          It's possible that the judge is ultimately responsible.

          At the moment, however, we don't know what the judge was told. It's quite possible that the police perjured themselves to get a warrant and the judge granted it, based on a set of lies.

          reply to this | link to this | view in chronology ]

          • identicon
            Annonymouse, 29 May 2019 @ 12:16pm

            Re: Re: Re: Re: judge did it

            Funny thing that.

            In any other industry the person or persons who sign off on a document are ultimately responsible for that document.
            Any action resultant, unless there were unobvious falsehoods, would be their responsibility.
            Even then that would be hard to prove.

            Sadly there is no accountability or repercussions for any and all involved.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2019 @ 4:01pm

    The SFPD is likely planning its defense against Carmody's inevitable lawsuit

    It's hard to think of any more damning statement than this one.

    Though it is interesting to note that this entire debacle occurred because someone within the police department leaked embarrassing information about a public defender's death/use of illegal substances... but nobody within the department has yet leaked any relevant information about this. Tells you something about their goals and intentions...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2019 @ 5:38pm

    Carmody's statements are en effort to try and maintain qualified immunity for those involved. Knowingly raiding a journalists home for sources is against the law and they can not argue that precedent has not been set in that regards. What they can argue is that a stringer is not a journalist, which they can use as a defense to maintain their qualified immunity.

    reply to this | link to this | view in chronology ]

    • identicon
      AnonyOps, 28 May 2019 @ 8:45pm

      Re:

      Except that it won't and doesn't:

      California Shield Law (text)

      In California, article I, section 2(b) of the California Constitution and Evidence Code section 1070 provide an immunity from being held in contempt to reporters, editors, publishers, and other people connected with or employed by newspapers, magazines, press associations and wire services, as well as radio or TV news reporters.

      The California shield law applies to both the source of information (“confidential sources”) and to “unpublished information” such as notes, out-takes, unpublished photographs and tapes.

      When a criminal defendant seeks information protected by the shield law, the courts have set up a “balancing test” which weighs how important the information is to the criminal defendant, whether the defendant can get the information elsewhere, and other factors. See Delaney v. Superior Court (1990) 50 Cal. 3d 785.

      On the other hand, when the prosecution seeks information in a criminal law, the shield law is absolute. Miller v. Superior Court (1999) 21 Cal. 4th 883. And in a civil case where the press is not a party, the immunity from contempt is also absolute – there’s no balancing test. New York Times v. Superior Court (1990) 51 Cal. 3d 453. This case helps journalists avoid being forced to be professional witnesses instead of professional journalists.

      Does the shield law cover bloggers? Good question. The California shield law covers people “connected with or employed upon” a “newspaper, magazine, or other periodical publication, or by a press association or wire service.” That question is likely to be litigated in the near future.

      (from News Gathering by Karl Olson)
      Text of the California Shield Law, Evidence Code Section 1070

      1. (a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

      (b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

      (c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

      https://firstamendmentcoalition.org/resources-2/news-gathering/california-shield-law/

      reply to this | link to this | view in chronology ]

  • identicon
    MrDamage, 28 May 2019 @ 7:53pm

    Prosecutions

    Prosecutions for illegal conduct to begin in 3...2...1... Wait, WHAT!?!?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 29 May 2019 @ 6:38am

    And some are more equal than others...

    Someone tell me why journalists get more rights than the rest of us?

    From the article:

    Among Chief Scott's concerns are the possibility the search warrants didn't specify Carmody's occupation. It seems clear they didn't. If they did, they likely would have been rejected as impermissible under state law, not to mention the First Amendment.

    So if you or I had gotten the police report it would have been perfectly OK for the police to get a warrant and search our homes. But because Bryan Carmody calls himself a “Journalist” he gets extra rights?

    So much for being treated equal.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 29 May 2019 @ 6:40am

      Re: And some are more equal than others...

      Obviously, you haven't heard of the First Amendment.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous, 29 May 2019 @ 6:57am

        Re: Re: And some are more equal than others...

        Last time I checked the First Amendment applies to everyone.

        Again, why do journalists get extra rights the rest of us don’t?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 May 2019 @ 7:12am

          Re: Re: Re: And some are more equal than others...

