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When Getting Photos Developed Leads to Trouble With the Law

Image: Shirley Saenz

Shirley Saenz outside Kings County Family Court in Brooklyn, New York City. John Brecher / NBC News

First-time mom Shirley Saenz made a fateful decision four years ago: She walked into a drugstore near her Brooklyn, New York, home to print digital pictures of her 20-month-old son without his clothes.

The photos were graphic, revealing the boy’s bare buttocks. Saenz said she took them on the advice of her then-attorney to document the infant’s physical condition before dropping him off at his father’s home — and the troubling red swelling she claimed she found after getting him back.

She planned to print the photos, and believed that having hard evidence would support her case to cops that the boy appeared to be abused during visitations with his dad.

Instead, the images touched off a dramatic series of events: A Duane Reade employee found the photos and called authorities. Officers arrested Saenz, leading child services to whisk the boy away and place him with his father.

“I probably lost 20 pounds in two weeks. I couldn’t sleep,” recalled Saenz, a 24-year-old college student. “All I could think about was my son.”

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Her situation is an extreme example of how developing photos can escalate into someone losing their child. Other cases have grabbed headlines: A Peoria, Arizona, couple sued Walmart in 2009 after bath time pictures taken of their infant daughters led the retail giant to call police for alleged child pornography. The couple claimed customers weren’t properly informed about Walmart’s print policy. But a federal judge ruled in favor of the retailer, citing state statutes that protect employees from liability in such situations. The couple, who temporarily lost their kids, has filed an appeal.

Saenz is still fighting to regain custody in family court of the now-5-year-old boy she calls her “bambino.” Her ordeal has resulted in a small victory of sorts after the New York Police Department agreed May 20 to an undisclosed monetary settlement stemming from her arrest on July 1, 2010.

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Saenz filed a federal suit claiming her civil rights were violated when she was removed from her home. The judge dismissed part of the suit, and police and Saenz agreed to settle on her claims of unlawful entry and excessive force.

“After the District Court rejected the plaintiff’s most serious allegations of false arrest and unlawful detention, settlement of the remaining claims was in the best interest of the parties,” NYPD lawyers told NBC News in an email.

Saenz’s attorney, Robert Rambadadt, said Saenz’s removal from her home was “the most egregious” action taken by police.

“They forcibly took her from her home and started questioning her when the whole situation could have been cleared up,” Rambadadt said. “It should never have gone as far as it did.”

In June 2009, about eight months after she gave birth, Saenz began bringing the child for four-hour weekly visitations with his dad. By then, their relationship was over. On some occasions, she noticed the child was coming back with “red localized swelling” in his anal area, according to her federal suit.

The city’s Administration for Children’s Services (ACS) in September 2009 took photos to document the alleged abuse. Saenz says she was advised by her then-attorney to do the same. He didn’t return calls seeking comment.

A doctor reported the child’s “poor condition” to the agency, court documents show. ACS did investigate in 2009 but found the abuse allegation unfounded at the time.

A judge later told Saenz to stop taking pictures, but she resisted.

“I thought pictures would protect my son,” she said.

So she didn’t stop, going as far as using a money order or newspaper as a timestamp to show that her son was in “good physical condition” before he was dropped off to the father, according to her lawsuit.

Upon the boy’s return during one of the visits in June 2010, Saenz said she noticed “anal swelling,” and reported it to the child’s pediatrician. She also took pictures of what one family court judge later said looked like more than a typical diaper rash.

The child’s pediatrician wrote in an affidavit that it was possible the child was “being molested.” (NBC News is withholding the father’s name because he has not been charged with a crime.)

That same month, Saenz went to the 72nd police precinct in Brooklyn to file a complaint against the father. She said she explained how she took pictures to document the boy’s physical condition. A detective looked into the case, but closed it without filing any charges, according to Saenz’s suit.

Then, on June 26, she went to a Duane Reade to use a personal kiosk to print the latest pictures of her son. The machine failed on her while she tried printing, so she left.

Three days later, worried that the images might still be on the machine, she spoke with an employee and asked him if he could delete any pictures associated with her order number.

Although the pictures didn’t print, the employee recovered a template of the photos showing a naked infant lying beside a money order for 25 cents.

Retailers with photo labs will typically require employees who believe something illegal has occurred, such as child pornography or abuse, to contact police.

