With the suspects now facing trials, Bait Car producers won't give defense attorneys show footage as evidence. On what grounds? The shield law for journalists.
It was Friday the 13th, and the car that drove up on Divisadero was bad luck from the start. Cullen Farrell, a 32-year-old stage technician who has refined dropping the F-word into an art, recalls dragging on a Camel Light in front of Mini Bar, near McAllister Street, as he talked with bar owner John Ordona. Suddenly, a silver 2007 Honda Accord stopped in front and two yelling women got out and fled in a cab. There sat the car — blocking the lane closest to the curb, door open, idling with the keys in the ignition. “I'm like, 'What the fuck is that?'” Farrell recalls.
If you know Farrell, as most regulars at Mini Bar seem to, you'd know his boisterous flip-you-the-bird-to-say-hello personality includes a streak of Good Samaritan. Back a few years when a driver got shot by a wayward bullet just down the block, he was the one who ran to help. A friend drinking with Farrell at Mini Bar recently said his do-gooder impulses can border on naive. Farrell will start nursing school next month.
So while many would decide the abandoned car was none of their business, Farrell decided to take action. “I look at John and I'm like, 'This is really weird,'” he recalls saying. “Call the cops. I'm gonna move this car.”
Farrell hopped in the driver's seat and drove around the block, he claims, to find a parking spot. He noticed the accelerator seemed sluggish, as though it had a limiter on it, and after spotting a cop car coming the other way, his thoughts turned to “Something is wrong, and now I'm in a car that's not mine.”
Anxious to get the heck out, Farrell parked in a bus zone at the corner of McAllister and Divisadero — just feet from where the women had ditched the car — and flicked on the hazard lights. But getting out of the situation wouldn't be so easy. As he stepped out of the car, bedlam erupted.
Motorcycle cops zoomed in, followed by several squad cars. As the police were barking orders, at least three people holding videocameras swarmed around him, capturing the whole spectacle. A big light illuminated him, and passersby stopped to gawk. “Real subtle stuff,” he remembers, sarcastically. “Not embarrassing at all.”
Farrell was under arrest, charged with stealing a car. And with the help of the San Francisco Police Department, it was all caught on tape for a nationwide reality TV audience.
For several weeks in August and September, the SFPD entered show business. Police Chief George Gascón, a press-savvy leader from the media-friendly LAPD, approved the department's participation in Bait Car, a reality show on the truTV cable network that airs alongside programs like Operation Repo and Las Vegas Jailhouse. (Gascón accepted former Mayor Gavin Newsom's appointment as district attorney on Jan. 9.)
Police netted more than 30 alleged car thieves, many of whom you can see in the episodes that have aired since late December. What you won't see disclosed on TV is the special relationship between the police and the producers — the fact that Hollywood-based KKI Productions donated two specially outfitted bait cars worth $31,000 to the police's fleet. The show won't reveal that KKI paid hundreds of thousands of dollars in overtime to dozens of police officers. The sergeants in charge say sometimes the officers were on the clock.
You also won't see what happens to the people caught in the sting once the cameras are turned off. Two men were thrown in prison for parole violations. Some pleaded guilty. Others face trials on misdemeanor and even felony joyriding charges.
But other cases have been dismissed for a lack of evidence that the people caught on camera were actual thieves, although many of them are called thieves on the show.
Defense attorneys are crying entrapment and say it's a massive waste of the SFPD's time and resources for the sake of entertainment and a couple of free cars. Of course, while KKI spent $40,000 per episode to film here, the alleged thieves — the stars of the show — don't get a dime.
Along with the criminal issues at hand, San Francisco courts have now plunged into the middle of a national legal debate. Do reality TV producers who record criminal acts deserve the same protections as journalists? Public defenders have requested all the footage of their clients — showing their actions and words before getting into the car, and whether the car was illegally parked or creating a hazard.
But KKI is refusing to hand over footage to the defense, except for the portion taken by one camera inside the car. On what grounds? California's shield law, a safeguard to stop reporters from having to turn over unpublished material as evidence. In short, the Bait Car producers are claiming to be journalists. Farrell blasts their chance of success in court like a rowdy reality TV character plugging an upcoming challenge: “They're going to get their ass handed to them. They're not journalists. They're fucking shills.”
