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Scherr v. City of Chicago

United States Court of Appeals, Seventh Circuit

July 2, 2014

JENNIFER SCHERR, Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al., Defendants-Appellees

Argued June 11, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 5913 -- Samuel Der-Yeghiayan, Judge.

For Jennifer Scherr, Plaintiff - Appellant: John W. Billhorn, Attorney, Billhorn Law Firm, Chicago, IL.

For City of Chicago, RUBEN BRIONES, Officer, Individually, Defendants - Appellees: Jonathon D. Byrer, Attorney, City of Chicago Law Department, Appeals Division, Chicago, IL.

For CURTIS SCHERR, Officer, Individually, Defendant - Appellee: James G. Sotos, Attorney, John J. Timbo, Attorney, Sotos & Associates, Itasca, IL.

Before WOOD, Chief Judge, and POSNER and SYKES, Circuit Judges.

OPINION

Page 594

Posner, Circuit Judge.

The plaintiff (whom we'll call Jennifer, 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 including deliberate falsehoods in their affidavit supporting their request for the issuance of a search warrant and the 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 failure to state a claim.

In February 2011, Jennifer's then seven-year-old daughter, Liza, had been diagnosed with a rare brain tumor called Diffuse Intrinsic Pontine Glioma. This tumor forms in an area of the brainstem, called the pons, that controls many basic bodily functions, such as breathing. The disease

Page 595

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) Overview," www.danafarberbostonchildrens.org/Conditions/Brain-Tumor/Diffuse-pontine-glioma.aspx (visited on July 2, 2014); Katherine E. Warren, " Diffuse Intrinsic Pontine Glioma: 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 expensive 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, Curtis Scherr (whom we'll call Curtis for the same reason we're calling the plaintiff Jennifer), a Chicago police officer. Although advising her of the legal risks of growing the plants, Curtis helped her grow them by supplying her with the specialized 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 funeral, 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 ...


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