Jade Green v. Jack Howser ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2757
JADE V. GREEN,
Plaintiff-Appellee,
v.
JACK HOWSER and ANGELA HOWSER,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:16-cv-00863 — Stephen C. Williams, Magistrate Judge.
____________________
ARGUED SEPTEMBER 11, 2019 — DECIDED NOVEMBER 7, 2019
____________________
Before RIPPLE, ROVNER, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Tolstoy said that every unhappy
family is unhappy in its own way, and that observation rings
true here. When Jack and Angela Howser decided that An-
gela’s estranged daughter, Jade Green, was failing to provide
a suitable home for Jade’s daughter, E.W., they enlisted the
local police, the sheriff’s office, the county prosecutor, and a
private investigator to help them wrest custody of E.W. from
Jade. Together, the group agreed that they would arrest Jade
2 No. 18-2757
while Jade’s husband was out of the house so that the
Howsers could take the child. So, after midnight one Sunday
night, a caravan that included the sheriff, a sheriff’s deputy,
the Howsers, and the Howsers’ private investigator set out for
Jade’s home to arrest her for writing Angela a $200 check that
had bounced. Once Jade was in handcuffs, an officer gave Jack
the all-clear to come inside. The sheriff did not allow Jade to
designate a custodian for E.W. or obtain her consent to giving
E.W. to the Howsers. Instead, over Jade’s protests, the sheriff
let Jack carry her daughter away.
Jade sued the Howsers under 42 U.S.C. § 1983 for conspir-
ing with state officials to violate her due process right to make
decisions regarding the care, custody, and control of her child.
A jury returned a verdict in her favor, and the Howsers ask
us to overturn it. They contend that there is insufficient evi-
dence to support the verdict and that it is contaminated by an
evidentiary error in any event. They also find fault with sev-
eral aspects of the damages award. We reject all of the
Howsers’ arguments.
I.
Before 2014, Jade Green lived with her four-year-old
daughter, E.W., in a house owned by her mother, Angela
Howser, and her mother’s husband, Jack Howser. Jade also
owed her job to the Howsers: she worked at a newspaper that
they owned. By the time Jade married Josh Green in May
2014, however, her relationship with the Howsers had soured.
In fact, to say that they had a falling out would be an under-
statement.
The Howsers made no bones about telling Jade that they
thought Josh was bad news. Nor did they hesitate to inform
No. 18-2757 3
her that they had serious doubts about her fitness as a mother.
Given their opinions, the Howsers were predictably upset
when they learned that Jade planned to move with Josh and
E.W. to a new home almost an hour away. The Howsers did
more, however, than express disappointment or try to per-
suade Jade to stay. They blackmailed her with nude photos. If
Jade took E.W., the Howsers threatened, they would publish
the photos in their newspaper as well as mail them to Josh’s
workplace. They told her that Josh would want nothing to do
with her after that. But if the nude photos weren’t enough to
drive him away, they warned Jade that they were willing to
take another step. They would fire Jade from her job at the
newspaper, and once she was unemployed, Josh would
surely leave her.
When Jade moved with Josh and E.W. anyway, the
Howsers followed through on their threat to fire her, accusing
her of malfeasance. And since blackmail had been a failure,
they changed strategies: they decided to go directly for E.W.
They hired a private investigator—a friend and former state
police officer—to help them find a way to take E.W. away
from Jade and Josh. They quickly formed a plan. After the
Howsers fired her, Jade closed a bank account from which she
had written a $200 check to Angela. Knowing that the account
was closed, Angela tried to cash the check anyway. When it
bounced, the Howsers had the ammunition they needed.
Angela used the bounced check to file a complaint with
the county prosecutor. The prosecutor then filed a felony in-
formation and obtained a warrant for Jade’s arrest on the
ground that she had passed a bad check. Once the warrant
issued, the Howsers began calling local law enforcement of-
ficers to encourage them to execute it. The Howsers organized
4 No. 18-2757
a meeting at the courthouse with the county sheriff, the chief
of police, and the Howsers’ private investigator. At the meet-
ing, the group decided that Jade’s arrest would provide the
perfect opportunity for the Howsers to take custody of E.W.
