Fox v. Hayes

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3736

K EVIN F OX and M ELISSA F OX,

Plaintiffs-Appellees,

v.

E DWARD H AYES, M ICHAEL G UILFOYLE,

S COTT SWEARENGEN, B RAD W ACHTL, and

W ILL C OUNTY,

Defendants-Appellants,

v.

A MERICAN A LTERNATIVE INSURANCE

C ORPORATION and E SSEX INSURANCE

C OMPANY,

Intervenors-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7309—John W. Darrah, Judge.

A RGUED S EPTEMBER 9, 2009—D ECIDED A PRIL 7, 2010

Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.

2 No. 08-3736

E VANS, Circuit Judge. The central event underlying this

case evokes what is surely every parent’s most visceral

fear. In the early morning hours of June 6, 2004, three-year-

old Riley Fox was taken from her home in Wilmington,

Illinois. She was bound with duct tape, sexually

assaulted, and drowned in a creek. Riley’s parents,

Kevin and Melissa Fox, claim that in the midst of their

efforts to cope with this trauma, local detectives sub-

jected them to a whole new nightmare. According to the

Foxes, the defendants framed Kevin for Riley’s murder,

coerced him until he agreed to a “confession” that the

detectives concocted, and caused him to be jailed (and

facing the death penalty) on a charge of first-degree

murder. The prosecutor eventually dropped the charge

after DNA testing excluded Kevin as the donor of DNA

found on Riley’s body. In the meantime, Kevin spent

eight months in jail, separated from his grieving wife and

seven-year-old son, while his reputation in the small

community where they lived was thoroughly smeared. To

this day, no one else has been charged with Riley’s murder.

Almost immediately after his arrest, Kevin and Melissa

brought this multi-count, multi-party lawsuit under

42 U.S.C. § 1983 and Illinois law, claiming that Will

County detectives Edward Hayes, Michael Guilfoyle,

Scott Swearengen, Brad Wachtl, John Ruettiger (who died

before the trial), and several other parties who have

since settled or been dismissed from the suit, arrested and

prosecuted Kevin without probable cause and in violation

of his due process rights. The complaint also includes

counts of conspiracy, false imprisonment, intentional

No. 08-3736 3

infliction of emotional distress (IIED), and (for Melissa)

loss of consortium. It sought both compensatory and

punitive damages. Three years and multiple dispositive

motions later, the case went to trial. After six weeks, the

jury returned verdicts in favor of the Foxes against the

five named defendants on all but the conspiracy and

false imprisonment claims.

In its assessment of damages, the jury’s verdict in favor

of Kevin looked like this:

Defendant Due False Mali- Puni- Totals

Process Arrest cious IIED tive

Prose- Dam-

cution ages

Hayes 500000 500000 300000 500000 1500000 3300000

Swearengen 500000 500000 300000 500000 1500000 3300000

Guilfoyle 300000 500000 0 200000 400000 1400000

Wachtl 300000 100000 0 200000 100000 700000

Estate of 100000 100000 0 200000 200000 600000

Ruettiger

Total 1700000 1700000 600000 1600000 3700000 9300000

4 No. 08-3736

On Melissa’s claims the jury found:

Loss of Punitive

Defendant Consortium IIED Damages Totals

Hayes 1000000 1000000 1000000 3000000

Swearengen 1000000 2000000

1000000

Guilfoyle 300000 200000 500000

Wachtl 300000 200000 500000

Estate of 100000 100000 200000

Ruettiger

Totals 2700000 1000000 2500000 6200000

The grand total of the damages awarded to the Foxes

was $15.5 million. On motions after verdict, the district

court struck all of the punitive damages awarded to

Melissa ($2.5 million) and the punitive damages

assessed against Wachtl ($100,000) on Kevin’s claims.

In addition, the district court entered an order memo-

rializing the parties’ agreement that the judgment against

the Estate of John Ruettiger was satisfied and the case

against it was dismissed. All of this has left the

remaining tab at $12,200,000. It is that sum that is in

play as the four named defendants—Hayes, Swearengen,

Guilfoyle, and Wachtl—appeal.

Over the course of the long trial, the defendants and

the Foxes presented drastically different versions of the

No. 08-3736 5

events surrounding Kevin’s arrest and prosecution. In

broad strokes, this is the defendants’ version. From day

one, Kevin’s behavior raised red flags that made the

defendants suspect he was involved in Riley’s death.

