UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TODD MICHAEL REARDON and
JOHN ROBERT REARDON,
Plaintiffs,

Case No. 18-CV-1722-JPS

v.
MATTHEW SCHOSSOW, KRISTIN L.
SUDINSKI-TORYFTER, CITY OF
MEQUON, and JOHN AND JANE
DOES,

ORDER

Defendants.
This case arises from a police department’s attempt to thwart
underaged drinking in Mequon. On October 30, 2018, Todd Michael
Reardon and his son, John Robert Reardon (collectively “Plaintiffs”), filed a
complaint alleging that the Mequon City Police (“MCP”) violated their
constitutional rights when MCP conducted an unlawful search of their
home. (Docket #1). On October 31, 2015, MCP responded to an anonymous
tip about underaged drinking. They went to Plaintiffs’ home, searched the
curtilage, and obtained a search warrant based, in large part, on open
bottles of alcohol that were seen during the curtilage search. When MCP
finally executed the warrant, there was hardly a bacchanalian hotbed of
criminal activity. The fruits of their labor resulted in a social host violation
to the younger Reardon, which was ultimately dropped, and three
underaged drinking citations to his guests. Plaintiffs filed this civil action
in federal court, alleging an unconstitutional search of the curtilage of the
home, an unconstitutional search of the home based on an invalid warrant,

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 supervisory liability for failing to intervene in the constitutional violations,
and an unconstitutional policy directed at quelling underaged drinking.
The parties filed competing motions for summary judgment, which are now
fully briefed. (Docket #16, #24). For the reasons explained below, the
Plaintiffs’ motion will be granted in part, and the Defendants’ motion will
be granted in part.
1.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010). The party opposing summary judgment “need not match
the movant witness for witness, nor persuade the court that her case is
convincing, she need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

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 2.

RELEVANT FACTS
In 2015, the City of Mequon had an anonymous, now-defunct tip

hotline called “TIP411.” The hotline received false tips as well as true tips.
The parties dispute whether this hotline was part of a larger campaign to
prohibit underaged drinking.
On October 31, 2015, at approximately 10:19 p.m., Mequon police
received an anonymous message through the “Tip411” app, which alleged
that teenagers were drinking alcohol at Plaintiffs’ residence. Specifically,
the message read, “Many students at my school were bragging about how
they planned to go to J.R.’s house on halloween [sic] night to drink and
smoke. I am nervous that someone is going to drink and drive (because
most homestead kids do it and don’t worry about the consequences.).”
On the basis of this tip, at approximately 10:30 p.m., Mequon police
dispatched squad cars to Plaintiffs’ residence, whereupon they observed
four cars in the driveway and one car parked in the street. Officer Kristin
Sudinski-Toryfter (“Toryfter”), the primary responding officer, knocked on
the door and rang the doorbell, but nobody answered. She attempted to call
John and Todd Reardon on their cell phones, but neither responded. She
also called the suspected driver of one of the parked cars, but again, nobody
answered.
The lights inside the residence were turned on, allowing officers to
see inside relatively well. Above the front door of the home, an expansive,
half-moon window looked onto an upstairs landing, where the officers
observed several young people scattering, crawling up the stairs, and
peeking out at them. The officers also heard people talking, and various
doors and windows inside the house closing. Everyone appeared to be a
minor, and there did not seem to be any adults present.
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 While some of the officers, including Toryfter, were at the front door,
two other officers, including Officer Matthew Schossow, (“Schossow”), the
acting shift supervisor, went around the side of the house to the backyard
as part of an effort to secure the perimeter. The officers were concerned that
people might attempt to flee out the back door. The house is large and sits
on an amply sized lot with a considerable set-back from the street. There
are no gates surrounding the home. There are, however, bushes, shrubs,
and trees landscaping the plot of land. In the backyard, which is hidden
from public view and accessible only from the end of the driveway and the
home itself, a brick pathway passes by a window near the rear patio door.
The brick pathway leads from the top of the driveway around to the back
of the home. The parties dispute whether the blinds to this window were
partially or fully drawn, whether Schossow stepped off the walkway and
peeked into the home through a crack in the blinds, and which window he
looked into, but these disputes are immaterial. While Schossow was
inspecting the back of the home, he saw, through a gap in the blinds, a can
of Pabst Blue Ribbon on the end-table, and an open bottle of vodka on the
floor, along with other non-alcoholic beverages. Toryfter followed him to
the backyard and stepped closer to the window, confirming the contraband.
Neither officer actually saw any of the young people drinking alcohol.
After seeing the alcohol containers, and in light of the fact that the
young people refused to answer the door, Toryfter called the city’s district
attorney, Adam Gerol, who told Toryfter to apply for a search warrant.
Toryfter filled out the search warrant application and completed the
corresponding affidavit in support thereof using a pair of templates
designed to expedite the process during an investigation. Schossow did not
review the warrant or the paperwork. Toryfter attested that there were
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 items to be searched in the house that included alcoholic beverages and
persons under the age of 21, both of which were potentially evidence of a
violation of Wis. Stat. § 125 et seq., which prohibits furnishing alcohol to
underaged persons. She also stated that there was a party at the house
“which possibly included guests under the age of 21 consuming intoxicants
or illegal drugs,” that there were “numerous vehicles” outside the home,
that she had “observed intoxicants within the premises, having seen them.
. .through the window. . .of the residence,” and that “young people
scatter[ed] or hid[] when it appeared that the officers had been noticed or
recognized.” (Docket #27-2 at 2). At no point did Toryfter represent that she
saw the young people consuming intoxicants inside the premise. After she
filled out the paperwork, she drove to Ozaukee County Circuit Court Judge
Sandy Williams’s home, where Judge Williams reviewed the affidavit and
they discussed the warrant together.
At approximately 1:00 a.m. on November 1, 2015, Judge Williams
issued a search warrant for the house. Toryfter relayed this to the officers
by radio as she drove back to Plaintiffs’ residence. Schossow participated in
the warrant’s execution by knocking on the front door, announcing his
presence, and proceeding to find entry into the home. In the nearly three
hours between when the officers first arrived at the home and when they
executed the search warrant, they did not see anyone entering or exiting the
property. They also did not interact with any of the teenagers, or see anyone
fighting, vomiting, stumbling, or otherwise acting inebriated.
The officers executed the warrant at approximately 1:15 a.m.
Pursuant to the warrant, they detained, searched, and cited the younger
Reardon for a social host infraction, in violation of the City of Mequon’s
“social host” ordinance, which prohibits people from hosting gatherings
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 where underaged drinking will occur. See Mequon City Ord. Ch. 46, art. VI,
§ 157(c). The charge was ultimately dropped. The officers issued citations
to three other minors for underaged drinking.
Schossow and Toryfter each have experience working in the field,
and have been properly trained in search and seizure law and procedures.
They receive updates to their training on an annual basis, and have
resources at their disposal regarding how to properly effect searches.
3.