If they arrested Jade, the police would have to place the child
in the protective custody of someone else. And if the police
arrested Jade when Josh was not at home, they could give
E.W. to the Howsers. The group decided to execute the plan
on the upcoming Sunday night, and they agreed to have
someone drive by Josh’s workplace before they made the ar-
rest to make sure that he would be working when the police
arrived.
On the night of the arrest, the Howsers and their private
investigator met the police chief at his father’s gun shop, as
the four had planned to do. At first, everyone remained com-
mitted to the scheme. But when the group proceeded to the
police station to meet the others, the police chief began to get
cold feet. For starters, he couldn’t find an active warrant for
Jade’s arrest in the department’s system. Instead of being en-
tered into the interagency database, which was protocol, this
warrant had been faxed directly from the county prosecutor’s
office, which was unusual. On top of this, two of the depart-
ment’s officers expressed concern that the planned arrest
might not be above board. They showed the police chief the
Illinois statute governing child custody after an arrest; as the
officers read the statute, it required either a parent’s consent
to the child’s placement or placement into the custody of child
services. They also told the police chief about the rift between
the Howsers and the Greens. Neither wanted to be involved
with the arrest because, as one put it, they “didn’t want to
break the law.” After hearing that, the police chief backed out
of executing the warrant.
No. 18-2757 5
Frustrated, Jack asked Angela to see if the sheriff would
execute the warrant. Angela called the sheriff on his personal
cell phone, and he agreed to come to the police station, where
he met with the Howsers, their investigator, and the police
chief. (Though the police chief had declined to execute the
warrant himself, he continued to play a supporting role.) The
group decided to stick with the plan to arrest Jade that night.
During the discussion, the sheriff called the county prosecu-
tor and put him on speakerphone. The prosecutor advised the
sheriff and the police chief to move forward and told the sher-
iff that E.W. should be placed with the Howsers if no one but
Jade was home. He justified the custody decision in part by
telling the sheriff that there were multiple orders of protection
against Josh, though the sheriff noted that there were no ac-
tive orders in his office’s system. The sheriff confirmed the
prosecutor’s directions with his dispatcher and told the
group, “We’re a go.”
Shortly after midnight, the various law enforcement cars
headed out in a caravan with the Howsers in the rear. In the
squad car on the way to Jade’s house, the sheriff asked his
deputy if he was “okay with this.” After equivocating, the
deputy replied that if things went south with the arrest, he
would just “throw the state’s attorney under the bus.”
When the caravan arrived at Jade’s home, Jack and Angela
stationed themselves around the corner, where they waited
for a signal that Jack could come inside. The deputy knocked
on the door, Jade answered, and the deputy advised her that
there was a warrant for her arrest. After she was handcuffed,
a member of the party signaled to Jack, who joined the group
in Jade’s kitchen. Jade became agitated when she saw Jack,
calling him a “fucking asshole” and demanding that he get
6 No. 18-2757
away from her. Ignoring her protests, the officers allowed
Jack to go upstairs, get E.W., and carry her off.
Jade, meanwhile, was taken to the police station for book-
ing. Over an hour later, she posted bond and returned home
with Josh. Distraught and frightened, Jade had no idea how
to get E.W. back. She called the state police and the Depart-
ment of Child and Family Services for help but was unable to
obtain any information. The morning after her arrest, Jade
tried to meet with the prosecutor at the county courthouse.
But she was arrested again before she could make it there. In
addition to filing a report regarding Jade’s bad check, which
occasioned the first arrest, Angela had filed a separate com-
plaint alleging that Jade had refused to return the memory
card from her company-issued cell phone. That gave the sher-
iff reason to take Jade into custody for misdemeanor theft,
and Jade was again required to post bail.