After investigating for four months, Kevin was their

only suspect. In October they brought Kevin in for ques-

tioning, hoping that he could resolve their concerns. In-

stead, he made statements that further heightened their

suspicions. When Kevin nonetheless denied involve-

ment, the detectives suggested he take a polygraph ex-

amination. He did so voluntarily and failed. Their sus-

picions further raised, the defendants questioned him

for several more hours, until Kevin admitted that he

accidentally killed Riley. Kevin explained that on the

night of Riley’s death he accidentally hit her in the head

with the bathroom door. Thinking he had killed her, he

panicked. Instead of calling the police or an ambulance

or a family member, Kevin bound Riley with duct tape

to make it look like a murder and left her in the creek,

where she drowned. The defendants had Kevin mem-

orialize his statement on video and then arrested him

for the murder of his daughter.

Because at this stage we review the evidence in the

light most favorable to the Foxes, see Staub v. Proctor Hosp.,

560 F.3d 647, 651 (7th Cir. 2009), what follows are more

particular details of their version of these events. In

June 2004, Kevin and Melissa were living with their

children, Riley and six-year-old Tyler, in Wilmington, a

small town located in a rural area about 60 miles south-

west of Chicago. Kevin was a union painter and Melissa

stayed home with the kids. Kevin took pride in his

6 No. 08-3736

abilities as a dad, and he and Riley were particularly

close. Melissa and Kevin both grew up in Wilmington

and had an extended network of family and friends in

town. Wilmington is the kind of place where crime is

rare and people regularly leave their homes and cars

unlocked. The Foxes were no exception. They often left

their front door unlocked, and although the lock on

their back door had been broken for months, they never

bothered to fix it. Instead, they kept a stack of laundry

baskets in front of the back door to keep it closed.

On June 5, 2004, a Saturday, Melissa was in Chicago with

some friends to participate in a two-day walk to raise

money for breast cancer research. Kevin took care of the

children that afternoon and then dropped them off at

the Wilmington home of Melissa’s mother, who had

agreed to watch the kids while he attended a concert in

Chicago with Melissa’s brother, Tony Rossi. Kevin and

Tony drove the Foxes’ Ford Escape to the concert, where

Kevin drank about six beers. After the concert was over,

around 10:30 p.m., Kevin and Tony went to a local restau-

rant with another friend. Kevin was sober when he and

Tony left for Wilmington an hour later. Around 12:50 a.m.

they arrived back at the Rossis’ house, where Tyler and

Riley were sleeping in the living room. Kevin wanted to

bring the children home so he could get them up early

the next morning and travel to Chicago in time to see

Melissa finish her participation in the walk. Apparently

the kids were looking forward to the trip to Chicago: they

had gone to an art supply store with their father that

Saturday afternoon, where he purchased three poster

boards and other supplies; they went home and made

No. 08-3736 7

signs to hold up while watching their mother finish the

walk. At the Rossi home later that night, Tony helped

Kevin get the children into the car, and Kevin drove

them home.

Before leaving for Chicago, Melissa had left the chil-

dren’s bed sheets in the dryer. When Kevin brought the

kids in that night he was too tired to make their beds,

so he put Tyler to sleep on an ottoman and Riley on the

couch. They were within a few feet of each other in

the living room. This wasn’t an uncommon sleeping

arrangement—the Foxes sometimes let the children fall

asleep watching TV in the living room. After the

children were sleeping, Kevin went outside and smoked

a cigarette on the porch. He returned inside, watched TV

in his bedroom, turned his fan on high, and fell asleep

around 2:30 a.m.

Kevin awoke around 7:50 the next morning when Tyler

came into his room and told him that Riley was gone.

The kids often played hide-and-seek, so Kevin didn’t

panic. He went to the living room, where he saw Riley’s

blanket still on the couch and the front door open (he

assumed Tyler opened it looking for Riley). He started

calling Riley’s name and looked carefully in her room,

which was overrun with toys and had ample hiding

spots. After searching the bedroom, he spent several

more minutes searching the children’s toy room. He

then went back to the living room and kitchen and looked

out the back window to see if she was in the backyard.

She wasn’t. After about 15 minutes, his sense of alarm

growing, Kevin started walking to his neighbor’s house,

8 No. 08-3736

but he decided it was too early to ring the doorbell.

