Incident Details
- Date of Incident
- August 11, 2023
- Case number
- 2:24-cv-02044
- Case Status
- Ongoing
- Type of case
- Civil
- Equipment Seized
- Status of Seized Equipment
- Returned in full
- Search Warrant Obtained
- No
Equipment Search or Seizure
Marion County Record journalists committed no crimes, say special prosecutors
Almost a year after police raids on the Marion County Record’s newsroom and co-publishers’ home, special prosecutors cleared reporters at the Kansas newspaper of any criminal activity. Their findings, released Aug. 5, 2024, refute claims by then-Police Chief Gideon Cody justifying the raids he spearheaded.
The raids were immediately condemned by press freedom organizations, which pointed to officers’ seizure of computers, reporting materials and a storage device, along with the personal cellphones of reporters Phyllis Zorn and Deb Gruver, as interference with “the Record’s First Amendment-protected newsgathering.”
Marion County Attorney Joel Ensey subsequently appointed district attorneys from two nearby counties to review the lead-up to and execution of the search warrants, according to a copy of the attorneys’ report reviewed by the U.S. Press Freedom Tracker.
The search warrant — which Ensey withdrew five days after the raids, citing insufficient evidence — indicated that the raids were undertaken as part of an investigation into the Record’s alleged unlawful use of a computer and identity theft. Local restaurant owner Kari Newell had accused the paper of using illegal means to confirm that she had a prior DUI conviction and had driven without a license.
The paper reported that a source had contacted them with the information, and that Zorn verified the allegations through the Kansas Department of Revenue website.
Affidavits from Cody laying out his justification for the raids falsely maintained that Zorn could only have obtained the KDOR record illegally. “Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought,” Cody wrote.
But the special prosecutors found that KDOR records are accessible to the public without falsifying one’s identity or motives, and that an officer in the Marion Police Department who spoke with a KDOR representative before the raids reached a false conclusion, which he then shared with Cody, due to “confirmation bias, a hurried investigation or simply a misunderstanding of what the KDOR representative was trying to explain.”
In addition, body camera footage of the raid on the newsroom reviewed by the Record in October confirmed, according to the paper, that Marion police already knew that the information about Newell had originally come from a former friend of Newell’s, not the KDOR website, but nevertheless proceeded to confiscate not only the computer Zorn had used to access the site, but multiple other pieces of equipment as well.
The special prosecutors announced in their report that they intend to charge Cody, who resigned from the police chief position in October 2023, with obstruction of judicial process in Marion District Court, citing his request to Newell after the raids that she delete text messages between them.
Marion County Record Publisher Eric Meyer, Gruver and Zorn all filed federal lawsuits against city and county officials, including Cody, for constitutional violations during the raids. Gruver claimed that the raids and Cody’s confiscation of her phone were retaliation for her investigation into his alleged prior misconduct. Meyer claimed that the raid on the home he shared with his mother and co-publisher Joan Meyer led to her death from cardiac arrest a day later.
Gruver settled with Cody in June for $235,000; her claims against the sheriff and Ensey are still pending.
Meyer told The Associated Press that he was grateful the paper’s staff had been cleared of wrongdoing but was frustrated that no officials other than Cody would be charged with crimes related to the raids. “What I feel is going on here is that he’s been set up as the fall guy,” he said.
Freedom of the Press Foundation Director of Advocacy Seth Stern wrote that he welcomed the charges against Cody, but echoed Meyer that others involved in orchestrating the raids should be held accountable. Stern added: “Journalists are fully entitled to access government records to do their jobs, and raids of newsrooms based on legal theories that criminalize newsgathering are plainly against federal law.”
The Tracker is a project of FPF.
Marion County Record reporter Phyllis Zorn, far left, filed a federal lawsuit on Feb. 6, 2024, alleging her constitutional rights were violated during a raid on the paper’s newsroom in August 2023.
