Marion Councilwoman Ruth Herbel waits Aug. 11, 2023, in the Marion County Record office following the raid on the newsroom and her home. (Sam Bailey/Kansas Reflector)
TOPEKA, Kan. — Former Marion Councilwoman Ruth Herbel alleges in federal court that city officials orchestrated an illegal raid of her home — alongside the raid of the Marion County Record — as part of a conspiracy to silence criticism.
The Institute for Justice, a Virginia-based law firm that says it represents “everyday people” in opposition to abuses of government power, filed the lawsuit on Herbel’s behalf against former Mayor David Mayfield, former Police Chief Gideon Cody, Sheriff Jeff Soyez and other local authorities.
“Ruth ran for city council in Marion at age 76 because she was tired of her local government’s dishonesty and lack of transparency,” the Institute for Justice says in the lawsuit. “She quickly learned, though, that the men with the power in Marion were resistant to change, and public scrutiny.”
Herbel’s lawsuit is the fifth to be filed in response to the Aug. 11, 2023, raids by city and county law enforcement of the newspaper office, the publisher’s home and Herbel’s home. Recent court filings show the cases could be eventually consolidated.
The Colorado Bureau of Investigation is reviewing the actions by law enforcement, local officials and journalists before turning findings over to special prosecutors who will decide whether to file criminal charges.
Herbel’s lawsuit alleges violations of constitutional rights to free speech and protections from unreasonable searches and seizures. The narrative is consistent with a lawsuit filed April 1 by Marion County Record editor and publisher Eric Meyer, whose mother, Joan, the paper’s co-publisher, died of stress-induced heart failure a day after police raided her home.
Copies of the Aug. 16 edition of the Marion County Record rest on a countertop in the newspaper office. Staffers pulled an all-nighter to get the newspaper out after their equipment was seized by law enforcement. (Sherman Smith/Kansas Reflector)
The lawsuits accuse Mayfield of seeking vengeance for criticism of his actions.
As mayor, he once called Herbel a “bitch” during an executive session of the city council, her lawsuit contends. Mayfield asked the city attorney send a letter warning her that it would be illegal to speak about city business without the council’s full approval. He threatened to admonish her in a public meeting.
The lawsuit recalls Mayfield’s failed attempt to gather signatures for a recall election against Herbel, as well as a “harebrained scheme” to convince her she could be fired as an “at will” employee, even though she was a duly elected councilwoman.
In a July 25, 2023, social media post, Mayfield said it was not Black people, Asians, Latinos, women or “gays” but rather journalists who were “the real villains in America.”
A local restaurateur who asked the council for a liquor license became the unwitting catalyst for the raids when a resident pointed out that she had been driving on a suspended license, apparently with local law enforcement knowledge, after a drunken driving conviction. The resident distributed a copy of a government agency letter that outlined the situation.
“Mayor Mayfield and his allies hatched a plan to use the letter as pretext to punish Ruth and the Record,” according to Herbel’s lawsuit. “The theory they came up with was that, because the letter listed the restaurateur’s driver’s license number, simply possessing the letter was illegal and that someone ‘obviously’ stole the restaurateur’s identity to get the letter.”
But instead of a “real investigation,” the lawsuit alleges, the mayor worked with the police chief and sheriff “to maliciously procure baseless warrants” that were “based on lies and omissions.”
“No one even swore the allegations were true,” according to the lawsuit.
Cody, the police chief, didn’t sign the affidavits under oath, as required by federal and state law, and his unsworn signatures on the four affidavits appear to vary.
Marion Police Chief Gideon Cody’s signature appears to vary from one search warrant application to another. (Federal court documents)
The lawsuit accuses local officials of “judge-shopping” for somebody who would sign the warrants. Instead of taking them to the district judge for the county, they sent them to Magistrate Judge Laura Viar, who also had a history of drunken driving. Viar falsely asserted the applications were “sworn to before me” when she signed them — an action that is now subject to a complaint before the state’s judicial ethics panel.
The warrant failed to note that Herbel had received the letter from a tipster, that it was publicly available on Facebook, that the information included in the letter is a matter of public record, that she shared the letter as a public official in advance of a city council vote, or that police were knowingly allowing someone to drive on a suspended license.
“To make things worse, the warrants were also absurdly overbroad,” the lawsuit alleges. “But that hardly mattered because the police just took every phone and computer, without bothering to limit their searches to the terms of the overbroad warrants they drafted. The warrants, after all, were just a means to punish their critics.”
The search of Herbel’s home traumatized her husband, Ronald, who suffers from dementia. Police knowingly left the couple without a phone to contact their children or doctors. He remained on the couch for hours after police left and wouldn’t eat. The experience intensified his depression and anxiety. He couldn’t eat or sleep in the days after the raid. He would pace the house and cry.
The lawsuit contends it “should have been obvious” that there was no reason to search Herbel’s house. Her supposed crimes were identity theft and official misconduct, which involves the use of confidential information to intentionally harm someone.
“Simply obtaining a copy of a KDOR record on social media is not a crime,” her attorneys say the in the lawsuit.
The lawsuit says the news media’s spotlight on the raids spared Herbel from arrest. Cody sent an email to county prosecutor Joel Ensey with the subject line: “Crimes?” The email outlined five possible ways they could charge Herbel with a crime. As the lawsuit puts it, the descriptions of supposed crimes “betray Chief Cody’s willful and malicious misunderstanding or disregard of the law.”
“The conspiracy started with the defined goal of silencing Ruth Herbel and Eric Meyer, and the conspirators worked backward from there to find the closest thing to a crime that would let them achieve that goal,” the lawsuit contends.
This article originally appeared in the Kansas Reflector, a States Newsroom affiliate.
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