Instead, he returned home and called the neighbor on

the telephone. They hadn’t seen Riley. Kevin started to

panic now and began a more urgent search of the house.

About 40 minutes after Tyler woke him up, Kevin called

the police. He called 411 instead of 911 because he knew

he would get the police through 411, and he thought

911 was for extreme emergencies. At that point, he

was telling himself that Riley was hiding and would

eventually be found.

The dispatcher who received Kevin’s 411 call was a

local police officer who said, “Are you kidding me?” when

Kevin told him that Riley was missing. The officer drove

to the Fox residence, where he joined Kevin in searching

the house. Soon other police officers started to arrive,

and they told Kevin to wait outside. Word of the situa-

tion got out fast, and Melissa’s and Kevin’s family mem-

bers started to arrive. A police officer told Kevin not to

call Melissa and worry her, so he didn’t. Instead, he

began walking around the neighborhood, calling Riley’s

name. While he was out walking, Melissa called Kevin,

who was carrying his cell phone. He started crying and

told Melissa that Riley was missing. Melissa, who at the

time was on a street in Chicago with her friends and

hundreds of other walkers, collapsed at the news. Her

friend picked up the phone and arranged to get Melissa

to Wilmington as quickly as possible. On the way home,

Melissa spoke with her younger brother, Michael, who

was confused and told her that he thought the kids were

still at the Rossis’ house.

No. 08-3736 9

When Melissa arrived back in Wilmington the area

was overrun with police and neighbors who were

helping with the search. She found Kevin in the yard

across the street from their house, and police officers

heard her say to him, “Did you do something stupid?” and

“You better not be lying to me.” Melissa testified that

she said those things because there was so much con-

fusion about where Riley might be and she thought

Kevin might have caused a false alarm. She testified that

Kevin had not always been truthful with her and that

she thought he might not be forthcoming with informa-

tion that he knew would be painful for her to hear.

The police activated an “Amber Alert” around 2:30 that

afternoon, but not long after they did, searchers found

Riley’s body floating in a creek in a nearby forest pre-

serve. No one told the Foxes. Instead, police officers

asked them to come to the Wilmington police station to

be interviewed about Riley’s disappearance; the Foxes

did so willingly. At the station, officers separated the

couple and questioned them independently. They ques-

tioned Melissa mostly about Kevin. After about an

hour, Kevin and Melissa were reunited. By that point,

officers had informed Kevin’s father that Riley’s body

was found, and they asked him to break the news

to Kevin and Melissa. When he did, Kevin collapsed,

then started screaming and hitting the walls. The

police did not tell the family that Riley had been

sexually assaulted or that her body had been found with

duct tape over the mouth and arms.

The next day the Foxes returned to the police station,

where they allowed the police to take their fingerprints

10 No. 08-3736

and to collect their DNA. They also were introduced to

Scott Swearengen, a Will County detective who was

assigned as the lead investigator on the case. Although the

Foxes didn’t know it at the time, from the moment he

saw Riley’s body floating in the creek, Swearengen theo-

rized that her death was an accident covered up to look

like a murder by someone who knew her. But he told

the Foxes that he was focusing on a theory that the

murder was committed as an act of revenge by

someone who might have been upset with them. Because

no one told them about the sexual assault, the Foxes

did not question his stated approach.

On June 22, 2004, 16 days after Riley’s body was discov-

ered, Swearengen asked the Foxes to take Tyler to a

facility that he said offered free counseling. At the facility

they met with Mary Jane Pluth, who introduced herself

as a counselor and sought the Foxes’ permission to ask

Tyler if he woke up at all on the night of Riley’s disap-

pearance. They gave their permission and Kevin signed

a consent form, which he did not read. If he had, he

would have learned that Pluth’s plan was to conduct a

videotaped victim sensitive interview (VSI), which

Swearengen and another Will County detective, Brad

Wachtl, would watch from another room. The goal of a

VSI is to extract helpful information from a vulnerable

witness to assist in a criminal investigation.

The jury was allowed to watch the video of Tyler’s VSI.