— COURTESY OF MARION COUNTY RECORDMarion County Record reporter Phyllis Zorn had her personal cellphone seized by local law enforcement as they executed a search warrant on the Kansas newspaper’s offices on Aug. 11, 2023. In February 2024, she filed a federal lawsuit against the city and the law enforcement officials involved in the raid, alleging violations of her First and Fourth amendment rights.
A copy of the search warrant, obtained by the Kansas Reflector, showed that the raid was part of an investigation into the Record’s alleged unlawful use of a computer and identity theft to obtain information about local restaurant owner Kari Newell’s prior DUI conviction and driving record. Marion Police Department officers and Marion County sheriff’s deputies executed the warrant within two hours of its approval by a Marion County District Court magistrate judge, ordering staff to leave the office as equipment was seized.
In September, however, the Record discovered in body camera footage captured during the raid that Marion police knew at the time how the paper had obtained the information — through a former friend of Newell’s.
In the recording, the Record reported, then Marion Police Chief Gideon Cody tells Zorn that “we’re pretty confident we know that [the former friend] delivered it.” Zorn tells Cody which computer she used to view the document and then verify it via the state Department of Revenue website. Cody asks Zorn if her cellphone was involved in the document viewing or verification; Zorn says no.
Despite this, Cody not only confiscated the computer Zorn had indicated but also directed the seizure of personal cellphones belonging to Zorn and her fellow reporter Deb Gruver, neither of which are listed in the search warrant. Law enforcement also seized three of the Record’s computers and computers at the paper’s co-owners’ home.
The sole copy of the document in question, the Record noted, was left untouched on a desk a few feet away from one of the confiscated computers.
Gruver, who alleged on Facebook that Cody injured her finger when he “forcibly yanked” the phone from her hand, has since filed a federal suit against him for First and Fourth amendment violations, alleging that the raid and the seizure of her phone were retaliation for her investigation into allegations of misconduct by Cody.
In a response to Gruver’s complaint, Cody claimed that he and other law enforcement officers confiscated the newsroom’s computers and Zorn’s cellphone because it was taking hours to download the newsroom’s data onto the sheriff’s office’s equipment.
Cody initially defended the legality of the raid on Facebook, but resigned in October several days after being suspended, the Record reported.
Record Editor and Publisher Eric Meyer previously told The Kansas City Star that prior to the raid the weekly newspaper had been investigating Cody’s background and allegations of wrongdoing.
Gruver resigned from the paper after viewing the body camera footage, according to the Record. Joan Meyer, a co-owner and correspondent for the Record at whose home law enforcement executed the second warrant, passed away the day after the raid, which the Record attributed in part to the stress of the experience.
An Aug. 16 court order mandated that police return all equipment seized in the raid, but a separate USB drive that law enforcement had used to copy the newspaper’s computer files was not returned until Aug. 30, after the paper’s attorney discovered it on an inventory list released by the Marion District Court.
On Feb. 6, 2024, Zorn filed a federal suit against Cody, the city of Marion, the Board of Marion County Commissioners, various members of law enforcement involved in the raid and a former mayor.
“The defendants are co-conspirators in an unconstitutional effort to deny Ms. Zorn her rights under the First and Fourth Amendments,” Zorn alleges in her complaint, arguing the raid was an act of retaliation for Zorn’s exercise of her First Amendment rights, and that the seizure of her phone and computer without any evidence that they had been used to commit crimes exceeded the scope of the warrant.
Zorn adds that within days of the raid, her Grand Mal seizures returned after a five-year reprieve. “The seizures have been debilitating,” her complaint notes, “and have led to extreme depression and anxiety.”
“We just can’t have people doing this,” Zorn’s attorney Randall Rathbun told KSHB and said that he and his client are suing for $950,000 in damages “so they don’t do this again.”
Editor’s Note: The seizure of reporter Phyllis Zorn's personal cellphone was originally reported in connection with the raid of the Marion County Record. While her phone was seized during the raid, it was not part of the search warrant executed on the newsroom, which is documented here.
The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].
