Shroff v. Spellma

FILED
United States Court of Appeals
Tenth Circuit

March 23, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AMY SHROFF; LAILA KRUSE, a
minor by her mother and next friend
Amy Shroff,

Plaintiffs - Appellees,
No. 09-1084
v.

FRANK SPELLMAN, in his official
and individual capacity,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 07-CV-01466-REB-KMT)
Suzanne A. Fasing, Assistant City Attorney, Office of the Denver City Attorney,
Denver, Colorado, (Michael T. Lowe of Bruno, Colin, Jewell, & Lowe, P.C.,
Denver, Colorado, on the briefs) for Defendant-Appellant.

Qusair Mohamedbhai, (David A. Lane, with him on the brief) Killmer, Lane &
Newman, LLP, Denver, Colorado, for Plaintiffs-Appellees.

Before TACHA, ALARCÓN, * and TYMKOVICH, Circuit Judges.

*
Honorable Arthur L. Alarcón, Senior Circuit Judge, U.S. Court of Appeals
for the Ninth Circuit, sitting by designation.
ALARCÓN, Circuit Judge.

Frank Spellman, a Denver Police Officer, has appealed from the denial of

his motion for summary judgment based on his defense of qualified immunity in

this civil rights action filed against him by Amy Shroff pursuant to 42 U.S.C.

§ 1983. Officer Spellman contends that Ms. Shroff failed to demonstrate that he

violated her federal constitutional rights by arresting her without probable cause

and invading her right to privacy by requiring her to be in the presence of a

female police cadet while she exposed her breasts to pump milk for her baby.

We affirm because we conclude that the district court did not err in

concluding that Officer Spellman arrested Ms. Shroff without probable cause, and

subjected her to a strip search in violation of the Fourth Amendment.

I

A

In response to Officer Spellman’s motion for summary judgment, Ms.

Shroff presented the following evidence to demonstrate that Officer Spellman is

not entitled to qualified immunity as a matter of law. 1

1
In determining whether the district court erred in denying a motion for
summary judgment based on the defense of qualified immunity, we review the
evidence in the light most favorable to the non-moving party. Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001).

-2-
 Ms. Shroff and Greg Kruse engaged in a meretricious relationship. During

that time, she bore a child named Laila Kruse (“Laila”). Laila was born on

November 7, 2005. During this relationship, Mr. Kruse subjected Ms. Shroff to

several acts of physical violence. Mr. Kruse choked her and threw her against a

wall. He also broke the wrist of a friend of Ms. Shroff. During a Thanksgiving

dinner party in 2005, Mr. Kruse was extremely intoxicated and was out of control

“swinging his fists around.” The police were called because of his conduct.

Ms. Shroff filed an action in the County Court, City and County of Denver

(“County Court”) to obtain a civil protection order to restrain Mr. Kruse from

committing further violent acts against her or harassing her. The County Court

issued a temporary protection order (“restraining order”). It was served on Mr.

Kruse.

The restraining order provides as follows:

THE COURT ORDERS THAT YOU THE RESTRAINED PARTY
shall not contact, harass, stalk, injure, intimidate, threaten or molest
the Petitioner(s) or any of the children if so noted; or otherwise
violate this Order. You shall not use, attempt to use or threaten to
use physical force against the Petitioner(s) or any of the children if
so noted; that would reasonably be expected to cause bodily injury.
You shall not engage in any conduct that would place the Petitioner
or any of the children if so noted; in resonable [sic] fear of bodily
injury.

T You must keep a distance of at least 100 yards from the
Protected Party and or the below named children.

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1. No Contact Provisions

T It is ordered that you shall have no contact of any kind and
stay at least 100 yards from the Petitioner(s) or any of the
children if so noted; and you shall not attempt to contact the
Petitioner(s) or any of the children if so noted; through any
third person, except your attorney, except as follows:

NO EXCEPTIONS

IMPORTANT INFORMATION ABOUT PROTECTION ORDERS

GENERAL INFORMATION

T This Order or injunction shall be accorded full faith and credit
and be enforced in every civil or criminal [court] of the United
States, Indian Tribe or United States Territory pursuant to
18 [§] USC 2265.
T The Restrained Party may be subject to Pursuant [sic] to
18 USC § 922(d)(g), which makes it unlawful for any person
to possess or transfer a firearm who is subject to a Court Order
that restrains such person from harassing, stalking or
threatening an intimate partner of such person or a child of
such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of
bodily injury to the partner or child.

