The arrest of Bay Area freelancer Bryan Carmody after he published leaked SFPD documents has national implications for a free press.
By Jim Knipfel
On February 22, San Francisco public defender Jeff Adachi died of an apparent heart attack at age 59. Adachi, who’d held his post for sixteen years, was the only elected public defender in California. During his time in office, Adachi earned a reputation as a vigilant watchdog when it came to matters of police misconduct and corruption. Popular as he was among Bay Area residents, suffice to say he had very few friends within the ranks of the SFPD.
Two days after Adachi’s death, three local TV stations aired stories about a leaked confidential police report containing salacious details of Adachi’s final hours. According to the report, the squeaky clean public defender had been in the company of a woman named Katrina who wasn’t his wife. Though never stated bluntly, the report insinuated that Katrina may have been a prostitute. The pair were in an apartment Adachi may have rented secretly, the bed was unmade, and the room was littered with empty alcohol bottles, cannabis gummies, and two empty syringes, which may or may not have been left behind by the EMTs who responded to the 911 call. The report also contained photographs of the room. The official coroner’s report concluded Adachi’s heart attack had been caused by a pre-existing heart condition exacerbated by a mixture of alcohol and cocaine.
As the report spread to other outlets, so did public suspicions that the whole thing was a deliberate smear campaign undertaken by the SFPD in retaliation for all the grief Adachi had caused them over the years. A few commentators suggested the empty bottles and drugs were planted by the cops themselves. Others pointed out the details cited in the report had less to do with the circumstances surrounding the public defender’s death than the content of his character. Whatever the truth behind the claims, the storyline refused to die, and the accusations were a bad look for SFPD. The department was not happy.
Roughly two months later, in late April, police officers showed up on the doorstep of freelance journalist Bryan Carmody, a veteran nightcrawler who trawled the Bay Area with the help of a few police scanners during the overnight hours, gathering what stories and footage he could, which he then tried to sell to local television stations in the morning. Although several other media outlets, including The San Francisco Chronicle, had published the leaked SFPD report, it was determined Carmody was the one who obtained the report initially.
The officers, whom Carmody says were very polite, asked him to name the source who had leaked the report. He refused, and the officers left.
Two weeks later, a little after eight on the morning of May 10, Carmody was rudely awakened by ten officers attempting to break down his front door security gate with a sledge hammer. After calling down from a window to assure them he would simply let them in, Carmody went downstairs and unlocked the door. That’s when things turned ugly.
After producing two search warrants that allowed them to look for “stolen or embezzled property,” the ten officers charged into Carmody’s home with guns drawn. They handcuffed the reporter and, according to surveillance footage, ransacked his apartment, confiscating computers, notebooks, tablets and phones, and trashing everything else. They then moved on to his downtown office, where they did much the same thing, and in the process found the leaked police report locked in his office safe. Carmody remained handcuffed for the next six hours before being released. During his detention, Carmody was interrogated not only by SFPD officers, but FBI agents as well, who likewise demanded he reveal his source. Carmody adamantly refused.
He later told The Washington Post, “I’m smart enough not to talk to federal agents, ever. I just kept saying ‘lawyer, lawyer, lawyer,’” echoing a scene from Better Call Saul.
(The FBI would later admit they were on the scene to question Carmody, but denied having anything to do with the raid itself. Why the FBI would take an interest in the case is unclear.)
As the shitstorm over the raid on Carmody’s home and office began breaking around the Bay Area on Saturday, the SFPD released the following desperate, perhaps even panicky, statement:
“The citizens and leaders of the City of San Francisco have demanded a complete and thorough investigation into this leak, and this action represents a step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of confidential police material.”
Unfortunately for the SFPD, they’d overlooked a few fundamental legal issues as they prepared to serve the warrants on Carmody.
As Thomas R. Burke, a First amendment lawyer who took on Carmody’s case, noted, “The appropriate thing was to issue a subpoena, not a search warrant.”
But it went far beyond that. California’s strong shield laws maintain that journalists cannot be held in contempt or criminally charged for refusing to reveal their sources. Police are furthermore prohibited from seizing a reporter’s notes, computers or anything else that might contain the identity of a source. What’s more, before getting a search warrant signed by a judge, the police are required to not only clear matters with the District Attorney first, they are also required to disclose that the subject of the warrant is a journalist. The SFPD didn’t do, or didn’t remember, any of this, instead approaching Carmody as if he was a common drug dealer.
In late May, it was further revealed that beginning on March 1, long before officers appeared on his doorstep, the SFPD had obtained three other warrants, undertaking the illegal surveillance of Carmody’s phone, tracking his movements and contacts in an effort to uncover the source of the leak. The Chronicle reported that there were in fact a total of seven warrants approved, though the contents of two remain sealed at present. The phone surveillance apparently did not provide the information they were after.
“If you thought raiding a reporter’s home, attacking his door with a sledgehammer, confiscating his computers and phone, and keeping him handcuffed for six hours was bad,” Carmody attorney Thomas Burke said in a phone conversation, “the idea that they had secretly searched his phone records and were tracking his movements for months is breathtaking.”
Not helping their case at all, Police Chief William Scott held a press conference about the matter in which he tried to shift the focus away from the SFPD’s abuse of power by painting Carmody as a potentially dangerous criminal, referring to him as an “active participant in the commission of the criminal acts beyond his role with the news media.” Scott went on to say Carmody would remain under investigation until, one way or another, the department found out who’d leaked that report, and how Carmody got his hands on it.