The video shows that Pluth asked Tyler more than 20

times and in myriad ways whether Kevin had left the

house on the night of Riley’s disappearance. Tyler an-

No. 08-3736 11

swered “no” repetitively, although he became more

and more upset and withdrawn over the course of the

interview and ended up giving some answers

that were equivocal and contradictory. The video ends

with six-year-old Tyler crying and asking for his par-

ents. An expert witness called by the Foxes testified at trial

that no useful information could be gained from that inter-

view, and Pluth conceded as much at trial.

Little happened in the investigation during the remain-

der of the summer, but several things happened in Sep-

tember 2004 that made the Foxes doubt Swearengen’s

handling of the case. For one thing, Melissa testified

that she learned from a friend that a child was abducted

from her home in LaPorte, Indiana, on September 12.

An abduction from the home, of course, was what the

Foxes thought had happened to Riley. Melissa reported

the matter to Swearengen and asked him to look into it.

She was surprised he hadn’t learned of it himself and

didn’t think he showed a lot of interest in investigating

if there was a potential connection. Next, a friend told

Melissa that they had seen police driving the Foxes’

Ford Escape—which the Foxes had traded in after the

murder because it reminded them of Riley—past a

Mobil gas station. Later, Melissa would learn that the

detectives had identified a sport utility vehicle (SUV)

on the Mobil station’s surveillance video at two points

in the early morning hours of Riley’s disappearance. They

were driving the Foxes’ SUV past the station to see if they

could match it to the car on the tape. Finally, someone

tipped off Kevin to a rumor that Riley had been killed as

part of a motorcycle gang initiation, and when he called

12 No. 08-3736

Swearengen to tell him, he found the detective’s response

disappointing. Swearengen sent Ruettiger to get more

details from Kevin about the tip, but no one ever

followed up on the lead.

The Foxes’ doubts were abated for a brief moment

around 7 p.m. on October 26, 2004, when Swearengen

called and asked them to come down to the station to

talk about a break in the case. Kevin and Melissa were

excited; they drove to the station thinking they were

about to learn what had happened to Riley. Their hope

dissolved shortly after they arrived. They were led

through three locked doors and then introduced for

the first time to Ed Hayes, a supervisor recently

assigned to Riley’s case. Following the introduction the

Foxes were separated; Melissa was taken to a waiting

area and told that Guilfoyle would be right with her,

and Swearengen and Wachtl took Kevin to an interroga-

tion room. Unbeknownst to Kevin, some 30 other officers

were watching the interrogation room by video monitor.

After giving Miranda warnings, Swearengen asked

Kevin if he killed Riley or if he knew who did, and when

Kevin said “no,” Swearengen began questioning him

again. Kevin repeated his story about what happened on

the night of Riley’s disappearance, and according to

Kevin, its details were the same as the story he gave

them on the night of her death. Around 8:10 p.m., about

an hour after he arrived at the station, Swearengen

accused Kevin of killing Riley. Kevin was outraged; he

started crying, jumped from his seat, yelled that he

would never do that, and tried to push his way past

No. 08-3736 13

the officers to leave. Wachtl intervened and told him to

“sit your ass down.” Kevin did so. Swearengen and

Wachtl started yelling that they knew Kevin killed

Riley, and told him (falsely) that they had fiber evidence

implicating him. Every time he tried to deny it, the

officers cut him off. Kevin asked to see a lawyer and

Swearengen and Wachtl left the room, locking the door

behind them.

A few minutes later Swearengen returned, this time

with Hayes. Swearengen told Kevin that they had a

surveillance tape from the Mobil station showing his

SUV driving past it at 4:50 on the morning of Riley’s

death. Kevin knew that couldn’t be true and denied it.

Swearengen then suggested it would be better for Kevin

if the whole thing had been an accident, and that if it

were, Kevin would be charged only with involuntary

manslaughter. Hayes told him that if it wasn’t an

accident Kevin would spend 30 years to life in prison.

Hayes kept saying that he knew Kevin would fail a poly-

graph, so Kevin volunteered to take one.

Meanwhile, back in the waiting room, Melissa grew

impatient when three hours passed and Guilfoyle didn’t

appear as promised. She began kicking on the locked

door and yelling for someone to come and talk to her.

Around 11 p.m., Swearengen appeared and took her to

an office where Wachtl was waiting. They told her that

they thought Kevin killed Riley. They told Melissa, for

the first time, that Riley had been sexually assaulted.