NOTICE TO RESTRAINED PARTY:

T You are directed to appear before this Court on the date shown
on the front of this form to show cause, if any exists, why this
Temporary Protection Order shall not be made permanent.
T This Temporary Protection Order shall be made permanent
without further notice of service or the Court may continue the
Temporary Protection Order to a certain date. You are notified
that Permanent Civil Protection Order shall remain [in] effect

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 until further Order of the Court. Such Permanent Order will
subject you to Federal Laws restricting firearms possession
and sale 18 USC § 922(g)(8), § 924(a)(2).
T A violation of a Protection Order may be a misdemeanor,
municipal ordinance violation or a delinquent act (if
committed by a juvenile) and is a deportable offense. Anyone
over the age of 18 who violates this Order may be subject to
fines of up to $5,000.00 and up to 18 months in jail. Violation
of this Order may constitute contempt of Court. Anyone under
the age of 18 who violates this Order may be subject to
commitment to the Department of Human Services for up to
two years.
T You may be arrested or taken into custody without notice if a
law enforcement officer has probable cause to believe that you
violated this Order.
T If you violate this Order thinking that the other party or
anyone else has given you permission, YOU ARE WRONG,
and can be arrested and prosecuted. The terms of this Order
can not be changed by agreement of the [sic] ONLY THE
COURT CAN CHANGE THIS ORDER.
T Possession of a firearm while this Protection Order is in effect
may constitute a felony under the Federal law, 18 USC
§922(d)(8).

NOTICE TO PETITIONER/PROTECTED PARTY:

T You are hearby informed that if this Order is violated you may
call law enforcement.
T You may initiate contempt proceedings against the Restrained
Person.
T You can not give the Restrained Person permission to change
or ignore this Order in any way. ONLY THE COURT CAN
CHANGE THIS ORDER.
T $46.00 dollars filing fee

NOTICE TO LAW ENFORCEMENT OFFICIALS:

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 T If the Order has not been personally served, the law
enforcement officer responding to a call of assistance, shall
serve a copy of said order on the person named/Restrained
Person therin [sic] and shall write the time, date, and manner
of service on the Protected Person[’]s copy of such Order and
shall sign such statement. The officer shall provide the Court
with a completed return of service form. (§13-14-102(11-12))
T You shall use every reasonable means to enforce this
Protection Order.
T You shall arrest or take into custody, or if an arrest would be
impractical under the circumstances, seek a warrant for the
arrest of the Restrained Person when you have information
amounting to probable cause that the Restrained Person has
violated or attempted to violate any provision of this Order
subject to criminal sanctions pursuant to § 18-6-803.5 CRS or
municipal ordinance, and the Restrained Person has been
properly served with a copy of this Order or the Restrained
Person has received actual notice of the existence and
substence [sic] of such Order.
T You shall enforce this Order even if there is no record of it in
the Protection Order Central Registry.
T You shall take the Restrained Person to the nearest jail or
detention facility.
T You are authorized to use every reasonable effort to protect the
Protected Party and named children to prevent further
violence.

Approximately two weeks after the restraining order was issued, a hearing

was held to determine Mr. Kruse’s visitation rights. The County Court ordered that

Ms. Shroff deliver Laila to Mr. Kruse’s mother at the Denver Police Department

District 3 (“District 3") station, located at University Boulevard and Interstate 25

so that Mr. Kruse could visit Laila in his mother’s presence for two hours on

Saturday, Sunday, and Monday mornings.