ANALYSIS
Plaintiffs and Defendants each move for summary judgment. There

are two purportedly unconstitutional searches here: first, the warrantless
search of the curtilage; and second, the search of the home based on an
invalid warrant. Plaintiffs bring a claim against both Schossow and Toryfter
for the warrantless search of the curtilage, but only bring a claim against
Toryfter for the invalid warrant. The Court notes that obtaining an invalid
warrant does not intrinsically give rise to a constitutional violation; it is in
the execution of the invalid warrant that the Plaintiffs’ rights are implicated.
For the reasons explained below, summary judgment will be decided in
favor of Plaintiffs on both Fourth Amendment violations—the curtilage
claim against Toryfter and Schossow, and the invalid warrant claim against
Toryfter. Plaintiffs bring a claim against Schossow for supervisor liability,
claiming that he failed to stop the obtention and execution of the invalid
warrant. This claim is improperly pled and will be dismissed. Assuming
that Schossow was personally involved in obtaining and executing the
warrant, he likely would have been directly liable for the Fourth
Amendment invalid warrant claim discussed in Section 3.2, infra, had it
been brought against him. He was not, however, liable in a supervisory
capacity for failing to intervene in his own conduct—that is not logical.
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 Additionally, there is no evidence of municipal liability; that claim will be
dismissed for the reasons explained below. Finally, in light of Plaintiffs’
failure to oppose the issue, the Doe defendants will be dismissed, as will
the Plaintiffs’ undeveloped Fifth and Fourteenth Amendment Claims.
3.1

Fourth Amendment Warrantless Search of Curtilage
Claim Against Schossow and Toryfter