Bait Car has some things to say about Farrell, too. If you tuned in for the first San Francisco episode on Dec. 27, you'd never know that the district attorney's office ended up dismissing his case “in the interest of justice.” The show opened with a shot of Farrell driving the bait car and the bluntest of introductions: “This is a car thief.” Later on, Farrell spews the F-word (which is bleeped out) while getting arrested as the narrator intones, “A cocky car thief thinks he's above the law.”
Al Tompkins, a broadcast news expert at the Poynter Institute, a school for journalists, says Farrell may have a defamation claim for being portrayed in a false light. Turner Broadcasting, the owner of truTV, declined to comment for this story. But the show seems to be prepared for legal actions like that, flashing a disclaimer at the beginning of each episode: “All individuals on this show are considered innocent until proven guilty.”
The show's ruse is simple: Women undercover cops leave a car idling with the key in the ignition. They feign a loud profanity-laced argument before taking off in a conveniently placed cab. Once someone gets into the car and drives away, the cops can remotely track it, kill the engine, and even lock the doors to trap the person inside. Then they descend, guns drawn, and demand that the arrestees explain why they were in the car. The scenario plays out again and again onscreen, with a voice-over providing snarky asides (“Then the cops catch this guy on a bad day.”).
The appeal? “It's just fun to see bad guys get caught,” says Sgt. Sean McKeever, who was a fan of Bait Car even before he played a role in it. Since its debut in 2008, truTV (slogan “Not reality. Actuality.”) has banked on the rowdy exploits of society's underbelly to climb the cable rankings. An April press release from Turner gloated that the channel had become one of the top 10 ad-supported cable networks watched by adults during prime time, with 70 new advertising clients signed on in the past year.
Fortunately for the network, much of the show's “talent” comes for free. Soon after the alleged thieves have been arrested, a KKI rep presents the suspects with a release form to use their likenesses on the show and to forfeit the right to sue the company or the police.
Yet people arrested say the company barely explains the fine print. Farrell says a KKI employee got in the squad car beside him and held out a clipboard and a pen: “You must be so confused right now,” he recalls her saying, “Sign this to say we didn't entrap you.” He refused, though he still ended up on the show with his first name bleeped out. According to state law, entities using people's likenesses for commercial purposes must get their permission. News programs do not.
Another man arrested in the sting says he was so confused by the police bust and swirling cameras that he had no idea what he was signing — he thought that the “release” might, indeed, get him released. He decided not to use his name for this story after SF Weekly informed him that the contract also bans him from talking to other media without truTV's permission. “Now I know they're full of shit,” he says.
The show signals a new era for the SFPD, with one officer saying that former Chief Heather Fong would never have signed off on a reality show. “We would never do a cop show, because they didn't want anyone to see what we did,” says Sgt. Carl T, a 29-year department veteran at Central Station. (He legally changed his last name to “T” to outsmart a high-ranking commander who told him he couldn't print just “Carl T” on his name tag.)
But former Chief Gascón comes from the LAPD, where he rose in the ranks while the department participated in its own reality cop show, LAPD: Life on the Beat in the '90s. “He's a media whore,” Carl T says of Gascón. “That's the L.A. shit. They're all about the media. … It really is very un-San Francisco.”
There's no doubt that mixing “reality” TV with real-life police work can be a troubling enterprise. In 2006, a Texas man who allegedly had sexually explicit exchanges with a decoy posing as a 13-year-old boy shot himself in the head when police barged into his house for Dateline NBC's To Catch a Predator. Last year, Detroit police shot and killed a 7-year-old girl in a chaotic raid of a house while followed by cameras from A&E's reality murder investigation show, The First 48. The girl's family has filed suit against the police department and the network, saying it “encouraged Detroit police to conduct an illegal, overly aggressive, and unnecessary raid.”
SFPD spokeswoman Lt. Lyn Tomioka says Gascón approved Bait Car after conferring with law enforcement in other jurisdictions that participated in the show, which has filmed in L.A., New Orleans, and Las Vegas. Carl T says the department couldn't pass up the free cars and overtime: “Everyone has their price and everyone can be pimped out, including cops.”
