Jennifer Scherr v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1992
JENNIFER SCHERR,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 5913 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED JUNE 11, 2014 — DECIDED JULY 2, 2014
____________________
Before WOOD, Chief Judge, and POSNER and SYKES, Circuit
Judges.
POSNER, Circuit Judge. The plaintiff (whom we’ll call Jen-
nifer, because the principal defendant has the same last
name) sued two Chicago police officers, plus the City itself,
primarily seeking damages for their having (she alleged)
violated her Fourth Amendment rights—the officers by in-
cluding deliberate falsehoods in their affidavit supporting
their request for the issuance of a search warrant and the
2 No. 13-1992
City by failing to give the officers the training required to
prevent their irresponsible behavior. The district judge
granted the defendants’ motion to dismiss the case for fail-
ure to state a claim.
In February 2011, Jennifer’s then seven-year-old daugh-
ter, Liza, had been diagnosed with a rare brain tumor called
Diffuse Intrinsic Pontine Glioma. This tumor forms in an ar-
ea of the brainstem, called the pons, that controls many basic
bodily functions, such as breathing. The disease is almost
always fatal, usually within months of being diagnosed. See
Dana-Farber/Boston Children’s Cancer and Blood Disorders
Center, “Diffuse Intrinsic Pontine Glioma (DIPG) Over-
view,” www.danafarberbostonchildrens.org/Conditions/
Brain-Tumor/Diffuse-pontine-glioma.aspx (visited on July 2,
2014); Katherine E. Warren, “Diffuse Intrinsic Pontine Glio-
ma: Poised for Progress,” 2:205 Frontiers in Oncology (2012).
In 2012, Jennifer learned that oil derived from marijuana
plants (called “cannabis oil” or “marijuana oil”) might, if fed
to her daughter, provide therapeutic benefits; some medical
evidence supports this belief. See, e.g., Rick Doblin et al.,
“Marijuana as Antiemetic Medicine: a Survey of Oncologists'
Experiences and Attitudes,” 9 J. Clinical Oncology 1314 (1991).
The legal status in Illinois of cannabis oil was unclear in
2012, but Jennifer was able to buy it, and did. But it was ex-
pensive and Jennifer decided to switch to growing her own
marijuana and extracting the oil from it for her daughter.
She was assisted in this endeavor by her father-in-law, Cur-
tis Scherr (whom we’ll call Curtis for the same reason we’re
calling the plaintiff Jennifer), a Chicago police officer. Alt-
hough advising her of the legal risks of growing the plants,
Curtis helped her grow them by supplying her with the spe-
No. 13-1992 3
cialized light bulbs required for growing the plants indoors.
And he would stop by Jennifer’s home from time to time to
“check on the crop.”
Liza died on July 10, 2012. The funeral was held on the
fifteenth. In the days immediately before and after the fu-
neral, a bitter conflict erupted between father-in-law and
daughter-in-law. The complaint alleges (and because it was
dismissed on the pleadings we take the allegations to be
true, of course without vouching for their truth) that
upon Liza’s passing, Jennie [Jennifer Scherr] elected to al-
low Liza’s body to remain at the family residence in Ever-
green Park for a certain amount of time so that Jennie and
the family, including Liza’s three younger siblings (5 years
and 3 year old twins) could pay respect and grieve in a
manner Jennie thought appropriate. Defendant Officer
Scherr objected to the body remaining at the residence and
caused conflict within the family when Jennie asserted her
wish to do so.
Because of previous strife and family controversy, two of
Defendant Officer Scherr’s daughters (Jennie’s sister-in-
laws) were specifically requested by Jennie and Ryan
[Ryan Scherr, who is Jennifer’s husband and Curtis Scherr’s
son, and was Liza’s father] to be omitted from Liza’s obitu-
ary. Contrary to Jennie’s wishes, Defendant Officer Scherr,
or someone at his direction, telephoned the funeral home
in charge of drafting the obituary and asked that his
daughters’ names be included in the obituary.
Consistent with the strife between Jennie and Ryan and
Ryan’s two sisters, the sisters were unwelcomed at the
services held for Liza but attended the services on Satur-
day nevertheless, to the dismay and consternation of Jen-
nie and Ryan. Saturday evening Jennie and Ryan request-
4 No. 13-1992
ed of Defendant Officer Scherr that neither sister attend
the services on Sunday, but one sister attended neverthe-
less and sat at the front of the service beside Defendant Of-
ficer Scherr, again to the dismay and consternation of Jen-
nie and Ryan.
On Saturday morning, July 14, the day of Liza’s wake
and services, Defendant Officer Scherr and his wife Ethel
(also a Chicago Police Officer) arrived at the funeral home
early and undertook to set up and erect certain religious
symbols and objects around and near Liza’s casket, sym-
bols which were of a religious affiliation Defendant Officer
Scherr followed but which were not subscribed to or prac-
ticed by Jennie or Jennie’s family including, of course, Li-
za. Upon learning that Defendant Officer Scherr had erect-
ed the symbols, Jennie telephoned the funeral home direc-
tor and asked that those religious symbols be removed
from the room, all to Defendant Scherr’s aggravation and
consternation.
