Police Chief Allegedly Identified Theft in Affidavits to Justify Marion County Record Raid

Police Chief Allegedly Identified Theft in Affidavits to Justify Marion County Record Raid

The Marion County Attorney withdrew the search warrants against the Marion County Record, owner/publisher Eric Meyer, and City Councilwoman Ruth Herbel due to insufficient evidence.

In order to get a search warrant, the police chief had to provide evidence that a Marion County Record reporter committed a crime.

The raid caused national outrage.

Police Chief Gideon Cody claimed the affidavits would clear his name.

Well, they don’t because it contained the information we already knew from reports and interviews with Meyer.

Instead, the affidavits appear to show abuse of power and police ignoring Kansas open records laws.

The search warrants allowed the police to take supposed evidence proving how the Marion County Record obtained information about restaurateur Kari Newell’s drunk driving conviction and driving without a license.

Meyer and reporter Phyllis Zorn never ran the story because they thought someone was setting them up. Meyer told Cody about the information because someone might have illegally obtained the information.

So Cody accused Zorn of identity theft:

The search warrants also list any documents or records pertaining to that business owner, Kari Newell.

The police chief, Gideon Cody, wrote that he received an email from the Record’s publisher Eric Meyer on Aug. 4 saying he had received a copy of someone’s Department of Revenue records and alleged possible misconduct regarding how the documents were obtained. The records pertained to Newell, whose liquor license was being discussed at the Aug. 7 city council meeting.

Cody alleged the information had been downloaded by reporter Phyllis Zorn.

“Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought,” Cody wrote in the search warrant application.

I guess someone informed Newell because she went off about the information at a city council meeting. Otherwise, no one would have found out about it.

The outburst forced the Marion County Record to explain its side of the story, including that City Councilwoman Ruth Herbel and a source gave them the information:

In the affidavits, Marion Police Chief Gabriel Cody says Newell provided him with a written statement after she said she spoke with the paper’s publisher, writing “she says that on a phone call from 08/07/2023 at or around 1901 hours, Eric Meyer admitted to her an employee of his Phyllis Zorn downloaded the private DOR record information and that is why there would be no story. She stated Eric then threatened her ‘if you say anything I will print the story and will continue to use anything I can to come at you. I will own your restaurant.’”

Pam Maag, a wife of a Kansas Highway Patrol officer, sent Herbel the information about Newell’s driving history.

Herbel then told the city administrator. She is the only councilperson who voted against Newell’s liquor license.

Meyer denied making the threat against Newell.

Cody claimed, “Downloading the document involved either impersonating the victim or lying about the reasons why the record was being sought.”

But, still. Zorn did nothing wrong:

In a Record story published after the meeting, Meyer said the information had been provided by a source to the newspaper and City Councilwoman Ruth Herbel, whose home was also a subject of a search. The warrant at her residence lists offenses including identity theft and official misconduct.

Rhodes said the affidavits show that Zorn had been given a copy of Newell’s driver’s record and verified that information on a public website. He also said state law says motor vehicle records are the subject of the open records law, except records related to someone’s physical or mental condition, expunged records and driver’s license photos.

“What Zorn did is perfectly legal under both Kansas and U.S. law,” [Marion County Records attorney Bernie] Rhodes said.

“As I have said numerous times in the last week, it is not a crime in America to be a reporter,” he continued. “These affidavits prove that the only so-called ‘crime’ Chief Cody was investigating was being a reporter.”

Rhodes cited a few Kansas and American laws that prove Zorn and Meyer didn’t commit a crime:

The paper’s attorney, Bernie Rhodes, cited Kansas law that says motor vehicle records are subject to open records law unless they are driver’s license photos, relate to a person’s mental or physical condition or have been expunged. He also noted that while the U.S. Driver’s Privacy Protection Act says it’s illegal to obtain or disclose personal information from a motor vehicle record except in certain cases, personal information does not include “information on vehicular accidents, driving violations and drivers’ statuses.”

“There was no identity theft here. Nobody went to find her date of birth or social security number so they could, for example, apply for a credit card in her name,” Rhodes said. “Phyllis had to put in Kari Newell’s information because she was attempting to verify the the validity of a document that a source had provided.”

Rhodes likened the DOR search to the kinds of searches automobile insurance companies use to check a driver’s record to determine insurance rates, or the searches he might perform as an attorney if he were involved in a lawsuit over a car accident to see if the person responsible had a history of reckless driving.

“The idea that it’s an unauthorized use of the computer is simply wrong, since the very purpose of the Department of Revenue website is to check people’s driver’s licenses,” he said. “We want, as a society, insurance companies to be able to check records because if they just assume everybody has four tickets, everybody’s rates are gonna go up.”

Institute for Justice attorney Jared McClain described the affidavits as unjustified. He cannot believe a magistrate judge wouldn’t find the searches illegal:

“Too often, the warrant process is just a way for police to launder their lack of probable cause through a complicit local judge,” McClain said. “Until we start holding judges accountable for enabling the abusive and lawless behavior of the police, incidents like this are just going to keep happening.”

We also know the Marion County Record received many calls from former co-workers of Cody who claimed he left his 24-year job in Kansas City, MO, due to numerous allegations of sexual misconduct.

We also discovered that Magistrate Judge Laura Viar, the one who authorized the raids, has been arrested at least twice for DUIs:

Judge Laura Viar, who was appointed on Jan. 1 to fill a vacant 8th Judicial District magistrate seat, was arrested at least twice for DUI in two different Kansas counties in 2012, a Wichita Eagle investigation found.

She was the lead prosecutor for Morris County at the time.

Viar’s DUI history could face scrutiny because the warrant she approved for the controversial raid came in response to the Marion County Record digging into the DUI history of restaurant owner Kari Newell. The Viar-authorized raid came after Newell complained about the newspaper’s investigation into her criminal background.

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