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 On Monday, February 26, 2006, Ms. Shroff and her stepfather drove to the

District 3 police station to deliver Laila to Mr. Kruse’s mother. As she traveled

down University Boulevard, Ms. Shroff saw Mr. Kruse’s truck parked outside of

the Campus Lounge, a bar, a few blocks from District 3. Ms. Shroff parked her car

behind Mr. Kruse’s truck and took a picture of the license plate, the Campus

Lounge sign, and the clock on her dashboard. She photographed his truck to record

the fact that it was parked outside a bar a few minutes before he was scheduled to

exercise his visitation rights with his infant daughter. She did not see Mr. Kruse

come out of the bar. Ms. Shroff then took her daughter into the District 3 police

station and handed her over to Mr. Kruse’s parents. Ms. Shroff left the police

building and entered her car. Mr. Kruse parked his truck behind her car thereby

preventing her from backing up. Ms. Shroff took a picture of Mr. Kruse talking to

his parents whose car was parked one or two spaces away.

Ms. Shroff retrieved the restraining order from her automobile and ran back

to the police station. She told two officers that Mr. Kruse was in the parking lot in

violation of the restraining order. The officers went out to the parking lot to look

for Mr. Kruse, however, he had left. The officers telephoned Mr. Kruse at his

home which was near the police station. Mr. Kruse returned to the police station in

five minutes.

Ms. Shroff and her stepfather explained to Officer Spellman that Mr. Kruse

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had violated the restraining order by coming to the District 3 police station and

parking his truck behind her car so that she could not leave. They also told Officer

Spellman that the restraining order was not reciprocal and that it applied only to

Mr. Kruse. After reading the restraining order, Officer Spellman stated: “You

know it looks like you’re going to be arrested. I knew this was going to happen. I

see you guys every weekend.”

On the date she was arrested by Officer Spellman, Ms. Shroff was nursing

her baby. When she was placed in a holding cell, she told Officer Spellman that

her daughter was nursing and she did not have enough breast milk at home. She

asked Officer Spellman if she could use her breast pump before she was transported

to the city jail. Officer Spellman told her that this situation would not have

occurred if she had not caused problems by coming to the District 3 police station

on multiple occasions.

Ms. Shroff told Officer Spellman repeatedly:

Please don’t do this. I don’t have any way of feeding my child.
She’s nursing. She really can’t tolerate formula. We’ve already
had her in the pediatrician’s office for these issues in the past . . .
[t]here’s something in her digestive system that she just can’t digest
it and it would make her sick.”

Officer Spellman replied: “She better start liking formula.” Ms. Shroff’s stepfather

returned to her home and retrieved her breast pump. Officer Spellman permitted

Ms. Shroff to go to a conference room that had no windows or cameras to pump her

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breasts in the presence of a female cadet. The supervising nurse at the city jail

testified in her deposition that the pumping of breasts after childbirth is a medical

necessity in order to relieve pain.

Being required to expose her breasts in the presence of the female officer was

extremely embarrassing to Ms. Shroff. She had a hard time with her milk “letting

down.” The milk she expressed was turned over to her stepfather. He cared for

Laila until Ms. Shroff was released from the city jail. After she pumped her breasts,

Officer Spellman drove her to the city jail where she was incarcerated for

approximately twenty-four hours.

B

Officer Spellman offered the following evidence in support of his motion for

summary judgment based on his defense of qualified immunity. While he was on

patrol on February 26, 2006, he received a message from a police dispatcher that

Mr. Kruse had reported that Ms. Shroff was stalking and photographing him in

violation of a restraining order.

Officer Spellman testified in his deposition that when he arrived at the

District 3 police station, Ms. Shroff and her stepfather “may have” told him that the

order was not a reciprocal restraining order. Officer Spellman also interrogated Mr.

Kruse. He also looked at a photograph taken by Ms. Shroff that showed that she

“got within one hundred yards” of Mr. Kruse.

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 After Ms. Shroff informed Officer Spellman that Mr. Kruse had violated the

restraining order by blocking her car in the police station parking lot, Officer

Spellman told her: “I’m not going to arrest somebody for coming to the police

station to make a complaint . . . .” 2 Officer Spellman stated that he concluded that

Ms. Shroff was in contempt of the instructions to the protected party in the

restraining order that provide as follows: “You cannot give the restrained party

permission to change or ignore this order in any way.” Officer Spellman also

testified, however, that Ms. Shroff did not give Mr. Kruse permission to change or

ignore the restraining order. Officer Spellman stated that “I was always under the

impression that they can’t – if she’s restrained, you can’t unilaterally go over there

and violate the same order.” (emphasis added.) Mr. Kruse did not tell Officer

Spellman that the restraining order required that Ms. Shroff stay 100 yards away

from him. Officer Spellman did not check the database “to see if Greg Kruse had a

restraining order against Amy Shroff.”

