KILLMER, LANE & NEWMAN, LLP ATTORNEYS AT LAW

1543 CHAMPA ST. Ÿ SUITE 400 Ÿ THE ODD FELLOWS HALL Ÿ DENVER, CO 80202
303.571.1000 Ÿ FAX: 303.571.1001 Ÿ www.KLN-law.com
Darold W. Killmer
David A. Lane*+
Mari Newman*
Michael Fairhurst
Thomas Kelley°
November 13, 2019 Andrew McNultyˆ
Liana Gerstle Orshan
Ryan Robinson, Esq. Reid Allison+
Helen Oh
Ryan.robinson@wvc-ut.gov

Corey Sherwin, Esq.

Corey.sherwin@wvc-ut.gov

Re: Tilli Buchanan v. West Valley City, Utah, et. al.

Dear Counsel:

Tilli Buchanan has retained KILLMER, LANE & NEWMAN, LLP to represent her with respect to
issues arising out of violations of her Fourth Amendment and Fourteenth Amendment rights
commencing with a summons being issued regarding her appearing topless in her own home in
the presence of her stepchildren. My understanding of the relevant facts and circumstances
follows:

1. Factual Background

Sometime between November 2017 and January 2018 , Tilli and her husband were putting up
drywall in the heated garage of the home they shared. A cloud of fine white gypsum powder
began to fill the room. Not wanting the chalky gypsum to cling their clothes, they removed their
shirts and she removed her bra and continued to toil in just their lower undergarments. During
the drywall hanging, their three children, came into the garage. The children, ages 13, 10 and 9,
asked why Ms. Buchanan wasn’t wearing a shirt. She explained that she considers herself a
feminist and she wanted to make a point that everybody should be fine with walking around their
house or elsewhere with skin showing. Ms. Buchanan stated that she was in the house and was
topless as was her husband Jared. Tilli and Jared then talked to the children about how if a man is
able to walk around without a shirt on showing his nipples, a woman should have the exact same
right. They then finish the job of hanging the drywall, showered, put on fresh clothes, and began
to prepare dinner for the children.

When the State was apprised of this seemingly unremarkable domestic scene in January, 2019, it
reacted by charging one of the individuals, Ms. Buchanan, with three counts of Lewdness
Involving a Child, a class A misdemeanor under U.C.A. 76-9-702.5. If convicted, she will be
required to register as a sex offender for the time she is on probation and the following ten years,
and be forced to suffer the unparalleled ignominy that hounds a convicted child sex offender for
the rest of their life. But the other individual, Jared, whose conduct was exactly identical to that
________________________________________
*Also admitted to practice in California
+Also admitted to practice in New York
ˆAlso admitted to practice in Missouri
°Of Counsel
Messers Robinson and Sherwin
November 22, 2019
Page 2 of 3

of his wife, is permitted to appear topless before the children under the law of the State of Utah.
The difference between these two people - the only difference that the State points to as
justification for condemning the one as a criminal of the most monstrous kind – a sex offender-
while deeming the other to be an unblemished innocent - is their gender. This is quite aside from
the issue of whether any person, male or female, has a constitutional right to appear completely
nude within the confines of their own home, whether or not children are present.

Because Tilli Buchanan is a woman, says the State of Utah, she is not allowed to strut shirtless
through her own home. Because Tilli Buchanan is a woman, she is not free to display her body
with pride, but must instead conceal it in shame, even in the privacy of her own home. Because
Tilli Buchanan is a woman, her bare chest is censured as being inherently pornographic and
perverse, while her husband’s bare chest is celebrated as an emblem of strength and pride.
Because Tilli Buchanan is a woman - and only because she is a woman - the State now seeks to
condemn her as a child sex offender for engaging in the exact same non-sexual conduct as her
lawfully faultless husband. Tilli Buchanan is being singled out for prosecution solely on the basis
of sex.

Only a dismissal with prejudice and a motion filed by the City to seal the record in this matter
begins to compensate Ms. Buchanan for the violation of her rights.

2. Legal Analysis

Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) disposes of
any argument possibly advanced by the Police or the City that your actions were justified under
law. Issuing a summons for Ms. Buchanan’s toplessness and not issuing a summons for her
husband who was equally topless was the precise point of the Tenth Circuit’s holding that this is
an Equal Protection violation. Within the Tenth Circuit, comprised of Utah, Colorado, Kansas,
New Mexico, Wyoming and Okalahoma, anywhere a man is permitted to appear topless, a
woman is permitted to appear topless. The seizure of Ms. Buchanan coupled with the ongoing
prosecution undertaken by you, is both a Fourth Amendment, Equal Protection and Due Process
violation as well.

2.1 Fourth Amendment

As the Supreme Court has observed, “[t]he purpose of the Fourth Amendment is … to prevent
arbitrary and oppressive interference by enforcement officials with the privacy and personal
security of individuals.” United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (internal
citations omitted). In order to achieve this purpose, the Court has long held that the Fourth
Amendment prohibits unreasonable searches and seizures. See Elkins v. United States, 364 U.S.
206, 213 (1960); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (explaining that a
search occurs “when an expectation of privacy that society is prepared to consider reasonable is
infringed”).

2.2 Prosecutorial immunity does not apply

Messers Robinson and Sherwin
November 22, 2019
Page 3 of 3

It appears that your continued prosecution of Ms. Buchanan, commencing with your decision to
file charges, may be the subject matter of a civil rights lawsuit. Prosecutorial immunity is
certainly not complete but is qualified. Burns v. Reed, 500 U.S. 478 (1991); Mink v. Suthers, 482
F.3d 1244 (10th Cir. 2007).

3. Conclusion

Based on our investigation and evaluation of the facts and circumstances of this case, we have
advised Ms. Buchanan that she has a compelling case against both the City, the involved law
enforcement officers as well as the prosecutors who acted during the investigative phase of the
case, for their violation of Plaintiff’s constitutional rights. Ms. Buchanan is determined to secure
a fair resolution of these concerns. Part of a fair resolution will be an immediate dismissal of all
criminal charges and an agreement to seal her arrest record on this case. If you are interested in
pursuing that avenue, please contact me by the close of business on November 29, 2019. I look
forward to hearing from you.

Sincerely,

KILLMER, LANE & NEWMAN, LLP

s/David Lane

David A. Lane