Plaintiffs submit that there is enough undisputed evidence in the
record to establish that their Fourth Amendment rights were violated when
MCP breached the curtilage of their home. Defendants, by contrast, submit
that they are entitled to a judgment based on qualified immunity on the
threshold question of whether there is a constitutional rights violation—
they contend that there clearly is not. Plaintiffs’ motion will be granted for
the reasons explained below.
The area “immediately surrounding and associated with the home,”
also known as the “curtilage” of the home, is constitutionally protected
against unreasonable searches and seizures. U.S. Const. art. IV; Florida v.
Jardines, 569 U.S. 1, 6–7 (2013) (citations and quotations omitted). “At
common law, the curtilage is the area to which extends the intimate activity
associated with the sanctity of a man’s home and the privacies of life.”
Oliver v. United States, 466 U.S. 170, 180 (1984) (citations and quotations
omitted). The Supreme Court offers four factors to evaluate for whether an
area falls within the curtilage of the home: “the proximity of the area
claimed to be curtilage to the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to which the area is
put, and the steps taken by the resident to protect the area from observation
by people passing by.” United States v. Dunn, 480 U.S. 294, 301 (1987). These
factors should not be mechanistically applied; rather, they are “useful
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 analytical tools” to assess whether an area is “so intimately tied to the home
itself that it should be placed under the home’s umbrella of Fourth
Amendment protection.” Id. Against this legal backdrop, the Seventh
Circuit has established that officers approaching a home, and necessarily
encountering some degree of curtilage, “may use the route which any
visitor to a residence would use. . .for the purpose of making a general
inquiry or for some other legitimate reason.” United States v. French, 291 F.3d
945, 954 (7th Cir. 2002) (citations and quotations omitted); United States. v.
LePage, 477 F.3d 485, 488 (7th Cir. 2007) (“[O]fficers may walk up to that
part of private property that is open to visitors or delivery people.”).
The walkway from which Defendants claim they saw the contraband
was approximately ten feet from the home, putting it well within an area
where “privacy expectations are most heightened.” French, 291 F.3d at 951
(noting that areas within twenty feet of the home generally have higher
expectations of privacy). The walkway itself was not enclosed, but it was
secluded, flanked by shrubs and trees, and not visible from the street or
even the front of the house. Rather, it snaked closely around the back of the
house, linking the very end of a lengthy driveway to the patio, which was
located on the other side of the yard, and which could not be seen from the
start of the walkway. See (Docket #28-1 at 1). This was not an open-to-thepublic walkway that lead to structures in plain view of the driveway. See
French, 291 F.3d at 953. Nor was any of the activity occurring “in plain view
of the public way.” United States v. Contreras, 820 F.3d 255, 262 (7th Cir.
2016). Nor did this walkway clearly lead to a door that would be open to
visitors or delivery people. See LePage, 477 F.3d at 488 (upholding a Terry
stop where officers walked from sidewalk onto front porch to investigate
contents of a duffel bag). Rather, the pathway at issue here was an
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 inconspicuous path that hugged the rear perimeter of the home and led to
a secluded sitting area in the backyard. On balance, this pathway was part
of the curtilage, and Plaintiffs had a reasonable expectation of privacy in it.
Schossow attempted to secure the perimeter by following the
pathway around the home to the backyard; in doing so, he looked through
gaps in the blinds and noticed the presence of alcohol. Shortly thereafter,
Toryfter also followed the pathway around the home to confirm the sight
of the alcohol containers. Because the walkway is part of the curtilage and
is not clearly accessible to the public, when Schossow and Toryfter used it
to enter the backyard, they violated the Fourth Amendment. Defendants
submit that there is no constitutional violation because they were in the
process of securing the perimeter, which is a legitimate law enforcement
objective. Defendants do not, however, cite any cases in support of their
broad contention that legitimate law enforcement objectives are an
exception to the curtilage rule. (Docket #33 at 7–8). In United States v. Butler,
this Court noted that officers may have had a “legitimate reason” to enter
the common area backyard of a duplex—where the defendant did not have
a reasonable expectation of privacy—in order to conduct a “knock and talk”
procedure as part of a criminal investigation. 2007 WL 2220260, at *8 (E.D.
Wis. Aug. 1, 2007). That case did not, as Defendants suggest, stand for the
proposition that law enforcement officers may intrude upon a home or
curtilage anytime they have a “legitimate law enforcement objective.”
Similarly, in United States v. Davis, which is the magistrate’s report and
recommendation that this Court adopted in Butler, the magistrate
determined there was no Fourth Amendment violation because there was
no evidence that the backyard was not open to visitors or delivery people.
2007 WL 2220261, at *8 (E.D. Wis. April 16, 2007). After drawing this
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 conclusion, the Davis court then speculated that the police’s presence in the
backyard was appropriate because it was related to protecting officers
conducting the “knock and talk” occurring around front. Like this Court’s
order in Butler, the Davis report and recommendation did not cite any
precedential caselaw in support of the contention that law enforcement
officers may intrude upon a home anytime they have a “legitimate law
enforcement objective.” Nor could it: such a holding would gut the Fourth
Amendment of its protections, and result in routine circumvention of the
warrant process.
3.1.1

