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Saturday, May 25, 2019

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Posted by Howard Wasserman on May 25, 2019 at 03:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

And now the union is claiming that the police chief must resign, presumably for not being completely loyal to the cops on the line and exposing them to hurt feelings for making a mistake.

I'm generally pro-union, especially for public employees, but sometimes their unconditional-loyalty-to-members culture goes a bit overboard. Like in, say, Chicago during the era of John Burge, or Seattle now, or... It makes determining whether management is — as is its default position! — being abusive needlessly difficult. In this instance, the officers appear not to have fully complied with policy, but the policy as described was woefully inadequate in the first place and apparently seldom enforced (except when publicity required) in any event. And the less said about the political/partisan issues in the DA's office — especially relations to the particular investigation — the better.

Posted by: C.E. Petit | May 27, 2019 10:42:04 AM

From a nonlegal perspective, this story about the police smells. The Public Defender was an elected official who was highly critical of the police department throughout his time in office. Other progressive elected officials were quoted following his death how terrible it was that the details (cocaine, with a woman not his wife) were leaked. Does this sound like the kind of case that individual police officers would engage in such an aggressive manner unasked by superiors?

Posted by: PaulB | May 26, 2019 11:00:58 PM

Howard writes: "There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. "

How is it even relevant under the Fourth Amendment? I would think Zurcher v. Stanford Daily, 436 U.S. 547 (1978), indicates that it has no Fourth Amendment relevance at all.

Posted by: Orin Kerr | May 26, 2019 5:21:15 AM

By the way,one may reach the California shield law,here( after an introduction):

https://firstamendmentcoalition.org/resources-2/news-gathering/california-shield-law/

Posted by: El roam | May 25, 2019 5:11:07 PM

Interesting, but just worth to note, that, the police chief has admitted that, I quote the related news article:

Scott said the officers who executed the search did not consult with the district attorney’s office before obtaining the warrants — a violation of department policy.

End of quotation:

Now, if there is indeed such formal policy to consult the district attorney in such cases, we may have an issue per se of course. This is because, it may be enough to suggest the legal source and violation of it, for clearly establish the constitutional violation.For example, one may argue of course, that fourth amendment has been violated, because, such search, was clearly unreasonable in light of formal written legal source for the manner to conduct such search and seizure, and violation of it, head on so.

Thanks


Posted by: El roam | May 25, 2019 4:12:14 PM

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