They said they thought Kevin killed Riley by accident

and then tried to make it look like the motive was sexual

assault. Melissa didn’t buy this story, even for an in-

14 No. 08-3736

stant. At about midnight, officers brought a pale, drained

Kevin to the office where Melissa was sitting, and he

told her he was going to take a polygraph test so they

could go home.

Around 1:30 a.m., Kevin took a polygraph examination,

and the examiner immediately told him that the results

showed he was not being truthful. (At trial, an expert

witness testified that the polygraph results were fabri-

cated.) Kevin could not believe it. Officers brought

Melissa into the polygraph room, and the polygraph

examiner told her Kevin had failed. Melissa turned to

Kevin, told him she loved him, that she believed him,

and that she was behind him all the way.

According to the Foxes, Hayes was outside the door

when Melissa made those comments, and as soon as she

did, he went ballistic. He screamed to the officers to “get

her the fuck out of that room right now,” and a detective

started pulling Melissa out of the room by the arm

while Hayes screamed “you’re a fucking murderer” at

Kevin. Hayes then met Melissa in the doorway and

screamed in her face, “Your husband’s a fucking liar, and

he’s a fucking murderer. He never loved you or your

fucking daughter, and he killed her, and you need to

learn to fucking get over it.” Melissa said that she was

terrified and felt like Hayes had “crushed the spirit out

of her.”

Kevin testified that at this point he was falling apart

because he could not believe he failed the polygraph or

that Hayes had spoken to his wife as he did. Back in the

interrogation room, Hayes told Kevin that if he did not

admit to killing Riley, he would fill out the arrest form

No. 08-3736 15

for first-degree murder. Hayes then said that he knew

people in prison and would make sure that other

inmates raped Kevin every day. He started filling out

the arrest form for first-degree murder, while Guilfoyle

started banging handcuffs on the table in front of him,

screaming at him, and calling him a “pussy.” Hayes

repeated the rape threat several times and led Kevin to

believe he was being charged with first-degree murder.

Hayes and Guilfoyle left the room and Ruettiger and

another detective, David Dobrowski, entered. Kevin was

crying, and Dobrowski started rubbing his back in a way

Kevin perceived as sexually threatening. Ruettiger, who

was sitting opposite Kevin, told him that his story was

“bullshit” and tried to degrade him by moving his chair

closer and closer until Ruettiger’s testicles were pushed

against Kevin’s knee. Kevin interpreted this as a message

that the rape threats were real. Ruettiger told Kevin

that his family had abandoned him and that Melissa

would marry someone else who would raise Tyler. Kevin

continued to deny any involvement in Riley’s death.

Dobrowski and Ruettiger left the room and Guilfoyle

returned with a pink ribbon magnet reading “Riley in our

Heart.” Guilfoyle threw the magnet on the table in front of

Kevin and yelled that Riley was on her knees begging

Kevin to admit what he did and give her closure. Guilfoyle

left, and some time later Hayes and Swearengen returned.

Hayes was holding a stack of photos, and he showed

Kevin a crime scene photograph of Riley’s body in full

rigor mortis. This is how Kevin learned that she had

been duct-taped. Swearengen was out of breath and

16 No. 08-3736

excited and told Kevin that he had just learned that the

state’s attorney would give Kevin a deal if he said there

had been an accident. He said if Kevin admitted to

an accident he would bond out the next day and would

serve only three to five years in prison.

At this point Kevin said he felt he had to go along with

the accident story. He thought if he did, he could go

home the next day and clear his name. Swearengen

began proposing accident scenarios to Kevin. He asked

if Riley fell off the couch and Kevin said no. He pro-

posed another story that Kevin denied, and Swearengen

told him he had to come up with something. Kevin decided

he would agree to an implausible accident story so that

when he got out he could prove that it was all a lie.

He decided to tell the officers he accidentally hit Riley

with the bathroom door because he knew it was impos-

sible to hurt her severely that way; the bathroom door

was hollow. He also told the officers that when he hit

her with the door she fell and hit her head on the bath-

tub—another impossibility, according to Kevin, because

the bathtub was several feet from the door. Swearengen

told Kevin he had to say that he thought that Riley was

dead but that she was actually unconscious; they needed

a way to explain how she drowned. The officers had not

found Riley’s underwear, and they asked Kevin where

it was. He replied that it was in the creek, but the

officers told him he couldn’t say that (they had

searched the creek unsuccessfully). Kevin told the officers

that he drove Riley’s body to the creek and then drove

home on a specific route. He told them he threw the

duct tape away in a store dumpster that was not on the

No. 08-3736 17

route he gave them, knowing that the detail would not

check out. He said he went home and left the front

and back doors open and went to sleep. Kevin said that

he gave the answers the officers wanted to hear because

he thought that was the only way he was going to get

them to stop threatening him.

