{"id":208712,"date":"2026-03-17T20:03:19","date_gmt":"2026-03-17T20:03:19","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-tx\/208712\/"},"modified":"2026-03-17T20:03:19","modified_gmt":"2026-03-17T20:03:19","slug":"appeals-court-agrees-defendants-speech-constitutionally-protected-against-el-paso-county-judge","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-tx\/208712\/","title":{"rendered":"Appeals court agrees defendant’s speech constitutionally protected against El Paso County judge"},"content":{"rendered":"

Colorado\u2019s second-highest court agreed last week that a defendant\u2019s critical statements toward an El Paso County judge were constitutionally protected and could not form the basis of a retaliation charge.<\/p>\n

A three-judge Court of Appeals panel concluded that, in context, Ashley Hernandez\u2019s brief confrontation with District Court Judge Diana May in a courthouse elevator did not contain \u201ctrue threats\u201d that fell outside of First Amendment-protected speech.<\/p>\n

\u201cHernandez didn\u2019t target Judge May. The encounter was coincidental,\u201d wrote Judge Melissa C. Meirink in the March 12 opinion<\/a>. \u201cThough Hernandez\u2019s statements were disrespectful and inappropriate, they weren\u2019t true threats because no reasonable juror could find that the statements conveyed Hernandez\u2019s intent to commit an act of violence.\u201d<\/p>\n

Case: People v. Hernandez
Decided: March 12, 2026
Jurisdiction: El Paso County<\/p>\n

Ruling: 3-0
Judges: Melissa C. Meirink (author)
Jerry N. Jones
Katharine E. Lum<\/p>\n

Prosecutors charged Hernandez based on a brief 2023 elevator ride at the Colorado Springs courthouse. May had presided over a criminal case, in which Hernandez\u2019s romantic partner was the defendant. May eventually recused herself after she learned of the defendant\u2019s jailhouse phone call to Hernandez, in which he claimed May was on \u201cthe compromised judge list.\u201d May said she could no longer be unbiased due to the perceived threat.<\/p>\n

Two months later, Hernandez and May got on the same elevator and Hernandez asked the judge to \u201ccomment why you were biased\u201d on her partner\u2019s case. May said she could not comment because \u201cthat would be unethical.\u201d Hernandez replied that \u201cyou taking that case\u201d was unethical, and \u201cwhat\u2019s inappropriate is you waking up next to a cop every day and going in there.\u201d<\/p>\n

May reported the encounter to security and prosecutors charged Hernandez with retaliation against a judge as an act of harassment. After Hernandez moved to dismiss on constitutional grounds, the district attorney\u2019s office amended the charge to allege Hernandez made a credible threat against May.<\/p>\n

The defense again moved to dismiss, citing the 2023 U.S. Supreme Court decision of\u00a0Counterman v. Colorado<\/a>. The stalking case, which originated in Arapahoe County, culminated in the Supreme Court\u2019s recognition that prosecutors must prove a defendant was aware of the threatening nature of their statements. Otherwise, defendants could be convicted for constitutionally protected speech.<\/p>\n

\"USFILE \u2013 The Supreme Court is photographed, Feb. 6, 2026, in Washington. (AP Photo\/Rahmat Gul, File)<\/p>\n

Dinsmore Tuttle, a retired judge assigned to Hernandez\u2019s case, found the evidence \u201cfalls far short\u201d of establishing a threat because \u201cno threats were uttered.\u201d<\/p>\n

\u201cThis does not mean to say that Ms. (Hernandez\u2019s) attitude and words during the interaction were not inappropriate and disrespectful of Judge May, or that Judge May did not feel that she or her family were threatened,\u201d Tuttle continued. \u201cBut those issues are not before the court in this criminal prosecution. Avoiding the overbroad chilling effect on one\u2019s constitutional right to free speech is what the Court addressed in Counterman.\u201d<\/p>\n

The district attorney\u2019s office immediately appealed her decision to the state Supreme Court, citing the requirement that the justices directly consider instances where trial judges declare laws unconstitutional. But the justices turned aside the appeal last year<\/a>, noting Tuttle did not strike down a state law.<\/p>\n

Turning to the Court of Appeals, the prosecution argued Tuttle disregarded the objectively threatening nature of Hernandez\u2019s conduct, and ignored Hernandez\u2019s boastful comments to her partner afterward about confronting May.<\/p>\n

\u201cIn this case, the district court limited its analysis to an examination of the literal meaning of the words that Ashley Hernandez spoke to a judge, with no consideration of (1) the context in which the statements were made, or (2) Hernandez\u2019s understanding of how her statements would be perceived by the judge,\u201d wrote Senior Deputy District Attorney Doyle Baker.<\/p>\n

The Court of Appeals panel disagreed.<\/p>\n

\u201cTrue, Judge May described Hernandez\u2019s posture and demeanor as \u2018aggressive\u2019 and \u2018stiff\u2019 and her voice as \u2018deliberate, (firm,) and commanding\u2019,\u201d wrote Meirink. \u201cBut, again, considered in context, Hernandez\u2019s demeanor and tone reflected her frustration; that conduct doesn\u2019t elevate her statements to a true threat.\u201d<\/p>\n

Meirink added that Hernandez\u2019s reference to May\u2019s husband in law enforcement was a criticism of May\u2019s perceived bias and not a threat of harm.<\/p>\n

Although Hernandez\u2019s boastful statements afterward \u201cmay have demonstrated that Hernandez realized (or even relished) that she made Judge May uncomfortable,\u201d Meirink wrote, \u201ccausing discomfort isn\u2019t equivalent to making a threat, nor is it a crime.\u201d<\/p>\n

The case is People v. Hernandez.<\/p>\n","protected":false},"excerpt":{"rendered":"Colorado\u2019s second-highest court agreed last week that a defendant\u2019s critical statements toward an El Paso County judge were…\n","protected":false},"author":2,"featured_media":195477,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[26106,8235,81851,81852,138,1060,140,139,6151,9600,81853,81854,81855,66,223,37720,27507,81856,81857],"class_list":["post-208712","post","type-post","status-publish","format-standard","has-post-thumbnail","category-el-paso","tag-colorado-supreme-court","tag-constitution","tag-counterman-v-colorado","tag-court-of-appeals","tag-el-paso","tag-el-paso-county","tag-el-paso-headlines","tag-el-paso-news","tag-first-amendment","tag-harassment","tag-judge-diana-may","tag-judge-dinsmore-tuttle","tag-judge-melissa-meirink","tag-local","tag-news","tag-scotus","tag-threat","tag-true-threat","tag-us-supreme-court"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/208712","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/comments?post=208712"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/posts\/208712\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media\/195477"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/media?parent=208712"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/categories?post=208712"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-tx\/wp-json\/wp\/v2\/tags?post=208712"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}