After a lot of maneuvering, a reform bill has finally passed both houses of the Kansas legislature. Gov. Sam Brownback (R) is expected to sign it. The bill is the work of some impressive activism by Robert and Adlynn Harte, a couple whose home was wrongly raided by a SWAT team after police investigators spotted Robert Harte at a hydroponic gardening store, then mistook some loose-leaf tea in the couple’s trash for marijuana. The Hartes spent $25,000 in legal fees merely to get access to the documents related to the raid.
But while the bill is a step in the right direction, it’s far from a resounding victory for transparency, and it leaves Kansas well behind the rest of the country on this issue. Whereas the current law seals all search warrant affidavits by default, the bill would codify the presumption that the records will be made available to the owner of the premises that was searched.
But there are a couple catches. Prosecutors can file a motion within five days of the search to keep the records sealed. There’s a justifiable reason for that — some searches may be part of an ongoing investigation, the details of which could be revealed in the affidavit for the warrant. The problem, of course, is that a prosecutor could just as easily file for a seal to protect himself, his office or the police officers involved from embarrassment. The onus would then be on the wrongly searched to hire an attorney to fight the seal.
The far more problematic part of the law is that, while it removes the presumption that all documents related to a fruitless search should be sealed, it unseals them only for the owners of the premises that was searched. These records will still be kept sealed from the public. (It seems clear from the law that the owners could then make the documents public themselves.) That provision makes it extremely difficult for, say, a media outlet to do a broad survey of how searches are conducted by a particular police agency. (Like this, for example.)
To do such a survey or investigation, a journalist would need to get permission from all of the people whose homes or businesses were searched, turning up no evidence of criminality. Without access to the documents, though, there is no way to know who those people are — or if they even exist. It makes it impossible to know if there is a problem, and impossible to identify the extent of the problem if one exists. It would be up to the people wrongly searched to come forward on their own.
I was in Kansas a few months ago and spoke to a number of people who were subjected to extraordinarily violent home raids and searches. They were terrified of going public. They talked to me only because I have written on these issues in the past and felt comfortable that I wouldn’t reveal their names to anyone.