Judge Rules Jeffco Sheriff, County Engaged In 'Unconstitutional Prior Restraint'
(CBS4) - A Jefferson County District Court Judge on Wednesday ruled a temporary restraining order obtained by the Jeffco sheriff and county attorney Jan. 23, preventing CBS4 from posting a news story about a Jeffco sheriffs deputy, amounted to "unconstitutional prior restraint." Judge Philip McNulty struck down the restraining order, allowing the television station to re-post the story about Deputy Myriah Lovato, who was charged with multiple felony counts and misdemeanors for allegedly engaging in a prohibited relationship with an inmate, smuggling contraband into the jail and allegedly sharing confidential law enforcement information with an inmate.
"We're pleased the court upheld critical First Amendment protections and refused to allow the sheriff and the county to engage in illegal prior restraint," said Tim Wieland, CBS4 News Director. "The report in question contained valuable information for the public about the alleged misconduct of a Jefferson County deputy."
On Jan. 22, CBS4 legally obtained a copy of an 11 page arrest affidavit in the case of Deputy Myriah Lovato. A CBS4 reporter had requested the court file from a Jefferson County clerk, who released the file and the affidavit. CBS4 broadcast and published an online report the next day based on the affidavit. The document outlined how investigators said Lovato, a deputy working in the jail as part of the gang unit, had struck up a relationship with inmate Justice Espinoza, 34, a known gang member who was being held in the jail on kidnapping and other charges.
The report detailed how the two fondled each other and kissed in the jail, worked out a plan so Lovato -- a mother of two boys and engaged to a police officer -- could get a "burner" phone and receive calls from Espinoza at the jail. The two engaged in "phone sex" repeatedly according to the affidavit, with 188 phone calls during less than two months. The affidavit also indicated investigators believed that Lovato had smuggled contraband in to Espinoza, and had shared sensitive law enforcement information.
The following day, Jefferson County Sheriff Jeff Shrader and the county attorney obtained a temporary restraining order, signed by a judge, saying the affidavit in question was supposed to have been sealed and should not have been released.
"The Sheriff is deeply concerned," said the order, "That the release of this information, as well as additional details contained in the affidavit but not yet released by CBS, will compromise related criminal investigations throughout the State of Colorado, the prosecution of Lovato's case, and the safety of individuals involved in these investigations."
CBS4 complied with the restraining order and removed the report on Lovato from its website, CBSDenver.com. But attorneys for CBS immediately challenged the order and sought another hearing to have it lifted.
That hearing occurred Wednesday, with Judge McNulty hearing from both Jefferson County and CBS. McNulty said the court had conducted an internal investigation and determined how the affidavit had been mistakenly handed out. He said "appropriate action" had been taken with the employee.
County attorney Rebecca Klymkowsky argued that following publication of the initial news report, investigative leads had dried up and witnesses were no longer cooperating with sheriff's investigators.
Jeffco Sheriff Sgt. Chris Felton testified threats had been made against individuals due to the news reporting.
CBS attorney Ashley Kissinger told the Judge the restraining order was "patently unconstitutional" and should be vacated. She pointed out that after the initial report was published, and Jefferson county investigators expressed some concerns, CBS4 updated the initial report to address those issues.
McNulty said although the government's interest were of "the highest order," he said issues of concern could be mitigated by less intrusive measures than a restraining order.
"The Court does find the order unconstitutional and prior restraint," said McNulty as he ordered the restraining order vacated. He apologized to the sheriff's office for the clerk's error saying it "puts the sheriff's office in a tough position." He reiterated that corrective actions had been taken to insure similar mistakes would not be made in the future.
Lovato has not returned messages from CBS4 and her attorney has declined to comment on the case. Lovato is free on $50,000 bond and court records show her next court date is Feb. 8.
