In January, the Durango Police Department sought the book purchase history of a customer involved in a criminal case.
Initially, the store denied the request over First Amendment concerns.
“It needs to be protected for everyone, is the bottom line,” said Evan Schertz, the owner of Maria’s Bookshop.
When the bookstore denied the Durango Police Department access to the customer’s records, the DPD returned with a search warrant.
The bookstore, again, denied their request and filed a lawsuit against the DPD, saying the warrant was illegal, that it violated the Colorado Constitution, and threatened broader First Amendment protections.
According to Mark Morgan, Durango’s attorney, the DPD was investigating a sex crime involving a minor and was only requesting the transaction history of a customer. Morgan said the request was not related to the content of the books purchased.
“It was never the Durango Police Department’s intent to invade someone’s privacy by examining the titles of the books they had bought from a bookstore,” he said. “They were simply trying to establish a timeline and a transactional history where a suspect was manipulating a minor through the purchase and gifting of books.”
In 2002, a similar case was fought in the Colorado Supreme Court between the Tattered Cover bookstore and the city of Thornton. Police wanted the purchase records for two customers involved in a methamphetamine lab investigation.
Another Colorado bookstore set the national legal standard
Joyce Meskis, the then-owner of the Tattered Cover, pushed back, saying it would have a chilling effect on all customers if law enforcement could track book purchases. Meskis became a national beacon for booksellers’ efforts to protect civil liberties.
The court unanimously ruled that law enforcement cannot access customer records unless they show that the information cannot be obtained any other way. But when the judge and district attorney in Durango signed the warrant for Maria’s, they didn’t follow this rule.
“It is not commonly known that a special contradictory hearing is required for a warrant on very limited circumstances, that being bookstores and libraries,” said Mark Morgan, the city of Durango’s attorney. “Most of the other cases the police department is involved in don’t require that additional scrutiny or a contradictory hearing.”
Usually, the police just need to show probable cause that the information they are seeking will aid in an investigation.
But Chris Beall, a First Amendment lawyer who is representing Maria’s Bookshop, said it’s concerning that no one remembered or knew about that landmark case, which set a precedent for free speech in Colorado.
“It appears that no one along the way in the steps of this process, from the Durango Police Department, from the District Attorney's office, through to the district court judge, that no one raised their hand and said, ‘What about the First Amendment?”Chris Beall, attorney for Maria's Bookshop
“It appears that no one along the way in the steps of this process, from the Durango Police Department, from the District Attorney's office, through to the district court judge, that no one raised their hand and said, ‘What about the First Amendment?” said Beall.
According to Beall, Maria’s Bookshop has decided to follow the Colorado Supreme Court’s decision from 25 years ago and require that if a customer’s book records are going to be disclosed to the police, the police have to show a very compelling interest in that information.
“The principle here is that we are all entitled to the privacy of our own thoughts, our own intellectual pursuits,” said Beall. “It is not a crime to read a book, it’s not a crime to buy a book.”
The city of Durango has admitted it made a mistake and will not enforce the search warrant. However, if they find that the bookstore records are the only way to prove the perpetrator guilty, then a hearing for a search warrant will be scheduled.
Regardless of what happens with the criminal case, Evan Schertz, the owner of Maria’sBookshop, said the First Amendment needs to be protected.
“There’s a criminal who is being prosecuted for something, probably, something heinous. And that person should still have the right to free speech, free expression, and privacy in their information. Just the same, protecting it for that person protects it for everyone else.”
Editor's note: Reporter Jamie Wanzek is a previous employee of Maria’s Bookshop.
