by Sherman Smith, Kansas Reflector
August 20, 2023
TOPEKA — Affidavits signed by a police chief and magistrate to warrant the raid on the Marion County Record were supposed to provide evidence that a reporter committed a crime.
Instead, they serve as evidence that the local officials abused their power.
Police Chief Gideon Cody received approval from Magistrate Judge Laura Viar to conduct the Aug. 11 raids on the newspaper office, the publisher’s home, and the home of a city councilwoman after small-town drama erupted over a restaurant owner’s quest for a liquor license. Officers hauled away computers, hard drives and reporters’ personal cellphones during the newsroom raid — inviting worldwide condemnation for the brazen attack on press freedom.
Cody claimed a day after the raids that he would be “vindicated” when the rest of the story became public. But the probable cause affidavits he wrote before the raids provide little information that wasn’t already reported.
The raids were based on the premise that Marion County Record reporter Phyllis Zorn broke the law when she received a driver’s license record from a confidential source and verified the information through a Kansas Department of Revenue database. But state and federal law clearly support a reporter’s ability to access such information, and separate laws shield journalists from police searches and seizures.
Jared McClain, an attorney for the Institute for Justice, a libertarian law firm, said the affidavits confirm that “the police’s strong-arm tactics were completely unjustified.” It should have been obvious to the magistrate that the searches were illegal, he said.
“Too often, the warrant process is just a way for police to launder their lack of probable cause through a complicit local judge,” McClain said. “Until we start holding judges accountable for enabling the abusive and lawless behavior of the police, incidents like this are just going to keep happening.”
Who’s who in Marion
The complicated circumstances surrounding the raids involve a cast of characters who include:
Cody, who left the Kansas City, Missouri, police force in April while facing possible discipline and demotion for allegations of making insulting and sexist comments to a female officer, the Kanas City Star reported.Viar, whose pair of DUIs in 2012 included drunkenly crashing into a school building. There is no public record of that case in the state’s court system, the Wichita Eagle reported.Kari Newell, the supposed victim of identity theft. She owns Chef’s Plate at Parlour 1886 and was seeking a liquor license for the restaurant. She also owns the cafe Kari’s Kitchen.Zorn, the newspaper reporter who received a tip that Newell had been convicted of a DUI in 2008. Zorn verified the information through the KDOR database.Eric Meyer, publisher of the Marion County Record.Joan Meyer, the 98-year-old mother of Eric who co-owned the Marion County Record and lived with her son. She died a day after the raid on her home left her so stressed she couldn’t eat or sleep.Joel Ensey, the county attorney who declared Aug. 16 that the search warrants were based on “insufficient evidence.” The property was returned that day.Jeremy Ensey, brother to the county attorney. He and his wife, Tammy, own the Historic Elgin Hotel, where Chef’s Plate is located.Ruth Herbel, the only city council member to vote against the approval of Newell’s request for a liquor license.Pam Maag, a Marion resident who notified Herbel about Newell’s driver’s license record.U.S. Rep. Jake LaTurner, who held an Aug. 1 meet-and-greet at Kari’s Kitchen. Cody, at Newell’s request, removed Eric Meyer and Zorn from the event.
Before police can carry out a search warrant, they need to convince a judge that they have evidence a crime has been committed.
That evidence is presented in the form of a probable cause affidavit.
Cody’s evidence for the raid on the newsroom starts with a reference to the Aug. 1 meet-and-greet with LaTurner and the newspaper’s story about being ejected.
Maag — identified in a separate affidavit as the wife of a Kansas Highway Patrol officer — sent a social media message to Herbel regarding Newell’s driver’s license history. Herbel in turn notified the city administrator and told him she wanted to deny Newell her liquor license.
Eric Meyer, meanwhile, emailed Cody to let him know the newspaper had received a copy of Newell’s driver’s license record and raised the question of whether the record had been obtained through police misconduct.
Cody contacted the Kansas Department of Revenue, which said Newell’s records had been downloaded twice — by Zorn and someone claiming to be Newell.
On Aug. 7, ahead of the meeting where the city council would vote on Newell’s liquor license, Cody told Newell that the newspaper and Herbel were aware of her DUI. Newell denied accessing the KDOR website, which meant “someone obviously stole her identity,” Cody wrote in the affidavit.
“Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought,” Cody wrote, a conclusion he based not on law but on “options available on the Kansas DOR records website.”
During the Aug. 7 city council meeting, Newell accused Herbel and the newspaper of wrongdoing.
According to Newell, Eric Meyer responded with this threat: “If you pursue anything I will print the story and will continue to use anything I can to come at you. I will own your restaurant.”
Meyer, in an interview with the Washington Post, denied making the threat.
The Marion County Record published an article in the Aug. 9 edition that responded to allegations made by Newell during the city council meeting.
Based on that narrative, Cody concluded police needed to seize all electronic devices, utility records and other materials from the newspaper office, as well as the homes of the publisher and councilwoman. Viar approved.
Hours after the police raids, Viar told Zorn the affidavits hadn’t been filed with the court.
The affidavits were signed Aug. 11, a Friday, but appeared in the court record three days later. That’s because Kansas rules prohibit a court from acknowledging a probable cause affidavit until it receives notice that the warrant has been executed, said Lisa Taylor, a spokeswoman for Kansas courts. The three-day delay in this case suggests the notification came after the close of business on Aug. 11.
Journalism is not a crime
Bernie Rhodes, a partner at Lathrop GPM in Kansas City, Missouri, who is representing the Marion County Record, provided a legal memo outlining state and federal law.
While it is unlawful to disclose personal information from a motor vehicle record, including an individual’s driver’s license photograph, state law makes it clear that personal information “does not include information on vehicular accidents, driving violations, and drivers’ status.” It also allows personal information to be disclosed for research activities and statistical reports, so long as it isn’t published or used to contact individuals.
Courts have determined that reporters have a “legitimate research purpose” when investigating stories and should be allowed access to vital records, according to the annotated memo.
Rhodes said the affidavits establish that Cody knew the only thing Zorn did was verify the authenticity of Newell’s driver’s license record by going to a public website.
“Zorn had every right, under both Kansas law and U.S. law, to access Newell’s driver’s record to verify the information she had been provided by a source,” Rhodes said.
“As I have said numerous times in the last week, it is not a crime in America to be a reporter,” Rhodes added. “These affidavits prove that the only so-called ‘crime’ Chief Cody was investigating was being a reporter.”
Max Kautsch, president of the Kansas Coalition for Open Government, said the affidavits make it clear that Zorn didn’t violate state law regarding the access of driver’s license information, much less the supposed crime of identity theft.
“The disclosed information was directly related to a matter in the public interest, namely, whether a person with an invalid driver’s license should be permitted to obtain a liquor license,” Kautsch said. “A prohibition against a reporter verifying information about such a matter from a source would be an unconstitutional and unintended application of the statute.”
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: firstname.lastname@example.org. Follow Kansas Reflector on Facebook and Twitter.