Indeed, Bait Car was an overtime jackpot. According to police records requested by SF Weekly, KKI paid more than 2,000 overtime hours for nine sergeants, three inspectors, and 41 police officers involved in the show. (The public defender's office calculated that an average of 10 police officers worked the sting at any one time.) At pay rates of up to $102.27 an hour at night for a sergeant, the production company ended up shelling out $204,990.56 to the SFPD.
The police say their primary motive was law enforcement. “Even though this was a show, our main goal was to catch criminals,” McKeever says. The stings caught 32 alleged thieves, all of whom police say had previous marks on their records, including DUI (as Farrell did) and robbery. Police say they didn't select specific people to drop the car in front of, but simply left them in hot zones for car thefts — SOMA, the Tenderloin, Bayview, Visitacion Valley, and the Mission.
Still, it's hard to believe that some locations weren't chosen to make good TV. In the first San Francisco episode, the squad starts by parking the car in front of Diva's, a Tenderloin strip club for transgender women.
A 6-foot-tall woman leaning up against the wall holds off another guy approaching the car to get in herself.
Upon arresting the woman, Officer Nancy Guillory asks for her name. She says, “Uh, my male name?”
“Are you a male or a female?” the officer asks.
The show cuts to Guillory's armchair commentary: “To be honest with you, I was shocked.” A bemused McKeever then adds: “So many times you can sit here and say only in San Francisco — it only happens here.”
While some scenarios seem calculated for television, critics say they also smack of entrapment. It appears to be a common accusation, one truTV doesn't seem to shy away from: The show's website hosts a debate about whether cops are luring people to commit a crime they would otherwise be unlikely to commit.
“If you're walking down the street hungry and starving for food and there's a big ham sandwich there, you're probably going to eat it,” says Carl T, who says he turned down a suggestion from his station captain to perform a bait car operation. “It's ludicrous, the length we'll go to,” he continues. “There's enough legit crime in the city — why do we want to create more? … If you really want to push this issue, you can allege [the police and the show producers] are coconspirators in the crime. Nobody walks away without blood on their hands.”
Carl T adds that stings often snag more down-on-their-luck opportunists than career car thieves. Guys like the scraggly man with missing teeth on one of the episodes this month. “I know you guys are wasting taxpayers' money with me,” he told the police on the show. “You guys got — I don't know how many cop cars for this when there's people out there really doing stuff, you know what I mean?”
Cut to Officer Brandon Lew's rebuttal: “He felt the crime that he committed didn't justify the amount of resources we were spending on it. But you know, given the success we've had today [catching alleged criminals], I think it's pretty necessary.” The circular logic: If the trap catches a mouse, then it's a good thing you set a trap. (The man was no angel, having at least 21 prior arrests in San Francisco, according to court records.)
Defense attorneys, predictably, aren't sold. “Not only are they creating the crime itself and the conditions,” says Bob Dunlap, a deputy public defender, “but to do it for profits and make a reality TV show out of it is just distasteful.”
The Bait Car operation seems to be unsettling to some San Francisco judges as well. The district attorney charged the alleged thieves with a joyriding statute of “either temporarily or permanently” taking a car “without the consent of the owner.” It's a lower burden of proof than grand theft auto, which requires proving intent to permanently steal the car. Yet the joyriding statute can be charged as either a misdemeanor or felony, and is still punishable by up to a year in jail or prison and/or a $5,000 fine.
In a preliminary hearing in September, Deputy Public Defender Steve Rosen grilled a police officer on whether his client had taken a bait car parked near housing projects in Visitacion Valley truly “without the consent of the owner.” (KKI owns the car during filming.)
Rosen put out his own bait: “And a successful operation would have been when somebody got in that vehicle, took that vehicle, and that person was arrested, right?”
“That's the whole goal of the operation, yes,” Officer Raymond Lee responded.
Rosen then argued that since the cops hoped the car would get stolen, there was no “lack of consent” as required in the statute.
Judge Donald Mitchell seemed to buy it. “I mean, the way that he expressed that he hoped that the car would be stolen is strange to me,” he said, also slamming the whole operation: “And to place a car in a poor neighborhood, I just don't like the concept.” He dismissed the charge.
Other defense attorneys accuse the police of being more concerned with producing good TV than doing good police work. In at least one case, a witness to the alleged crime said that police brushed him off.
