Concentrate, Steve. Try to focus.
There is a federal law. It governs searches of newspaper offices. It says such offices may not be searched unless one of certain enumerated circumstances is present. The law applies to any “government officer.” You are a government officer. The law applies to you.
On Wednesday, you issued a new “policy on media.” In it, you proclaim as a matter of “policy” a desire to avoid searches of news media offices. I’m glad you have gained such a desire. The problem is that avoiding searches of news media offices is not a matter of your policy, but, rather, Congressional policy, stated in terms of a law. It is a law to which you are subservient, and it is a law which is broader than your “policy.”
That law rendered impermissible the May 2 raid of the Metropolitan News Company building by 11 armed investigators from your office who were seeking documents showing what law firm had placed a particular legal notice with us. Our entire staff was ejected from the premises while the rooms were diagrammed. That was bad. Many people have told you that was bad. The L.A. Times said in an editorial: “Cooley’s invasion of the Metropolitan News evokes images from countries where newspapers either toe the government line or find their offices padlocked and their reporters jailed.” The Daily Breeze commented: “Disrupting a newspaper’s operations and threatening a newsroom search is patently wrong. The D.A.’s actions raise serious First Amendment issues….”
Concerned with your image, you are putting on a “good guy mask” — but a mask is all it is.
•You insisted repeatedly in your interview with MetNews Associate Editor Robert Greene on Wednesday that the take-over of our premises on the morning of May 2 was “lawful.” You know, or should realize by now, that it was not.
•Your policy mentions a state statute which proscribes searches for journalistic materials. It seeks to create the illusion that you, out of conscience and beneficence, are providing broad protection from searches on the premises of news operations even where journalistic materials are not sought. However, you fail to take cognizance of the federal statute which, in all but a few instances, puts such premises off limits to investigators.
•And, you have yet to apologize for the May 2 intrusion by your storm troopers.
More than six months have passed since you staged your invasion. You have had ample time to look at the federal statute and figure out what it means. It really isn’t all that complicated.
The statute is 42 U.S.C. §2000aa. It says that it is “unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize…documentary materials…possessed by a person in connection with a purpose to disseminate to the public a newspaper…in or affecting interstate or foreign commerce.”
You were seeking documents. They were possessed by persons in connection with the purpose of putting out a newspaper. The interstate commerce proviso is satisfied, under case law, by a newspaper merely purchasing goods or services that are in interstate commerce, such as paying for a wire service. This means you were legally foreclosed from searching for or seizing the documents you wanted — even with the warrant you got Los Angeles Superior Court Judge William Pounders to sign — unless one of the exceptions in §2000aa applied.
None did.
•“National security” was not implicated;
•There was no criminal activity on our part;
•Child pornography was not involved;
•There was no need “to prevent the death of, or serious bodily injury to, a human being”;
•There was no threat of our destruction of the materials — materials we had earlier agreed to relinquish upon receipt of a subpoena, or if we were simply told the name of the law firm you suspected so we would not be betraying the privacy interest of a customer.
And this was not an instance where a subpoena had been served but snubbed.
The statute says it is “unlawful” to search a newspaper office except under the enumerated circumstances. You commissioned a search of our office, a newspaper office. None of the enumerated circumstances was present. Inescapably, the conduct you commissioned and directed was “unlawful.” For you to contend to the contrary constitutes either ignorance or an obstinate refusal to admit you erred when you know that you did.
The warrant was contrary to the statute. It was facially invalid. If §2000aa were not in existence, the warrant would have been grotesquely overbroad, authorizing as it did a search of “editing” materials, wallets, purses, and trash containers. But inasmuch as the statute does exist, overbreadth is not an issue; a search of even one square centimeter of the office was impermissible.
Too, the exclusion of our entire staff from the premises was not authorized by the warrant and was in direct defiance of a United States Supreme Court decision which, prior to the enactment of §2000aa, permitted newsroom searches under some circumstances — with the proviso that there be no interference with news operations. The ejectment of reporters put news operations at a standstill.
And yet, you persist in labeling the May 2 offensive “lawful.”
The new policy you have issued is commendable to the extent it constitutes an implied recognition that you botched the effort to obtain information from us last spring.
About two weeks before the incident, an investigator contacted my wife, Jo-Ann Grace, and told her she wanted records showing what law firm had placed a legal notice relating to the South Gate recall election. Jo-Ann said we would surrender them if they were subpoenaed — or if the investigator would tell her what law firm she thought it was, and were correct. The investigator said she was not immediately prepared to reveal the name of the law firm under investigation, but would look into that possibility. She never got back to Jo-Ann.
We wanted to cooperate, but also needed to show some deference to the interests of our customer.
On the day of the raid, in our telephone conversation, I told you — as I told investigators trespassing on our premises — that we would surrender the materials in response even to a formal written demand that fell short of a subpoena. When I asked you if we couldn’t work it out, you snorted: “We don’t need to work it out. We have a search warrant.”
