Search-and-seizure operations on private property conducted by law enforcement officials happen every day. Some, like the raid on the estate of a former president, attract lots of attention. Others fade quickly from memory. But the shocking police search-and-seizure operation at a small central Kansas newspaper last week is one that should remain in the public consciousness for some time.
In a move that has constitutional implications, the Marion Police Department executed a search warrant on the offices of the weekly Marion County Record, seizing computers, servers, and personal cell phones of reporters and editors. Simultaneously, police raided the home of the editor and publisher, seizing computers, his cellphone and the home’s wifi router. Also searched was the home of the city’s vice mayor.
In an editorial entitled, “Illegal raids contribute to death of newspaper co-owner,” the newspaper further disclosed that its 98-year-old co-owner, who was “otherwise in good health for her age,” collapsed the next day and died.
The raid came on the heels of news stories in the Record about a restaurant owner who had kicked reporters out of a meeting earlier this month with Republican Congressman Jake LaTurner, and revelations about the restaurant owner’s lack of a driver’s license and her 2008 conviction for drunken driving.
An anonymous source shared with the newspaper a letter from the state explaining the steps the restaurant owner, who was going through a divorce proceeding, needed in order to get her license back. State law prohibits issuing liquor licenses to applicants with felony DUI convictions. Ironically, the information about the restaurant owner’s DUI conviction was not even published, perhaps raising constitutional questions around prior restraint.
“The Record did not seek out the information,” the paper said in an editorial. “Rather, it was provided by a source who sent it to the newspaper via social media and also sent it to [the vice mayor].”
The paper quotes the search warrant as saying “there was probable cause to believe that identity theft and unlawful computer acts had been committed involving” the restaurant owner. The Record quite reasonably asked to see a copy of the probable-cause affidavit necessary for the drafting of the search warrant.
Not surprisingly, the court where such affidavits are to be filed issued a signed statement saying no affidavit was on file. This is rather shocking when one considers that this police action will surely result in litigation – likely of the groundbreaking sort. So take your pick: law enforcement officials in Marion were either incompetent or they were malevolent actors.
Indeed, the Record said it expects to file a federal suit against the City of Marion and those involved in the search, “which legal experts contacted were unanimous in saying [it] violated multiple state and federal laws, including the U.S. Constitution and multiple court rulings.”
The Record’s surviving co-owner, Eric Meyer, told the Washington Post (free link) that reporters at the paper were, at the time of the raid, investigating newly hired Marion Police Chief Gideon Cody’s past as a Kansas City, Missouri, police captain. Meyer also said he believes the newspaper’s aggressive coverage of local politics was another factor in the authorization of the raid.
Meyer described the police department’s action against the Record as “Gestapo tactics.” His lawyer said the police chief was treating a media outlet like a “drug cartel or a street gang” and that the raid “offends the constitutional protections the founding fathers gave the free press.”
Experts say that while government officials sometimes subpoena the notes and other records of reporters and editors working on sensitive stories, the search and seizure of the actual tools needed to produce journalism are quite rare. Journalists, of course, are not above the law. But they do enjoy certain protections.
The paper’s lawyer, for example, told the police chief the journalist shield law in Kansas provided for a court hearing before law enforcement could review seized information. This was never done either. Perhaps the chief, who came from Missouri, did not know about the Kansas law or – more likely – did not give a rip about such trivial matters as due process.
Seth Stern, a First Amendment lawyer at the Freedom of the Press Foundation, told the New York Times that federal law allows law enforcement to search journalists “when the authorities have probable cause to believe the journalists had committed a crime unrelated to their journalism.”
That exception does not apply, he added, in a case in which the alleged crime is gathering the news. When authorities suspect journalists of committing crimes as part of news gathering, the government can serve a subpoena, which can be challenged in court before it is enforced. Is anyone surprised that no subpoena was served? Stern’s complete statement can be found here.
Without elaborating, Chief Cody told the Times, “I believe when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated.”
“This is, of course, the classic defense by small-minded people with a little bit of power,” wrote Northeastern University journalism Prof. Dan Kennedy. “If you knew what I know, then you’d know what I know.”
It goes without saying that there is nothing to prevent Cody from explaining why he thought the situation was so urgent that issuing a subpoena took a back seat to hastily executing a search warrant unsupported by a probable-cause affidavit. Perhaps he was worried about incriminating himself?
I would urge the chief to hire a good lawyer. All of this begs a variation of Thomas Frank’s now-famous question: “What’s the matter with Marion, Kansas?“