A civil rights lawsuit filed by a Buffalo Township couple who claim township police and an insurance agent mistook their flowering hibiscus plants for marijuana is now in federal court.
Edward Cramer and his wife, Audrey, claim they were handcuffed and forced to sit in the back of a police car for hours as police ransacked their home looking for marijuana on Oct. 7.
Both Cramers, who are in their late 60s, are alleging use of excessive force, false arrest, false imprisonment, intentional infliction of emotional distress and invasion of privacy.
The case, filed in Butler County Court in November against Nationwide Mutual Insurance Co., Nationwide agent Jonathan Yeamans, Buffalo Township and three of its police officers, was sent to federal court at the request of the defendants.
The incident came as a result of a neighbor’s tree falling on the Cramers’ property in September.
The Cramers were released without being charged, as police found no marijuana on their property.
Later that month, Nationwide sent the Cramers a policy notification claiming to have found marijuana growth on the property, and if they failed to remove them, Nationwide would cancel their insurance.
WHAT THE SUIT CLAIMS
The Cramers’ lawsuit said Yeamans came to their property Oct. 5 to investigate the insurance claim, and while there took pictures of their hibiscus plants so “as not to reveal that they had flowers on them so that they would appear to resemble marijuana plants.”
Based on Yeamans’ photos, the suit claims, Buffalo Township police Officer Jeffrey Sneddon obtained a search warrant for the Cramers’ property.
The suit said Sneddon claimed to have expertise in identifying marijuana and the search warrant contained no probable cause to search the Cramer home.
The police arrived at the house about noon Oct. 7.
Audrey Cramer, only partially dressed, answered the door to find about a dozen officers pointing assault-style rifles at her, she alleged. She claims her hands were handcuffed behind her back, and she was forced to sit in a “very hot” police car for 4.5 hours “in a state of partial undress.”
The suit says she explained, after being informed of the search for marijuana, that the plants were flowering hibiscus, but Sgt. Scott Hess, claiming expertise, insisted that they were marijuana.
According to the suit, when Edward Cramer arrived home, police met him with drawn guns and refused to believe his remarks that the plants were hibiscus plants, not marijuana. He was placed under arrest and put in the police car with his wife for more than two hours.
NATIONWIDE WANTS LAWSUIT DISMISSED
Nationwide and Yeamans have filed a motion asking the court to dismiss the Cramers’ claims.
They state in court papers that Yeamans’ report of suspected marijuana to police was not done to avoid paying the claim, and that canceling their policy is not enough to establish bad faith under state law.
The company also claims that it and Yeamans have “an absolute privilege” to report suspected criminal activity, and that doing so did not defame the Cramers because Yeamans reported it to a “limited audience,” the police department.
“Even if the report was false or maliciously motivated, the privilege to report suspected criminal activity to the police is absolute and he and Nationwide cannot be liable for defamation,” the insurer argues.
Further, the company says it could not have invaded the Cramers’ privacy, because they invited Yeamans onto their property, and that there is no basis in state law for a claim of negligent infliction of emotional distress.
“Though plaintiffs claim that the policy contains a ‘privacy statement,’ this statement is not a duty imposed on Nationwide to care for plaintiffs’ emotional well-being,” the motion says.
As for the claim of intentional infliction of emotional distress, “several courts have held that being accused of crime — even if the accusations are false — does not support a claim for IIED, and those courts have dismissed such claims.”
The company holds the Cramers aren’t entitled to any punitive damages based on Yeamans’ “potential mistake or error in thinking that the plants were marijuana plants.”
“Moreover, Mr. Yeamans made the report to the local police agency and the police department deemed it to be a credible enough report to conduct a search of the property,” the motion states.
HIBISCUS VS. MARIJUANA
A botany expert interviewed by the Trib in November said there would be no way for a reasonable person to mistake hibiscus for marijuana with flowers in bloom, but a quick glance at just the leaves could lead to a mistake.
“The hibiscus flowers are large, and brightly colored, compared to the small nothings that grow on marijuana plants,” Bonnie Isaac, manager of the Carnegie Museum of Natural History’s Botany Collection, told The Trib.
The leaves, however, are similar she said.