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.
Supporting evidence
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.