You apparently had a need to show (possibly because two of your lieutenants were on the line) how tough you are. What you really revealed is how bullheaded you can be.
In issuing the new guidelines, you do prescribe efforts short of seeking search warrants to obtain materials. You evince a recognition — which you lacked on May 2 — of how offensive and extreme the use of a search warrant is when the premises are those of a journalistic enterprise. You’ve made some progress, and are to be commended. Yet, while you seem to recognize you made errors in judgment, you still refrain from issuing an apology. And you refuse to acknowledge the existence of the federal statute, a disquieting failing which presages future activity by your office in defiance of that statute.
Here are some of the provisions of the guidelines, followed by my comments.
“It is the policy of this office not to seek search warrants for news media offices or homes of news media personnel when less intrusive measures are available.”
Less intrusive measures were available on May 2. In the end, we turned over the materials once we realized you already knew what law firm had placed the notices with us. Had your investigator merely telephoned Jo-Ann a second time and disclosed that, no confrontation would have occurred. It was not your desire or your instinct on May 2 to back down from use of the most intrusive measure. If you now realize that your approach was errant, you are remiss in failing to acknowledge that and issue a public apology to us.
“If an item believed to be in the possession of the news media is sought by this office, and that item is not otherwise protected by the newsperson shield law, attempts should first be made to obtain the item by consent or subpoena.”
Good approach. Jo-Ann told the investigator we would respond to a subpoena or would consent if the investigator would tell her what law firm she thought had placed the notice with us. A confrontation could have been avoided had this policy been in effect then — or if common sense had been demonstrated by you. Yet, you will not concede any semblance of fault on your part.
“If consent cannot be obtained, and a subpoena is unavailable, a search warrant may be considered for items that are not protected by the newsperson shield law.”
This ignores the existence of §2000aa. A proper statement would be: “If consent cannot be obtained, and a subpoena is unavailable, a search warrant may be considered for items that are not protected by the newsperson shield law if one of the exceptions enumerated in 42 USC §2000aa is present.”
“If a news media search warrant is approved, the possessor of the item(s) sought shall be contacted before the warrant is served, consistent with the demands of any emergency, and given an opportunity to produce the item(s) voluntarily, unless it is believed that such notification would result in the destruction or secretion of the item(s).
“If the possessor does not produce the item(s) voluntarily, he or she shall be notified of the time and place of the search and permitted to be present as long as he or she does not interfere with the lawful execution of the court order.”
If §2000aa did not exist, this would be a salutary policy, aimed at preventing the sort of conflict that took place May 2. But, Steve, can you not get it through your head that §2000aa does exist? A search warrant of news premises is allowed only if one of the enumerated exceptions is applicable. Do you really want deputies in your office to warn a newspaper of an impending search if one of the extremely rare circumstances providing an exception is present — such as there being national security implications, criminality at the newspaper being afoot, the premises being a repository of child pornography, or there being a need to prevent the death or beating of a human being? Wake up. Under the federal statute, a search of the premises of a news operation is permitted only if circumstances exist which would render highly inadvisable, indeed stupid, any forewarning of a search.
“Consistent with the demands of each situation, the execution of the search warrant should be handled, if possible, so as not to disrupt any lawful business being conducted at the location of the search.”
On May 2, our lawful business operations were disrupted. No work could be done by our employees who were on the sidewalk in front of the building for three hours, instructed by investigators that they would either stay there and not stray, or go home for the day. No one knows how many sales were lost by virtue of unanswered phone calls to our offices while your goon squad was occupying our premises, or by virtue of your troops picking up the phone and announcing we were closed for the day. You, personally, had actual knowledge of what was going on, as evidenced by discussions in our phone conversation that morning. Your institution of a policy aimed at preventing such affronts in the future is unaccompanied by a public apology to us for the willful and unlawful interference with our business operations on May 2. It is not coupled with an agreement by your office to pay the salaries of our employees for the three-hour period they were idled by the senseless exclusion of them from their workplace. As I said, you’re merely putting on a “good guy” mask. You are unrepentant and unreformed.
The policy also calls for approval from the chief deputy district attorney of any effort to search a news office, and a statement of what was being sought “with sufficient specificity” that “statutorily protected items” won’t be the subject of a search. This is meaningless. The warrant for a search of our premises was approved at a high level, and it was stated with specificity what was being sought. It did not take into account that the place to be searched — a newspaper office — was exempt from being searched in light of §2000aa. The statute will not evaporate simply because by your wishing it away.
In light of all the circumstances, your new policy cannot realistically be regarded as other than a ploy to counter the negative publicity you incurred as a result of your May 2 blunder, and to create a false appearance of the institution by you of a pro-press policy.
When you entered the race for district attorney, as an underdog, you were a different person from what you are now. You have gained power; as Lord Acton observed, power corrupts. The unassuming, honest fellow you were when we first met you are no longer.
You have become the sort of person you once held in contempt.
What a pity.
Copyright 2002, Metropolitan News Company