The story quickly, if briefly, went national, appearing not only in The Washington Post, but The New York Times, The Guardian, CNN, NPR, The Daily Beast and elsewhere. In the meantime, someone apparently pulled Scott aside and quietly explained to him all the legalities his department had breached in their zeal to nail Carmody.
A few days after the above press conference, Scott held another press conference in which he admitted mistakes had been made.
He then pointedly told The San Francisco Chronicle, “I am sorry (the raid) happened. I’m sorry to the people of San Francisco. I’m sorry to the mayor.” That he neglected to apologize to Carmody was a point lost on no one.
Instead of accepting any responsibility himself for all the mistakes that were made, however, Scott blamed those underlings in the department who had neglected to go to the DA, neglected to disclose Carmody was a journalist, quite possibly violated the state’s shield law, and on the whole grossly overstepped their authority. Scott also called for an independent investigation to look into what went wrong.
It almost amounted to a public apology. And it pissed off the Fraternal Order of Police to no end, who felt they’d been thrown under the bus by Scott, who, they claimed, was a central player in the decision-making that led to the raid.
As public apologies go, it may have been a bit wanting, but it also may be about as close as we can expect coming from a chief of police in regards to an unwarranted assault on a reporter trying to do his job.
Despite that sort-of apology, Carmody, it turns out, remained under investigation, with Scott handing the legwork over to an unnamed agency described as an “independent, impartial third-party” charged with determining not only who did the leaking, but if Carmody’s involvement went beyond, as Scott has hinted without further explanation, his role as a journalist. It almost sounded as if the SFPD was looking to charge Carmody with receiving stolen property. Scott was, in short, laying out a case that would allow the police to do an end-run around the state’s shield laws when it suited their purposes.
What is being set up here is a legal case which not only pits freedom of the press and the First Amendment against charges of being a co-conspirator in a criminal act. It also, in cruder terms, sets out to weigh charges of receiving stolen property against illegal search and seizure.
In terms of press freedom, Scott is trying to establish a very dangerous precedent. There are echoes, though on a smaller scale, of the Wikileaks case.
Right around the same time officers first appeared at Carmody’s door, Julian Assange was arrested at the Ecuadorian embassy in London and charged with conspiracy to commit computer hacking. A month later, and a day before Scott’s public sort-of apology, the U.S. Justice Department slapped Assange with an additional seventeen criminal counts under the Espionage Act of 1917 for receiving and publishing classified documents. If found guilty, Assange could be looking at decades behind bars. It could also have a deeply chilling effect on American journalists. If Scott can make the co-conspirator charge stick in San Francisco, it would effectively render shield laws meaningless. Who would take the risk of publishing leaked government, police or corporate documents if it meant they could face criminal charges as a result? What happens to investigative journalism then?
Another disturbing element of the whole SFPD fiasco, as noted by The East Bay Times and several free speech advocates, concerns why separate area judges signed what amounted to illegal warrants to search Carmody’s home and office. The affidavits used to justify the warrants remain sealed, ironically enough, because the SFPD claims they contain the name of the confidential informant who provided information on the case. Efforts to have the affidavits unsealed were postponed by Judge Samuel Feng, citing an upcoming Dodgers game and comic book convention he planned to attend.
Then the unthinkable happened. On June 1, a day after Carmody learned his phone had been surveilled and after his lawyers submitted a motion to quash, unseal the warrants and have his seized property returned, the city apologized. Then Scott publicly apologized (for real this time), and Carmody’s computers and phone were returned to him. No charges were filed.
At a Superior Court hearing in July, an SFPD sergeant involved in obtaining the warrants for the phone surveillance testified he had no idea Carmody — who had held a police press pass for 16 years — was a journalist. San Francisco Superior Court Judge Rochelle East ruled in the end the phone warrants should never have been issued, any information obtained through those warrants has to be destroyed, an affidavit confirming it has been destroyed must be delivered to Carmody’s lawyers, and none of that information can be used against him.
“The city feel’s they’ve put the whole thing behind them now,” Mr. Burke said. “But we still have a lot of questions that need answering.”
Among those questions is whether or not the conspiracy investigation would roll on even after the apology and the ruling. Also, why was the FBI present during the raid to interrogate Carmody? Perhaps an even bigger lingering question is, what was really behind Scott’s seemingly monomaniacal push to nail Carmody?
On the whole, yes, it was just one more story quickly lost in the mad swirl of the 15-second news cycle. It lacked the star power of an Assange or Chelsea Manning. No one was gunned down and no one was imprisoned. Still, the Carmody story is one worth remembering. Despite its seemingly happy ending, this is likely not the last time we’re going to be hearing a story like this, and in fact, considering the national trajectory of the past few years, Carmody’s experience may well present a model of the kind of treatment journalists can expect in the days to come. At the same time, given the lack of any kind of federal shield law, it’s also likely the last time a journalist can expect anything even vaguely approaching an apology from a public official after his or her rights have been thoroughly stomped.
Jim Knipfel is the author of three memoirs, five novels, a short story collection and a volume of pop cultural sociology. His most recent book is Residue (Red Hen Press). He lives in Brooklyn.
Production DetailsV. 1.0.1
Last edited: October 4, 2019
Author: Jim Knipfel
Editors: Alexander Zaitchik, Jeff Koyen
Illustration: Photo by Saksham Gangwar on Unsplash