The Aug. 11 searches of the Marion County Record's office and the homes of its publisher and a City Council member have been sharply criticized, putting Marion at the center of a debate over the press protections offered by the First Amendment to the U.S. Constitution.
Reporters Committee for Freedom of the Press: As you may recall, in August 2023 law enforcement officers in a rural Kansas county raided the offices and homes of the editors of a local newspaper, seizing electronic newsgathering equipment and reporting materials and resulting in a nationwide uproar over the threats to our First Amendment principles of a free press.
---A conversation with the newspaper owner raided by cops (Marisa Kabas, The Handbasket, 8-12-23) Eric Meyer says his paper had been investigating the police chief, Gideon Cody, prior to the raids on his office and home. They did so because of a complaint by a local restaurant owner named Kari Newell. [This is the piece that took the story viral.]
---How a small-town feud in Kansas sent a shock through American journalism (Jonathan O'Connell, Paul Farhi and Sofia Andrade, Washington Post, 8-26-23. Illustrated.) A police raid without precedent on a weekly newspaper alarmed First Amendment advocates. The real story of how it happened, though, is rooted in the roiling tensions and complex history of a few key community members.
"The emotional response to the raid was heightened by the sudden death of the editor's 98-year-old mother, who had railed furiously at the officers sorting through her belongings at their home and collapsed a day later. The Record blamed her death on her agitation over the raid.
"Get out of my house!" Joan Meyer had shouted at Cody from behind her walker before calling him an expletive, home surveillance video revealed.
"Don't you touch any of that stuff!"
Yet parsing the events that led to the search — and understanding its larger implications for a free press in the United States — comes down to untangling the complex interrelationships and tortured history of a small group of people coexisting in a single small town.
At the center of everything were a business owner, a police chief and a newspaper.
---The Marion raid and the Privacy Protection Act (Gabe Rottman, Reporters Committee for Freedom of the Press, 8-21-23)
How does the “subpoena-first” rule in the Privacy Protection Act actually work?
"During the raid, the police carted off computers, cell phones, and documents. The computers, and possibly the phones, will contain not only raw reporting material — information and documents gathered, maybe photographs, etc. — but also things like unpublished stories and other actual “news” that reflects the editorial work of the reporters at the Record (all that stuff on all the computers seized). There is no "subpoena-first" rule for the latter, but it receives higher protections than the raw “documentary material” that is obtainable with a subpoena.
RCFP addresses the question How does the "subpoena-first" rule in the Privacy Protection Act — the federal law limiting law enforcement's ability to conduct newsroom searches — actually work? In so doing the authors unpack and clarify several terms — "work product" and "documentary materials" and "unlawful acts" — as well as several exceptions: the "suspect" exception and threats to life or limb, and “reason to believe” and the “subpoena-first” exception. And they conclude:
"In short, it is true that the "subpoena-first" exception reflects the law's intention that police always use the least intrusive means possible when inquiring into the business of the newsroom, and, in practice, gives affected journalists and news organizations the ability to negotiate or challenge a legal demand. But it's important to remember that there is no such rule for a reporter's actual work, in recognition of the heightened sensitivity there. And that's potentially relevant in the Marion case in that the police department may have seized work product related to the newspaper's investigation into the police chief himself."
---After a police raid on a Kansas newspaper, questions mount (Sofia Andrade and Paul Farhi, Washington Post, 8-13-23) Law enforcement seized computers and other records from the Marion County Record on Friday, raising concerns about press freedom. Restaurant owner Kari Newell "claimed that the newspaper, the Marion County Record, had illegally obtained damaging information about a 2008 conviction for drunken driving and was preparing to publish it, leading a local judge to issue a warrant authorizing police to seize the newspaper’s files.
'The Record, a family-owned weekly serving the small town of about 1,900, didn’t publish the information about Newell’s conviction for drunken driving and has denied that it came by it illegally.
'Police raids on news organizations are almost unknown in the United States and are illegal under most circumstances under state and federal law.
“This shouldn’t happen in America,” said Emily Bradbury, the executive director of the Kansas Press Association, in an interview Sunday. She added: “Freedom of the press is fundamental to our democracy. … We’re not going to let this stand on our watch.”
'Bradbury said the newspaper’s records could have been obtained via a subpoena, a court-ordered command for specific material that is subject to legal objections, not “an unannounced search.”
---A Police Raid on a Kansas Newspaper Could Force the DOJ’s Hand (Matt Ford, Politics, NPR, 8-15-23) The publisher of the Marion County Record says local law enforcement unleashed “Gestapo tactics” on his organization over the weekend.