Qualified Immunity

Qualified immunity shields officials from the civil consequences of
their constitutional violations when the law did not put the officials on clear
notice that their conduct would be unlawful. Saucier v. Katz, 533 U.S. 194,
202 (2001). The test for qualified immunity is (1) whether the defendants’
alleged actions violated the plaintiff’s constitutional rights; and (2)
“whether the implicated right was clearly established at the time.” Jones v.
Wilhelm, 425 F.3d 455, 461 (7th Cir. 2005). Once the defense is raised, the
plaintiff bears the burden to defeat it. Weinmann v. McClone, 787 F.3d 444,
450 (7th Cir. 2015). To overcome an assertion of qualified immunity,
Plaintiffs must first proffer facts which, if believed, amount to a violation of
their constitutional rights. Katz, 533 U.S. at 201. As the discussion above
shows, Plaintiffs have done this. Next, the Court must evaluate whether the
right was “clearly established under applicable law at the time and under
the circumstances that the defendant official acted.” Easterling v. Pollard, 528
Fed. App’x 653, 656 (7th Cir. 2013).
A right is clearly established if it would be obvious to a reasonable
state actor that “what they are doing violates the Constitution, or if a closely
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 analogous case establishes that the conduct is unconstitutional.” Siebert v.
Severino, 256 F.3d 648, 654–55 (7th Cir. 2001). Factually identical precedent
is not necessary; the guiding question is whether the official would have
had “fair warning” that the conduct was unconstitutional. Hope v. Pelzer,
536 U.S. 730, 741 (2002). “In determining whether a defendant’s alleged
actions violated a clearly established right, courts may properly take into
account any information the defendant ought reasonably to have
obtained.” Jones, 425 F.3d at 461.
Defendants argue that Butler and Davis, an order and magistrate
recommendation from 2007, demonstrate that the law was not clearly
established as to whether a “legitimate law enforcement objective” was an
exception to the curtilage rule. However, as discussed above, neither of
these cases stand for this proposition, nor could they—if “legitimate law
enforcement objective” was an exception in every curtilage case, then the
protections of the Fourth Amendment from government intrusion would
be flimsy, and the warrant requirement basically null. The Fourth
Amendment has well-delineated exceptions to the warrant requirement, all
of which require exigent circumstances. These exceptions include “hot
pursuit” of an escaping suspect, when emergency aid is needed, and when
necessary to prevent the destruction of evidence. United States v. Santana,
427 U.S. 38, 42–43 (1976) (exception to warrant requirement when police are
in hot pursuit of a fleeing felon who escapes to a private home); Schmerber
v. California, 384 U.S. 757, 770–71 (1966) (exception to warrant requirement
where officer reasonably believes that destruction of evidence is imminent
and unavoidable); Michigan v. Fisher, 558 U.S. 45, 48 (2009) (exception to
warrant requirement where officer reasonably believes that an emergency
resulting in serious injury is occurring). Courts “look[] to the nature of the
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 underlying offense as an important factor to be considered in the exigentcircumstances calculus.” Welsh v. Wisconsin, 466 U.S. 740, 750–51 (1984)
(discussing why “a finding of exigent circumstances to justify a warrantless
home entry should be severely restricted when only a minor offense has
been committed”). Furthermore, in 2013, the Supreme Court made clear
that officers conducting a “knock and talk” without a warrant were
permitted to “approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer) leave.”
Florida v. Jardines, 569 U.S. at 8.
In light of these well-settled principles and the Supreme Court’s
instruction in Jardines on the boundaries of the “knock and talk”
investigative tactic, a reasonable police officer in 2015 would know that the
broad catch-call of “legitimate law enforcement objective” is not an
exception to the Fourth Amendment’s curtilage rule, particularly when the
law enforcement objective is to catch drunk teenagers running home.
Defendants have not argued that any other exception to the warrant
requirement existed, nor do the facts suggest an exception. The fact that
Defendants were able to cite an order and recommendation from 2007 that
allowed police to go into the backyard of a duplex in support of a knock
and talk does not mean that the law was unclear as to whether there was a
“legitimate law enforcement objective” exception to the curtilage rule,
particularly in light of subsequent Supreme Court caselaw. Accordingly,
the Defendants’ motion for qualified immunity must be denied.
3.2

