Distribution worker Barb Creamer sorts the Aug. 16, 2023, edition of the Marion County Record. The previous week, the newspaper had been raided by law enforcement. (Max McCoy/Kansas Reflector)
The public is entitled to investigative files underpinning special prosecutors’ report issued this month about the Marion County Record raid.
Not only has the Kansas Bureau of Investigation failed to tell the truth in multiple high-profile cases over the years, but the top echelon of law enforcement in this state has also demonstrated a reluctance — and sometimes an inability — to hold officers criminally responsible for misconduct.
This culture of unaccountability leaves Kansans vulnerable to bad cops.
Given the systemic issues plaguing Kansas law enforcement, the only way for the public to be sure the special prosecutors were justified in declining to charge all but one of the officers involved in the Marion raids is to check their work against the raw files.
From Rice to Lowrey
An early example of favoring police suspects was when the attorney general and KBI director held a press conference more than 50 years ago to tell the public it couldn’t figure out who killed 18-year-old Nick Rice .
Rice was an innocent bystander shot dead during a demonstration of more than 150 students and residents near the University of Kansas that heralded the end of Lawrence’s “Days of Rage” in the summer of 1970.
Only when the KBI released the investigative files in the case in 2021 — in response to a request under the Kansas Open Records Act — did the public learn that the agency had overwhelming evidence at the time that a Lawrence police officer killed him and that another Lawrence officer tampered with the only bullet recovered at the scene.
The KBI’s urge to absolve officers of criminal liability doesn’t appear to have waned in the ensuring decades, given discrepancies between the agency’s press release confirming the officer-involved shooting death of Topekan Taylor Lowrey in 2022 and the complaint Lowrey’s estate filed in federal court this month.
The complaint, based on body camera footage the estate was authorized to view under Kansas law , alleges that “Lowery did not raise a knife above his head and charge” the responding officers in the moments before they shot him 34 times.
According to the lawsuit, Lowrey was killed while he “bent over to pick up (a) wrench that had been dislodged from his hand.”
Why, then, did the KBI’s press release claim that Lowery was killed only after he “advanced toward officers holding the knife”?
Risky business
There could be many reasons why the KBI struggles to come clean to the public about officer misconduct. But the agency’s disclosures in a 2021 Kansas Open Records Act lawsuit explain how the very officers suspected of wrongdoing can threaten agency investigations.
In that KORA case, the Abilene Reflector-Chronicle sued the KBI for its raw investigative files related to how “ $72,000 in cash seized by the local sheriff’s department disappeared ” from the evidence room at the Dickinson County Sheriff’s Office, then helmed by Gareth Hoffman . Although one of Hoffman’s deputies had been convicted in 2018 of stealing more than $22,000 in cash from the evidence room, the paper was concerned that the KBI had closed its investigation without resolving how the rest of the money went missing.
( Editor’s note: The author represented the Abilene Reflector-Chronicle in its KORA lawsuit against the KBI.)
The KBI admitted in its answer to the lawsuit that two of its investigations into the matter had concluded, allowing the paper to argue under KORA that releasing the records was appropriate because they would not “ interfere with any prospective law enforcement action, criminal investigation or prosecution .”
But the agency claimed under oath during the suit’s discovery phase that the records the paper sought had “led to additional investigations, at least one of which is currently ongoing” that “may implicate one or more people who were suspects or witnesses in the collective previous cases.”
To support its assertion, the KBI disclosed an eye-popping litany of the troubles the agency faced during its investigations into “missing or stolen funds from the Dickinson County, Kansas Sheriff’s Office Evidence Room” and “claims of evidence destruction and interference with a law enforcement investigation by former Sheriff Hoffman or his subordinates.”
Investigating law enforcement … or a gang?
The KBI made clear through its disclosures in the KORA case that trying to find out what happened to the missing money was particularly dangerous because the suspects were law enforcement officers.
They “are or were in an organization whose members are armed and trained to use force, including deadly force,” the KBI wrote. “When persons believe their participation, or even suspected participation, in a serious crime may become exposed to the public, they may resort to physical harm to those cooperating, or otherwise providing information to investigating KBI agents” to “exact revenge or retribution against persons who provided information.”
