By Jeffrey A. Roberts
CFOIC Executive Director

Citing a landmark Colorado Supreme Court ruling involving the Tattered Cover bookstore, a judge Monday night granted a temporary restraining order against a police detective who is seeking customer records of four people who made purchases at Maria’s Bookshop in Durango.

According to a complaint filed last week in La Plata County District Court, Durango Detective Sydney Walters asked the bookstore in early January for records showing the book purchases of a customer. After the staff refused, pointing to their longstanding customer privacy policy, Walters obtained a court order demanding account information and purchase histories — “including the name of every item purchased” — of four individuals and two accounts over the previous four months.

The city and the detective violated the Colorado Constitution in seeking the judicial warrant “without first establishing a compelling government interest that overcomes the substantial harms to the constitutional interests of Maria’s Bookshop and its customers,” contended Christopher Beall, the bookstore’s attorney, in the complaint.

“The Colorado Constitution protects Maria’s Bookshop, and its customers, from unreasonable searches and seizures that would substantially chill the fundamental right to read or consume information without fear of government oversight or restraint and to do so anonymously without any disclosure of what might be read or who is doing the reading,” Beall wrote.

The city and the detective also “sought to violate the First Amendment rights of Maria’s Bookshop and its customers by attempting to size the book-purchase records held by the bookstore and thereby strip away the freedom and anonymity to read what the bookstore’s customers wish, when they wish, without the lurking oversight of the government,” he added.

Beall argued, and Judge Nathaniel Baca agreed in granting the temporary restraining order, that the Colorado Supreme Court’s 2002 ruling in Tattered Cover v. City of Thornton requires a constitutional review before book-purchase records can be seized. The judge’s injunction suspends the return date of the previous order until the court has conducted a hearing and ruled on the constitutional issues.

Baca wrote: “Maria’s Bookshop has demonstrated that it has a reasonable probability of success on its claim that no seizure of book-purchase records may be enforced absent a pre-seizure adversarial hearing at which the defendants meet the constitutional strict scrutiny requirements of showing a compelling government interest that is so great that it overcomes the harm to the constitutional interests in free expression and privacy that flow from the government’s intrusion, and that there are no other reasonable alternative methods of meeting the government’s asserted need, that the seizure would not be unduly broad, and that the seizure is unrelated to the content of the books bought by any particular customer.”

In the Tattered Cover case, then-store owner Joyce Meskis challenged a search warrant obtained by police that sought records of a customer who was suspected of making methamphetamine.

The Supreme Court’s ruling “changed the landscape of First Amendment law,” Meskis’ attorney Dan Recht said when the Colorado Freedom of Information Coalition honored the late bookstore owner in 2015. “For the first time ever, a state supreme court said that bookstores have a private relationship with their book-buying customers, and it cannot be violated by a search warrant.”

Beall is a partner at Recht Kornfeld, the same law firm that represented Meskis and Tattered Cover. CFOIC was part of an amicus brief submitted in the Tattered Cover case by attorneys Tom Kelley, past president of CFOIC, and Steve Zansberg, CFOIC’s president since 2014.

Asked by CFOIC to comment on Baca’s order, Durango public information officer Tom Sluis said, “We do not comment on pending litigation.”

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