Shroff v. Spellman

• Citation: 604 F.3d 1179
• Decision Date: 04 May 2010
• Docket Number: No. 09-1084.,09-1084.
• Parties: Amy SHROFF; Laila Kruse, a minor by her mother and next friend Amy Shroff, Plaintiffs-Appellees,v.Frank SPELLMAN, in his official and individual capacity, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

604 F.3d 1179

Amy SHROFF; Laila Kruse, a minor by her mother and next friend Amy Shroff, Plaintiffs-Appellees,v.Frank SPELLMAN, in his official and individual capacity, Defendant-Appellant.

No. 09-1084.

United States Court of Appeals, Tenth Circuit.

May 4, 2010.

Suzanne A. Fasing, Assistant City Attorney, Office of the Denver City Attorney, Denver, CO, (Michael T. Lowe of Bruno, Colin, Jewell, & Lowe, P.C., Denver, CO, on the briefs) for Defendant-Appellant.

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

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

ORDER

Appellee's motion to correct the opinion is granted. The corrected opinion filed nunc pro tunc to March 23, 2010, is attached to this order.

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

Ms. Shroff and Greg Kruse engaged in a sexual 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.

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

1. No Contact Provisions

v 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

v 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.

v 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:

v 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.

v 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 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).

v 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.

v 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.

v 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.

v 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:

v You are hearby informed that if this Order is violated you may call law enforcement.

v You may initiate contempt proceedings against the Restrained Person.

v You can not give the Restrained Person permission to change or ignore this Order in any way. ONLY THE COURT CAN CHANGE THIS ORDER.

v $46.00 dollars filing fee

NOTICE TO LAW ENFORCEMENT OFFICIALS:

v 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))

v You shall use every reasonable means to enforce this Protection Order.

v 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.

v You shall enforce this Order even if there is no record of it in the Protection Order Central Registry.

v You shall take the Restrained Person to the nearest jail or detention facility.

v 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.

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 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...