U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Court: Baby Butt Photos 'Not Provocative'

A.J. Demaree took a picture of his children -- ages five, four, and one -- lying down naked on a towel with their bottoms exposed.

Responding to a report of possible child abuse, a police officer asked the father why he took the photos. "So when we look back on 'em years later, look at their cute little butts," he said.

Child protective services took the children, but returned them after a month without any charges against Demaree or his wife. The parents sued for constitutional violations, and a federal appeals court upheld their complaint in Demaree v. Pederson.

Bad Day at Walmart

The problems started at Walmart, where Demaree had dropped off his photographs to be developed and printed. A Walmart employee saw several pictures of the nude children and informed police.

Detectives went to the Demaree residence to question the parents. The police then took the children for medical exams and got a warrant to search the home.

Laura Pederson, with child protective services, arrived and viewed the photos. She conferred with her supervisor and decided to take the children into emergency protective custody.

After the children returned home and their parents sued in federal court, Pederson and her supervisor claimed immunity. A trial judge agreed with the social workers.

Not Provocative

The U.S. Ninth Circuit Court of Appeals reversed, holding that the social workers did not have reasonable cause to believe the children were seriously at risk. A divided panel also concluded the parents had a constitutional right to family unity and companionship.

In an unsigned opinion, the majority took issue with a dissenting characterization of the children's photos. Judge Jack Zouhary said the children were in "provocative poses."

"[W]e see that portrayal of the photographs as inaccurate," the panel said. "The term suggests frontal nudity or sexually explicit poses, neither of which was represented."

Zouhary, for his part, has survived more serious attacks for his opinions. Last year, a criminal defendant was sentenced for plotting to kill the judge.

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