Following Jade’s second arrest, the Howsers obtained
guardianship of E.W. and orders of protection keeping both
Jade and Josh away from E.W. These orders were the opening
salvo in a custody battle that extended for months. After
lengthy legal proceedings and a third arrest of Jade at An-
gela’s behest, Jade finally regained custody of E.W.
After the custody litigation concluded in Jade’s favor, she
sued the Howsers, the sheriff, and the county prosecutor un-
der § 1983 for conspiring to violate her due process rights. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (holding
that a private person who conspires with government actors
to deprive a plaintiff of her constitutional rights acts “under
color of law” for purposes of § 1983); Spiegel v. McClintic, 916
F.3d 611, 616 (7th Cir. 2019) (“[A] private citizen can act under
color of law if there is ‘evidence of a concerted effort between a
No. 18-2757 7
state actor and that individual.’” (citation omitted)). Her the-
ory was that the group executed a plan to place E.W. in the
Howsers’ custody in violation of the procedures dictated by
Illinois law, thereby also violating her Fourteenth Amend-
ment right to make decisions concerning the care, custody,
and control of her child. See Hernandez ex rel. Hernandez v. Fos-
ter, 657 F.3d 463, 478 (7th Cir. 2011) (recognizing that the Four-
teenth Amendment protects parental custody rights). The
prosecutor and sheriff settled, but the suit against the
Howsers proceeded to a jury trial over which a magistrate
judge presided. At the end of the trial, the jury awarded Jade
$470,000 in compensatory damages and $500,000 in punitive
damages, for a total of $970,000. The magistrate judge denied
both the Howsers’ renewed motion for judgment as a matter
of law and their motion for a new trial or remittitur of dam-
ages.
II.
The Howsers raise three challenges on appeal. First, they
argue that there was insufficient evidence to support the
jury’s verdict. Second, they challenge the magistrate judge’s
pretrial decision to exclude unfavorable information about
Jade and Josh. And third, they argue that the damages awards
were excessive.
A.
A § 1983 conspiracy claim requires both (1) an underlying
constitutional violation and (2) an agreement among the de-
fendants to inflict the unconstitutional harm. Daugherty v.
Page, 906 F.3d 606, 612 (7th Cir. 2018). The Howsers do not
challenge the magistrate judge’s conclusion that violating the
8 No. 18-2757
applicable Illinois procedures constitutes a due process viola-
tion, so we express no view about whether the judge was
right. We also express no view about what Illinois law re-
quires, because the Howsers accept that it entitled Jade to des-
ignate the relative or responsible adult with whom she
wanted the officers to place E.W. Instead, we deal only with
the arguments that the Howsers do raise: (1) that no reasona-
ble jury could have found that Jade objected to E.W.’s place-
ment with the Howsers and (2) that no reasonable jury could
have found that the Howsers had an agreement with law en-
forcement officials to take E.W.1 In evaluating these argu-
ments, we view the record in the light most favorable to Jade.
See Thorne v. Member Select Ins. Co., 882 F.3d 642, 644 (7th Cir.
2018); Naem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir.
2006).
We’ll start with the Howsers’ contention that no reasona-
ble jury could have found that Jade objected to E.W.’s place-
ment with them. The Howsers point out that Jade admitted at
trial that she never specifically told the arresting officers that
she did not want E.W. to be placed with Jack. In their view,
that concession compels the conclusion that Jade implicitly
agreed to the sheriff’s placement of E.W. in Jack’s custody. But
1 Before the magistrate judge, the Howsers moved for both judgment as a
matter of law and a new trial. A new trial can be granted where the jury’s
verdict, in the judge’s own estimation, “is against the manifest weight of
the evidence.” Mejia v. Cook County, 650 F.3d 631, 633 (7th Cir. 2011). By
contrast, judgment as a matter of law can only be granted when, even tak-
ing the evidence in the light most favorable to the nonmovant, “no reason-
able jury” could have reached the verdict it did. Id. The Howsers invoke
the “against the manifest weight of the evidence” standard in their brief,
but they appeal only the denial of their renewed motion for judgment as
a matter of law. Thus, the “no reasonable jury” standard is applicable.
