photo by: Marion County Record via AP

This surveillance video shows Marion Police Department confiscating computers and cellphones from the publisher and staff of the Marion County Record on Friday, Aug. 11, 2023 in Marion, Kan.

The widely criticized raid of a newspaper in Marion County could result in taxpayers footing the bill if there’s a successful federal lawsuit saying police violated the journalists’ First Amendment rights.

Legal experts say that could mean the small city government of Marion — a central Kansas town of roughly 2,000 — would owe the newspaper a big-time payout. Similar civil lawsuits surrounding police violence have resulted in settlements ranging from hundreds of thousands of dollars to millions of dollars.

That could be the outcome even if the police drop their criminal investigation, which now seems possible after prosecutors returned the seized items to the newspaper after days of widespread criticism.

Max Kautsch, a press freedom and government accountability attorney, said even if the police never file charges, they can’t take back the raid that likely violated the rights of the newspaper.

“The overreach has happened,” Kautsch said. “The die has already been cast.”

Late last week, the Marion Police Department seized computers and cellphones during a raid on the Marion County Record’s newsroom and the home of its owner and publisher. Additionally, publisher Eric Meyer said stress from the raids contributed to the death of his 98-year-old mother.

The incident started a firestorm of international attention and condemnation for possible violations of the newspaper’s press freedom rights. On Wednesday, prosecutors withdrew the search warrant and said they would return the seized items to the newspaper, according to the Kansas City Star.

The raids appear to have stemmed from a dispute between the newspaper and a local restaurant owner. Kansas Reflector reported that restaurateur Kari Newell accused the paper of violating her rights by reviewing government records about her driving record.

Although the police said their actions were justified, their reasoning may never become public. Kautsch said the police needed a sworn affidavit to explain their reasoning for a raid to obtain a search warrant from a judge.

Additionally, the newspaper’s staff had been investigating the police chief, Gideon Cody, for alleged misconduct at his previous job for the Kansas City Police Department. The Kansas City Star reports Cody left the KCPD amid an internal review for making sexist comments to a female officer.

The affidavit has not been released. Kautsch said the judge in the case has the right to keep it under wraps, especially if charges are never filed. If that happens, the police justification for the raid may not become public until the newspaper files a lawsuit.

“One of the main purposes (of a lawsuit) would be the discovery process to get a hold of the affidavit,” Kautsch said.

Mark Johnson, a First Amendment attorney, said the newspaper is protected by the Privacy Protection Act of 1980 that prohibits government officials conducting searches and seizures on journalists. That makes the raid on the newspaper highly unusual.

Johnson said law enforcement has several other options to obtain information about a possible crime before conducting a raid, like interviewing witnesses or pursuing a court subpoena that requests information be handed over.

Instead, Johnson said, the police went the extreme route of securing a search warrant for the raid first. That action could spur a lawsuit.

Bernie Rhodes, a Kansas City attorney for the newspaper, said that the paper plans to pursue a lawsuit because the raid was unconstitutional and “somebody needs to pay for it.”

He also said the newspaper’s operations have been damaged because of the raid and some sources are now afraid to speak to journalists at the newspaper.

“The damage has already occurred,” Rhodes said. “I can’t stop that. But I can try to send a message loud and clear.”

A civil lawsuit over the raid could play out similarly to police brutality cases seen across the country. The newspaper would likely argue the raid violated the civil rights of the newspaper’s journalists and the city that employs the police must be held accountable for it.

Lawsuits against police can result in a city paying a settlement from hundreds of thousands to millions of taxpayer dollars. That could be a significant sum for a small town like Marion, which has just $8 million of budget authority.

Johnson said a financial decision against the city may be the only way to get the message across that what the police have done is a serious offense. He said the city could apologize and promise to change the police protocols and policies, but that likely won’t be enough.

“In my experience,” Johnson said, “you don’t get the attention of the government when it violates somebody’s rights unless the government has to pay.”

— Dylan Lysen reports for Kansas News Service.