Newsroom, personal equipment seized in Kansas raid

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 Deb Gruver and Phyllis Zorn, 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 Publisher Eric Meyer filed a federal lawsuit April 1, 2024, against city and county officials for First Amendment violations during a police raid on the Kansas newspaper’s offices in August 2023.

Meyer’s home was also raided and his mother, Joan Meyer, then co-publisher of the Record, died the following day of sudden cardiac arrest; the suit claims that the defendants are liable for her death.

The suit accuses city and county officials — including former Marion Police Chief Gideon Cody, who spearheaded the raid — of violating the First and Fourth amendment rights of the paper and its owners, as well as the state's shield law, by searching and removing their newsroom equipment. In addition, the suit argues that the raid had a chilling effect on their reporting activities.

The filing also states that Record reporter Deb Gruver was so traumatized by her experiences that day that she ultimately could not stay in Marion or at the paper, and that reporter Phyllis Zorn had to reduce her reporting hours as a result of severe mental anguish caused by the raid. Both reporters have filed their own suits against Cody.

“The last thing we want is to bankrupt the city or county, but we have a duty to democracy and to countless news organizations and citizens nationwide to challenge such malicious and wanton violations of the First and Fourth Amendments and federal laws limiting newsroom searches,” Meyer told the Kansas Reflector.

Marion Police Chief Gideon Cody, who spearheaded the August 2023 raid on the offices of the Marion County Record and the home of the Kansas newspaper’s co-owners, resigned on Oct. 2, 2023, several days after he was suspended, the Record reported.

Just prior to his resignation, on Sept. 30, the Record also reported that newly reviewed body camera footage captured during the raid showed Cody reading files in reporter Deb Gruver’s desk drawer, even though Gruver was not mentioned in the warrant application for the raid.

While reading the files, one of which included information on a confidential source in an investigation of the police chief, Cody is reported to have said, “Hmm. Keeping a personal file on me. I don’t care.”

Record 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 is currently suing Cody in federal court for violations of her First and Fourth Amendment rights, claiming that both the raid and Cody’s confiscation of her phone were retaliation for Gruver’s investigation into his alleged prior misconduct.

The footage also indicates other discrepancies between law enforcement’s actions during the raid and Cody’s stated reasons for undertaking it. According to the search warrant, 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.

The body camera footage reveals, however, that Marion police knew at the time how the paper had obtained the information — through a former friend of Newell’s.

The Record recounts how, in the recording, Cody tells reporter Phyllis 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, the Record pointed out, Cody did not stop at confiscating the computer Zorn had indicated. He directed the seizure of three of the Record’s computers and computers at the paper’s co-owners’ home, as well as Zorn’s and Gruver’s cellphones. At the same time, the paper said that the sole copy of the document in question, on a desk a few feet away from one of the confiscated computers, was left untouched.

In a recent filing responding to Gruver’s complaint, Cody claims that he and other law enforcement officers confiscated the newsroom’s computers and Zorn’s cellphone “only after hours of failed attempts by the deputy to secure data from the computers onsite [because] the wireless internet and other data was so slow to download onto the deputy’s equipment.” They decided, he said, that it would be faster “to merely take any equipment that was possibly involved in the illegal download back to the deputy’s office and search the equipment at his station.”

The footage also shows Cody on the phone with Newell during the raids, informing her that there was information he could share with her but that he did not want to put it in writing in a text to her, the paper added.

Meanwhile, Gruver resigned from the paper after viewing the body camera footage, the Record reported. “I think watching [it] was a mistake for me,” she wrote in her resignation letter. “I need to do what’s best for my mental health, which isn’t the greatest at the moment.”

The Record added that Gruver said that “she no longer felt comfortable in Marion because some residents didn’t seem to appreciate the journalism she and the Record were attempting to provide.”

Zorn, too, suffered health consequences from the stress of the raid, the Record reported. And Meyer’s 98-year-old mother, Joan Meyer, a co-owner and correspondent for the newspaper, died from sudden cardiac arrest the day after the raid of her home. The Record attributed her death in part to the stress of the raid.