No. 18-2757 9
seen in light of all the evidence, it does no such thing. The jury
heard testimony that Jade referred to Jack as “that fucking ass-
hole” after he entered her house to take E.W. and protested to
the arresting officers that she did not want to be anywhere
near him. It also heard that the sheriff told Jade that E.W. had
to go into protective custody with Jack; that he presented Jade
with no alternatives; and that Jade never gave affirmative
consent for E.W. to be placed in Jack’s custody. Based on this
evidence, a jury could reasonably find not only that the sheriff
barred Jade from designating a custodian for E.W. but also
that Jade made her objections to Jack known.
The Howsers also insist that no reasonable jury could have
found that they had an agreement with law enforcement offi-
cials to forcibly gain custody of E.W. They begin by complain-
ing that Jade didn’t demonstrate that the state officials stood
to gain anything from the plan. But Jade didn’t have to prove
that there was something in it for the state actors. She had to
show that “(1) a state official and private individual(s)
reached an understanding to deprive the plaintiff of his con-
stitutional rights, and (2) those individual(s) were willful par-
ticipant[s] in joint activity with the State or its agents.” Spiegel,
916 F.3d at 616 (citation omitted). And she had plenty of evi-
dence to establish that.
As the Howsers tell the tale, the jury knew nothing more
than that they reported Jade to the authorities for bouncing a
check and taking a memory card. The record, however, tells a
different story. The jury heard testimony that the Howsers ar-
ranged numerous meetings with law enforcement, got offic-
ers to agree to execute the warrant when Jade’s husband
wouldn’t be home, called the sheriff on his personal cell
phone to ensure that the arrest and transfer of custody went
10 No. 18-2757
forward, rode in the law enforcement caravan on the night of
the arrest, waited for an officer to signal that Jack could enter
Jade’s home, and took E.W. with the sheriff’s approval. That
is more than enough evidence to support the jury’s finding
that the Howsers conspired with law enforcement officials to
take custody of E.W. over Jade’s objection.
B.
Before trial, the magistrate judge granted Jade’s motion to
exclude any reference to her criminal history, any suggestion
that she neglected E.W., any suggestion that Josh Green was
dangerous, any evidence that either of the Greens ever injured
E.W., and any evidence of the living conditions in the Greens’
home. The Howsers wanted to introduce such evidence to
give the jury an understanding of why they sought custody
of E.W., but the judge noted that the evidence had little pro-
bative value on their liability because “[p]laintiff’s bad behav-
ior is not a defense to violating her rights.” The evidence also
carried a substantial risk of unfairly prejudicing the jury
against Jade. See FED. R. EVID. 403 (“The court may exclude
relevant evidence if its probative value is substantially out-
weighed by a danger of … unfair prejudice.”); Thompson v.
City of Chicago, 722 F.3d 963, 971 (7th Cir. 2013) (“Unfair prej-
udice is ‘an undue tendency to suggest decision on an im-
proper basis, commonly … an emotional one.’” (citation omit-
ted)). The magistrate judge acknowledged, though, that
“some or all of this evidence could be permissibly used to im-
peach Plaintiff’s testimony on the issue of damages” and that
he would consider admitting it for that purpose if Jade
opened the door. Either Jade never opened the door or the
Howsers didn’t try to impeach her with this evidence, be-
cause it never came in.