---Warrant for Kansas newspaper raid withdrawn by prosecutor for ‘insufficient evidence’ (Luke Nozicka, Jonathan Shorman, and Katie Moore, Kansas City Star, 8-30-23)
On Wednesday, August 16, the county prosecutor withdrew the search warrant and directed law enforcement to return the seized material.
---Kansas commission seeks magistrate’s perspective on Marion search warrant complaint (Tim Carpenter,Kansas Reflector, 9-6-23)
Judge Laura Viar asked to respond to ethics claim leveled by Topekan. First Amendment attorneys said they were convinced the judge ought to have been able to grasp the warrants were constitutionally flawed. The search warrant was secured based on an assertion a Record reporter somehow violated state law by looking up information on a public website of the Kansas Department of Revenue about a restaurant owner's driving license status.
• 'I'm more worried about the old lady,' Former Marion Police Chief Gideon Cody says on raid body camera footage (KSHB News 41, 11-6-23)
On Aug. 11, police raided the newsroom and two homes looking for information regarding local restaurant owner Kari Newell's driving record.
"The footage shows Gideon Cody, who stepped down as Marion police chief Monday, mostly sitting in a chair while his officers and the Marion County Sheriff's Department searches the offices of the newspaper.
"Law enforcement appears frustrated with how long it's taking to download data from the Record's computers."
• Marion police chief suspended after raid of Marion County Record newspaper in Kansas (Raja Razek and Nouran Salahieh, CNN, 10-1-23)
"Such acts were done by Chief Cody in retaliation for Ms. Gruver exercising her protected rights under the First Amendment of the United States Constitution as a reporter for the Record, which protects freedom of speech and freedom of the press," the lawsuit states.
"In addition to having her computer seized, Gruver says Cody physically seized her personal cell phone from her, which the suit argues did not fall under the scope of the warrant. By seizing the personal cell phone, the suit states, Cody violated Gruver's Fourth Amendment right to protection from unreasonable search or seizure.
"The now-suspended police chief is also at the center of a federal lawsuit filed by Marion County Record reporter Debbie Gruver, who accuses Cody of violating her constitutional rights by obtaining an “unreasonable and unlawful” search warrant and seizing her personal property, according to the complaint.
"The suit alleges Cody targeted Gruver because he knew she had been investigating allegations of misconduct against the chief during his time working for the Kansas City Police Department, although the newspaper has not published those allegations.
"It's not just the police chief who has faced backlash over the raids. Judge Laura Viar, who signed off on a search warrant authorizing the searches, is facing a complaint about her decision and has been asked by a judicial body to respond, records shared with CNN by the complainant show.
• Kansas officials downplayed involvement in Marion raid. Here’s what they knew. (Sherman Smith, Kansas Reflector, 11-6-23)
Documents show unquestioning support before raid, followed by attempts to sidestep outrage. The plot thickens.
• Marion Police Chief Resignation Not Enough, Raided Newspaper Owner and Lawyer Say (Liam Scott, Voice of America, 10-5-23)
“We should not be celebrating this whatsoever. We should be glad that his gun and badge have been taken away from him. But the city did nothing to convince me that they’re taking appropriate action,” Rhodes said. “The city took no action.
“I don’t understand why it took two months for someone to take Chief Cody’s gun and badge. He is clearly unfit for duty. And this should have happened a long time ago,” he said.
The raid on the weekly newspaper has come to symbolize the yearslong plight of local news in the United States. Despite the many all-nighters spent working on the paper since the raid, Meyer said he has somehow managed to maintain an optimistic outlook.
“You can look at Marion, Kansas, as the place where there’s a bunch of corruption going on,” he said. “Or you can look at Marion, Kansas, as the place where there was a bunch of corruption going on, and we caught it, whereas they might not have caught it in other places.”
• Colorado authorities wrapping up investigation into Marion police who raided Kansas newspaper (Sherman Smith, Kansas Reflector, 4-2-24) The Colorado Bureau of Investigation is nearly finished with its inquiry into potential criminal activity surrounding the raid on the Marion County Record last year and will turn over findings to special prosecutors later this month, state authorities said Tuesday.
• Kansas newspaper that was raided by Marion police sues officials for attack on free press (Sherman Smith, Kansas Reflector, 4-1-24) Marion County Record lawsuit says mayor, police chief and sheriff sought revenge for critical news coverage