The Hartes now want to know if the police had any probable cause for the raid other than the couple’s legal purchase of gardening supplies. The problem is that under Kansas’s public records law, the police aren’t required to share that information unless ordered by a court to do so. According to the Kansas City Star, the Hartes have spent $25,000 trying to get access to the affidavit the police filed to get the search warrant for the raid on their home. They’re now turning to the Legislature.
A bill by a Johnson County lawmaker would reverse that process, meaning prosecutors would have to convince a judge that a record should stay out of public view.Search warrant affidavits would not be open to the public under the bill introduced by Shawnee Republican Rep. John Rubin. But, with some exceptions, those documents would be available to the target of a search.“The burden should be on law enforcement to justify the need for keeping any part of a record from being revealed,” Rubin said. “The burden should not be on the individual to go and justify their right to see those documents.”
That would still be a pretty weak law. In many states, search warrant affidavits are available to the media once an investigation is complete. If the police want to keep a warrant and affidavit away from the media, they have to convince a judge to seal them. Even then, an attorney could get access to the documents if someone is charged with a crime or if the raid results in a lawsuit. The Kansas law the worst I’ve seen.
There are reasonable objections to releasing such documents to the public. For example, they might contain information that would identify a confidential informant or an undercover police officer. But that information easily could be redacted. Oddly, although Kansas law enforcement officials are aggressively opposing the new law, protecting informants isn’t their main argument. Their main argument is much more ridiculous.
The bill drew a sharp reaction from law enforcement circles. Prosecutors contended the bill would provide gritty details about criminal cases that the media would sensationalize.Riley County Attorney Barry Wilkerson said the bill does more more to help the media than to help individuals.“It’s not going to be the public that’s going to rush to the courthouse to get an affidavit. It’s going to be the media,” Wilkerson said. “There’s not going to be any checks and balances on the government.”
Does Wilkerson not think the media is part of the public? And who would he suggest is better equipped than the media to put “checks and balances on the government?”
“We have seen a growing tendency in recent years to automatically close off information about murders that the public has a right to know,” Kansas Press Association executive director Doug Anstaett said in an email.“How can we possibly judge whether law enforcement and the courts are doing their job,” he said, “if we have no access to the information that would help us form that opinion?”
Good question. A few years ago, news outlets in Northern Virginia began to notice that police agencies in the area had adopted a blanket policy of rejecting all open records requests. Virginia actually has a pretty good open records law. But the police agencies had chosen to interpret it in a way that gave them broad authority to keep a lid on everything, from the names of officers who shot people to the results of disciplinary investigations to information that the same police agency had previously put out in a press release. They just rejected all of it.
After a series on the problem by journalist Michael Lee Pope, Virginia Commonwealth’s Attorney Randolph Sengel wrote a sneering letter to the editor that I think provides the official answer to Anstaett’s question.
Law enforcement investigations and prosecutions are not carried out for the primary purpose of providing fodder for [Pope’s] paper. The sacred ‘right of the public to know’ is still (barely) governed by standards of reasonableness and civility. . . .The most offensive theme of this article is the notion that law enforcement agencies decline to release these reports to protect their own, or to conceal corrupt behavior…Believe it or not, the reporter and his colleagues are not the last true guardians of truth and justice, the attainment of which does not hang on unfettered exercise of journalistic zeal. Last time I checked there were multiple safeguards in place to assure the integrity of the criminal justice system. Conscientious and dedicated judges, prosecutors, public defenders, and law enforcement officers work in a system which is as transparent as it needs to be, constrained by reasonable and appropriate limitations which are there for the greater good, not for purposes of playing hide the ball.
In other words, just trust them. Just trust public officials and law enforcement to hold themselves accountable, whether it’s a police shooting of an unarmed man, a high-profile murder investigation or a botched, violent pot raid on a retired couple who bought stuff at a garden store. No need for a press watchdog. No need for the public to have the information to make its own assessment. Just trust them. (The Virginia legislature also tried to address the problem in that state — and was also met with fierce opposition from police groups.)
Getting back to Kansas, it isn’t that law enforcement officials don’t want the media sensationalizing cases, it’s that they don’t want the media sensationalizing cases in a way that reflects poorly on law enforcement.
It’s very difficult to get records “unless the cops want you to have it, then all of sudden the walls come down and the cops are literally knocking at your door wanting publicity,” said Kansas City media attorney Bernie Rhodes.
That’s a perfectly natural response. Most of us would like to keep private the information that embarrasses us and disseminate information that flatters us. But there are, of course, important differences. Most of us don’t work for the public. Most of us don’t get a paycheck from taxpayers. Most of us aren’t entrusted with the powers to detain, kill or imprison another person. And when most of us are accused of breaking the rules, we aren’t investigated by friends and colleagues who control the flow of information.
One other thing: The Hartes deserve a lot of credit for pursuing this as aggressively as they have. But it’s worth noting that they’re former CIA analysts, and their home that was raided is described by the Star as “upscale.” They have the stature, the means and a platform from which to stick up for themselves. Most people on the receiving end of police abuse have none of those things.