After Officer Spellman arrested Ms. Shroff, she told him she was nursing her

child and needed to pump breast milk for her baby. Officer Spellman permitted her

stepfather to go to her home to retrieve her breast pump.

When Ms. Shroff’s stepfather returned with the breast pump, Officer

2
There is no evidence in the record that Mr. Kruse went to the District 3
police station to make a complaint. To the contrary, the record shows that Mr.
Kruse left the parking lot after Ms. Shroff returned to the police station to report
that he had prevented her from leaving the parking lot.

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Spellman escorted Ms. Shroff to a windowless conference room. He also ordered

that a female cadet be present while she pumped her breasts. He testified during his

deposition that: “She was a prisoner so I had to have somebody with her at all times

or leave her in the holding cell. I was doing her a favor.”

II

A criminal complaint alleging that Ms. Shroff had violated the Municipal

Code of the City and County of Denver was prepared by a law enforcement officer.

The signature on the complaint is illegible. It provides as follows:

The probable cause for the arrest of the above-named individual
is as follows: “The suspect Amy Shroff 9-23-76 parked her car
behind victim’s parked car at University Blvd and Exposition
Ave and took pictures of victim’s vehicle and victim as he
walked out of the Campus Lounge.
Suspect violated restraining order 05-W1696, Denver
Court 124d.
Victim identified suspect at District 3.”

Judge John M. Marcucci signed the complaint and checked a box on the form

which states “Probable Cause Found.” 3 The criminal charge against Ms. Shroff was

dismissed several days after it was filed.

3
The indication on the complaint that there was probable cause to arrest Ms.
Shroff was apparently based solely on the allegations set forth by the officer on
the complaint, instead of a finding made by Judge Marcucci after an evidentiary
hearing. Colorado law does not provide for a preliminary hearing to determine
probable cause for a Municipal Code violation. See C.R.S. §16-5-301.

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 III

The complaint in this matter was filed on July 13, 2007. Ms. Shroff alleged,

inter alia, that she was entitled to damages against the Defendants for violating the

Fourth Amendment by subjecting her to an illegal search and seizure “without any

basis for believing that she was engaged in criminal activity.” She also alleged in

the first count that Defendant Spellman “intentionally, knowingly, and recklessly

subjected her to an illegal, demeaning, and invasive seizure without any reasonable

justification.” In count two she alleged that her Fourth Amendment right to

freedom from unlawful and unreasonable searches was violated by Officer

Spellman because he subjected her to a “strip search” in violation of C.R.S. § 16-3-

405(5), (6).

In her third claim for relief, she alleged that she was deprived of her

constitutionally protected liberty interest in familial association. In her fourth

claim for relief, she alleged that Officer Spellman, the City and County of Denver,

Undersheriff William Lovingier, and unknown Denver Deputy Sheriffs were liable

as policy makers for the failure to train and supervise officers of the Denver Sheriff

Department adequately with respect to the right of a nursing woman to use a breast

pump privately and that this failure violated her constitutional rights.

Officer Spellman filed a motion for summary judgment on August 6, 2008.

He alleged that he was entitled to qualified immunity on Ms. Shroff’s first claim

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because he reasonably believed he had probable cause to arrest her. He also

contended that he was entitled to qualified immunity as to the second count because

§ 1983 “does not provide a basis for legal redress for an alleged ‘strip search’

performed in violation of C.R.S § 16-3-405.”

The district court denied Officer Spellman’s August 6, 2008 motion for

summary judgment. It dismissed with prejudice Ms. Shroff’s third claim against

the City and County of Denver for violation of the right to familial association and

her fourth claim for supervisory and municipal liability for the alleged violation of

the right to familial association. The same claims against the unknown defendants

were dismissed for failure to prosecute. The district court also ordered that the

caption in this case be amended to drop the City and County of Denver,

Undersheriff Lovingier, and the Unknown Denver Deputy Sheriffs because the

claims asserted against them were dismissed.