According to a hearing transcript, Tinh Tran, the owner of Tenderloin coffee shop VN Coffee Sandwich, testified that he approached the police officers arresting the stranger who Tran had just told to move the car that was illegally parked in a bus zone. “I told them that this guy is not the person who stole the car,” he said through a Vietnamese translator. “The police listened to me, but they didn't say anything.”
Sgt. Kevin Dempsey, the other leader of the sting, says the police never took witness statements, often because the arrests happened far from where people got in the car. Still, he didn't recall turning any witnesses away. “If that's something [the public defenders] want to use as a defense, they can go try to track them down,” he says. Indeed, Deputy Public Defender Prithika Balakrishnan says her investigator found Tran only after the jailed client said to find “the Chinese guy.”
If Tran's testimony is true, Carl T says the police should have taken his statement. “It sounds like they had legit witnesses and the cops didn't do due diligence,” he says. “Witness statements that are exculpatory that could impeach the allegation — you have to take them down.”
Of course, one piece of evidence could largely render the need for subjective witnesses moot: the video footage. KKI is giving the city only the footage from the camera inside the bait car. While that shows someone getting in and driving away, it has limited information about whether the car was parked illegally, what went on before the person got in, or what the suspect said to police after getting out.
Defense attorneys argue that footage from multiple cameras could lead the district attorney to dismiss cases before heading to a costly trial, or help juries decide who's telling the truth.
Too bad KKI refuses to give the accused thieves the tapes.
California's shield law protects journalists from being in contempt of court for refusing to turn over sources or unpublished material such as notes or raw video. The law avoids the mired debate of what constitutes legitimate journalism. “One person's journalism is another person's tabloid nonsense,” says Tompkins, the Poynter expert.
Instead, the law defines the scope of the protection by who performs the work: anyone connected with a periodical, wire service, or radio or TV station. Federal courts have extended protections to anyone gathering information with the intent to disseminate it publicly, like documentary filmmakers and authors.
Now reality TV shows are testing the law's bounds. A Louisiana judge ruled that a production company didn't have to hand over outtakes of an arrest on Steven Seagal Lawman to a defendant charged with cocaine possession. The company's attorney had argued that Lawman covered crime, “the very essence of news.” California courts were faced with a similar issue when producers invoked the shield law to guard raw footage of The Real Housewives of New York City. The outtakes had been subpoenaed in a civil suit by a firm that had fired its president after learning he would be appearing on the show.
Still, media experts say KKI faces a tough battle in locking up the Bait Car footage.
The shield law is not an absolute protection. The state Supreme Court has ruled that in criminal cases, it must be weighed against a defendant's right to a fair trial. If a defendant shows that the information would help his case, a judge must then consider whether the material is confidential or sensitive, its importance to the accused, whether it can be obtained elsewhere, and whether releasing it would prevent the journalist from doing his job in the future.
KKI's lawyers waved the banner of the free press in its court filings, arguing that turning over the footage would hurt them by threatening “the appearance of neutrality necessary to the news gathering process.” (More on KKI's purported “neutrality” below.) KKI suggested that the defense could interview police officers and witnesses to get the same information that would be on the tapes.
KKI had one limited victory: In a case against a homeless man arrested in the Bayview, Judge Andrew Cheng ruled that the company is, indeed, protected by the shield law. But in balancing the defendant's with KKI's rights, he decided the defendant had the right to any footage that showed his conversations with law enforcement.
But on Jan. 3, Judge Gerardo Sandoval ruled that KKI had already waived its shield law right in its contract with the city. The contract states that the company wouldn't invoke the shield law if the footage were subpoenaed by the district attorney. Sandoval ordered the DA to subpoena the footage, and if KKI wouldn't hand it over, he would dismiss the two cases before him.
As of press time, the district attorney's office subpoenaed all the footage for the 10 pending bait car cases, and KKI's attorney said the company would comply. Both Judge Sandoval and Judge Cheng ordered the DA to turn over all the footage to the defense.
It took some battling, but in the end, the accused car thieves will get their tapes.
All this wrangling raises the question: Is Bait Car, as it argued in court documents, a “documentary-styled television program that shows viewers how local police departments are catching car thieves,” or is KKI helping stage a sting? Is it covering news or creating it?
