Ruth Herbel moved to Marion, Kansas, as a young woman and has lived there for over 60 years. She raised a family while serving in several state and federal government jobs. But rather than opt for a quiet retirement, Ruth kept working to make her hometown a better place. She was elected to the city council in 2019.
Ruth’s focus on fighting what she saw as corruption brought her into opposition with Marion’s mayor, David Mayfield, and his allies, who tried at least four times to have Ruth removed from office.
In August 2023, the small-town conflict in Marion exploded, making headlines around the world.
The Marion County Record has been published continuously since 1869 and, like Ruth, it often came into conflict with the mayor. Both Ruth and the newspaper received information that a local restaurant owner close to the mayor had a DUI conviction that could have prevented her from getting a liquor license. In a contentious city council meeting, Ruth and the newspaper were accused of improperly accessing the restaurant owner’s driving record.
The mayor and his recently appointed police chief, Gideon Cody, saw a chance to punish their political opponents. The police chief drew up warrants that hid the fact that he knew that neither the newspaper nor Ruth had accessed any government databases improperly, but nevertheless alleged charges of identity theft. They shopped for a judge who would sign that warrant and found one nearly an hour outside the county. The chief and his deputies were soon pounding on doors and collecting cell phones and computers.
One of the warrants was served at the home of Joan Meyer, the 98-year-old co-owner of the Marion County Record. Meyer died the day after the raid as a result of a stress-induced heart attack. The police also showed up at Ruth’s door, traumatizing her husband, who suffers from dementia. They seized her cell phone, which was her only phone and had all her family and medical contacts on it.
The outcry over the raid of the newspaper and Meyer’s death turned the tables on the mayor and police chief. The county attorney withdrew the search warrants and, while the police continued to draw up a warrant to arrest Ruth, they never went through with it. Under the cloud of the abusive raids, the mayor left office and the chief resigned.
The retaliation Ruth faced for her political opposition is a grave violation of the First Amendment. Ruth is suing with the Institute for Justice to hold the mayor, the police chief, and the city accountable. Her lawsuit is about sending a clear message that government officials cannot use criminal investigations to silence their critics and protect their friends.
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Ruth Herbel’s Service on the Marion City Council
Ruth Herbel has lived in Marion County, Kansas, for over six decades. After a successful career at the U.S. Department of Agriculture, where she made sure local farmers filed their reports correctly, Ruth retired. Upset about what she viewed as corruption, in 2019 Ruth ran for and won a seat on the Marion City Council. At the time of the raid on her home, she was Marion’s vice mayor.
Once on the council, Ruth clashed repeatedly with Marion’s mayor, David Mayfield. Ruth’s opposition centered on the ways in which the mayor did business, as much as the policies themselves. In Ruth’s words, “The mayor was upset because I research everything. Statutes need to be followed; the rules are there for a reason.”
Because she was a stickler for rules, Ruth opposed the mayor’s attempts to spend money without council approval, to fire an employee without following proper procedures, and the city’s acceptance of $10,000 to give a dollar store a plot of land designated to be drainage for an industrial park. Ruth also successfully organized a referendum to oppose the mayor’s attempt to amend the city charter to eliminate a requirement that voters approve increasing the city’s debt.
Furious, the mayor tried to get rid of Ruth. First, he had his wife file a frivolous petition to remove Ruth from office for violating an open records law when all Ruth had done was reply to a message to four fellow councilmembers saying, “Thanks.” And later, the mayor tried forcing all council members to sign an acknowledgment that their term was “at will,” thereby giving himself the power to fire Ruth. Ruth refused to sign.
Whistleblower Complaint
That’s where things stood in August 2023, when Chief of Police Gideon Cody personally removed the Marion County Record’s reporters from an event hosted by Kari Newell—a prominent local businesswoman and an ally of the mayor and the police chief.
The following day, both Ruth and the Record separately received a tip from a local resident that Newell had been driving with a suspended license due to a DUI conviction. To support this claim, the resident separately provided both Ruth and the Record with a copy of an official letter stating that Newell’s license was suspended and set out conditions that Newell had to meet before her license would be restored. The letter included Newell’s personally identifying information, including her full name, address, birthday, and driver’s license number.
The DUI conviction and license suspension were relevant to Ruth because the city council was set to consider Newell’s application for license to serve liquor at her restaurant in the coming days. Ruth researched the law and determined that a DUI should limit someone’s eligibility for a liquor license. So, she forwarded the letter detailing Newell’s driving record to the Marion City Administrator along with copies of the applicable laws.
Council Meeting on Newell’s Liquor License
During the council meeting, things got heated. Newell, who was told by the mayor and the police chief that Ruth obtained her driving record illegally and gave it to the city administrator, excoriated Ruth as “vile.” Newell’s confidence and aggressive behavior were a function of the mayor and the police chief already having a plan to get rid of Ruth. As the mayor explained to Newell, the way to get Ruth off the city council was to charge her with a crime.
So, following the meeting, Chief Cody submitted a warrant application to raid Ruth’s home (as well as the home of the Marion County Record owners Eric Meyer and his ninety-eight-year-old mom, and the newspaper’s offices). In the application, Chief Cody accused Ruth of identity theft and official misconduct because she “obtained protected Kansas Department of Revenue information via social networking.”