No. 18-2757 11
The Howsers maintain that the magistrate judge was
wrong to exclude this evidence because without it, the jury
lacked a full picture of why they thought that their actions
were justified. And that’s about all the Howsers say—their
position is more of an assertion than an argument. They don’t
explain why the magistrate judge abused his discretion by ex-
cluding the evidence, much less why any error was prejudi-
cial. See Davies v. Benbenek, 836 F.3d 887, 889–90 (7th Cir. 2016)
(noting that evidentiary rulings are reviewed for abuse of dis-
cretion); see also Young v. James Green Mgmt., Inc., 327 F.3d 616,
621 (7th Cir. 2003) (“[E]ven where an error is demonstrated to
exist, ‘a jury verdict will stand if the trial court’s evidentiary
ruling was harmless error.’” (citation omitted)); accord Good-
man v. Ill. Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 439
(7th Cir. 2005) (noting that “an erroneous evidentiary ruling
can be deemed harmless if the record indicates that the same
judgment would have been rendered regardless of the er-
ror”). Having been given no reason to question this eviden-
tiary ruling, we won’t.
C.
Finally, the Howsers contend that the damages award is
excessive. The jury awarded Jade $970,000. That included
$470,000 in compensatory damages (which was comprised of
$120,000 in attorneys’ fees and $350,000 for mental and emo-
tional pain and loss of companionship) and $500,000 in puni-
tive damages ($250,000 imposed on Jack and $250,000 im-
posed on Angela). The Howsers challenge each component of
the damages award.
12 No. 18-2757
1.
We review the magistrate judge’s refusal to remit compen-
satory damages for an abuse of discretion. Farfaras v. Citizens
Bank & Tr. of Chi., 433 F.3d 558, 566 (7th Cir. 2006). Two factors
guide our analysis: whether the jury’s verdict is rationally re-
lated to the evidence and “whether the award is roughly com-
parable to awards made in similar cases.” Adams v. City of Chi-
cago, 798 F.3d 539, 543 (7th Cir. 2015).2
We’ll start with the $350,000 that the jury awarded Jade for
mental and emotional pain and loss of companionship. The
Howsers’ argument that this amount is irrational boils down
to this: Jade couldn’t have been that upset because she didn’t
seek medical treatment and didn’t try hard enough to contact
E.W. during their period of separation. But the jury was free
to reach a different conclusion about the toll that these events
took on Jade. Over her objection, the county sheriff placed her
daughter in the custody of people who had recently black-
mailed her with nude photos, tried to break up her marriage,
vindictively fired her from her job, and conspired with law
enforcement officers to forcibly take her child. Jade was sepa-
rated from her daughter and underwent the strain of a
lengthy custody battle with people who had violated her
2 We have sometimes characterized the test as including three factors:
whether the award is monstrously excessive, whether there is any rational
connection between the award and the evidence, and whether the amount
is roughly comparable to awards in similar cases. See, e.g., Farfaras, 433
F.3d at 567. We have repeatedly observed, however, that the “monstrously
excessive” factor is simply another way of expressing the “rational con-
nection” factor. Adams, 798 F.3d at 543. And because the former is amor-
phous, we have said that the latter is a better guide for the analysis. G.G.
v. Grindle, 665 F.3d 795, 799 (7th Cir. 2011).
No. 18-2757 13
rights by taking E.W. in the first place. The award is rationally
related to the evidence, and the Howsers don’t try to argue
that it is excessive compared to awards in similar cases.
The compensatory damages also included attorneys’ fees
from the custody litigation caused by the Howsers’ actions.
Jade testified that her attorneys’ fees totaled $250,000; the jury
valued them at $120,000. The Howsers’ challenge to this
amount is frankly hard to follow. Their jumbled description
of the state-court custody litigation is nowhere close to a suf-
ficient explanation of why the costs incurred were not ration-
ally attributable to their actions. Nor did they introduce any
other evidence that the fees were excessive—for example, ev-
idence that Jade’s counsel charged above-market rates. They
have therefore given us no reason to second-guess the jury’s
valuation.
2.
