A close look at the Bryan Carmody case
On Feb. 22, the elected public defender of San Francisco, Jeff Adachi, suddenly collapsed and later died under circumstances that the police initially considered suspicious. Adachi, a 17-year veteran of the position, was a prominent police watchdog and critic. The night of his death, police conducted an investigation at the scene of his collapse.
Bryan Carmody, an independent stringer who, through his own reporting, creates news packages for sale primarily to local television stations, received the police’s report on the investigation from an unknown source and sold news packages based on it to several outlets. The leak of the report generated controversy. Adachi’s family, the public defender’s office, and the public criticized the police and city government over the leak.
The Reporters Committee for Freedom of the Press has been involved in the case from the beginning. Most recently, the Reporters Committee sued the Justice Department and FBI under the Freedom of Information Act to compel the disclosure of additional details in an effort to answer one of the more perplexing mysteries in the case: why FBI agents were present at the search, and why they questioned Carmody about the identity of his source for the police report.
The following is a timeline of the case and what we know about the legal details.
The Raid
On April 11, the San Francisco Police Department sought Carmody’s cooperation in identifying his confidential source from whom he obtained a police report related to Adachi’s death. Carmody had sold the report to three television news stations shortly after Adachi’s death on Feb. 22. As a journalist, Carmody is protected from being compelled to reveal confidential sources or journalistic work product under California’s shield law, and he declined to identify his confidential source to the police.
About a month later, on May 10, the SFPD came back to Carmody’s home with search warrants and a sledgehammer. Carmody, who had worked the previous night, awoke to the sledgehammer trying to take down the metal gate outside his door. He permitted the officers to enter, and they proceeded to handcuff him and “clear” the rest of the house at gunpoint. The SFPD searched Carmody’s entire home, attic, and garage while he was in handcuffs for the next six hours.
According to Carmody’s sworn declaration in his challenge to the search and seizure, while the SFPD officers were searching his home, two individuals who identified themselves as FBI agents took him into his home office and sat with him for approximately five minutes without any SFPD officers present. The agents repeatedly asked him to reveal the name of his confidential source, which Carmody declined to do. The agents also asked him if he had paid anything to receive the police report and said that they were asking because this was a possible case of “obstruction of justice.” Carmody alternated between staying quiet and asking for a lawyer. The agents also offered Carmody his cell phone to make a call, and said they would unlock it for him, but Carmody declined to provide the access code.
The officers learned during the search of Carmody’s home that he had an office where he operates his news service. Three hours later, SFPD officers escorted him — still in handcuffs — from his home, put him into the front of a San Francisco police car, and drove to his office on Fulton Street. Carmody waited over an hour for the SFPD to get a second search warrant for his office. The SFPD showed him the second warrant, sat him down in a chair (while he was still in handcuffs), and searched his office. After about six hours in handcuffs, he was finally released, and the officers carted away his newsgathering equipment and work product.
The incident sparked a nationwide controversy in part because it came in the midst of escalating anti-media rhetoric, a proliferation of media “leak” prosecutions by the Justice Department, and other possible indicators that law enforcement’s traditional caution when it comes to investigating the press may be eroding. No-knock, forced entry search warrants of a journalist in a leak hunt are exceedingly rare; the Reporters Committee is not aware of a similar case. The unexplained presence of the FBI at the search — and the fact that agents questioned Carmody about his source — amplifies the press freedom concerns in the case.
Motions to Unseal and Quashed Warrants
On May 16, Carmody filed an application to quash all search warrants issued against him on the grounds, among other things, that the SFPD illegally searched and seized his newsgathering materials in violation of the state’s constitution and shield law, as well as the U.S Constitution. In support of Carmody’s motion, a coalition of 60 media organizations, including 19 California entities and led by the Reporters Committee, filed a friend-of-the-court letter arguing that the California Constitution, the state’s shield law, and likely the federal Privacy Protection Act barred the use of a search warrant to seize journalistic work product and newsgathering equipment. The brief urged the court to issue an order immediately returning Carmody’s work product, documentary materials, and newsgathering equipment seized by the SFPD.