Fourth Amendment Fraudulently Obtained Warrant Claim
Against Toryfter

Plaintiffs submit that there is enough undisputed evidence in the
record to establish that the warrant was invalid, and that Toryfter
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 fraudulently obtained it. Defendants, by contrast, contend that they are
entitled to a judgment based on qualified immunity because there is no
constitutional violation or, in the alternative, because the affidavit
contained sufficient independent probable cause. For the reasons explained
below, the Court finds that Toryfter’s affidavit lacked probable cause and
the warrant—and subsequent search of Plaintiffs’ home—was invalid and
unconstitutional.
“[A] warrant request violates the Fourth Amendment if the
requesting officer knowingly, intentionally, or with reckless disregard for
the truth, makes false statements in requesting the warrant and the false
statements were necessary to the determination that a warrant should
issue.” Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003) (citing Beauchamp v.
City of Noblesville, Ind., 320 F.3d 733, 742–43 (7th Cir. 2003); Olson v. Tyler,
771 F.3d 277, 281 (7th Cir. 1985)). “When an affidavit is the only evidence
presented to a judge in support of a search warrant, the validity of the
warrant rests solely on the strength of the affidavit.” United States v. Peck,
317 F.3d 754, 755 (7th Cir. 2003). “[S[]uppression of evidence seized
pursuant to a search warrant that is later declared invalid is inappropriate
if the officers who executed the warrant relied in good faith on the issuing
judge’s finding of probable cause.” United States v. Adams, 2019 WL 3927514,
at *4 (7th Cir. Aug. 20, 2019) (quoting United States v. Watts, 535 F.3d 650,
656–57 (7th Cir. 2008)). Often, “[a]n officer’s decision to obtain a warrant is
prima facie evidence that the officer was acting in good faith.” Id. However,
“[a] defendant can rebut this presumption in several ways, including by
showing that ‘the affidavit submitted in support of the warrant was “so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.”’” Id. (citing Olson, 408 F.3d at 372) (internally
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 quoting United States v. Leon, 468 U.S. 897, 924 (1984)). “Overcoming the
presumption of good faith is no small feat, as an officer cannot ordinarily
be expected to question a judge’s probable cause determination.” Id.
(quoting United States v. Lickers, 928 F.3d 609, 619 (7th Cir. 2019)). When a
search is made “pursuant to a facially valid warrant issued by a judicial
officer,” the police violate Plaintiffs’ rights “only if reasonably well-trained
officers in their positions should have known that the testimony or
affidavits they provided in support of the warrants would have failed to
establish probable cause, so that they should not have applied for the
warrants in the first place.” Beauchamp v. City of Noblesville, Ind., 320 F.3d
733, 743 (7th Cir. 2003) (citing Malley v. Briggs, 475 U.S. 335, 345 (1986)). “In
reviewing the validity of a search warrant supported by an affidavit
containing information that is in part unlawfully obtained. . .we must
consider whether the untainted information, considered by itself,
establishes probable cause for the warrant to issue.” United States v. Johnson,
876 F.2d 589, 592 (7th Cir. 1989) (citations and quotations omitted).1

Plaintiffs’ contention that Toryfter lied about investigating a crime is
without merit. Wis. Stat. § 125.07(a)(1) prohibits any person from procuring,
selling, dispensing or giving “any alcohol beverages to any underage person not
accompanied by his or her parent, guardian or spouse who has attained the legal
drinking age.” This subsection applies equally to minors who furnish alcohol to
their minor friends as it does to adults who furnish alcohol to minors. Smith v.
Kappell, 433 N.W.2d 588, 590–91 (Wis. Ct. App. 1988). The penalties for a violation
of Wis. Stat. § 125.07(a) range from forfeiture of money to imprisonment,
depending on whether a violation had previously occurred within thirty months.
Wis. Stat. § 125.07(b). Wis. Stat. § 939.12 defines a crime as “conduct which is
prohibited by state law and punishable by fine or imprisonment or both. Conduct
punishable only by a forfeiture is not a crime.” Furnishing alcohol to minors is
punishable not only by forfeiture, but also by imprisonment. Wis. Stat. § 125.07(b).
Therefore, furnishing alcohol to minors is a crime under Wisconsin law.
1