On Aug. 30, 2023, the Sheriff’s Office in Marion County, Kansas, turned over digital files gathered surreptitiously in the town police’s raid on the Marion County Record, the paper reported.

In addition to seizing computers, cellphones, a file server and other journalistic work product during the Aug. 11 raid on the Record’s offices and publishers’ home, law enforcement copied the newspaper’s computer files onto a storage device. That device, a USB drive, was not included on the inventory list later submitted to the paper’s attorney, Bernard J. Rhodes. It also wasn’t among the items returned following an Aug. 16 court order mandating police return all equipment seized in the raid.

On Aug. 22, the storage device, a USB drive, appeared on a list released by the Marion District Court, which received the seized items. Rhodes then applied to the court for an additional order to have it relinquished, which was signed by a judge on Aug. 29.

In accordance with the order, the sheriff’s office made a copy of the files for Rhodes and then destroyed the USB device as well as a backup copy police had made after the raid. The Record reported that the files amounted to 17 gigabytes of data. The sheriff’s office also gave the Record all copies of photos the police took during the raid at both the newspaper’s offices and the publishers’ home, as well as a list of the search terms that were used to gather the data.

Rhodes told the U.S. Press Freedom Tracker via email that, to his knowledge, everything seized in the raid has now been returned.

The Sheriff's Office in Marion County, Kansas, will return digital files gathered in a raid on the Marion County Record and erase its own copies, per a proposed court order signed Aug. 28, 2023, by lawyers for the paper and the city and county of Marion, the Record’s attorney confirmed to the U.S. Press Freedom Tracker. The files were held in violation of an Aug. 16 court order mandating their return.

In an Aug. 29 phone conversation with the Tracker, attorney Bernard J. Rhodes explained that the Marion police, in addition to seizing computers, cellphones, a file server and other journalistic work product during their Aug. 11 raid on the Record’s offices, had copied the newspaper’s files onto their own storage device. The police brought the seized materials to the sheriff’s office and then copied the files onto a second backup device.

No record of the copied files, however, was found on the list of seized material the police later submitted to Rhodes’ forensic examiner. The discrepancy became clear after the Marion District Court released an inventory list Aug. 22 with the line item “OS triage digital data” — a reference to the OS Triage software the sheriff’s office uses to search digital files.

Rhodes then reached out to the Marion County attorneys, who he said agreed — along with the sheriff’s office — to send him a new copy of the seized files before destroying their own. As of press time, a court order mandating the return of the files was awaiting the judge’s signature.

Rhodes, however, said, “No one has been able to explain to me why the list that was given to my forensic examiner did not include this drive. It causes me to question the basis for this search, the method of executing this search, and what was done with the material seized.”

On Aug. 16, 2023, Marion County Attorney Joel Ensey released a statement withdrawing the search warrant used to raid the offices of the Marion County Record and authorizing the release of seized equipment and reporting materials, citing “insufficient evidence” to justify the search. Ensey also asked the court to release the affidavits filed to obtain the warrants.

Four computers, a hard drive and the personal cellphones of two reporters were seized when local law enforcement searched the weekly newspaper’s offices on Aug. 11 as part of an investigation into alleged unlawful use of a computer and identity theft. Equipment and reporting materials were also seized during a simultaneous raid of the home of the newspaper’s co-owners.

The Kansas Bureau of Investigation said that it is continuing investigation independently, but without review of any seized materials.

Bernie Rhodes, the attorney representing the Record, told the U.S. Press Freedom Tracker that law enforcement has said the equipment was not searched. He said he plans to have a forensics expert confirm that the devices were not accessed or altered.

“This is a promising first step to stop the hemorrhaging from the violation of the paper’s First Amendment rights, but it does nothing to cure the damages done by the original illegal search,” Rhodes said, adding that they are actively contemplating a civil rights lawsuit.

“While I’m pleased with today’s developments, we have a long way to go to establish that justice is served,” Rhodes said.

The Record published its first edition since the raid on Aug. 16, KWCH reported, with the headline article titled, “Seized… but not silenced.”