Chief Cody knew this statement was false, since he knew that Ruth got the documents from a whistleblower. But why let facts get in the way of a retaliatory search warrant? To ensure that the warrant would be signed, they approached a friendly magistrate in a county 45 minutes away who was so willing to oblige that she signed the warrant without requiring Cody to swear to its contents. The Kansas Commission on Judicial Conduct later told that judge that in the future she should make sure “to take sufficient time to review all documents and research appropriate federal and state laws before issuing a search warrant.”
Raid on Ruth’s Home
On August 11, four days after the council meeting on Newell’s application, Chief Cody and his officers raided Ruth’s home. During the search, a sheriff’s deputy confiscated Ruth’s phone and computer and then told Chief Cody “I think she’s ready to talk.” When Cody got there, he read Ruth her Mirandarights and told her, “We’re here for that identity theft, okay?” Just possessing a picture of someone’s driving record, he said is “a crime all by itself” and transferring it to someone—even the city administrator—“could be considered fraud.”
Cody told Ruth he had to take her phone and computer because they knew a crime had been committed on them. She told him she did not have a landline and needed to at least get her children’s and medical providers’ numbers off her phone before they seized it. Ruth’s husband suffers from dementia, and she’d be without any way to reach his doctors. The officers still refused; they told her to go buy a new phone.
The search of Ruth’s home also had a very serious human cost. Ruth’s husband, who has dementia, opened the door when the search team knocked. In his confusion, her husband circled through the house, calling out Ruth’s name repeatedly. Even after he found Ruth, he remained in a heightened state of shock for almost four hours. He and Ruth are still recovering from the raid.
Aftermath
Due to the national attention the raids received, the Kansas Bureau of Investigation stepped in and took the cases away from local police (before the Colorado Bureau of Investigation eventually took over from the KBI). A few days later, under pressure, the county attorney filed a motion to release all the devices that police seized. He also issued a press release stating that “insufficient evidence” existed “to establish a legally sufficient nexus” between any crime and “the places searched and the items seized.”
Following the press release, the Record got back all their property. In returning the Record’s equipment, however, the sheriff also gave them Ruth’s devices. So, unbeknownst to Ruth, a forensic lab hired by the newspaper had complete access to her personal cell phone and laptop for about three weeks.
Neither the national outrage nor being removed from the investigation was enough to deter the police chief. The week after the raid, Chief Cody circulated a draft affidavit for Ruth’s arrest, even though the officer who drafted it admitted, “I am not sure it fits any of the crimes we have discussed except the US fed code. Maybe there’s something missing.” Fortunately, the warrant applications led nowhere—likely because journalists and the public worldwide suddenly had their eyes turned to Marion, Kansas.
Police Chief Cody eventually resigned and Mayor Mayfield, hidden from the public eye since the raid, did not run for reelection. But their behavior cannot be undone. They caused irreparable harm to Ruth, her husband, and all the people at the Record. Like too many other local leaders, they thought they were above the law and could use their power to punish dissent.
But America’s most defining characteristic is that we resolve our political disagreements at a polling place—not a police station. That’s why Ruth partnered with the Institute for Justice (IJ) and filed a lawsuit against the mayor and the police chief to hold them accountable and to stop retaliation by government officials.
Legal Claims
First Amendment Retaliation
Ruth Herbel opposed the powers that be in Marion, Kansas, and, as a result, became the target of an unlawful scheme to punish her for her speech. That is classic retaliation clearly prohibited by the First Amendment and by U.S. Supreme Court precedent. While the retaliatory search and seizure were supported by a warrant, the warrant was obtained based on knowingly false information that didn’t even amount to probable cause. Fundamentally, the warrant was an attempt at laundering obviously illegal behavior and should not stand in the way of Ruth’s ability to hold the mayor and the police chief accountable.
Fourth Amendment unreasonable search and seizure
The warrant to search Ruth’s home and seize her property was sought and issued based on statements that Chief Cody knew or should have known were materially false. Chief Cody also omitted a key element of the crime he said Ruth committed. And he falsely claimed that there was no legal way to access someone’s driving record. And importantly, he offered no evidence that Ruth ever stole anyone’s identity or intended to harm someone with confidential information she learned in her role as Vice Mayor. But the magistrate still issued the warrant based on these material lies and omissions, rather than probable cause. She didn’t even require that anyone swear to its truthfulness. Any reasonable officer would have known the warrant was invalid.
The existence of the warrant, therefore, can’t whitewash the Fourth Amendment violation, just like it can’t whitewash the violation of the First Amendment.
Claims against the city
Mayor Mayfield and Chief Cody were policymakers for the city at the time they planned and executed the illegal search and seizure. At all times, they directed the investigation and resulting constitutional violations. The city should be held responsible for the actions of those acting in its name.
Litigation Team
Institute for Justice Attorneys Jared McClain and Michael Soyfer represent Ruth Herbel.
The Institute for Justice
The Institute for Justice is a nonprofit, public interest law firm that defends the First Amendment nationwide. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. We defend the right to criticize the government without fear of retaliation—whether you’re concerned about potholes or the police. IJ argued Gonzalez v. Castle Hills at the U.S. Supreme Court in the 2023-24 term, a case that was similarly about a councilwoman retaliated against for her political opposition to her city’s mayor. IJ is also defending a citizen journalist arrested for his reporting in Texas, a man who had his vehicle seized and damaged when he used it to campaign against a mayor in Ohio, and government officials in Michigan who criminally prosecuted a man suing the county over the violation of his civil rights.
