Police raid on reporter in San Francisco erupts into 1st Amendment debate
Police raid on reporter erupts into 1st Amendment debate
By JANIE HAR May 23, 2019
SAN FRANCISCO (AP) — A battle between the press and
police is playing out in politically liberal San Francisco after police raided
a freelance reporter’s home and office seeking to uncover the source of a
leaked police report into the unexpected death of the city’s former elected
public defender.
Journalist Bryan Carmody did not commit a crime when he
acquired and published a police report, said First Amendment expert David
Snyder because a police report is “not a confidential, legally protected
document” and its disclosure and publication is lawful.
Snyder said a journalist who participated in unlawfully
acquiring information could be successfully prosecuted for a crime, but that
was not the case here.
Carmody said he received the report from a source and did
not pay for it, though legal experts argue doing so would not have been a
crime. Still, San Francisco Police Chief William Scott said the journalist
“crossed the line,” motivated by profit or animosity toward the late public
defender, Jeff Adachi.
An autopsy found Adachi died Feb. 22 of a mixture of
cocaine and alcohol, compromising an already bad heart.
Attorney Duffy Carolan, who represents several media
organizations siding with Carmody, agrees that the public has constitutional
rights to public records.
“The impact of trying to criminalize disclosure of public
records, whether or not it violated internal policy or practice, will have a
profound effect on public employees’ willingness to disclose public records,”
she said. “It would have a chilling effect.”
San Francisco Sgt. Michael Andraychak said Wednesday that
the report was not a public record and that state law protects crime reports
when “disclosure would endanger the successful completion of the investigation
or a related investigation.”
Media experts counter that although the law allows police
to keep reports secret, nothing in the law stops them from releasing the
information. They note police did not raid the office of San Francisco
Chronicle reporter who obtained the same information independently of Carmody.
The newspaper has said it did not pay for the report.
Police used a sledgehammer to try to get into Carmody’s
home and handcuffed him for hours as they searched and subsequently removed
dozens of cameras, cellphones, computers and other equipment.
“We believe that that contact, and that interaction went
across the line,” the police chief said Tuesday in his first remarks since the
May 10 raids. The department said the same day at a court hearing that
Carmody’s property would be returned while the legal wrangling proceeds.
Reporters and other First Amendment organizations want a
judge to revoke search warrants that authorized the raids and to unseal the
materials submitted in support of them. Because the warrants are under seal,
it’s not known what information police provided to support the search, or
whether they disclosed that Carmody is a journalist.
The U.S. Supreme Court has ruled that journalists are
free to report on newsworthy information contained in stolen documents or
illegally intercepted telephone communications obtained from a third party who
violated the law, said Carolan.
The justices may have ruled differently had the
journalists encouraged or aided in the unlawful interception of the call, she
said. But that is not the same as a reporter encouraging a public official or
public employee to provide a public record.
“That is what reporters do every day,” Carolan said.
California’s shield law specifically protects journalists
from search warrants. The Associated Press is among dozens of news
organizations siding with Carmody and seeking to submit a friend-of-the-court
brief.
Snyder, of the First Amendment Coalition, said the
chief’s comments seemed to suggest a police employee may have accessed an
unauthorized system to obtain confidential information, which the report is
not.
“Would an offer by the journalist to pay the source to
break the law be enough? Maybe. It would depend on the circumstances,” he said.
“I don’t think it matters what Carmody’s motivations
were. The question is: Was his conduct protected by the First Amendment? And
all the facts I’ve seen thus far show it was,” he said.
Scott has not provided details of the leak investigation
other than to say that Carmody was an active participant in acquiring a police
record, which the reporter then sold to three television news outlets as part
of a news package that included information obtained from interviews and video
footage from the scene of Adachi’s death.
Carmody has not responded to requests for comment,
although he posted on Twitter on Wednesday the hashtag #journalismisnotacrime.
A GoFundMe campaign has raised more than $16,000 for him.
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