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 Defendants became aware that there were open bottles of alcohol in
the Plaintiffs’ home during the unlawful search of the curtilage. Defendants
do not argue that they would have independently discovered the alcohol
by some other constitutional source. Accordingly, the Court must evaluate
whether the remaining facts in the affidavit—the anonymous tip, the
presence of young people, and the unwillingness to open the door—gave
rise to probable cause that someone had furnished alcohol to minors. Id. A
tip from an anonymous informant rarely establishes probable cause for a
search warrant; there must be additional indicia of reliability to support
probable cause. Illinois v. Gates, 462 U.S. 213, 227 (1983); Alabama v. White,
496 U.S. 325, 329 (1990) (noting that “an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity”); United
States v. Johnson, 289 F.3d 1034, 1038 (7th Cir. 2002) (noting that probable
cause determinations based on a tip turn on the informant’s “reliability,
veracity, and basis of knowledge”) (abrogated on other grounds). Such
indicia of reliability can be deduced from the totality of the circumstances,
and may include whether the tip contains detailed information, whether
the informant is reliable, whether the tip is predictive, and whether it can
be corroborated by subsequent investigation. Alabama, 496 U.S. at 331–332;
Navarette v. California, 572 U.S. 393, 398 (2014) (evaluating an anonymous
tip for reasonable suspicion).
Toryfter completed her affidavit on the basis of the following set of
facts: an anonymous tip indicated that there would be underaged drinking
and driving at a particular residence on a particular night. Toryfter did not
know who the anonymous tipster was, whether he was reliable, or how he
had a basis for this knowledge. The affidavit does not explicitly discuss the
anonymous tip, but it refers to the fact that officers were alerted to the
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 possibility of underaged drinking, presumably by a “citizen witness.”
Aside from that, there is no information regarding the informant’s identity,
the source of his information, or the reliability of his information. When
MCP went to the home to investigate the tip, they found five cars parked
outside—four in the driveway, and one in the street. This suggested that
there may have been visitors to the home, but is not conclusive evidence of
a party. When the police rang the doorbell, nobody answered, but they saw
several young people scattering inside.
This offered slightly stronger evidence that something was afoot—
and it confirmed the tip’s detail that a gathering of young people occurred
at the house—but hosting a gathering and declining to answer the door on
Halloween are innocent details which, even taken together, do not suggest
criminal activity. Draine v. Bauman, 708 F. Supp. 2d 693, 702 (N.D. Ill. 2010)
(noting that “warrants [based on an anonymous tip] do not necessarily pass
muster where the corroboration only went to innocent or innocuous
details”); United States v. Gibson, 928 F.2d 250, 254 (8th Cir. 1991) (finding
insufficient probable cause to issue a warrant based on an anonymous tip
where “only several innocent details had been corroborated by the police
in driving by the address given and by making a few telephone calls”);
United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) (finding that a
partially corroborated tip did not provide probable cause for a crime
because the “fact that a suspect lives at a particular location or drives a
particular car does not provide any indication of criminal activity.”).
From their vantage point on the front door, the police officers did
not observe any staggered walking, slurred speech, scattered alcohol
bottles, vomiting, or other behavior that might have indicated unlawful
furnishing of alcohol to minors. It was only after the officers’
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 unconstitutional walk around the back of the house, which revealed two
open bottles of alcohol in the sitting room, that the officers had probable
cause to believe that alcohol was being furnished to underaged people.
Without that unconstitutionally derived detail, the affidavit would have
been devoid of any reference to criminal activity.
Defendants cite Suarez v. Town of Ogden Dunes, Ind., in support of
their position that the officers’ warrant is presumptively valid. In Suarez,
the officers encountered a teenager who had parked without a permit
outside a beach house, where a group of teenagers had gathered to enjoy a
bonfire. 581 F.3d 591, 594 (7th Cir. 2009). While talking to the teenager, the
officer smelled alcohol on the teenager’s breath. After speaking to the
teenager, the officer “pulled to the end of the road,” whereupon “several
youths jumped on the trunk of his car.” Id. He drove by the beach house
again, and was subjected to verbal abuse by the group of teenagers. Id.
Shortly thereafter, the original teenager, who the officer had spoken to
about parking, attempted to drive home. Id. The officer arrested him for
underaged drinking. Id. When the officer returned to the beach house to
break up the party, he noticed at least six cars parked in the driveway and
along the street, and some empty drinking containers in the backyard
(which apparently abutted a beach). Id. At this point, the officer called for a
warrant. Id. The plaintiffs in that case argued that, in securing the warrant,
the officer lied about seeing the kids “retreat” to the house and hide behind
furniture, and that he elided the timing of events to make the situation
appear more urgent than it actually was. Id. at 596. The Seventh Circuit
determined that these misrepresentations were not material in light of the
other evidence that the officer had. Id.