          And why do Americans get rights some of us in other countries don't?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous_ Rog S/, 29 May 2019 @ 10:45am

            Re: Re: Re: Re: And some are more equal than others...

            Nice, brilliant query.

            The short answer is that they genocided shitloads of people and got paid by internationalist bankers to “earn ” that right.

            Or, in other words, the same people who sign your check there, at shitpost central, pay them too .

            reply to this | link to this | view in chronology ]

        • identicon
          R,og S/, 29 May 2019 @ 8:49am

          Re: Re: Re: And some are more equal than others...

          Its a valid question, and it has no legitimate, Twitter answer.

          Its a tradition, starting with the Federalist Papers, Thomas Payne, pseudonyms like Brutus and Publius , and a few other pre -Constitution writings.

          Fast forward to Branzburg, Dave Mathews, Judy Miller, and James Risen, and the best answer is still nebulous, and not fully formed, or legally elaborated as a right; and the best answer is still "tradition, " enhanced with tribal sectarian privilege, mostly white, mostly Jewish privilege (as highlighted most nefariously in the pilloring in the case of ex -CIA Jeffrey Sterling . )

          https://journalismprofessor.com/2013/07/25/do-journalists-have-a-right-to-protect-their-sources-a- federal-appeals-court-rules-wrongly-that-they-do-not/

          So: in short (and this would get me shadow banned and hasbara dunked on Twitter) there is only a white, Jewish privilege that keeps this tradition of reporters source privilege alive, as Uncle Tevye Fiddles, and our constitution burns.

          But there is no actual right involved, except for "might makes right ”and manufactured consensus via media trance formation.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 May 2019 @ 10:18am

          Re: Re: Re: And some are more equal than others...

          Again, why do journalists get extra rights the rest of us don’t?

          If someone not normally called a "journalist" is raided for what they planned to publish, a court might find in their favor, but that's not what happened. So maybe there are no extra rights per se, and state officials are just quicker to admit error when it's so obvious.

          reply to this | link to this | view in chronology ]

        • icon
          Darkness Of Course (profile), 29 May 2019 @ 1:44pm

          Re: Re: Re: And some are more equal than others...

          Some of us understand that reading the Constitution is a burden. It's a shame really, the document itself is an interesting read but who has the time these days?

          A reasoned reply is not rewarded with the thrill of the attack, the slurring of the truth, the blaring of ignorance, and the personal assumptions by the entitled - may they long stand in ignorance.

          After the Constitution, you might take a few minutes to skim the First Amendment.

          Of course, I'm assuming your even American. Because, if you are in another country, not of it applies to you.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 May 2019 @ 5:40pm

          Re: Re: Re: And some are more equal than others...

          Again, why do journalists get extra rights the rest of us don’t?

          A "journalist" is a person, anyone, engaging in journalism. So the protection springs from the activity, not the person.

          Nice try at trying to twist things around there.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 May 2019 @ 9:31am

        Re: Re: And some are more equal than others...

        Back when that was written, the press, as in printing press, was the only means of mass publication. Therefore freedom of the press, was synonymous with the freedom to publish, by referencing the means.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 May 2019 @ 8:08am

      Re: And some are more equal than others...

      It's almost like a law written for the purpose of protecting sources is focused on a field which deals with protecting sources.

      reply to this | link to this | view in chronology ]

    • icon
      Richard M (profile), 29 May 2019 @ 11:02am

      Re: And some are more equal than others...

      It is not so much that Journalists get more rights than the rest of us as much as the act of journalism gets more protections. Act like a journalist and you are a journalist.

      Now that does not stop (mostly on the local level) from trying to define who is and who is not a journalist but as far as I am aware they all end up failing.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2019 @ 7:07am

    Illegal? So what?

    Police are above the law. None of them will go to jail for this. They won't even pay for any civil judgements. The taxpayers will.

    reply to this | link to this | view in chronology ]

  • identicon
    GHJ, 30 May 2019 @ 1:36pm

    Make an important example of them

    Not enough. We must see career deaths here, prison time and no potential for rehire by government agencies.

    reply to this | link to this | view in chronology ]


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