On Monday, July 16, 2012 Defendant Officer Scherr, hav-
ing insisted that he be allowed to accompany Liza’s body
to the cremation facility, did so. Jennie gave Defendant
Officer Scherr permission to do so, only learning later that
it was the intent of Defendant Officer Scherr to obtain the
ash remains of Liza to the exclusion of Jennie. However,
Defendant Officer Scherr was told by the cremation facili-
ty, upon information and belief, that the ashes would not
be available until Tuesday, July 17.
On Tuesday, July 17, at approximately 8:00 AM, Defend-
ant Officer Scherr arrived at the funeral home where he
was told the ashes would be located and attempted to gain
possession of the ashes from the funeral home director, to
the exclusion of Jennie.
No. 13-1992 5
The funeral director refused to release Liza’s ash remains
to Defendant Officer Scherr. The inability to gain posses-
sion of Liza's ash remains angered, enraged and incensed
Defendant Officer Scherr.
The record does not indicate the nature of the religious
controversy between Jennifer and her father-in-law, and the
lawyers were not able to enlighten us on the subject at the
oral argument.
On either the second or the third day after the funeral,
Curtis, together with a fellow police officer, codefendant
Ruben Briones (an officer assigned to the police depart-
ment’s Narcotics Division), prepared an affidavit in support
of an application to a state court for a warrant to search Jen-
nifer’s house for illegal drugs. The affidavit, based entirely
on information supplied by Curtis, stated that on the six-
teenth (the day after the funeral) he had observed 50 mariju-
ana plants in Jennifer’s basement. Although her last name
and his last name—which are identical—are in the affidavit,
the affidavit contains no other indication of a relationship
between them.
A Cook County judge approved the application for a
search warrant and issued the warrant on June 19, and on
the same day (which remember was only the fourth day af-
ter the funeral), between twelve and fifteen DEA officers de-
scended on Jennifer’s home to search for marijuana. They
found none. She is not a dealer or an addict and so had dis-
carded the marijuana plants upon her daughter’s death. She
was not arrested and no criminal proceedings were brought
against her. Instead she brought this suit against the two of-
ficers and the City.
6 No. 13-1992
Curtis’s behavior, which culminated in the DEA’s search
of his daughter-in-law’s house, was, if it was as the com-
plaint describes it, atrocious. And if he knew, when he sub-
mitted it in support of the application for a search warrant,
that there was no longer any marijuana in his daughter-in-
law’s house, the issuance of the search warrant was based on
a knowingly false assertion of probable cause for the search,
and Jennifer’s Fourth Amendment rights were violated un-
der the principle of Franks v. Delaware, 438 U.S. 154 (1978).
But there is no allegation that when the warrant was applied
for he knew she’d discarded the marijuana plants. And at
the time there was no medicinal exception in Illinois to the
prohibition of possessing marijuana, as there is now, 410
ILCS 130/1 et seq. Moreover, there was and still is no medici-
nal exception to the federal law against possession of mari-
juana (even simple possession, with no intent to distribute),
21 U.S.C. § 844, and the fact that the search was conducted
by DEA agents suggests a possible federal interest in Jen-
nifer’s marijuana plants. The affidavit states that Curtis saw
the plants in Jennifer’s basement three days before he signed
the affidavit, and as far as we know that is true.
The affidavit was nevertheless misleadingly incomplete.
For Curtis was concealing from the judge asked to issue the
search warrant information that if disclosed in the affidavit
might well have doomed the application. Had the affidavit
stated that the suspected possessor of the 50 marijuana
plants was the affiant’s own daughter-in-law, the judge
would almost certainly have asked Curtis what was going
on that would induce him to accuse his own daughter-in-
law of criminal behavior, and upon learning the details the
judge probably would have told Curtis to “work things out”
No. 13-1992 7
privately—that this wasn’t a proper matter for a criminal
proceeding.
But candor in the affidavit would not have undermined
the existence of probable cause. Curtis had, so far as appears,
seen marijuana plants in Jennifer’s basement just a few days
earlier. Her possession of them had been criminal even if
she’d been planning to get rid of the plants and just hadn’t
gotten around to doing so yet (though in fact she had). What
was wrong with the affidavit was the motivation—Curtis’s
spite, his desire to see his daughter-in-law arrested just four
days after the death of her child (his grandchild) and maybe
even prosecuted (though that would be an unlikely sequel to
the search even if the plants had still been in her base-
ment)—though if she were prosecuted he might be as well,
as her accomplice in the growing of the marijuana.
The law is settled, however, that a police officer’s motive
in applying for a warrant does not invalidate the warrant.
Brigham City v. Stuart, 547 U.S. 398, 404–05 (2006); Whren v.