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 This case is different from Suarez in several important ways. First,
Toryfter and Schossow did not have a single opportunity to interact with
the kids; they did not smell alcohol on their breaths, observe them stumble,
or hear them slur their words. The kids did not do anything demonstrating
inebriated judgment, such as jumping on a police car or heckling a police
officer. And Toryfter and Schossow did not, subsequent to securing the
warrant, arrest a drunk kid on his way home from the party. In Suarez, the
police officer’s sworn testimony contained probable cause to search the
home, notwithstanding a few misrepresentations. In this case, once the
visual on the open containers is subtracted, Toryfter’s affidavit was lacking
in probable cause for any crime.2
3.3

Failure to Intervene and Supervisor Liability Claims
Against Schossow

Plaintiffs allege that Schossow failed to intervene in the fraudulent
warrant obtention and execution. An officer can be liable for failure to
intervene where he “(1) knew that a constitutional violation was
committed; and (2) had a realistic opportunity to prevent it.” Gill v. City of
Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017). Relatedly, “[t]o succeed on a
claim for supervisory liability, a plaintiff must show that the supervisor was
personally involved in the constitutional violation.” Id. at 344 (citing
Matthews v. City of E. St. Louis, 675 F.3d 703, 707 (7th Cir. 2012)). “That means
that the supervisor ‘must know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye for fear of what [he] might see.’” Id. (citing

The basis for defendant’s qualified immunity argument is that there was no
underlying violation and, if there was, the police had independent probable cause for the
search warrant. Reasonably, they do not argue that the right to a valid search warrant
based on probable cause was unclearly defined, so the Court will also not engage in that
analysis.
2

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 Matthews, 675 F.3d at 708). “If supervisory liability is predicated on failure
to act, the plaintiff must show an ‘extremely high degree of culpability.’”
Odogba v. Wis. Dep’t of Justice, 22 F. Supp. 3d 895, 909 (E.D. Wis. 2014)
(quoting Lenard v. Argento, 699 F.2d 874, 885 (7th Cir. 1983)). A supervisor’s
“[f]ailure to control [his subordinates] is not actionable at all ‘absent a
showing that the official either encouraged the specific incident of
misconduct or in some way directly participated in it.’” Id. at 909–910
(quoting Lenard, 699 F.2d at 885). Supervisors who are “merely negligent”
or even grossly negligent, are not liable under Section 1983. Jones v. City of
Chi., 856 F.2d 985, 992 (7th Cir. 1988).
Plaintiffs contend that Schossow is liable under theories of failure to
intervene and supervisor liability (the former of which, when applied to
supervisors, becomes a subset of the latter, see Odogba, 22 F. Supp. 3d at 909)
because he knew that Toryfter was fraudulently applying for a search
warrant and did not stop her or review the affidavit before she submitted it
to the judge, and because he oversaw the unlawful execution of the search
warrant. (Docket #1 at 19–20; Docket #25 at 20). As discussed above,
Toryfter and Schossow violated Plaintiffs’ Fourth Amendment rights when
they searched the curtilage of Plaintiffs’ home without a warrant. Further,
in obtaining and executing an invalid warrant, Toryfter violated Plaintiffs’
Fourth Amendment rights to be free from unreasonable searches and
seizures in their home. As for Plaintiffs’ contentions that Schossow should
be liable, in a supervisory capacity, for failing to stop the obtention and
execution of the warrant, this claim fails because an officer “cannot
intervene in his own constitutional violation.” Flint v. City of Milwaukee, 91
F. Supp. 3d 1032, 1063 (E.D. Wis. 2015). Schossow supplied the
unconstitutionally derived evidence that was included in the warrant, and
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 then he took the lead in executing the warrant. This claim should have been
brought as a direct claim against Schossow. However, Schossow was not
named as a defendant in the direct claim regarding the invalid warrant,
(Docket #1 at 16–19), and he cannot be held liable for failing to supervise or
intervene in his own conduct. Therefore, this claim will be dismissed.
3.4

