Darrell Berkheimer: Two situations endanger our California liberties | TheUnion.com

Darrell Berkheimer: Two situations endanger our California liberties

Darrell Berkheimer

I turn into a conservative whenever any of our liberties or freedoms are being threatened. And we have two situations here in California that do just that.

The most recent is an abuse of power by two judges and the San Francisco Police Department, who approved and conducted an illegal search and seizure at the home of a freelance journalist.

The illegal search occurred May 10 at the San Francisco home of Bryan Carmody — after he acquired a copy of a police report that listed sordid details in the Feb. 22 death of Public Defender Jeff Adachi. Carmody obtained the copy from a confidential source and then sold information it contained to several news outlets.

In an attempt to obtain Carmody’s source, San Francisco Police, with search warrants in hand, used a sledgehammer on the security gate at Carmody’s front door. With guns drawn, and Carmody in handcuffs, police searched his home, then took him to his office, which also was searched.

If judges and police are allowed to ignore the law with an illegal search and seizure of one person’s property, who will be next?

Carmody remained in handcuffs for more than five hours as police took his cameras, laptops, phones and notebooks, including ones filled with information on nearly 30 years of his work.

Carmody’s refusal to reveal his source is supposed to be — and should have been — protected by the California Shield Law. That law prohibits compelling journalists to reveal confidential sources, even if the source provided information that was illegally obtained. Yet two Superior Court judges — Victor Hwang and Gail Dekreon — signed off on the search warrants, even though they are aware of that law and knew that Carmody is a journalist.

It’s been reported that Carmody is not well-liked because of the seedy way he earns a living. And details of Adachi’s death were considered quite painful to his family, prompting various officials and citizens to demand an investigation into how the police report was made public.

But those circumstances fail to justify an illegal search and seizure.

The point to be emphasized in this case is: If judges and police are allowed to ignore the law with an illegal search and seizure of one person’s property, who will be next?

Me? Or maybe you?

And if judges are allowed to get away with the violation of one law, what other law might they ignore the next time? The two judges deserve to be disbarred and removed from office. But we know that won’t happen.

The administrative police officers who approved of the search also should be penalized. Our top police officials are expected to know the search and seizure laws as well as the judges. And if they have doubts, there are plenty of defense attorneys available to explain the laws involved.

Police agreed to return Carmody’s items after his attorney filed a court action demanding the release of his belongings. And a group of First Amendment attorneys have requested the court to unseal the police department’s applications for the raid’s search warrants.

The situation also drew some sarcastic rebukes of police, the judges and city officials from San Francisco Chronicle columnist Heather Knight. She noted The Chronicle had the same leaked police report, but did not get it from Carmody and did not pay for it.

“Why didn’t the Police Department raid one of our homes and handcuff us? Would the police chief, Superior Court and mayor have been OK with that?” she asked.

After days of mostly silence and tacit support for police, KQED reported “a growing number of city officials are now questioning the search.” The station noted Supervisor Hillary Ronen was the first to speak out, saying, “The police have gone about this completely wrong.”

In talking to the San Francisco Examiner, Supervisor Matt Haney said the probe into the leaked report “should be focused within the Police Department, not on Carmody.”

And on Twitter, Haney added, “Knocking down the door of a journalist with a sledgehammer and seizing property is an unacceptable direct attack on freedom of the press.”


The situation also reminded me of something I read some weeks ago about the legal powers of the Border Patrol. Specifically, federal regulations give the Border Patrol authority to operate checkpoints and conduct searches within 100 miles of our U.S. border — but without first obtaining a search warrant.

“In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority … resulting in violations of the constitutional rights of innocent people,” according to a factsheet posted online by the American Civil Liberties Union.

The ACLU observed these problems are “compounded by inadequate training … a lack of oversight … and consistent failure … to hold agents accountable for abuse.”

Specifically cited is the Fourth Amendment to our U.S. Constitution, which protects Americans from random and arbitrary stops and searches. No matter what Border Patrol officers and agents think, “our Constitution applies throughout the United States, including within this ‘100-mile border zone,’ ” the ACLU factsheet added.

If you hadn’t thought about it, that 100-mile zone stretches out to this side of Sacramento, and could include any of our friends who might live in that area between Sacramento and Roseville.

As a matter of fact, that 100-mile zone includes roughly two-thirds of our U.S. population — about 200 million people. And nine of our 10 most metropolitan areas fall within that zone.

The regulations establishing that zone were adopted by the Department of Justice in 1953 — without any public comments or debate — and at a time when there were fewer than 1,100 border agents nationwide. Now there are more than 21,000, according to the ACLU.

In addition, even the 100-mile limit is sometimes ignored by the Border Patrol. And the ACLU has noted that at least two federal circuit courts have condoned Border Patrol operations outside the 100-mile zone.

These two situations — the Carmody search and Border Patrol abuses — are the operations employed by a police state, not by a representative democracy.

Darrell Berkheimer, who lives in Grass Valley, is a frequent contributor to The Union. He is the author of six books available through Amazon. His latest, Essays from The Golden Throne, also is available at Book Seller in Grass Valley. Contact him at mtmrnut@yahoo.com.

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