Officer Spellman filed a timely notice of appeal regarding the denial of his

motion for summary judgment based on qualified immunity on Ms. Shroff’s first

and second claims. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

IV

A

In this appeal, Officer Spellman contends that we should vacate the district

court’s order denying his motion for summary judgment because the undisputed

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evidence demonstrates that there was probable cause to arrest Ms. Shroff and

require her to expose her breasts in the presence of a female cadet because Ms.

Shroff was a prisoner. Alternatively, he argues that the law was not clearly

established that he lacked probable cause to arrest Ms. Shroff, or that requiring her

to expose her breasts constituted a strip search in violation of the Fourth

Amendment.

Ms. Shroff maintains that we lack jurisdiction to consider this interlocutory

appeal because Officer Spellman’s arguments on appeal are based on disputed

issues of fact. Relying on DeAnzona v. City and County of Denver, 222 F.3d 1229

(10th Cir. 2009), she argues that this Court may exercise its appellate jurisdiction

only “[i]f the defendant argues that she is entitled to qualified immunity under the

plaintiff’s version of the facts because the plaintiff has not demonstrated a violation

of clearly established law . . . .” Id. at 1233.

The record in this case demonstrates that there are no genuine issues of fact

in dispute. Officer Spellman testified during his deposition that he arrested Ms.

Shroff because he saw a photograph taken by Ms. Shroff that shows that she

parked her car less that 100 yards from Mr. Kruse.

Ms. Shroff testified that she photographed Mr. Kruse’s truck outside the

Campus Lounge bar. She also that testified she did not see Mr. Kruse when she

photographed his truck. She did not deny, however, that she was within 100 yards

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of Mr. Kruse. Thus, there is no conflict regarding whether Ms. Shroff was within

100 yards of Mr. Kruse outside the Campus Lounge bar.

This Court held in Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 1997), that

[a] determination that the law allegedly violated by the defendant was
clearly established at the time of the challenged actions is an abstract
issue of law that is immediately appealable. A determination that
under either party’s version of the facts the defendant violated clearly
established law is also immediately appealable.

Id. at 1422, (citing Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996)); Johnson v.

Jones, 515 U.S. 304, 312-14 (1995); Mitchell v. Forsyth, 472 U.S. 511, 522 (1985).

Officer Spellman testified that he arrested Ms. Shroff because she violated

the terms of the restraining order. The sole issue before this Court is whether

Officer Spellman violated clearly established law in arresting Ms. Shroff based on

either party’s version of the facts. Accordingly, we have jurisdiction to review this

interlocutory appeal. 4

4
In its “ORDER CONCERNING MOTIONS FOR SUMMARY
JUDGMENT,” the district court stated that “the following facts are not disputed.”
In its summary of the facts, the district court stated that Ms. Shroff parked her
automobile within 100 yards of Mr. Kruse when she photographed his truck in
front of the Campus Lounge. The district court also noted that Officer Spellman
arrested her after reading the order restraining Mr. Kruse from coming within 100
yards of Ms. Shroff. We agree that these facts are undisputed. In denying the
motion for summary judgment, however, the district court stated: “Viewing the
evidence in the current record in the light most favorable to Shroff, I conclude
that there remain genuine issues of material fact that are relevant to her Fourth
Amendment unlawful seizure claim.”

Ms. Shroff argues that this Court has no jurisdiction to consider this

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 B

Officer Spellman contends that the district court erred in determining that he

was not entitled to qualified immunity because he had probable cause to arrest Ms.

Shroff based on the totality of the circumstances. He argues that the district court

erred in relying solely on the terms of the restraining order in determining whether

he had probable cause to arrest Ms. Shroff. Officer Spellman maintains that the

district court erred in failing to consider the undisputed fact that he was informed

by a police dispatcher that Ms. Shroff had violated a restraining order, and Mr.

Kruse’s complaint that Ms. Shroff had been within 100 yards of him outside the

Campus Lounge bar.

interlocutory appeal because “[t]his Court does not have jurisdiction to review a
denial of summary judgment based on qualified immunity if the claim on appeal
is based on disputed facts.”