At least 10 states — although not New York — have specific laws on the books obligating technicians to report suspected child porn or face charges themselves, according to the National Conference of State Legislatures. Some states, such as Oregon, South Carolina and Texas, say employees who alert police “in good faith” can’t be held liable even if the photos turn out to be innocent.

Retired New Jersey social worker Marian Rubin was falsely accused of taking pornographic pictures of her grandchildren in 2000 after dropping off film at a photo lab. The charges were ultimately dismissed, but not before the budding photographer was ordered to stay away from her grandchildren for three weeks and a front-page headline on a local tabloid newspaper screamed, “GRANNY BUSTED FOR NUDE PICS.” The experience still haunts Rubin nearly 15 years later.

“If I walk past a playground with my camera, I feel self-conscious,” she said.

“It doesn’t surprise me that things like this still happen,” Rubin added. “It’s all in the eye of the beholder. What one person thinks is pornographic or suspicious, to another person, it’s nothing.”

In Saenz’s case, the Duane Reade photo technician was concerned about the images she wanted to print. He alerted an officer at the 72nd precinct, according to the employee’s court affidavit.

A sergeant came to the store, looked at the pictures and believed a kidnapping had occurred.

Although there was never a name, contact number or caller ID number associated with the photo order, police were somehow able to link the pictures to Saenz. On the night of June 30, Saenz had come home and placed her son in the crib when her roommate told her detectives had been there earlier.

Moments later, hands pounded on the front door. Saenz, who had legal custody of the child, said detectives returned to talk about a kidnapping. She said she and her son were safe, and then asked them to leave.

Instead, she was ordered into an unmarked patrol car, she said, and driven to the local precinct for questioning about the “kidnapping” and the pictures taken to Duane Reade. Saenz said she told detectives that she was advised by her attorney to take them.

Unbeknownst to Saenz, police also picked up her friend, Eli Samuel, to ask him about the photos taken to Duane Reade. It’s unclear how police knew to contact Samuel about those photos, which he was aware of.

Both he and Saenz, already at the same precinct, were arrested and charged with endangering the welfare of a child. Those charges were dismissed the same day after the district attorney’s office determined the photos weren’t illegal or pornographic in nature, and declined to prosecute. Saenz and Samuel were released from jail.

ACS, however, placed the child into the custody of his father during a conference that Saenz said she was never notified about while she was briefly incarcerated.

A neglect petition was filed against Saenz — ensuring she would no longer have custody of her son. Four years later, that petition has yet to be resolved in family court.

During the longest stretch, Saenz was unable to see her son for about six months during the investigation. Last year, she was finally awarded overnight visitation rights while the case continued winding through the court system.

“I just want him back with me,” Saenz said recently. “If I could let everything else go, I would, just to have him back. But it’s not right what’s happened.”

The father’s attorney, Angela Scarlato, said the fact that the city has granted her client custody since 2010 “speaks volumes” about the case and his ability to care for the child.

He denies Saenz’s allegations of abuse and the child remains “in excellent hands,” Scarlato said.

Saenz said she doesn’t understand why police went as far as arresting her when earlier that same month she had tried to file charges against the father and already explained to detectives why she was taking photos of her son.

Samuel, her friend, also filed suit against the NYPD over his arrest claiming unlawful detainment and illegal seizure, and a trial is scheduled for September. The NYPD denied the allegations in an answer to the complaint, and declined to comment further about pending litigation.

Saenz believes police purposefully targeted her and Samuel because they made prior complaints about the officers in the 72nd precinct and the department’s child advocacy officer after she felt they were shrugging off her concerns about suspected abuse. The NYPD declined to comment.

The complex case has forced Saenz to keep meticulous records and document everything. She said city case workers and attorneys have pegged her as overzealous and hyper-vigilant, and her own family accused her of hallucinating. She agreed to a mental health evaluation in July 2010 with a court psychiatrist and was found mentally competent, her attorney said.

“It makes me feel really sad because what was I supposed to do? I went to the proper authorities and what I felt like what I was saying was pushed to the side,” Saenz said when asked about taking the photos.

Her son sat on her lap on a recent afternoon, his attention turned to playing games on an iPod. He spoke softly. These are the moments she treasures.

“I did what I thought I had to do,” she added.

While she remains resolute in her actions, Saenz has found another purpose amid the fog of the past few years. She’s studying to become a lawyer.