Denver bookstore’s sales records sought in drug-lab investigation
(Editor’s note: The hearing on a temporary injunction in the Tattered Cover case, originally scheduled for May 4, has been delayed until July 26 at the prosecutors’ request.)
A Denver bookstore and law enforcement officers seeking to tie a suspect to a methamphetamine laboratory will face off in court in early May in what is being cast as a First Amendment battle over the confidentiality of a person’s reading habits.
Joyce Meskis, owner of the Tattered Cover, an independent Denver bookstore that sells both on-site and by mail order, is challenging efforts by the North Metro Drug Task Force to search her records to link a suspect in a drug case to two books on making methamphetamine.
Lt. Mark Nicastle of the Adams County Sheriff’s Office, commander of the task force, said when the Drug Enforcement Administration and his task force executed a search warrant on a residence in Adams County in March, authorities found both a meth laboratory and ‘two brand-new books from the Tattered Cover bookstore on how to make methamphetamine.’
‘Because of receipts found in the house, we believe the prime suspect purchased these books with a credit card and had them delivered to his home,’ Nicastle said. ‘We have the books, we have the packaging material that we believe the books were sent through the mail in, and the specific ticket (for the order), but we do not have the specific name of the subject.’
When the DEA attempted to serve an administrative subpoena on the bookstore in mid-March to get that name, Meskis resisted. She called her attorney, Dan Recht, who told the DEA agent that the bookstore would not honor that subpoena and would fight any effort to turn over the records on First Amendment grounds. The DEA didn’t press the case, and Meskis said she thought the confrontation was over.
But task force officers weren’t done yet. Nicastle said they first tried to get a search warrant from the Adams County district attorney, but he refused because of the First Amendment implications of the case. Nicastle said the officers pressed on, going to the Denver district attorney’s office, which took a different view and agreed to secure a search warrant from a Denver judge.
‘You can say whatever you want about us,’ Nicastle said, “but that was another tool in our tool box. If Adams County said no, and the location (of the bookstore) was in our county, we probably couldn’t go any further.’ Adams County borders Denver to the north.
On April 5, five plain clothes Denver police officers showed up at the bookstore with the search warrant and insisted on conducting a search.
‘We just couldn’t believe it,’ Meskis said, adding that she and her attorney ‘thought we had an understanding’ with the Adams County district attorney’s office, but ‘that proved not to be the case.’
After ‘quite a bit of conversation and phone calls,’ the officers agreed to give the bookstore owner and her attorney a week to file for a temporary restraining order to delay serving the search warrant while the merits of the case were litigated.
The temporary restraining order was issued on April 6, and a hearing is set in Denver on May 4 to consider the bookstore’s request for a temporary injunction to block the search. If the temporary injunction is issued, the bookstore then will seek to make the injunction permanent, Meskis said.
‘We hope and expect a preliminary injunction, and we expect a permanent one,’ she said.
Nicastle said he did not consider this to be a First Amendment case. He said authorities were seeking the records from the Tattered Cover to link a suspect to a crime scene, not to probe his reading and purchasing habits in the bookstore.
‘We’re not interested in his reading list. We don’t care that he reads about Dr. Seuss or pine trees in the forest,’ Nicastle said. ‘We just want to tie the suspect to the meth lab. He lives there in that home, and by the way, he bought two books on how to make methamphetamine. We were focused, we’re not fishing, and that’s our stand on it.’
But Meskis and Chris Finan of the American Booksellers Foundation for Free Expression, which is helping the bookstore with its legal expenses, disagree.
‘The danger is that people will not feel a comfort level in the privacy of their own home reading books, and they consequently may not choose to read or purchase those books. Talk about a chilling effect on the First Amendment and the freedom to read,’ Meskis told The Freedom Forum Online.
‘It’s dangerous because it creates fear among bookstore patrons, or library patrons in the case of a library, that their records are easily discoverable by the police,’ Finan said. ‘All a policeman has to do if he wants to find out about you is get a subpoena and he can look at what you buy. The danger is you will no longer feel free to buy the books that you want to buy for fear that their titles may become public and you may be embarrassed.’
‘If the First Amendment means anything, it means we have the right to purchase books without fear that government will inquire into our reading habits,’ said Finan, who is president of the foundation.
Theresa Chmara, a lawyer with Jenner & Block in Washington, D.C., who assisted the Tattered Cover in the preparation of briefs for the Denver case, said she did consider the task force’s effort to get the purchase records a “fishing expedition.”
“The request is beyond just verifying one book,” she said. “It asks for all the books that he (the suspect) purchased during a certain time period. It does ask for a particular invoice, but it goes beyond that, too.”
She said in cases like this, the authorities need to show a “compelling government interest” that overrides the First Amendment as well as showing that there “really is no alternative” in getting the information they need. Also, there needs to be proof of “some reasonable nexus” between what is being investigated and the records being sought.
“People should not have to justify whatever they were reading because the act of reading is not a crime,” Chmara said.
Finan termed the Denver case ‘very similar’ to the situation that occurred in Washington, D.C., two years ago when Independent Counsel Kenneth Starr attempted to subpoena records of Monica Lewinsky’s book purchases from Kramerbooks and a branch of Barnes & Noble during his investigation of President Clinton. Both bookstores fought that subpoena, and a federal district judge held that the potential chilling effect of the demand for bookstore records must be considered by prosecutors.
‘The First Amendment is indeed implicated by the subpoenas,’ U.S. District Judge Norma Holloway Johnson said in an early ruling in the Lewinsky bookstore case. ‘The government must demonstrate a compelling interest in the information sought … (and) a sufficient connection between the information sought and the grand jury investigation.’
That issue became moot, however, because Lewinsky agreed to an immunity arrangement with Starr’s office and voluntarily provided the information.
‘We learned a lot from the Kramerbooks case about what is possible,’ said Meskis, who is on the board of the booksellers foundation and is the co-author of the group’s handbook, Protecting Customer Privacy in Bookstores.
Both of Denver’s newspapers, The Denver Post and the Rocky Mountain News, have written editorials endorsing the bookstore’s stand in the case. The Rocky Mountain News said it was ‘generally none of the government’s business what people read,’ while the Post said Meskis ‘is to be commended for fighting for her patron’s right to privacy’ and called on the court to ‘ensure that the warrant never is carried out.’