In an action under § 1983, “a jury may be permitted to as-
sess punitive damages … when the defendant’s conduct is
shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally pro-
tected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).
The Howsers do not contend that the magistrate judge abused
his discretion by submitting the punitive damages issue to the
jury. Alexander v. City of Milwaukee, 474 F.3d 437, 454 (7th Cir.
2007) (“This court reviews whether the issue of punitive dam-
ages was properly submitted to the jury for an abuse of dis-
cretion.”). They do, however, protest the amount that the jury
awarded. According to the Howsers, each of the $250,000 pu-
nitive damages awards is “grossly excessive” under the Due
Process Clause. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
569 (1996).
14 No. 18-2757
While defendants have joint and several liability for com-
pensatory damages, punitive damages are assessed sepa-
rately against each defendant. See Minex v. Canarecci, 597 F.3d
824, 830 (7th Cir. 2010); Cooper v. Casey, 97 F.3d 914, 920 (7th
Cir. 1996). To ensure that a punitive damages award complies
with the constitutional demand of fairness, we review it in
light of “(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive damages
award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or im-
posed in comparable cases.” State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 418 (2003). Our review is de novo.
Rainey v. Taylor, Nos. 16-4153 & 18-2990, 2019 WL 5257963 at
*7 (7th Cir. Oct. 17, 2019). The Court has described the first
prong as the most important. BMW, 517 U.S. at 575. Evaluat-
ing the reprehensibility of a defendant’s conduct requires us
to consider
whether[] the harm caused was physical as op-
posed to economic; the tortious conduct evinced
an indifference to or a reckless disregard of the
health or safety of others; the target of the con-
duct had financial vulnerability; the conduct in-
volved repeated actions or was an isolated inci-
dent; and the harm was the result of intentional
malice, trickery, or deceit, or mere accident.
State Farm, 538 U.S. at 419.
These factors indicate that both Howsers engaged in rep-
rehensible conduct. Their conspiracy with law enforcement
officers to forcibly take E.W. was intentional, manipulative,
and deceitful. And though they did not physically hurt Jade,
No. 18-2757 15
their behavior reflected total indifference to her mental and
emotional health, not to mention her federally protected
rights. They committed only one constitutional violation—
conspiring to take E.W.—but it was hardly an isolated inci-
dent. It followed on the heels of their attempts to blackmail
Jade, and they battled to keep their unlawfully obtained cus-
tody rather than thinking better of their behavior and trying
to remedy it. We don’t know anything about Jade’s financial
vulnerability—but the fact that she was unemployed suggests
that she did not have the resources to foot the bill for the cus-
tody battle into which the Howsers dragged her. The
Howsers’ conduct was reprehensible enough to warrant a pu-
nitive sanction.
That brings us to the second prong, the disparity between
the compensatory and punitive damages. The jury imposed a
$250,000 award on Jack and a $250,000 award on Angela. The
ratio between each of these awards and the compensatory
damages award is approximately 0.5 to 1. That means that
neither award is a candidate for remittitur based on disparity.
See Estate of Moreland v. Dieter, 395 F.3d 747, 757 (7th Cir. 2005)
(refusing to question the constitutionality of a punitive dam-
ages award that was a fraction of the compensatory damages
award). We have approved ratios as high as 37:1, as well has
more modest but still larger ratios like 5:1 and 6:1. Rainey, 2019
WL 5257963, at *8 (discussing cases). The one-half ratio here
reflects a punishment tailored to the offense rather than one
that is grossly excessive relative to the State’s interests in pun-
ishment and deterrence. See BMW, 517 U.S. at 568.
Finally, the third prong requires a comparative analysis to
analogous punitive damages awards. But as with their chal-
lenge to compensatory damages, the Howsers fail to point us
16 No. 18-2757
to any comparable cases involving lower punitive awards.
That failure deals the final blow to their appeal.
***
The judgment is AFFIRMED.