Later that morning, Kevin was taken to the Will County

jail where he met with a lawyer. He immediately re-

nounced his “confession.” He told her what happened

during the interrogation, and the next day a press

release was published explaining those details.

Shortly after Kevin was jailed, Hayes called the FBI and

told them to stop testing the DNA evidence on Riley’s

case. Eight months later, the defense team finally got the

DNA evidence to a private lab, which tested it within

days. The results showed with 100 percent certainty that

Kevin was not the donor of the DNA found on a vaginal

swab and on the duct tape on Riley’s mouth. On June 17,

2005, the day after the DNA test results were released,

the prosecutor dropped the charges and Kevin was re-

leased from custody. He had spent 243 days in jail.

Following the verdicts in favor of the Foxes, the defen-

dants moved for a new trial or judgment as a matter of

law under Federal Rule of Civil Procedure 50(b), for a

new trial under Rule 59(a), and to alter or amend the

judgment under Rule 59(e), arguing that the trial was

tainted by erroneous evidentiary rulings and jury in-

structions. They also argued that they were entitled to

judgment as a matter of law on the constitutional and

emotional distress claims and that the damages awards

18 No. 08-3736

were excessive. The district court denied the motions

except that it threw out the punitive damages awarded to

Melissa and part of the punitive damages awarded to

Kevin, leaving a $12.9 million judgment intact. (After

Ruettiger’s estate satisfied the judgment against it,

$12.2 million remained.) The defendants appeal, arguing

that they are entitled to reversal on all counts or, in the

alternative, a new trial.1

The defendants’ central argument on appeal is that

they had probable cause to arrest Kevin and, accordingly,

that they are entitled to qualified immunity on all but

Melissa’s IIED claim.2 See, e.g., Pierson v. Ray, 386 U.S. 547,

555 (1967); Mustafa v. City of Chi., 442 F.3d 544, 547 (7th Cir.

2006). According to the Foxes, the defendants waived

this argument by neglecting to present it—in the exact

form in which it appears on appeal—to the district court.

While it is true that some of the nuances of the defendants’

argument on appeal differ from their stance before the

district court, it is clear that the defendants consistently

presented the heart of their qualified immunity argu-

ment throughout the proceedings. Waiver is not meant

1

After the defendants assigned to the Foxes their rights under

insurance policies issued by American Alternative Insurance

Corporation and Essex Insurance Company, the insurers

intervened in this appeal. The insurers submitted briefs

arguing that the verdicts are fatally inconsistent and that

punitive damages are unwarranted.

2

Melissa’s IIED claim does not stem from Kevin’s arrest or

prosecution, but rather from Hayes’s treatment of Melissa on

the night of the interrogation.

No. 08-3736 19

as an overly technical appellate hurdle, see, e.g., Nolen v.

Sullivan, 939 F.2d 516, 518-19 (7th Cir. 1991), and because

the defendants’ qualified immunity argument was fairly

presented throughout the dispositive pre- and post-trial

motions, we will review it here.

In sorting out the question of qualified immunity, we

must ask whether the facts—again, taken in the light most

favorable to the Foxes—show that the officers’ conduct

violated Kevin’s clearly established constitutional rights.

See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009);

Newsome v. McCabe, 319 F.3d 301, 303-04 (7th Cir. 2003). It

is well-established that an arrest without probable cause

violates the Fourth Amendment, see Devenpeck v. Alford,

543 U.S. 146, 152 (2004), so the question is whether the

evidence supports the jury’s finding that the officers

arrested Kevin without probable cause.

To answer this question we must identify the earliest

time at which the jury reasonably could have found

that Kevin was under arrest. See United States v. Reed,

443 F.3d 600, 602-03 (7th Cir. 2006). An arrest occurs when,

“in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that

he was not free to leave.” United States v. Tyler, 512 F.3d

405, 409-10 (7th Cir. 2008) (citations omitted). The Foxes

contend that the arrest occurred soon after they arrived

at the station, around 8:10 p.m. That is the moment

just after Swearengen and Wachtl accused Kevin of

killing Riley when Kevin stood up and tried to leave

but was told by Wachtl to sit his “ass down.”

