Ethermac|Kansas newspaper says it investigated local police chief prior to newsroom raid

The Ethermacsmall-town Kansas newspaper raided by police officers on Friday had been looking into allegations of misconduct against the local chief just months ago, according to the paper's publisher, raising further concerns about the law enforcement officers' motives.

The Marion, Kansas police department confiscated computers, cell phones and a range of other reporting materials from the office of the Marion County Record — the sole local paper in a small city of about 2,000 residents. Officers spent hours in the newsroom. It also seized material from one of its journalist's homes. Eric Meyer, the publisher and co-owner of the newspaper, said his 98-year-old mother passed away the day after police raided her house, where Meyer was staying at the time. He said he believes the stress from the raid contributed to her death.

The raids sparked coast-to-coast outrage among journalists and advocates for freedom of speech, including a letter of protest signed by the New York Times, the Washington Post, CNN and the Wall Street Journal, among others.

"The U.S. Supreme Court, over the years, has said that people in authority — government officials — have to suffer a free press," says Sandy Banisky, a lawyer who taught media law at the University of Maryland's journalism school and also former senior editor at the Baltimore Sun. "Incidents like this have to be examined and exposed thoroughly to be sure that the kind of raid that happened in Marion, Kansas doesn't happen around the country."

The Marion County Record conducted "routine background checks" in the lead-up to police chief Gideon Cody's start-date, according to Meyer. When the paper published a story about Cody's candidacy for the police chief position, Meyer said it received anonymous tips from several of his former colleagues, who alleged misconduct.

Police chief "has reason to not like us"

Cody was sworn in as Marion's police chief on June 1 after retiring from the Kansas City Police Department in late April, according to the department's employee retirement website.

"It was alarming, to say the least, the number of people who came forward, and some of the allegations they made were fairly serious," Meyer said. "We were simply looking into the question."

The police chief was aware the paper was looking into his background. Meyer said a Record reporter approached Cody seeking comment on the allegations. In response, Meyer said Cody threatened to sue the paper.

NPR reached out to Cody, who declined to confirm whether he threatened to sue the paper, or whether the raid was linked to the newsroom's reporting on his background.

Meyer said the police chief "has reason to not like us," but he stressed that he didn't know if there was a connection between his paper's reporting and the raid.

Any communications between the Record's reporters and Cody are stored on the computers the officers seized during the raid, Meyer added. The newsroom currently does not have access to these documents.

"We can't consult our source material," Meyer said. "It's been taken away from us."

Erosion of police transparency

Prior to Cody's tenure as police chief, the Marion police department had upheld a decades-long practice of releasing a list of the department's routine activities each week, Meyer said. The Record would publish this list in its weekly edition, detailing the general areas where officers conducted investigations or responded to complaints.

But that practice came to an abrupt halt when Cody took the helm of the department, according to Meyer.

"He cited reasons of privacy," Meyer said. "Tracing back 60 years, it's been a regular feature of the paper."

Cody did not respond to a request for comment on this change in department policy.

Search warrant also raises red flags

County magistrate judge Laura Viar signed a search warrant on Friday morning, authorizing the Marion police department to raid the Record. The warrant cites suspected "identity theft" of a local restaurant owner as the reason for the raid.

On Friday, just after the raid, the Record requested access to the probable cause affidavit — the document that would outline why the judge saw reason to authorize the raid — from the Marion County District Court.

But the court's written response, reviewed by NPR, indicates that document may not exist.

"This Court is unable to respond to this request as there is not a probable cause affidavit filed," judge Viar wrote in response to the newsroom's request.

Cody justified the raid in a statement to NPR, claiming it was legal because of an exception to the federal Privacy Protection Act, which broadly prohibits law enforcement officials from searching for or seizing information from reporters.

"It is true that in most cases, [the Privacy Protection Act] requires police to use subpoenas, rather than search warrants, to search the premises of journalists unless they themselves are suspects in the offense that is the subject of the search," Cody said.

But there's broad consensus among media lawyers that the police department's legal reasoning doesn't hold up, since the alleged crime is linked to news gathering — which is protected by federal law.