On May 20, the Reporters Committee, First Amendment Coalition, and Northern California Chapter of the Society of Professional Journalists filed a motion to unseal Carmody’s arrest and search warrant records in San Francisco Superior Court. The media coalition sought access to “all search 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 18, Superior Court Judge Rochelle East quashed and unsealed the 11-page warrant San Francisco police used to seize Carmody’s phone records in May. This was the first of five warrants that various judges issued against Carmody to be quashed and unsealed. Judge East found that the search warrant should have never been issued, stating that investigators did not inform her that Carmody was a journalist who has had a police press pass for 16 years and was clearly protected under California’s shield law.
On Aug. 2, three other San Francisco Superior Court judges quashed three warrants obtained in the search of Carmody’s phone, home, and office, and ordered their contents unsealed. Judge Victor Hwang, along with judges Gail Dekreon and Christopher Hite, quashed the warrants, and ordered police to return all of Carmody’s seized property and destroy any materials they obtained from the illegal searches. The final warrant to search Carmody’s belongings was quashed and unsealed by Judge Joseph Quinn on Aug. 22.
All five judges agreed that the search warrants were improperly issued against Carmody in violation of the state’s shield law. That law is clear: law enforcement cannot use search warrants to force journalists to disclose their sources and unpublished information.
The FBI and the Carmody Raid
Why were FBI agents present during the raid, and why did they question Carmody? According to an FBI spokesperson, the agents were present to “interview Carmody,” which suggests a federal angle to the case.
The Justice Department has a set of internal policies that govern the use of certain law enforcement tools against members of the news media in order to ensure newsgathering activities are not unreasonably impaired. Even to just question a reporter, these policies require that members of the department obtain the attorney general’s “express” approval. That approval is also required to obtain and execute a search warrant against a member of the news media. There is nothing in the public record that answers whether attorney general approval was sought to question Carmody. The FBI’s spokesperson who confirmed the presence of the agents said that they did not participate in the execution of the search warrant.
This is why the Reporters Committee sued the FBI and the Justice Department under the Freedom of Information Act seeking all records from the FBI, the Justice Department’s Criminal Division, and the Executive Office of U.S. Attorneys related to Carmody, and all communications between the FBI and various California agencies that mention, refer to, or discuss Carmody. The Reporters Committee’s complaint, filed on Sept. 23 in the U.S. District Court of the District of Columbia, alleges that the government failed to comply with statutory deadlines and unlawfully withheld records.
Both the Criminal Division and the EOUSA have acknowledged the Reporters Committee’s request but failed to provide any responsive documents by the statutory deadline. The FBI denied the request, citing FOIA Exemption 7(A), which permits withholding of “records or information compiled for law enforcement purposes” if production of those records or information “could reasonably be expected to interfere with enforcement proceedings.” The Reporters Committee administratively appealed the FBI’s invocation of Exemption 7(A) to the Justice Department’s Office of Information Policy, which upheld the FBI’s decision.
Increasingly hostile rhetoric toward the press, combined with an uptick in the pursuit of leaks cases, raise a serious concern that traditional prosecutorial forbearance with journalists is waning. There may be legitimate law enforcement reasons for the presence of the FBI at the search (though the questioning of a reporter about a confidential source is always concerning). Regardless, because the government refuses to comply with its statutory duty to disclose the requested records, we do not know whether or to what extent the FBI was involved in this raid, and if so, whether the Justice Department’s internal policies were followed.
The Justice Department policies were put in place to handle criminal investigations in a careful and thoughtful manner based on a particular set of circumstances and provide meaningful protections for newsgathering. The public deserves to know whether these policies were followed, and if they weren’t, the FBI needs to provide public justification.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.