Raid on Kansas newspaper Marion County Record probably broke the law, but which one?

TOPEKA, Kan. (AP) – A central Kansas police chief was not only on shaky ground when he ordered the raid on a weekly newspaper, experts say, but it could also have been a criminal violation of civil rights, a former federal prosecutor added, he said : “I would probably let the FBI start the search.”

Some legal experts believe the Aug. 11 raid on the offices of Marion County Record and its publisher’s home violated a federal privacy law that protects journalists from having their newsrooms searched. Some believe it broke a Kansas law that makes it harder to coerce reporters and editors to disclose their sources or unpublished material.

Part of the debate revolves around Marion Police Chief Gideon Cody’s reasons for the raid. A search warrant indicated that police were looking for evidence that Record employees had violated state identity theft and computer crime laws in verifying information about a local restaurant owner. However, police also confiscated the computer tower and personal cellphone of a reporter who had investigated Cody’s background.

The attack brought international attention to the newspaper and the small town of 1,900 – became the focus of a debate about it press freedoms. Recent events have exposed the simmering disagreements over local politics and the newspaper’s aggressive reporting. But it also directed an intense spotlight at Cody, who was only three months into office.

The investigation into whether the newspaper violated state laws continues and is now being led by the Kansas Bureau of Investigation. Attorney General Kris Kobach said he did not see the KBI’s job as investigating police behavior, leading some to question whether the federal government would interfere. FBI and US Department of Justice spokesmen declined to comment.

Stephen McAllister, a US attorney for Kansas during former President Donald Trump’s administration, said the raid prompted Cody, the city and others to file lawsuits alleging civil rights violations. And he added, “We also face some federal prosecution.”

“I’d be surprised if they wouldn’t look at this if they hadn’t already been asked to look into it by various stakeholders, and I would think they would take it seriously,” said McAllister, a University of Law professor Kansas, who also served as the state’s attorney general, federal officials said.

Cody didn’t respond to an email asking for comment on Friday, as he hasn’t responded to other emails. But he later defended the raid in a Facebook post, saying federal law protecting journalists from raids on newsrooms makes an exception, particularly when “there is reason to believe the journalist is complicit in the underlying misconduct.”

Television reporters and videographers from stations across the region prepare to cover the aftermath of local police raids on Marion County Record on Wednesday, August 16, 2023, in Marion, Kansas The publisher received international attention and was placed under surveillance by groups largely condemned by freedom of the press. (AP Photo/John Hanna)
Television reporters and videographers from stations across the region prepare to cover the aftermath of local police raids on Marion County Record on Wednesday, August 16, 2023, in Marion, Kansas The publisher received international attention and was placed under surveillance by groups largely condemned by freedom of the press. (AP Photo/John Hanna)

The police confiscated computers, private cell phones and a router from the newspaper. All the items were turned over to a computer forensics firm hired by the newspaper’s lawyer on Wednesday, after the local prosecutor concluded there was insufficient evidence to justify their seizure. The company checks whether files have been accessed or copied.

Marion’s five-member city council was scheduled to hold its first meeting since the raid on Monday afternoon.

The agenda says in red: “The Council will not comment on the ongoing criminal investigation at this meeting!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!”

The Record is known for its aggressive coverage of local politics and its community about 150 miles (161 kilometers) southwest of Kansas City, Missouri. After the raid, the company received a flurry of support from other news organizations and media groups, and editor-publisher Eric Meyer said Friday it had gained 4,000 additional subscribers, enough to double its circulation, despite adding many new subscriptions are digital.

But the raids had some supporters in the city. Jared Smith blames the newspaper’s coverage for the decline of his wife’s day spa business and believes the newspaper is too negative.

“I’d like to see the paper go down,” he said.

And Kari Newell, whose allegations that the newspaper violated her privacy were cited as reasons for the raid, said of the newspaper: “They keep twisting and twisting — they misquote people in our community.”

Meyer dismisses criticism of his newspaper’s reporting, saying critics are upset because it is trying to hold local officials accountable. And he blames the stress of the raid for the August 12 death of his 98-year-old mother, Joan Meyer, the paper’s co-owner.

Meyer said that after the mayor offered Cody the police chief job in late April, the newspaper received anonymous tips about “various stories” about why Cody left a position in Kansas City with an annual salary of $115,848 to take a job accept a sister newspaper with a salary of $60,000. Meyer said the newspaper could not verify the leads to its satisfaction.

Days before Cody was sworn in as boss on May 30, Meyer said he asked Cody directly about the tips he received, and Cody told him, “If you print that out, I’m going to sue you.”

“We’re constantly getting sensitive stuff from people and checking it out,” said Doug Anstaett, a retired executive director of the Kansas Press Association. “And sometimes we know they’re being silly, but more often than not we get a tip and we check it out. And that’s exactly what they do.”

Anstaett said he believes the state’s journalist shield law, enacted by the Republican-controlled legislature in 2010, should have protected the newspaper. It allows law enforcement agencies to seek subpoenas to obtain confidential information from news organizations, but requires them to show they have a compelling interest and cannot obtain it otherwise.

Former Kansas Attorney General Derek Schmidt, a Republican who helped draft the shield law as a state senator, said the law does not allow law enforcement agencies to use a search warrant to obtain information without a subpoena in court to obtain. Still, he said, “The spirit of the law is that it should be fully applied.”

Jeffrey Jackson, interim dean of the law school at Washburn University in Topeka, said he recently completed a constitutional law summer course that covered freedom of the press and the federal privacy act, and told his students — before the Marion raid — that a police search by A Newspaper “Really Never Happens.”

Jackson said whether the raid violated the state’s shield law depended on Cody’s motives and whether he attempted to identify sources. But even if Cody was looking for evidence of a crime committed by newspaper employees, Jackson believes he likely violated federal privacy statutes, which, like state law, require a law enforcement agency to receive a subpoena.

“Either they broke the shield law, or they probably broke the federal law,” Jackson said. “Either way it’s a mess.”

Hollingsworth reported from Mission, Kansas.

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