Published on June 25th, 2013 | by RLn Staff1
Remembering When Long Beach’s Outgoing City Attorney Tried to Suppress the Press
And Hoping His Successor Will Never Do the Same
By Greggory Moore, Guest Writer for Random Lengths News
Despite its being an elected position, only a relatively small percentage of residents know who their city attorney is, let alone have any real idea what he or she does. And only a small percentage of that small percentage can tell you anything specific about what the individual currently holding that office has done during his/her tenure.
Long Beach’s city attorney is Robert E. Shannon. He has spent 39 years in the City Attorney’s Office, 14 years as the boss. Like all city attorneys, he has been responsible for non-misdemeanor prosecutions, defending the city against lawsuits, and providing city officials with legal advice. During his tenure as Long Beach’s head litigator, his office has won roughly 80% of its jury trials.
Having been a journalist in Long Beach for only a half-dozen years, I don’t pretend to be an expert on Shannon’s four decades lawyering for Long Beach, an epoch that will end on July 2 with his retirement. But having extensively covered the City of Long Beach’s misadventures with medpot over the last four years, I have gotten a good look at the man at work. And I do know that on at least one occasion he used his office to threaten the press in an apparent attempt to suppress the dissemination of factually accurate information. So, while there may be others who are in a better position to give an overview of Mr. Shannon’s entire career, let me tell you one little story.
From the moment in late 2010 when the City of Long Beach adopted an ordinance allowing for the operation of select medpot dispensaries, the City began cracking down on what city officials liked to refer to as “rogue operators,” those dispensaries that had not won a spot in the City’s $15K-per-entry dispensary lottery. That cracking down ranged from letters and administrative fines to full-on police raids, sometimes complete with the pointing of assault rifles and the smashing of security cameras. In addition to Long Beach Police Department officers, two city officials often present at these raids were Business Relations Manager Erik Sund and Deputy City Attorney Kendra Carney.
On June 19, 2012, the THC Downtown Collective was subject to just such a raid. The difference on this day was that the police officers failed to locate all of the DVRs (which they have generally confiscated during such raids), and so video of the police engaging in these (to use Superior Court Judge Patrick T. Madden’s description of the LBPD’s methods in dealing with dispensaries) “strong-arm tactics” surfaced.
According to the American Civil Liberties Union, this camera-smashing violated the Constitution’s Fifth and Fourteenth Amendment protections against being deprived of property without due process of law, and so I wrote an article for the Long Beach Post posing a question: “Has the LBPD’s Camera-Smashing Exposed the City to More Lawsuits?”
The Post and I got a letter from Shannon a few days later, and it wasn’t a fan letter: it was a threat. “This Office demands the LB Post retract libelous statements printed on August 1, 2012 […],” it said. “Should you fail to immediately publish the requested retraction, and cease and desist from printing the above referenced false and malicious statements[,] the City Attorney’s Office will take appropriate legal action.”
According to Shannon, there were three statements at issue:
- “The matter [i.e., legal liability from the LBPD’s camera-smashing] may be made worse for the City by the fact that Deputy City Attorney Kendra Carney was present during the June 19 raid.”
- “The LBPD’s willingness to engage in the practice with a deputy city attorney present might be read as officers’ belief that the City Attorney’s Office regards such actions as legal.”
- “Carney […] declined to comment for this article.”
It was immediately evident that Shannon’s threats were at least partly empty, because it was a flat-out lie to suggest that Carney had not declined to comment: I had reached her by telephone, and she told me she was “not the person to comment” on the raid and told me she would have someone get back to me; and when no one did, I left her a couple of follow-up voicemails, then contacted the City Attorney’s Office generally for comment—all facts that phone records would support.
Nonetheless, I was thrown for a bit of a loop. Despite Carney’s regular presence during raids—and more importantly, three separate witness reports of her presence at this raid—might I have it wrong?
Fearful of a mistake, the Post pulled the story temporarily while I tracked down each of my witnesses. Not only did each confirm Carney’s presence at the raid, but now a fourth witness came forward. The Post put the story back online.
But Shannon’s language was vague. Could he have in mind the suggestion that “[t]he matter may be made worse” by Carney’s presence? or that officers’ actions with Carney present “might be read as officers’ belief” that Shannon and co. regarded the camera-smashing as legal? Sure as I was that this did not approach libel—truth, after all, is a 100% defense against libel in the United States, and there’s no case to be made that “may be made worse” and “might be read” are falsehoods, let alone malicious ones—I figured it couldn’t hurt to check with a lawyer. So I got in touch with the ACLU. Peter Bibring, a senior staff attorney, reviewed my article and Shannon’s letter, and offered to pen a response on the Post’s behalf.
“Both the article in question and the statements you point out address the role of a public official, Ms. Carney, in possibly unlawful actions by the Long Beach Police Department, which is unquestionably a matter of public concern,” Bibring wrote Shannon, before going on to break down the bogusness of Shannon’s threats, including pertinent findings by the Supreme Court. Then came Bibring’s closing volley:
For these reasons, any libel action you might bring would not only be baseless, but also would expose your office to liability under California’s anti-SLAPP statute, CCP § 425.16, for discouraging the LB Post and Mr. Moore from exercising their First Amendment rights in reporting on public officials for their conduct in matters of public concern.
