Breastfeeding Mom Vindicates Her Right to Physical Privacy
In Shroff v. Spellman, 2010 U.S. App. Lexis 6018, Amy Shroff vindicated her right to privacy when she and her attorneys successfully defended the appeal of Officer Spellman's denial of his qualified immu
nity defense to his arrest of Ms. Shroff after he ignored the clear terms of a restraining order she had obtained against the physically abusive father of her child. The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-1084.pdf.
Officer Frank Spellman of the Denver Police Department arrested Amy Shroff. She had obtained a restraining order against the father of her child after several acts of physical abuse. The restraining order prevented her ex from coming within one hundred feet of her, but it was not a mutual restraining order.
One day while driving to drop her daughter off for supervised visitation, she noticed her ex's truck parked outside the local bar. Amy got out of her car and took a picture of the truck in front of the bar. Unknown to her, her ex was simultaneously taking a picture of her. The ex complained to Officer Spellman, who ignored the clear language of the restraining order and arrested Ms. Shroff for coming within 100 feet of her ex. The Tenth Circuit ruled that the arrest lacked probable cause of a crime.
At the police station, Amy pleaded not to be arrested because of her child's aversion to formula. When that appeal was denied, she pleaded for a chance to pump her breasts. Officer Spellman placed Amy in a conference room with a female cadet where Amy pumped her breasts. The Tenth Circuit held that Amy did not voluntarily expose her breasts and held that her claim was analogous to prohibited strip searches of misdemeanants in police custody.
Of note for the practitioner is further explanation of the qualified immunity defense and the need for an action to have been held unconstitutional in a previous decision. The Tenth Circuit wrote:
In Fogarty v.Gallegos, 523 F.3d 1147 (10th Cir. 2008), this Court held that
“our circuit uses a sliding scale to determine when a law is clearly established.
Under this approach, ‘[t]he more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case
law to clearly establish the violation.’” Id. at 1161 (quoting Pierce v. Gilchrist,
359 F.3d 1279, 1298 (10th Cir. 2004)) (alteration in original).
