Two judges authorized police raids on the home and office of a freelance journalist last week despite knowing that the search warrants were for someone with ties to the press, a city official said Monday.
Supervisor Sandra Fewer said Police Chief Bill Scott told her during a private meeting that the judges who issued the warrants were aware of freelancer Bryan Carmody’s “journalistic or media background.”
Whether the judges knew about Carmody’s line of work has been a key question for civil liberties attorneys who believe the warrants may have violated state law banning search warrants against journalists.
The news could mean that San Francisco Superior Court judges Victor Hwang and Gail Dekreon decided that Carmody was not a journalist under the California Shield Law or that the law did not apply for other reasons.
Neither judge has publicly explained their reasoning for issuing the warrants, which were partially filed under seal. A spokesperson for the San Francisco Superior Court declined to comment on the decisions.
Facing political pressure to find the source of a police report leaked to the press on the death of the late Public Defender Jeff Adachi, police raided Carmody’s home in the Richmond District on Friday.
Police obtained the search warrants from the judges after showing probable cause that Carmody possessed stolen property — presumably the leaked police report — and that a felony had been committed.
Known as a “stringer” in the journalism industry, Carmody chases news stories overnight and sells video and information to TV stations. Carmody has admitted to selling the Adachi report to three news outlets.
“It’s possible that the courts decided that because Carmody is a freelancer, he is not subject to the shield law,” said Aaron Field, an attorney with the Northern California chapter of the Society of Professional Journalists.
But Field said “that is not correct.”
“The search should have been precluded by the shield law,” Field said. “I do view Carmody, based on what I know, as being engaged in the journalistic process.”
The California shield law protects journalists including those who have been “connected with or employed” by TV stations from being held in contempt for refusing to disclose sources or information obtained during newsgathering.
That law is extended to search warrants being issued against journalists under Section 1524(g) of the California Penal Code.
But Police Commissioner John Hamasaki, a criminal defense attorney, questioned whether Carmody was acting as a journalist when he was selling the Adachi report.
“There’s no blanket shield for possession of a stolen item by a journalist if it is not in the context of his duties as a reporter,” Hamasaki said. “To my understanding he wasn’t doing any reporting on it, he was just selling it to the highest bidder or various bidders.”
Fewer also questioned Carmody’s actions.
“I think he was getting this information to make a profit from it,” Fewer said. “If he were obtaining this information to write a story, it still is illegal to obtain a police report unless it has been officially released.”
But David Greene, a civil liberties attorney who is a member of the SPJ, defended Carmody.
“If they think someone selling a story is not a journalist,” Greene said, “That just shows an ignorance of how journalism works.”
Greene said it was clear “he obtained the information in his role of a journalist.”
“That means he possessed it in his role as a journalist and therefore it’s protected,” Greene said.
Greene said Carmody could file a motion to invalidate the search warrant by arguing that the shield law should have applied.
If the search warrant were deemed illegal, Green said police might not been able to use information they obtained from it.
On Monday, an attorney for Carmody sent a letter to the police chief and presiding judge threatening legal action if the San Francisco Police Department does not confirm it will return items seized in the raid by Tuesday.
The raid yielded dozens of items including reporters’ notebooks, video equipment and computers.
“There is no conceivable basis here for the SFPD to claim any ‘exigency’ exception to bypass these well-established protections for journalists like Mr. Carmody,” free speech attorney Tom Burke said in the letter.
Investigators first questioned Carmody at his home two weeks ago and asked for information about the leak, but he said he declined to give up his source.
The raid came less than a month after a Board of Supervisors committee hearing revealed that an unnamed “stringer” had sold the police report to multiple news outlets for $2,500 each.
Carmody previously told the Examiner he sold the report to three TV stations as part of a package that included video.
The report included salacious details about the death of the public defender. Members of the Board of Supervisors including Fewer condemned the leak as political retribution against Adachi, who spent his career criticizing the police.
At the hearing, police brass apologized for the leak and confirmed that an Internal Affairs and criminal investigation had been launched.
Public Defender Mano Raju, who was appointed after Adachi’s death, said on Friday that he was pleased that police “are keeping their word and working to get to the bottom of [the leak].”
However on Monday, after First Amendment advocates criticized police tactics and the targeting of a journalist, Raju issued another statement saying he had “no information regarding the justifications for the search conducted by the police.”
“Nothing about this statement should be interpreted as condoning specific police tactics in this matter,” Raju said.
Editor’s Note: The story’s first graf has been revised to clarify the nature of what the judges were told about Brian Carmody’s profession.