I would hope this is not your only concern, however. As an elected official and an attorney, you have both the responsibility to uphold the Constitution’s protections for freedom of speech and the press, and the knowledge necessary to do so. Frivolous threats to litigate defamation claims against small, local press organizations do not comport with your obligation to abide by the law, as well as enforce it.
Always desirous to expose bad behavior, I went to the very next city council meeting so as to inform the mayor and the council of what their lawyer was doing on the company dime, passing out copies of Shannon’s letter and Bibring’s reply and noting that they could read all about it in the OC Weekly, with whom I had done an interview.
But just like I used to do as a little kid when humiliated that my bluff had been called, Shannon redoubled his efforts, writing to the ACLU letter and reiterating his threat. “Ms. Carney was not in fact present during the raid,” he claimed. However, he now conceded that I had, in fact, contacted his office about the raid. (A similar concession would come in his following letter. But first…)
Bibring once again penned a reply on our behalf. “Because three witnesses told Mr. Moore [Carney] was at the scene,” he wrote:
—and since then a fourth witness has come forward—and because Mr. Moore is aware that Ms. Carney has been present at other similar raids (documented not only via witnesses but also video footage), and because Mr. Moore knows that Ms. Carney works on the issue of marijuana dispensaries for your office so her presence during the raid would be sensible, it remains a subject of factual dispute whether Ms. Carney was present at the raid. But because you have finally made it clear that you deny she was present, if you would like to offer that comment for attribution, the Long Beach Post will gladly update the story with that information, specifying that, while multiple witnesses place Ms. Carney, who has been present at other raids, at the scene of the June 19 raid, your office and/or she denies that she was present.
That offer to allow them to comment on the record was my idea—not only because I’d solicited their comment in the first place, but I was more than willing to let them claim that, contrary to four witness statements (along with the documented history of her presence), Carney was not present. Such a claim would make it clear that someone was lying on the record, and I was just about certain that someone would be in the City Attorney’s Office.
Needless to say, they had no interest in making such a claim publicly, and Shannon’s follow-up letter made it pretty clear why. There’s an old rhetorical saying: When faced by a contradiction, draw a distinction. Shannon had put himself in a contradictory position he had claimed that Carney was not present at the raid, but he wasn’t about to say so on the record. So what did he do? In his August 27 letter, he drew a distinction:
[I]t is clear that [in the article] Mr. Moore is stating categorically that Ms. Carney was present, not just “during the raid” (the duration of that activity is not precise and could be meant to include the later inventorying of evidence) [… but] that she was present when the unlawful activity occurred; that is, when the cameras were smashed.
So in the course of 11 days Shannon went from claiming “Carney was not in fact present during the raid” to conceding that “the duration of that activity [i.e., the raid] is not precise and could be meant to include the later inventorying of evidence.” The latter is, of course, exactly right. A raid is not over when police put their guns away, but includes everything up until the authorities leave the premises with all that they’ve confiscated.
So Shannon had pretty much admitted Carney was there. Was she in the room while the cameras were smashed? I simply reported what I knew: that she was “never captured in-frame” while the officers smashed the cameras. Shannon protested this was my way of “stating categorically” that she was “present […] when the cameras were smashed,” by which he seems to mean in the room. That’s poppycock, of course, as Bibring pointed out in our third and final response to Shannon:
Although you suggest that reading the article “in context” reveals that it is “stating categorically” that Ms. Carney was present in the room when Long Beach Police Department officers smashed the cameras of the dispensary, that is simply not what the article says. The article discusses the raid by the LBPD at which officers smashed surveillance cameras, and says that Ms. Carney was present during the raid. In fact, the article explicitly notes that Ms. Carney is not visible in the video of the officers smashing cameras.
It is possible Shannon’s beef there hinged on the word “captured,” in that I was imply something like: She was in the room, but she eluded being captured on film. Shannon had never mentioned this phrase in his first two letters, of course, so it seemed pretty clear this was not about semantics. My best guess is that Shannon knew perfectly well that police shouldn’t be destroying property without giving its owners due process, and that it reflected rather poorly on his office for police being willing to do so while a member of his staff was with them (whether she was in the room while they did it, or if five minutes later she would be passing by the evidence of their destruction). And that he didn’t want anybody pointing that out.
The Post had gone on to run the raid story in its monthly print edition, and I proudly posted Shannon’s letters on my refrigerator. And that was that.
Except for this article, which I decided to write once I heard the announcement that Shannon was retiring. Fond remembrances of his time in office and choruses of “He’s a Jolly Good Fellow” might be fitting from his co-workers, but it’s probably more in the public interest to offer insight into how he may have abused the public trust.
Shannon says that part of the reason he is retiring now is to give his hand-picked successor, Assistant City Attorney Charles Parkin, who the city council just appointed to fill the remainder of Shannon’s term, an inside track to win the job in April 2014 election. I know next to nothing about Charles Parkin; and for all I know Robert Shannon was, on the whole, a good public servant. But part of his career was that month near the beginning of his last year in office, when he used his position to make a bogus libel accusation in an attempt to coerce a small publication into retracting a factually accurate article.
Residents of Long Beach—as well as the mayor and city council, whom the city attorney represents—can only hope that when Parkin leaves office, there is no such tale to tell about him.