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In a small Kansas town, a brazen attack on press freedom
"These are Hitler tactics, and something has to be done."
Those were the words of 98-year-old Joan Meyer, the co-owner of the Marion County Record, after her home and office were raided by the City of Marion's entire five-person police department on Friday. Experts believe the extraordinary raid, which was first reported by the Kansas Reflector, was a violation of federal law.
The saga began on August 1, when Eric Meyer, Joan’s son and the Record's publisher, and Record reporter Phillis Zorn were kicked out of an open forum held by Congressman Jake LaTurner (R-KS) by Marion police chief Gideon Cody. Kari Newell, who owns the coffee shop where the event took place, told Zorn that she "will not have members of the media in my establishment."
On August 7, Newell appeared at the Marion City Council meeting and accused the Record of "illegally obtaining drunken-driving information about her and supplying it to a council member." Newell's accusation, according to Eric Meyer, was false. He reported that "the information was provided to the Record via social media and independently sent… to both the newspaper and the council member."
The Record decided not to publish the information. Instead, they alerted Cody because they believed the information might have been obtained improperly. Newell later told Eric Meyer that she believed the information was given to the source by her estranged husband in an effort to sink Newell's pending application for a liquor license. Kansas law prohibits awarding liquor licenses to individuals with felony drunk driving convictions. (Drunk driving is only a felony in Kansas for serial offenders.)
On August 11, Cody, all four of the city's police officers, and two sheriff's deputies seized computers, cell phones, and other materials from the Record offices, Zorn's home, and the home shared by Eric Meyer and Joan Meyer. The search warrant was extremely broad, authorizing, among other things, the seizure of "digital communications devices allowing access to the internet… which were or have been used to access the Kansas Department of Revenue records website," "documents and records pertaining to Kari Newell," and any "digital store media… used to store documents and items of personal information."
According to Eric Meyer, the police took "everything we have," and it would be extremely difficult for him to continue publishing the paper.
The search and seizure of journalistic work product is generally prohibited by federal law. The Privacy Protection Act states, "it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." The only exception is "there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate." A search warrant signed by Magistrate Judge Laura Viar stated she determined there was probable cause that the Record and its reporters were violating the Kansas law prohibiting identity theft.
It is improbable that the Record or any of its reporters were engaged in identity theft. The Kansas law "obtaining, possessing, transferring, using, selling or purchasing any personal identifying information" with the intent to "defraud that person" or "misrepresent that person in order to subject that person to economic or personal hard." Here, the Record was engaged in reporting.
"Newsroom raids in this country receded into history 50 years ago," John Galer, the chairperson of the National Newspaper Association, said. "For a newspaper to be intimidated by an unannounced search and seizure is unthinkable in an America that respects its First Amendment rights."
What was motivating the police chief?
Why would the police chief conduct a raid on a newspaper's office, its reporters, and its publishers? Cody is very new to the job. He was only sworn in on May 31, 2023. Prior to that, Cody spent 24 years as a police officer in Kansas City, Missouri.
In an interview with Marisa Kabas, author of The Handbasket newsletter, Eric Meyer revealed that the Record "been investigating the police chief." According to Meyer, when Cody "was named Chief just two months ago, we got an outpouring of calls from his former co-workers making a wide array of allegations against him saying that he was about to be demoted at his previous job and that he retired to avoid demotion and punishment over sexual misconduct charges." Notably, "the allegations—including the identities of who made the allegations—were on one of the computers that got seized." Meyer said that one of his reporters had worked for "weeks" on the story. He emphasized that the Recrod is "not making any allegations against him, but we had investigated allegations."
Cody was personally involved in the raid. He allegedly "forcibly grabbed reporter Deb Gruver's personal cell phone from her hand, reinjuring one of her fingers, which had previously been dislocated.
Why did the judge approve the warrant?
The search warrant, however, still required approval from a judge. But Judge Viar is also new to the job. She was appointed to the position less than 9 months ago, on November 18, 2022. Prior to her appointment, Viar was a lawyer in private practice.
It is unclear what evidence was presented to Viar that convinced her the Record was engaged in identity theft. Normally, a probable cause affidavit accompanies the search warrant. But, according to the Record, no such document is on file with the court. The county attorney, Joel Ensey, has also refused to release the probable cause affidavit, saying it is "not a public document."
That claim is false. Under Kansas law, "after the warrant or summons has been executed," a probable cause affidavit "shall be made available to… any person" by requesting it from the court clerk. A prosecutor then has five days to request that the affidavit be redacted or sealed based on a series of limited exceptions, including that the publication would "endanger the life or physical safety of any person." Here, it does not appear the probable cause affidavit was even filed.
On Saturday, Cody wrote on Facebook that he could not "give everyone details on a criminal investigation." But he maintained that "when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated." Cody said that the "victim asks that we do all the law allows to ensure justice is served" and "Marion Kansas Police Department will [sic] nothing less."
Meyer says he expects to file a suit in federal court against the City of Marion and everyone involved in the search. The Privacy Protection Act contains an exception to sovereign immunity, the legal principle which protects government entities and employees from most lawsuits.