United States, 517 U.S. 806, 813 (1996); United States v. Taylor,
471 F.3d 832, 840 (7th Cir. 2006); United States v. Romo-
Corrales, 592 F.3d 915, 919 (8th Cir. 2010). It is a sensible rule,
though distasteful when applied in a case like this. Without
the rule, challenges to the legality of warrants could, and
doubtless often would, devolve into investigations, likely to
be inconclusive, of the mental states of the police officers
who had applied for them. Anyway why should motive
matter? Cardozo had famously asked, in response to a plea
to suppress illegally seized evidence, whether the criminal
should “go free because the constable has blundered,” People
v. Defore, 150 N.E. 585, 587 (N.Y. 1926), and had answered
“no.” The Supreme Court’s answer turned out to be “yes.”
8 No. 13-1992
Mapp v. Ohio, 367 U.S. 643, 655 (1961). A “yes” would be far
less plausible if a criminal asked that he be allowed to go
free because the constable, though he had committed no le-
gal error, had been impelled by nasty, spiteful thoughts un-
becoming in a law enforcement officer.
All this said, the State of Illinois might be wise to require
slightly more information in affidavits in support of warrant
applications—information about the existence of a family or
business relationship between the affiant (usually either a
police officer, as in this case, or a prosecutor) and the person
who is to be arrested or whose residence is to be searched.
Such information would identify a conflict of interest that
might make it prudent to reject the application. Such an in-
quiry would have been prudent here, as the likely upshot
would have been no raid on Jennifer’s home—and the time
of the DEA agents would have been saved, the grieving
mother spared further emotional distress, and this suit not
brought.
We close with a brief discussion of two claims, other
than the Fourth Amendment claim, that Jennifer Scherr
might have pursued. One, which she included in her com-
plaint but the district judge rejected and she has abandoned
on appeal, was a claim of a “class of one” denial of equal
protection. See, e.g., Village of Willowbrook v. Olech, 528 U.S.
562, 563–64 (2000) (per curiam); Del Marcelle v. Brown County
Corp., 680 F.3d 887 (7th Cir. 2012) (en banc); Hilton v. City of
Wheeling, 209 F.3d 1005, 1007–08 (7th Cir. 2000). The limits of
the doctrine are unclear, as is plain from our en banc deci-
sion in the Del Marcelle case, with its three opinions, none
commanding a majority of the judges. But the opinion in the
Hilton case states that a “class of one” denial of equal protec-
No. 13-1992 9
tion can be proved by evidence “that the defendant deliber-
ately sought to deprive [the plaintiff] of the equal protection
of the laws for reasons of a personal nature unrelated to the
duties of the defendant’s position.” Id. at 1008. That sounds
very much like a description of Officer Scherr’s behavior to-
ward his daughter-in-law in this case.
The district judge rejected the claim, however, on the au-
thority of our more recent decision in Lauth v. McCollum, 424
F.3d 631, 634 (7th Cir. 2005). We said in that case that “an-
imus”—a proper characterization of Curtis Scherr’s procur-
ing the warrant to search his daughter-in-law’s house—
“comes into play only when, no rational reason or motive being
imaginable for the injurious action taken by the defendant against
the plaintiff, the action would be inexplicable unless animus
had motivated it” (emphasis added), and that a class-of-one
plaintiff “must, to prevail, ‘negative any reasonably conceiv-
able state of facts that could provide a rational basis for the
classification.’” Id. (emphasis added), quoting Board of Trus-
tees v. Garrett, 531 U.S. 356, 367 (2001), and Lamers Dairy, Inc.
v. U.S. Dept. of Agriculture, 379 F.3d 466, 473 (7th Cir. 2004).
Unfortunately for Jennifer, there was a rational basis for the
search warrant—namely, probable cause to believe that she
was growing marijuana plants in her basement.
A more promising road on which the plaintiff took not
even the first step would have been to sue Curtis Scherr (and
perhaps Officer Briones as well) in an Illinois state court un-
der Illinois state law for intentional infliction of emotional
distress, Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (Ill.
1976), or alternatively to join such a claim with her federal
claim in her federal suit, thus invoking the district court’s
supplemental state-law jurisdiction, 28 U.S.C. § 1367. There
10 No. 13-1992
is little doubt (always assuming the truth of the allegations
in the complaint) that Curtis Scherr intended to inflict severe
emotional distress on his daughter-in-law and succeeded in
doing so. Public Finance Corp. v. Davis, supra, and Doe v. Cal-
umet City, 641 N.E.2d 498, 506–09 (Ill. 1994), both suits simi-
lar to the present one, suggest that Jennifer could have pre-
vailed in such a suit against him. This case thus illustrates a
tendency for some victims of police abuse to bring hopeless
federal suits even when they have plausible state law reme-
dies.
To wrap up, the Fourth Amendment case against Curtis
Scherr, and even more clearly against the other officer, Ru-
ben Briones, was rightly dismissed, and likewise the claim
against the City, which was derivative of the claims against
the officers. The judgment is therefore
AFFIRMED.