This story out of Marion, Kansas, population 1,922, made big national headlines two weeks ago when police raided the local newspaper, the Marion Record, as well as the home of its publisher The reason these events attracted so much attention, of course, is that the law does not typically permit prior restraints of media in the United States--and thus we don't tend to permit seizure of journalists' notes and tools. After-publication liability can attach if, for example, a publication runs afoul of defamation law or some other laws.
Since these dramatic events unfolded in Kansas, catapulting little Marion onto the world stage, national media have been revisiting the "scene of the crime" to reveal who and what were behind the raid. What evidence justified the search warrant? Early reports suggested that it came down to a dispute between the newspaper and the owner of a local business, Kari Newell, over a DUI she got 15 years ago, which caused her to lose her driver's license for a time.
OK, I thought, but a local judge and local police still had to get involved for the raid to have occurred, which caused me to file these events temporarily under my "small town government run amok" folder. This is my mental category for events when small-ish local governments do knuckle headed things--often unconstitutional things--because no one is watching the watchers. That is, the officials aren't getting legal counsel or don't, for example, have a lawyer present to advise when decisions are being made. In this case, though, a magistrate judge (with a law degree), Laura E. Viar of Kansas Eighth Judicial District, approved the police chief's request to search the offices of the newspaper and the homes of the newspaper editor and a councilwoman. The judge granted that search warrant based on evidence suggesting unlawful use of a computer and identity theft, the latter being a felony. (I note that in this district, the means of ascending to the bench is through "assisted appointment" and that Judge Viar is not listed on the ballotpedia webpage, though she is listed on the government webpage of the Eighth Judicial District).
The facts underlying that allegation were that a Marion Record reporter had checked the accuracy of an allegation about Newell, a local business woman, whose past DUI and loss of driver's license, the journalist was investigating. The reporter did so by entering information gleaned from a screenshot purporting to document Newell's DUI and entering those details into a state government website to confirm Newell's loss of license. Newell's old DUI and loss of license were of public interest only inasmuch as she was applying for a liquor license for her restaurant. Nevertheless, the newspaper did not publish a story about the restauranteur's DUI.
It appears that the judge, having the police department appear ex parte seeking the search warrant, never considered the first amendment implications of the warrant she signed off on. That's a pretty significant oversight given how relatively little was at stake for Newell, the victim of the alleged identity thefl.
Some of this detail is revealed in this Washington Post feature, published just this weekend, which provides the most detailed back story I've seen so far on these events. It it a tale rich with rural and small-town themes, including lack of anonymity. Here's the lede:
The phone conversation between the journalist and the town’s newly hired police chief quickly turned contentious.
Tipsters had been telling Deb Gruver that Gideon Cody left the police department in Kansas City, Mo., under a cloud, supposedly threatened with demotion. So now she was asking him difficult questions on behalf of the weekly Marion County Record about the career change that had brought him to this prairie community of 1,900 people.
The chief bristled.
“If you’re going to be writing bad things about me,” they both recall him telling the reporter, “I might just not take the job.”
He also advised Gruver that he had hired a lawyer.
Cody later said he had been on guard during the conversation, having been warned by longtime residents that the Record could be overly aggressive in its reporting.
“If you live in Marion, you understand,” he told The Washington Post. “If you don’t live in Marion, you don’t understand.”
Gruver wouldn’t publish any of her reporting on Cody for months to come. But their confrontation in April marked an escalation in long-running tensions between a group of local journalists and the officials and community members they cover that would boil over through the summer.
The small-town intrigue might have stayed in a small town, though, had Cody not initiated a dramatic step earlier this month. Responding to a local businesswoman’s allegation that the paper had illegally accessed her driving record, Cody obtained search warrants from a magistrate judge and led half a dozen officers on an Aug. 11 raid of the Record’s offices and the home of its editor and publisher — seizing computers, servers, cellphones and other files.
* * *
Cody, 54, officially assumed his post in June. Shortly thereafter, he ordered his deputies to stop sending daily police activity logs to the Record.
Crime is infrequent in Marion, but the Record had consistently published these weekly reports — detailing every minor traffic accident police responded to, every report of wandering cattle — for decades. Cody told The Post that his review led him to believe these disclosures could violate privacy laws. In response, the paper began publishing a pointed notice where the reports had formerly appeared: “Chief Gideon Cody has ceased providing a weekly report of police activities.”
The story later suggests that Cody was motivated to seize the Record's computers not to vindicate restauranteur Newell, but because the computers would reveal details of who had made allegations against the police chief himself.
And then there's this sort of "last chapter," involving someone else in Marion County who has a law degree and should understand the constitutional implications of what transpired with the newspaper seizures:
Marion County Attorney Joel Ensey announced five days after the raid that he would withdraw Cody’s warrant and return the seized items to Meyer and his staff.
The announcement seemed to amount to an admission that the now-infamous raid had been a mistake. Ensey said in a statement that there had been “insufficient evidence” to justify a raid on the searched locations or to connect the sought-after items with an alleged crime.
You can read earlier coverage of these events here, here and here. The last of these, from the Kansas City Star, alleges Marion County Sheriff copied the newspaper's hard drive before returning it and that the county is being asked to destroy that copy.
It all makes me wonder what sort of legal advice Marion County and the City of Marion are getting now, as they face fall-out from the raid--a raid that, incidentally, appears to have led to the death of one of the newspaper's owners/publishers/editors, a 98-year-old woman whose house was searched in the initial raid.
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