Carmody case shows grave police overreach, say lawyers

By Katherine Jacobsen/CPJ U.S. Research Associate on November 19, 2019 11:28 AM ET

Freelance journalist Bryan Carmody, left, is seen with his attorney, Thomas Burke, at a panel event held by the Society of Professional Journalists in San Francisco on August 13, 2019. Police raided Carmody's home and office in May while investigating the leak of a report on the death of a San Francisco public defender. (AP/Juliet Williams)

Bryan Carmody, a breaking news stringer who frequently worked the police beat in San Francisco, woke on May 10 to the sound of a sledgehammer at the metal gate securing his front door. Law enforcement agents investigating the leak of internal police documents were attempting to discover his source, CPJ reported at the time.

The officers had obtained warrants to search his home and office, so Carmody let them in; they were accompanied by two FBI agents, he told CPJ by phone in October. He described spending six hours in handcuffs while police swept up cellphones, tablets and computers, including some belonging to his fiancée, and confiscated his entire archive of digital footage.

The search was executed at a time when federal leak prosecutions linked to public interest reporting appear to be accelerating, as CPJ has reported. The case against Carmody shows that reporters can be vulnerable to invasive physical and digital searches even in jurisdictions with explicit laws to shield journalists’ unreported material from seizure by law enforcement. The presence of federal law enforcement at a local police action raises further alarm among First Amendment advocates.

While fighting the two warrants on Carmody’s house and office, his lawyers unearthed three more, included sealed requests to access his Verizon phone records, according to court documents published online by the First Amendment Coalition, a Bay Area nonprofit organization that protects free speech. Members of Carmody’s legal team and other experts told CPJ the warrants represent a failure to respect the rights of the press to communicate confidentially with sources.

“This is something that never should have happened, and it happened five times,” said David Snyder, lawyer and executive director of the First Amendment Coalition. Using a warrant to uncover a source violates state and federal law, explained Snyder.

“I know of no American journalist in recent times that has been more violated,” said Thomas Burke, one of Carmody’s lawyers. The San Francisco Police Department knew Carmody was a journalist; they had issued him a press pass annually for nearly two decades, Burke told CPJ. Carrying out these warrants was a “grave mistake,” he said.

The raid took place after Carmody refused to reveal the source of an internal police document he provided to three TV stations while reporting on the death of San Francisco's public defender, Jeff Adachi, CPJ reported in May. Adachi was known as a police watchdog and the police department was criticized when the leak exposed “salacious” circumstances surrounding his death, according to NPR.

“Law enforcement sought to use a search warrant in a leak hunt, but the use of a warrant in this way is flatly banned by the California shield law,” Gabe Rottman, the director of the Reporters’ Committee for Freedom of the Press (RCFP)'s technology and press freedom project, said of the case.

California is one of at least 40 states, including the District of Columbia, with some a version of a shield law that protects journalists from search warrants, according to RCFP. California’s shield law grants journalists immunity from being held in contempt for not revealing unpublished information they learned during their reporting. The federal Privacy Protection Act separately protects individuals from being forced by law enforcement to turn over unpublished journalistic material.

Burke said he advised police to seal Carmody’s confiscated possessions and commute the search warrants for his house and office into subpoenas. “The law says you can get subpoenas against journalists because you can fight those in court,” he said. “A warrant is like a drag net and it gets everything by nature, including things that have nothing to do with the underlying story.” But police refused, according to Burke.

During court proceedings to unseal and dismiss those warrants, it became clear that police had issued three more, Carmody told CPJ. The warrants were eventually quashed on Carmody’s behalf by Davis Wright Tremaine, the law firm where Burke works. A free press coalition—the RCFP, the First Amendment Coalition and the Northern California Chapter of the Society of Professional Journalists—worked to get all five warrants unsealed by August 22, according to court documents compiled by the First Amendment Coalition.

One unsealed warrant asked Verizon Wireless to provide emails, text messages, call logs, and any other stored communications from Carmody’s number for a period of several hours starting on February 22, when Adachi died. It also requests cell site data, which could help establish the phone’s location at the time messages were sent.

“The fact that they are monitoring my phone calls and my text messages and all that stuff is bad enough, but the fact that they are using my cellphone to track me is really disturbing,” Carmody said.

California law requires the subject of such a warrant be notified within a certain period, but an extension had been granted, keeping Carmody in the dark for "months after the fact," according to Snyder. “This is the city that holds itself as the champion of civil liberties and purports to respect journalists promoting civil discourse and civil liberties.” Yet the city government failed to do so, he said.

San Francisco’s Chief of Police Bill Scott defended the raid on Carmody’s premises for 14 days after it took place, according to the San Francisco Chronicle. In a May 24 statement, Scott said the Department of Police Accountability would investigate the execution of the search warrant, and pass the leak inquiry to an independent outside agency at the request of San Francisco Mayor London Breed. Breed also supported the raid at first, the Chronicle reported, until saying she was “not okay with police raids on reporters” in a May 19 Twitter statement.

Robert Rueca from the San Francisco Police Department’s media relations team responded to CPJ’s November interview request to ask for questions by email, and did not follow up before publication. London Breed’s office did not respond to CPJ’s request for comment emailed in November; follow up calls were not answered.

Gabe Rottman told CPJ that besides the local authorities’ actions, he remained concerned about the FBI’s unexplained presence during the raid on Carmody’s house. Internal policies at the Justice Department limit how or when federal law enforcement can question journalists or inquire about activities that arise in the course of newsgathering, according to RCFP. A freedom of information lawsuit filed by RCFP asking the bureau and the Justice Department to reveal why agents were present is pending, Rottman said.

“In the current environment where we have seen a lot of federal leak cases, we’re concerned that rhetoric around the media may be leading public officials to be more aggressive in terms of investigating the press,” Rottman told CPJ.

According to a statement emailed to CPJ in November by Katherine Zackel from the public affairs department of the FBI’s San Francisco office, the bureau “did not participate in the execution of an SFPD search warrant on Bryan Carmody’s residence.”

“Two FBI Special Agents were present in Mr. Carmody’s residence for approximately 10 minutes on May 10, 2019 for the purpose of interviewing him as a witness,” the statement said. Citing institutional policy, Zackel declined to elaborate because the interview involved an ongoing investigation.

Carmody told CPJ he thinks he was particularly vulnerable to a law enforcement probe because he does not work for a media organization with resources to protect him.

The San Francisco Chronicle said it independently obtained the same information as Carmody. Yet Audrey Cooper, the paper’s chief editor, told The New York Times in May that she was not aware of any legal action against staff reporters.

Lacking institutional support, Carmody told CPJ that he has yet to fully restore his office, even after crowdsourcing $18,000 in donations. Though police eventually agreed to delete information they had accessed and returned his devices, he says he won’t use them again, following advice from cybersecurity experts. His tablet came back with a sticky note featuring his password, he said.

“I guarantee you I didn’t put my password on a sticky on my screen,” Carmody said.

Thomas Burke told CPJ that there are broader press freedom implications when police officers and judges overlook journalistic work when obtaining and issuing warrants.

“Every good journalist knows that if this happens to a freelancer, it can indirectly, and will indirectly, affect them,” he said.

EDITOR'S NOTE: Gabe Rottman's title has been corrected in the ninth paragraph and the spelling of his surname corrected throughout. The eleventh paragraph has been corrected to reflect that a coalition of groups worked to unseal the warrants, while the Davis Wright Tremaine law firm had them quashed on Carmody's behalf.


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