The Silha Center Bulletin

Fall 2019: Volume 25, No. 1

Fifth Judge Orders Release of Warrant Materials Tied to Searches of Freelance Journalist’s Home, Office, and Phone Records; Free Speech Group Files Lawsuit Seeking Additional Records

On Sept. 3, 2019, the First Amendment Coalition (FAC), a free-speech and media support group, released a statement announcing that the organization had succeeded in getting a “fifth and final warrant” unsealed regarding the May 10, 2019 searches of freelance journalist Bryan Carmody’s home, office, and phone records in San Francisco, Calif. In Re The Matter of Search Warrant, No. MISC-2516764 (2019). Previously, four other judges had ordered the release of documents related to four other search warrants executed against Carmody. Meanwhile, on August 20, the FAC filed a lawsuit in the Superior Court of California for the County of San Francisco against the San Francisco Police Department (SFPD) and Mayor London Breed in an effort to unseal additional documents related to the searches executed against Carmody.

On May 10, 2019, Carmody, who has worked in the Bay Area for nearly three decades as a freelance journalist, told the San Francisco Chronicle that earlier that day approximately 10 officers “banged” on the outer gate of his home, attempting to break the gate with a sledgehammer and crowbar. The SFPD executed a search warrant on his home, located in the Outer Richmond District. The police later executed a second warrant at his office located in the Western Addition neighborhood. Carmody said the police officers seized his confidential work materials, as well as his computers and cell phones, among other electronic devices. On May 28, the San Francisco Chronicle reported that the SFPD had executed at least five search warrants against Carmody, and perhaps as many as seven.

The searches occurred after Carmody provided three local television stations with a copy of a police report related to the death of Jeff Adachi, a public defender in San Francisco, prompting internal investigations by SFPD to determine who had leaked the police report.

Although SFPD initially defended the raid, SFPD Chief Bill Scott later apologized for the searches and seizures, stating SFPD “should have done a better job.” On May 16, Carmody tweeted that one of his lawyers, Burke and Ben Berkowitz, a partner at Keker, Van Nest & Peters, had filed a motion to quash the search warrants in the case, as well as a motion to return Carmody’s property, including 68 items of his work materials and electronic devices. According to Greg Hill & Associates in Los Angeles, Calif., under California Penal Code § 1538.5(a)(1), quashing a search warrant would not only challenge the lawfulness of the warrant, but also suppress evidence that was gathered by executing the warrant.

Separately, on May 20, 2019, a “Media Coalition” comprised of the FAC, the Reporters Committee for Freedom of the Press (RCFP), and the Northern California Chapter of the Society of Professional Journalists (SPJ) filed a motion in California Superior Court to unseal the SFPD’s applications for search warrants used pursuant to the search of Carmody’s home and office, as well as the warrants themselves and “arrest warrants, probable cause statements submitted to the Court in support of issuance of those warrants, returns, and lists of inventory seized.”

On July 19, San Francisco County Superior Court Judge Rochelle East quashed the search warrant she signed that was used by SFPD to search Carmody’s phone, calling the searches against Carmody “breathtakingly overbroad.” East also ordered that any sealed documents related to the warrant be released. In early August, three additional judges similarly ordered the release of applications for three separate search warrants they had signed, quashing them as well. (For more information on the background of the searches and the rulings by the four judges, see “Police Raid Freelance Journalist’s Home and Office, Prompting Criticism and Legal Action” in the Summer 2019 issue of the Silha Bulletin.)

On August 16, a fifth judge, Superior Court Judge Joseph Quinn, quashed the final search warrant, which also targeted Carmody’s cell phone records. However, Quinn initially did not order the warrant to be unsealed because of a pending request to redact police officers’ names. On September 3, FAC announced that Quinn had issued an order on August 22 “granting FAC’s motion to unseal a warrant application for a search executed on Carmody’s phone records.” FAC also reported that SFPD had released the record on August 30.

The full ruling is available online at: https://firstamendmentcoalition.org/wp-content/uploads/2019/09/Quinn-order.pdf. The unsealed warrant application is available online at: https://firstamendmentcoalition.org/wp-content/uploads/2019/09/Quinn-affidavit.pdf.

In its September 3 statement, the FAC contended that the unsealed warrant applications and other materials had shown “failings at multiple levels,” including:

FAC Executive Director David Snyder praised the rulings by each of the five judges. “We are grateful that Judge Quinn, like four judges before him, finally recognized the serious constitutional violations here — and that he recognized the public’s right to know what police told him before he approved the search warrant,” Snyder said in the September 3 statement. “However, none of this should have happened in the first place. Police should have never sought this warrant, Quinn should have never approved it, and FAC should not have had to file a motion to unseal materials that California law makes clear should have been public many, many weeks ago.”

Meanwhile, on Aug. 20, 2019, the FAC announced that it had filed a lawsuit against SFPD and Mayor Breed in the Superior Court of California. The complaint contended that the lawsuit was filed in an effort “to vindicate the public’s right to understand the political and law-enforcement processes that led to the now-infamous police raid on journalist Bryan Carmody’s home and office.” The complaint explained that although there were “clear signs that both the city’s law-enforcement establishment and its political leadership suffered crucial breakdowns leading to the Carmody raid,” the public still knew “virtually nothing about how the debacle came about.”

The complaint listed several questions it sought to answer, including “Who approved these raids within the police department? What role did the city’s elected leaders play in pushing for and/or authorizing the Police Department’s heavy handed tactics? Why has there been such silence from the Office of the Mayor about the police department’s egregious invasion of press freedoms?”

According to the complaint, the FAC had previously submitted requests for city and police records in June 2019, with the SFPD providing no records and the Mayor’s office yielding only “a smattering of documents.” The FAC contended that such responses were “inadequate under California and San Francisco law,” namely the California Public Records Act (CPRA), Government Code § 6250 et seq., and the San Francisco Sunshine Ordinance, Admin. Code § 67.1 et seq.

The complaint specifically cited Admin. Code § 67.24(d), which “obligates SFPD to produce records that might otherwise be exempt from disclosure” under the CPRA. The section specifies that police investigative records “shall be disclosed” once “the District Attorney or court determines that a prosecution will not be sought against the subject involved.” The complaint argued that because there was no open investigation concerning Carmody or Adachi, the release of relevant records would not jeopardize an existing investigation and were required to be released by SFPD.

The complaint further argued that the FAC “believe[d] . . . that the Mayor and her staff failed to make an adequate search for records responsive to the June 4 request, and the Mayor is therefore withholding public records from disclosure in violation of the Sunshine Ordinance and the CPRA.” The complaint therefore requested that the court order the respondents “to produce forthwith the records requested in Petitioner’s public records requests” or to show cause as to why the records should not be released.

The full complaint is available online at: https://firstamendmentcoalition.org/wp-content/uploads/2019/08/FACvSFPD-Mayor-1.pdf. As the Bulletin went to press, no further actions had been taken in the case.

— Scott Memmel

Silha Bulletin Editor