The district court did not identify the facts it considered to be disputed
regarding Ms. Shroff’s unlawful seizure claim. As discussed above, we have
concluded we have jurisdiction because the facts relied upon by the parties are not
in dispute. The only issue presented in this appeal is whether, as a matter of law,
they demonstrate that Officer Spellman lacked probable cause to arrest and search
Ms. Shroff. It is possible that the district court’s amorphous statement that there
are genuine issues of material fact in dispute was meant to reflect that there may
be, for example, disputed facts regarding the amount of damages, if any, that
should be awarded if this matter goes to trial. In any event, we may “affirm a
district court decision on any grounds for which there is a record sufficient to
permit conclusions of law, even grounds not relied upon by the district court.”
Weitzel v. Div. of Occupational & Prof’l Licensing, 240 F.3d 871, 876 (10th Cir.
2001). We have jurisdiction over this interlocutory appeal because the record
before us is sufficient to permit us to decide the pure question of law presented by
the undisputed facts.

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 The district court’s denial of qualified immunity is a question of law we

review de novo. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 1995) (en

banc). We must review the evidence in the light most favorable to the non-moving

party. Id.

Pursuant to Rule 56(c)(2) of the Federal Rules of Civil Procedure summary

judgment should be granted “if the pleadings, the discovery, and disclosure

materials on file and affidavits show that there is no genuine issue as to any

material fact and that movant is entitled to judgment as a matter of law.”

In Swanson v. Town of Mountain View, Colo., 577 F.3d 1196 (10th Cir.

2009), this Court explained the procedure that should be followed in determining

whether summary judgment should be granted based on qualified immunity.

In qualified immunity cases at the summary judgment stage, a
plaintiff must clear two hurdles. The plaintiff must demonstrate on the
facts alleged (1) that the defendant violated his constitutional or
statutory rights, and (2) that the constitutional right was clearly
established at the time of the alleged unlawful activity. Pearson v.
Callahan, ___ U.S.___, [129 S. Ct. 808, 815-16, 818; Saucier v. Katz,
533 U.S. 194, 200, (2001).]

Recognizing the complexities of resolving the question of
constitutional liability, the Supreme Court allows us the discretion to
decide “which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular
case at hand.” Pearson, 129 S. Ct. at 817-18; see Christensen v. Park
City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009) (by explaining
that Pearson granted discretion to determine which qualified immunity
prong to address first).

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 Here, the district court denied the police officers’ motion for
summary judgment, finding that the plaintiffs satisfied their two-part
burden. To affirm, we must agree that the plaintiffs cleared both
hurdles—we must thus address both. To reverse, however, we need
only find that the plaintiffs failed either requirement.

Id. at 1199. Because we have concluded that Ms. Shroff has cleared both of the

Saucier hurdles, we address each of them.

V

A

It has long been established that an arrest and search without probable cause

that a crime has been committed violates the Fourth Amendment. See Cortez, 478

F.3d at 1117 (“The law was and is unambiguous: a government official must have

probable cause to arrest an individual.”). In this matter, it is undisputed that

Officer Spellman arrested Ms. Shroff without a warrant and required her to expose

her breasts in the presence of a female cadet.

Prior to arresting Ms. Shroff, Officer Spellman had been informed by a

police dispatcher that Mr. Kruse had reported that Ms. Shroff had violated a

restraining order. After being confronted at the police station by Ms. Shroff who

demanded that Mr. Kruse be arrested for blocking her car from exiting the police

station parking lot, Officer Spellman interrogated Mr. Kruse, Ms. Shroff, and her

stepfather. Mr. Kruse, Ms. Shroff, and her stepfather informed Officer Spellman

that Ms. Shroff had parked her car behind Mr. Kruse’s truck outside a bar. Ms.

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Shroff told Officer Spellman that she photographed Mr. Kruse’s truck because he

apparently was in a bar a few minutes before he was scheduled to exercise his

visitation rights with their infant daughter.

Ms. Shroff showed Officer Spellman the restraining order that directed Mr.

