possible, therefore, it is always possible to allege that more should be given. The same thing is true of officer discipline. Penalties can almost always be heavier or more frequently imposed.
Jackson v. Marion County, 66 F.3d 151 (7th Cir. 1995) does not resolve the matter. The pleading there did not lay blame at the feet of a county policy, it claimed that bad acts were committed by the county itself. In dicta the Court said that one cannot infer from a single act of a municipal employee that a municipal policy played some part in the acts. It also said that Leatherman makes clear that the federal courts are not to interpolate a requirement of fact pleading into the federal rules.
The complaint here alleges policy arising from two incidents. Inductive logic is very clear cut except that it does not permit a rule to be inferred from a single instantiation. Two might be enough but most scientific examples involve the induction of principles from thousands, sometimes millions, of observations. How much the administration of law ought to be governed by scientific rigor is debated, but the one part of legal process least likely to be subject to scientific rigor is the drafting of complaints. Indeed, they are not subject to very much legal rigor. The usual question is whether the complaint presents a case in which it is impossible for the plaintiff to win if everything in it is true. Legal rigor begins with summary judgment (unless, of course, a plaintiff chooses to plead the full details of the case in the complaint) and Leatherman commands us to be careful not to apply it before then. Within this mode of operation, I decline to dismiss this complaint. Two incidents of aggravated police misconduct, one very aggravated, without the imposition of discipline could support an inference that there is a policy against discipline, and it is inferable that lack of discipline (and its deterrent effect) is a municipal policy that caused, in some sense, the bad acts alleged in the complaint.
The City attacks the intentional infliction of emotional distress because the conduct alleged does not meet the high threshold of this tort as it exists in Illinois. Here there was a single incident and the conduct was not outrageous. There is no dispute that the tort requires extreme and outrageous conduct intended to cause and, in fact, causing severe emotional distress. Intention to cause need not be proved if the defendant knew there was high probability that the conduct would cause severe emotional distress. The paradigm case is repeated harassment over time. But, the paradigm is not the only way to practice the tort. In Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498, 204 Ill. Dec. 274 (Ill. 1994) the tort occurred when police came to the scene of an alleged attack. He was told by the victim that an intruder was in her home, and had attacked her and her children. The supervising officer was dismissive, rude and demeaning and refused to break down the door for fear of liability for property damage. But, I read the Supreme Court of Illinois to find outrageousness primarily in the refusal to intervene to save the complainants' children. Calumet City, 641 N.E.2d at 507.
In this case, it is alleged that police broke into a house, forced two unclothed adults to lie handcuffed on the floor at gunpoint in the presence of their three-year-old son for a period of half an hour, and during much of this time the officers should have known they were in the wrong place. Under these circumstances, the police knew
their conduct had a high probability of causing severe emotional distress. This conduct is not as outrageous as that found in Calumet City where the complainants' child was raped essentially as a result of the officer's inexplicable failure to intervene (and this was precisely the outcome dreaded by the complainant). It is a close question. I cannot say that the claim has no hope of succeeding, and I refuse to dismiss.
Finally, the City states there is no legally separate claim of wilful and wanton conduct in a case in which the City is already charged with wilful and wanton conduct regarding false imprisonment and emotional distress. The City is right. Count IV is dismissed against the City.
Motion to dismiss Count IV against the City is granted. The other relief sought is denied.
James B. Zagel
United States District Judge
Date: 22 Mar 1996