Scherr v. City of Chicago (7th Cir. July 2, 2014) tells a lurid tale of intense family hostility (either bred or, more likely, exacerbated by tragedy) — of course, assuming the facts are as plaintiff alleges — but also raises some interesting legal issues. (A bit of foreshadowing: “Curtis’s behavior,” the court states, “which culminated in the DEA’s search of his daughter-in-law’s house, was, if it was as the complaint describes it, atrocious.”) According to the complaint, plaintiff Jennifer Scherr’s 7-year-old daughter Liza was dying of cancer; there was some reason to believe that marijuana could be therapeutic for that, so Jennifer Scherr grew this marijuana at home. Her father-in-law, Chicago police officer Curtis Scherr, “helped her grow [the plants] by supplying her with the specialized light bulbs required for growing the plants indoors.”

After the daughter died, Jennifer Scherr and Curtis Scherr had a monumental quarrel; according to the complaint,

[U]pon Liza’s passing, Jennie [Jennifer Scherr] elected to allow Liza’s body to remain at the family residence in Evergreen Park for a certain amount of time so that Jennie and the family, including Liza’s three younger siblings (a 5-year-old 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 obituary. 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 Saturday nevertheless, to the dismay and consternation of Jennie and Ryan. Saturday evening Jennie and Ryan requested of Defendant Officer Scherr that neither sister attend the services on Sunday, but one sister attended nevertheless and sat at the front of the service beside Defendant Officer Scherr, again to the dismay and consternation of Jennie 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, symbols which were of a religious affiliation Defendant Officer Scherr followed but which were not subscribed to or practiced by Jennie or Jennie’s family including, of course, Liza. Upon learning that Defendant Officer Scherr had erected the symbols, Jennie telephoned the funeral home director 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, having 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 facility, upon information and belief, that the ashes would not be available until Tuesday, July 17.

On Tuesday, July 17, at approximately 8:00 AM, Defendant 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.

The funeral director refused to release Liza’s ash remains to Defendant Officer Scherr. The inability to gain possession of Liza’s ash remains angered, enraged and incensed Defendant Officer Scherr.

As a result, Curtis Scherr prepared an affidavit to support an application for a warrant to search Jennifer Scherr’s house for drugs. “The affidavit, based entirely on information supplied by Curtis, stated that on the sixteenth (the day after the funeral) he had observed 50 marijuana 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 dozen DEA agents searched the house, and apparently found no drugs. Jennifer Scherr, the court stated, “is not a dealer or an addict and so had discarded 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 officers [Curtis Scherr and another officer who helped prepare the affidavit] and the City.”

The Court of Appeals rejected Jennifer Scherr’s Fourth Amendment claim, because there was indeed probable cause to search her home for the drugs (because “there is no allegation that when the warrant was applied for he knew she’d discarded the marijuana plants”); and I think that’s right, regardless of Curtis Scherr’s alleged motivations. What I found legally interesting were two other items in the opinion:

1. Though “candor in the affidavit would not have undermined the existence of probable cause” — which is why the Seventh Circuit ruled against Jennifer Scherr — the court noted that,

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” privately — that this wasn’t a proper matter for a criminal proceeding.

I’m inclined to agree with the court on this point, but I thought it interesting that a federal court, dealing with something that would likely be a federal felony (and, at the time, a state crime), specifically noted — with apparent approval — that a judge informed of the facts (if the facts were as alleged) “probably would have told Curtis [Scherr] … that this wasn’t a proper matter for a criminal proceeding.” To what extent should judges, in such situations, refuse to issue a warrant even if probable cause is well-established, whether because of the mildness of the crime, or the recent tragedy that has befallen the defendant? (I take it that the court isn’t saying that they should refuse to issue a warrant simply because of the motivations of the defendant, just that the defendant’s relationship would have led the judge to probe further about the more potentially relevant facts.) That strikes me as an interesting question, without an obvious general answer.

2. Towards the end of the opinion, the court suggests that Jennifer Scherr might have had a different remedy:

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 under 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 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. Calumet City, 641 N.E.2d 498, 506-09 (Ill. 1994), both suits similar to the present one, suggest that Jennifer could have prevailed 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 remedies.

Now the officer’s actions may well have been outrageous (again, assuming the facts are as set forth in the complaint), and the complaint alleges that he was motivated by hostility (though, despite the name of the “intentional infliction of emotional distress” tort, such motivation isn’t strictly necessary; reckless infliction of emotional distress suffices). But he was also acting to enforce the law, in a context where (according to the complaint) he knew a crime had been committed, and he had probable cause to believe that evidence of the crime was present.

Under normal circumstances, this would be permissible behavior for a police officer, even praiseworthy from the standpoint of the legal system, which at the time treated marijuana cultivation as a crime, with no medical necessity defense (a condition that remains true under federal law, though no longer under Illinois law). Note that one of the precedents cited by the Seventh Circuit — Doe v. Calumet City, a case also involving police behavior — stressed that “the outrageous character of Officer Horka’s conduct [there, refusing to break down the door to a room where a woman had just been threatened with rape, and where her children were still present] is not ameliorated by any reasonable belief he was pursuing a legitimate objective. Freedom from personal liability for property damage [the reason the officer gave for refusing to break down the door] is not a legitimate objective of a police officer summoned to protect people from a dangerous intruder.”

Does the police officer lose his right to get a warrant for this sort of search because his motivation was personal hostility? Because the search would take place at the home of a bereaved mother? Because we think that, despite the law, such cultivation of marijuana isn’t actually bad, and may even be praiseworthy? Because he had been an accomplice in the growing of the marijuana earlier? Because he failed to disclose all the facts to the state court judge, even though disclosing all the facts still wouldn’t defeat probable cause?