Kruse to keep a distance of at least 100 yards from Ms. Shroff. She explained to

Officer Spellman that, as the protected party in the restraining order, she was not

barred from being within 100 yards of Mr. Kruse because it was not a reciprocal

restraining order.

Officer Spellman read the restraining order. He concluded that Ms. Shroff

had violated the provisions of the restraining order that provides that the protected

party “can not give the Restrained Person permission to change or ignore this

Order.”

None of the witnesses interrogated by Officer Spellman, including Mr.

Kruse, stated that Ms. Shroff gave him permission to come within 100 yards of her.

It is also undisputed that Ms. Shroff did not see Mr. Kruse approach her from the

bar as she photographed his truck.

Thus, there is no evidence in this record that supports Officer Spellman’s

conclusion that he had probable cause to arrest Ms. Shroff for being in contempt of

the order restraining Mr. Kruse from coming within 100 yards of her. Furthermore,

the restraining order does not authorize a law enforcement officer to arrest a

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protected party. The portion of the restraining order entitled “NOTICE TO LAW

ENFORCEMENT OFFICIALS” expressly provides as follows: “You shall arrest or

take into custody, or if an arrest would be impractical under the circumstances,

seek a warrant for the Restrained Person when you have information amounting to

probable cause that the Restrained Person has violated or attempted to violate any

provision of this Order . . . .” Accordingly, we are persuaded that Ms. Shroff has

met her burden of demonstrating that Officer Spellman violated her Fourth

Amendment right to be free from an unreasonable search and seizure.

B

Officer Spellman contends that “[e]ven if the court were to find that Shroff

demonstrated a Fourth Amendment violation for unlawful seizure, Spellman is

nonetheless entitled to qualified immunity because Shroff has failed to establish the

second prong of the analysis, i.e., that the right at issue was clearly established at

the time of the alleged violation.” He maintains that there is no United States

Supreme Court or Tenth Circuit decision that has held that the arrest of a protected

person without probable cause for violation of a restraining order violates the

Fourth Amendment. In support of this proposition, Officer Spellman relies on this

Court’s statement in Medina v. City and County of Denver, 960 F.2d 1493 (10th

Cir. 1992), that “[o]rdinarily, in order for the law to be clearly established, there

must be a Supreme Court or Tenth Circuit decision on point, or the clearly

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established weight of authority from other courts must have found the law to be as

plaintiff maintains.” Id. at 1498. In Hope v. Pelzer, 536 U.S. 730 (2002), the

Supreme Court held, however, that “a general constitutional rule already identified

in the decisional law may apply with obvious clarity to the specific conduct in

question, even though ‘the very action in question has not previously been held

unlawful.’” Id. at 741.

In Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir. 2007), this Court

observed that “there will almost never be a previously published opinion involving

exactly the same circumstances. We cannot find qualified immunity wherever we

have a new fact pattern.” Id. at 1284. This Court further held that “[t]The Hope

decision ‘shifted the qualified immunity analysis from a scavenger hunt for prior

cases with precisely the same facts toward the more relevant inquiry of whether the

law put officials on fair notice that the described conduct was unconstitutional.’”

Id. (quoting Gomez v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006)).

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).

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 In Saucier, 533 U.S. at 202, the Supreme Court held that in determining

whether an official is entitled to qualified immunity, once it is established that a

constitutional right was violated, a trial court must determine whether the right was

clearly established, i.e., “whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”

In deciding whether Officer Spellman is entitled to qualified immunity under

the second Saucier requirement that the law must be clearly established, we must

determine whether it would have been clear to a reasonable officer that the facts

known to Officer Spellman did not constitute probable cause to arrest Ms. Shroff

for violating the order restraining Mr. Kruse from coming within 100 yards of her.

See Beck v. Ohio, 379 U.S. 89, 96 (1964) (“When the constitutional validity of an

arrest is challenged, it is the function of a court to determine whether the facts

available to the officers at the moment of the arrest would ‘warrant a man of

reasonable caution in the belief that an offense has been committed.’”) (quoting

Carroll v. United States, 267 U.S. 132 (1925)).