Certainly, the show is not alone in blurring the line. To Catch a Predator contracts with the civilian group Perverted Justice to pose as kids on the Internet. The decoys lure the suspects to a house where the show has cameras ready to film the police bust.
While that show has raised many eyebrows, KKI's agreement with the police has media experts scoffing at its journalism claim. The contract paints KKI as mere documentarians, stating that “all filming and recording will be done as Department personnel are performing their usual and customary duties.” Yet KKI set the filming schedule, paid the officers, and provided the cars (indeed, it is listed as the “victim” of the car theft on police reports). The sting was not among the “usual” duties of the Criminal Investigation Unit chosen by the chief to film the show; Dempsey says these stings were the first bait car busts the unit had done, though others in the department had done similar operations in the past. While the contract states that KKI can't make the police re-enact anything, it certainly seems some parts of the show are staged. Dempsey delivers his team instructions for the sting — “Everyone be careful; everyone be on your toes!” — while they stand at the base of the Golden Gate Bridge with sweeping views of Alcatraz and the bay.
Still, McKeever says KKI didn't call all the shots: “They didn't tell us how to do it. We discussed how other cities did it.”
KKI's attorney writes that surrendering its footage would be a “pernicious threat to the freedom of the press,” yet she leaves out that KKI's contract has all but surrendered freedom from the government agency it's covering. The contract promises the show will “promote the SFPD's public purposes.” Also, the police department views all the episodes before they air, and can veto any parts it deems to reveal sensitive information, jeopardize future stings, or put the city at risk of a lawsuit. In the end, the SFPD approved all the shows without changes, the sergeants said.
“It's not an independent piece of journalism,” Tompkins says. “When you contract with the government, government starts telling you what to do. And if you're an arm of the government, you fall under subpoena just as the government would, just as police department records would. In effect, [those tapes] are police department records.”
Case in point: In one scene, Dempsey carried KKI's camera into the holding cell of a man who'd been caught on tape driving a car left in the housing projects in the Mission. “You say you weren't driving,” Dempsey says while he plays the video for the handcuffed man. “Are you still sticking with that?”
At another point, when one suspect sprints away from the bait car and eludes the cops, Lew said it wouldn't be for long: “The beauty of the operation: there's video footage, audio footage, and it's just a matter of time before we figure exactly who it is and then we'll go and get them.” KKI's footage is not just documenting the police sting. It becomes the police's tool.
Though Bait Car's cameras have left town, police say there will be more stings. Both the Police Commission and the Board of Supervisors unanimously voted to accept KKI's cars into the fleet without any debate. The titles are still being transferred.
Supervisor Ross Mirkarimi says the vote was purely fiscal: “I think it was the welcoming of additional resources to the police department's budget without having to use general fund dollars.” He hasn't seen the show, but after hearing more details, he says he'd like to ask questions before police do more stings: “It gives me a slightly uneasy feeling that we have to go through such theatrics to perpetrate then arrest crime.”
Future stings may or may not deter auto thefts in the city. But they are sure to create a growing army of disenchanted people like Farrell, and possibly spur lawsuits.
Or at least threats of them. One man who didn't want his name used told SF Weekly he was considering suing the police for wrongful arrest. His criminal case was eventually dismissed, but while he sat in jail for months, he was evicted from his hotel room and missed his mother's funeral.
Another defendant with a pending case, who also refused to sign KKI's waiver, says he has a civil attorney lined up to go after his criminal case is done: “If I see my face on television, I'll be suing.”
Farrell says he isn't suing, though he lost much more than his dignity on Bait Car. He'd spent the days before the arrest setting up video equipment at the Outside Lands music festival in Golden Gate Park. But he was a no-show at the festival itself, since he was in jail. He didn't dare ask his boss for wages for the days he had worked after missing the main event. All in all, he estimates the ordeal cost him a $6,000 paycheck.
Still, when his brother bailed him out, Farrell called his boss to apologize, explaining how he had driven away in an abandoned car and then was busted by a swarm of cops and cameras for reality TV.
“I'm like, 'This sounds like the worst bullshit story of all time,'” Farrell says. “No one's going to believe this crap. This doesn't happen to people. The only thing that sold it was my absolute rage.”