Municipal Liability Under 42 U.S.C. §14141

By the plain language of the statute, there is no private right of action
under 34 U.S.C. § 12601 (formerly 42 U.S.C. § 14141, to which Plaintiffs cite).
Plaintiffs do not cite any cases that suggest a contrary conclusion. However,
instead of moving to dismiss Plaintiffs’ improperly pled claim, Defendants
charitably construed it as a Monell claim. The Court will engage in a similar
analysis, but the result is the same: the claim will be dismissed.
A municipal entity can be liable under Section 1983 only when there
is a predicate constitutional violation, and that violation is a result of that
entity’s (1) express policy; (2) widespread custom or practice; or (3) a
decision by an agent of the entity who has “final policymaking authority.”
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009). Plaintiffs
allege that there was an express policy of targeting underaged drinkers;
Defendants deny that such a formal policy ever existed. The dispute is
immaterial: in order to hold a municipality liable for a constitutional
violation, there must be a “direct causal link between the municipal action
and the deprivation of federal rights.” Bd of Cty. Comm’rs of Bryan Cty., Okl.
v. Brown, 520 U.S. 397, 404 (1997). Causation is difficult to prove in suits
charging municipal liability. In the parlance of Monell cases, the challenged
policy, practice, or custom must be the “moving force” behind the plaintiff’s
injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). Simple but-for
causation is not enough. See Wilson v. Cook Cty., 742 F.3d 775, 784 (7th Cir.
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 2014) (citing Brown, 520 U.S. at 410). The Supreme Court has made it
abundantly clear that the challenged practice “must be closely related to the
ultimate injury” that the plaintiff suffered. Harris, 489 U.S. at 391. The
Seventh Circuit has said that a “moving force” is the “catalyst” for the
injury in question, not merely a “contributing factor.” Johnson v. Cook Cty.,
526 F. App’x 692, 696 (7th Cir. 2013); Thomas v. Cook Cty. Sheriff’s Dep’t, 604
F.3d 293, 303 (7th Cir. 2010) (training or policy changes that “might” have
had an effect on plaintiff’s treatment did not satisfy causation requirement).
Even if the Court accepts Plaintiffs’ assertion that MCP had a
campaign against underaged drinking, Plaintiffs fail to advance a single
argument as to why such a campaign might be unconstitutional. In order
for a municipality to be liable for a constitutional violation, there must be
direct evidence that the policy in question caused the constitutional
violation. Brown, 520 U.S. at 404. There is no evidence of that here. Plaintiffs’
attempt to show attenuated, but-for causation (for example, MCP had a
campaign prioritizing underaged drinking, therefore they investigated this
tip) is unavailing. Wilson, 742 F.3d at 784. There is no evidence in the record
that the campaign was the moving force behind the officers’ decision to
unlawfully search the home and curtilage without securing a valid warrant.
This claim must be dismissed.
4.

CONCLUSION

For the reasons explained above, the Court finds that Toryfter and
Schossow violated Plaintiffs’ Fourth Amendment right to be free from
unreasonable searches in the curtilage. Flowing from this, Toryfter also
violated Plaintiffs’ Fourth Amendment rights when she obtained an invalid
warrant on the basis of the unlawful curtilage search. Schossow, who was
Toryfter’s supervisor, and who helped obtain and execute the warrant,
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 cannot be held liable on a supervisory theory predicated on a failure to
intervene in his own conduct. Finally, Plaintiffs have failed to provide any
evidence as to how the City of Mequon’s disputed underaged drinking
policy was the moving force behind the Fourth Amendment violation. This
claim will proceed to trial on the issue of damages for the direct Fourth
Amendment claims against Toryfter and Schossow only, however nominal
those damages may be.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #16) be and the same is hereby GRANTED in part and DENIED
in part as stated in the terms of this order;
IT IS FURTHER ORDERED that Plaintiffs’ motion for summary
judgment (Docket #24) be and the same is hereby GRANTED in part and
DENIED in part, as stated in the terms of this order;
IT IS FURTHER ORDERED that Plaintiffs’ claims against
Defendant Matthew Schossow for supervisor liability and failure to
intervene in the obtention and execution of a search warrant be and the
same are hereby DISMISSED;
IT IS FURTHER ORDERED that Plaintiffs’ claims for Fifth and
Fourteenth Amendment violations be and the same are hereby
DISMISSED;
IT IS FURTHER ORDERED that Plaintiffs’ claim for liability against
Defendant City of Mequon be and the same is hereby DISMISSED;
IT IS FURTHER ORDERED that Defendant City of Mequon be and
the same is hereby DISMISSED from this action; and
IT IS FURTHER ORDERED that the John and Jane Doe defendants
be and the same are hereby DISMISSED from this action.
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 Dated at Milwaukee, Wisconsin, this 24th day of September, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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