The KBI seemed to argue that witnesses would not be forthcoming if they had a reasonable belief that information provided to law enforcement could be disclosed because of a KORA request. But that concern is surely remote compared to the threat posed to the public if KBI investigations alone can trigger retaliation that allows law enforcement suspects to avoid accountability.
In a follow-up interview between KBI agents and a Dickinson County deputy sheriff, the deputy told the KBI that “after his initial interview, his relationship with command staff officers has been strained. They get up and leave if he walks in the room.”
Threats of retaliation pervaded the Dickinson County investigation: “One deputy was advised by commanding officers that he would be fired if he spoke about a theft. That deputy initially refused to speak with the investigating county attorney for fear of losing his job.”
At another point in the investigation, “one Dickinson County sergeant was asked whether he knew how the case was handled internally. He responded: ‘Yeah, but I better not say.’ ”
Apparently stymied by what can only be described as a cover-up, officials never charged anyone for stealing from the Dickinson County evidence room other than the deputy convicted in 2018.
Balancing the benefits of receiving the KBI’s remarkable disclosures in the KORA case against the costs of continuing the open records litigation, the paper decided to end its case.
Insidious fears
One would hope that the way former Sheriff Hoffman’s office deterred the KBI in Dickinson County would be an outlier. But the KBI’s disclosures in the KORA case described other instances showing how law enforcement suspects are notoriously difficult to investigate, regardless of fears about public access to witness statements through open records requests.
In one instance, where a sheriff’s deputy was cooperating with the KBI over allegations against his boss of “official misconduct and selling a firearm to a felon,” the KBI agent “had to schedule an interview out of the county.” During that interview, the “officer was very concerned about being fired or retaliated against after the agents contacted the suspect-sheriff.”
In another case in which the KBI was investigating domestic violence by a former officer, “it was very difficult to get the victim to completely disclose the abuse. It was a constant challenge to make sure she would be willing to testify all the way to the moment of trial. The victim was very scared of retaliation from the suspect/husband, concerned that law enforcement officers stick together and that no one would believe her.”
But it’s not just witnesses who face retaliation from law enforcement suspects.
The KBI does, too.
In another case “involving the arrest and prosecution of a police chief, the case was riddled with witnesses or people scared” to testify against the suspect. “The former chief even retaliated against the investigating agent and a person inside the police department that was giving information.”
According to the KBI, victims and witnesses are sometimes so afraid of retaliation by law enforcement suspects that the prospect of bringing charges in open court becomes daunting if not impossible. For example, in a case where a subordinate had reported to the KBI “concerns of bullying and official misconduct” by a police chief, “the victim was very concerned that — as soon as the information was in the public and the suspect knew who disclosed it — retaliation and further bullying would occur. The fear of the witness statements and information becoming public made it difficult to investigate the case.”
Fear of reprisal on this scale renders the criminal justice system ineffective because no one is willing to come forward. Public safety suffers as a result.
The difficulties described above stand in stark contrast to what the KBI’s communications director Melissa Underwood wrote last week when asked for comment: The KBI investigates “allegations made against public officials in the same objective manner, by identifying and documenting facts, whether it involves a public official, a homicide suspect, or a crime committed against a child.”
Such investigations are “a fundamental role of the KBI,” Underwood added, “and one that we are proud of our agents for navigating with fairness and impartiality.”
Restoring public trust
The KBI’s claims of objectivity and fairness ring hollow given its willingness to play fast and loose with the facts when officers killed Nick Rice and Taylor Lowery, and the difficulties it faces when it tries to bring bad cops to justice.
Reform is needed for the KBI to overcome its fears about investigating rogue cops. Otherwise, the public cannot reasonably expect to be protected from bad actors in law enforcement.
Until then, the public has little choice but to clamor for the release of the raw investigative files underpinning the Marion investigation. At this point, the documents are the only hope of challenging or verifying special prosecutors’ conclusions that just one officer deserved to be charged with a single crime for what happened on Aug. 11, 2023.
Max Kautsch focuses his practice on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here .
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