Officer Spellman did not arrest Ms. Shroff until he had interviewed her, her

stepfather, and Mr. Kruse. Ms. Shroff complained to Officer Spellman that Mr.

Kruse had parked his truck behind her automobile in the police station’s parking lot

in violation of the restraining order. Ms. Shroff provided Officer Spellman with a

copy of the restraining order that had been issued against Mr. Kruse. It prohibits

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Mr. Kruse from contacting, harassing, stalking, injuring, intimidating, threatening,

molesting, or placing her or her child in reasonable fear of bodily injury or coming

within 100 yards of her. The restraining order authorizes law enforcement officials

to arrest the restrained person for a violation of any provision of the order. It does

not authorize the arrest of the protected person for giving the restrained person

permission to change or ignore the order. Ms. Shroff pointed out to Officer

Spellman that the restraining order was not reciprocal, that is, it did not restrain her

from contacting, stalking, or molesting Mr. Kruse, or coming within 100 yards of

him. Instead of arresting Mr. Kruse for parking his truck at the District 3 police

station behind Ms. Shroff’s automobile in clear violation of the express terms of

the restraining order, Officer Spellman arrested Ms. Shroff.

Officer Spellman claims that he relied on the provision in the restraining

order that a protected person cannot give a restrained person “permission to change

or ignore this Order in any way.” None of the persons interviewed by Officer

Spellman, however, including Mr. Kruse, stated that Ms. Shroff gave Mr. Kruse

permission to come within 100 yards of her.

We are persuaded that under these undisputed circumstances, no reasonable

officer would determine that he or she had probable cause to arrest Ms. Shroff after

reading the restraining order and being informed that Ms. Shroff was not a

restrained person. Accordingly, we conclude that Officer Spellman did not have

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arguable probable cause to arrest Ms. Shroff for a violation of the restraining order.

VI

Officer Spellman also seeks reversal of the district court’s denial of his

motion for summary judgment on the second count in Ms. Shroff’s complaint. He

contends that his conduct in ordering a female deputy to be present while Ms.

Shroff exposed her breasts was not an unreasonable search in violation of the

Fourth Amendment. Instead, Officer Spellman argues that he merely acquiesced in

her request to use a breast pump.

Officer Spellman required Ms. Shroff to expose her breasts in front of a

female cadet solely because she was a prisoner. As discussed above, Ms. Shroff

had been arrested without probable cause under clearly established law. Therefore,

but for the unlawful seizure of her person by Officer Spellman, she would not have

been subjected to an invasion of her personal right not to be required to expose her

breasts before another person.

In Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993), this court held that

“[i]t is axiomatic that a strip search represents a serious intrusion upon personal

rights.” Id. at 395. “In a civilized society, one’s anatomy is draped with

constitutional protections.” United States v. Afanador, 567 F.2d 1325, 1331 (5th

Cir. 1978).

In Bell v. Wolfish, 441 U.S. 520 (1979), a case involving a search of body

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cavities in a prison facility, the Supreme Court instructed as follows:

The test of reasonableness under the Fourth Amendment is not capable
of precise definition or mechanical application. In each case it
requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails. Courts must
consider the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is
conducted.

Id. at 559

In this matter, Officer Spellman has not demonstrated any justification for

requiring Ms. Shroff to expose her breasts to a female cadet while she performed an

essential bodily function in providing milk for her baby. He did not testify, for

example, that she might attempt to escape without the presence of a female cadet.

Obviously, if Officer Spellman was concerned that she might attempt to escape, he

could have ordered a guard outside the conference room when she pumped her

breasts.

Because Officer Spellman failed to present any justification for requiring Ms.

Shroff to expose her breasts in the presence of another person, we conclude that

Officer Spellman violated Ms. Shroff’s Fourth Amendment right to personal

privacy by requiring her to expose her breasts after arresting her without probable

cause.

Conclusion

We AFFIRM the district court’s order denying Officer Spellman’s motion for

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summary judgment. The record viewed in the light most favorable to Ms. Shroff

demonstrates that her Fourth Amendment rights to be free from an unlawful seizure

and an unreasonable search that required a woman to expose her breasts were

violated by Officer Spellman.

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