February 26, 2024

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Legal experts savage the Marion County Record affidavit

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Two Kansas legal experts are not mincing words about the affidavit used to secure the search warrant that led to the recent raid on the Marion County Record.

Max Kautsch, president of the Kansas Coalition for Open Government, says the constitutional violations began some 10 days before the Aug. 11, 2023 raid.

The affidavit references a “meet-and-greet at Kari’s Kitchen,” with elected officials in which Record owner Eric Meyer and his reporter Phyllis Zorn were asked to leave  at the request of restaurant owner Kari Newell because Newell believes the paper “distorts’ the news” and “did not want [Record personnel] in her establishment.”

However, Kautsch said, the event was sponsored by the city, and because it was available to the general public, removing the journalists was a First Amendment violation.

“Under the First Amendment, members of the public cannot be excluded from such a forum merely because the forum’s host disagrees with the content of the paper’s speech,” Kautsch wrote in a release. “Thus, the gathering was not just a ‘meet-and-greet’ as the affidavit claims; it was a public forum, and the public’s ability to attend such an event is protected by the First Amendment.”

The rest of the events are well known by now — an anonymous tip about Newell’s drivers license suspension led to Meyer and his reporters double checking the information they’d been given, and then simply passing the information along to law enforcement with no plans to report on it.

Shortly afterward they were faced with a raid by the police chief (whom the paper had been investigating), and the stress of the event possibly caused the death of Meyer’s 98 year-old mother.  (Meyer’s mother lived at his home, which was also raided.)

While the warrant was allegedly withdrawn on August 16, 2023, Litigation Director Sam MacRoberts of the Kansas Justice Institute — which, like the Sentinel is owned by the Kansas Policy Institute — says that appears to be merely an attempt at damage control.

“Practically speaking, there’s no way to withdraw a warrant once it’s been executed. The raid has already happened.”

Other questions remain as the application for the warrant had not been released until Saturday, and — in fact — did not appear to have been filed with the court until three days after the warrant was executed.

Additionally, the signature block on the affidavit shows where Magistrate Judge Laura Viar — who signed off on the warrants — had scratched through “notary” and wrote in “Magistrate Viar” instead, suggesting the affidavits were not on a standard form.

Indeed, it is unclear if Marion County Attorney Joel Ensey saw the affidavits before they were signed by Viar. Attempts to contact Ensey to determine if he saw the affidavits before they were submitted to the court have been unsuccessful.

Moreover, the first two pages of the nine-page application are nearly identical to the warrant itself.

The affidavit claims that Marion Police Chief Gideon Cody believed that by accessing public Kansas Department of Revenue driver’s license records, Meyer and his staff had committed identity theft and unauthorized access to a public computer system.

Kautsch said not only had those crimes not been committed, but the affidavit was entirely too vague.

Kautsch said the affidavit didn’t detail exactly how those alleged crimes were committed and without those specifics, probable cause cannot legally be established. According to Katusch, the affidavits allege identity theft and “unlawful acts concerning computers” but to establish probable cause that a crime has been committed requires explaining how it was committed.

“The affidavits here should have been far more specific about the alleged violations of Kansas law,” Kautsch said. Although they allege violations of two Kansas statutes, each of those statutes criminalize various means of committing such crimes. The fact that the affidavits fail to connect the allegations that gave rise to the search warrants to any specific violations of Kansas law suggests a lack of probable cause for their issuance.”

 MacRoberts agreed. 

“The affidavits confirm what most people already suspected — the police raids weren’t justified,” he said. “The warrants never should have been issued and the police shouldn’t have been allowed to do what they did. Those raids were totally unreasonable.”

While the affidavit suggests that even accessing the KDOR records without Newell’s permission was a crime, the reality, Kautsch said, was much different.

“Trying to determine exactly which charges the affidavit contemplates is daunting.  It’s clear that the Record’s reporter did not violate the provisions of K.S.A. 21-5839 prohibiting access to computer systems ‘without authorization’ because she accessed the restaurant owner’s driver’s license information under an exception to the [federal Driver’s License Privacy Protection Act],” Kautsch wrote. “Under that law, access to a third party’s driving record is permitted ‘For use in research activities…so long as the personal information is not published, redisclosed, or used to contact individuals.'”

Kautsch noted the reporter accessed the restaurant owner’s driving record, but did not publish that information.

“Thus, there was no probable cause to believe that computer crimes were committed.  Tellingly, although the affidavits reference exceptions to the DPPA, they cite language from a state website, not the language included in the federal statute itself,” he wrote. “That language incorrectly suggests that only research activities in the furtherance of creating statistical reports are exempt.  But the exception exists for research generally, such as when a reporter seeks to verify information provided by a source.”

Kautsch also noted that the idea that the paper had committed identity theft was hardly plausible, and would likely involve a charge that the newspaper violated a provision of the identify theft law making it a crime to “misrepresent” someone “in order to subject that person to economic or bodily harm,” and that law was passed in 2013 to combat social media identify theft.  

“Moreover, the disclosed information was directly related to a matter in the public interest,” Kautsch said. “Namely, whether a person with an invalid driver’s license should be permitted to obtain a liquor license.  A prohibition against a reporter verifying information about such a matter from a source would be an unconstitutional and unintended application of the statute.”

MacRoberts said the affidavits make clear this was an abuse of power. 

“Getting a search warrant isn’t supposed to be easy. It’s a court-authorized permission slip to raid a person’s home or business, after all,” he said. “The fact the police were able to get a search warrant — for a newsroom, of all places — based on an affidavit like that one, is seriously troubling. If it’s that easy to raid a newspaper, one could imagine how easy it’s become to search everyone else.

“The unchecked power to search is dangerous to our freedom and liberty. It needs to stop.”

 

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