20 No. 08-3736

The defendants argue that Kevin was not under arrest

at this point because he did not ask the officers if he

could leave. See Hall v. Bates, 508 F.3d 854, 857 (7th Cir.

2007). But whether a person asks permission to leave is

but one factor among many in the arrest analysis. The

other factors include whether the police inform a person

that he is suspected of a crime, whether the person’s

movement is limited, whether the officers engage in

coercive conduct suggesting that cooperation is required,

and whether the person is in a private location. Tyler,

512 F.3d at 410. The majority of the relevant arrest factors

fall in Kevin’s favor. At the moment in question,

Swearengen and Wachtl accused Kevin of killing Riley.

Kevin attempted to leave the interrogation room, but

Wachtl prevented him from doing so in no uncertain

terms. Under these circumstances, a reasonable person

certainly would not think himself free to leave. Actions

do speak louder than words. Here, Kevin tried to leave

the room and was blocked; he was not required to

reiterate his request verbally to establish his seizure

for Fourth Amendment purposes. Accordingly, a rea-

sonable jury could conclude that Kevin was arrested at

8:10 p.m., early on during what was to be a very long

night of interrogation.

Next, we must determine whether a reasonable jury

could find that at the moment of Kevin’s arrest the

officers lacked probable cause. Answering this question

requires a close look at the facts of this case, a task

made more difficult by the parties’ often widely

divergent accounts of the underlying events. Part of this

divergence, it seems, can be chalked up to the collision

No. 08-3736 21

of two basic principles. On the one hand, it does not

take much to establish probable cause. The officers must

have more than a bare suspicion that they have the

right guy, but they need not have enough evidence to

support a conviction or even to show that their belief

is more likely true than false. Woods v. City of Chi., 234

F.3d 979, 996 (7th Cir. 2000). And this standard is

made even more forgiving in the context of qualified

immunity, which “applies not only to those officials

who correctly determine that probable cause to arrest

exists, but also to those governmental officials who rea-

sonably but mistakenly conclude that it does.” Spiegel v.

Cortese, 196 F.3d 717, 723 (7th Cir. 1999). Mindful of the

tall task confronted by police investigators, we make this

determination based on “the facts as they would have

reasonably appeared to the arresting officer seeing what

he saw, hearing what he heard . . . .” Driebel v. City of

Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002) (internal

quotation marks omitted). On the other hand, how-

ever, the probable cause standard does not trump our

duty to defer to a jury’s findings. Newsome, 319 F.3d at

303-04. “Claims of qualified immunity neither require

nor authorize de novo appellate review of the evidence.”

Id. at 303. Instead, we make all reasonable credibility

determinations and inferences in favor of the Foxes,

asking whether under their version of the facts a rea-

sonable officer could conclude that there was probable

cause to arrest Kevin on October 26, 2004, at 8:10 p.m.

See id.; Sornberger v. City of Knoxville, Ill., 434 F.3d 1006,

1014 (7th Cir. 2006).

The defendants present a laundry list of facts (three

pages of bullet points in their opening brief) that they

22 No. 08-3736

believe support a probable cause finding. Their list

suffers from many shortcomings, the most serious being

that it is comprised largely of disputed facts. The defen-

dants appear to interpret the relatively lenient probable

cause standard as license to rely on their version of the

events, but, as we have just explained, at this stage it is

the Foxes’ version that carries the day. Newsome, 319 F.3d

at 303. It is true that probable cause is determined from

the perspective of what the officers knew at the time of

the arrest, but that does not mean that the jury was com-

pelled to believe the officers’ testimony in reaching a

probable cause determination.

For example, the defendants cite as a factor in the

probable cause analysis Swearengen’s testimony that

Kevin was suspiciously unemotional during an interview

on the day Riley disappeared. But the testimony was

inconsistent—Swearengen admitted that Kevin cried

during that same interview, and a cavalcade of other

witnesses confirmed that Kevin was distraught through-

out the day. Although it is true that an inappropriately

flat emotional state could raise an officer’s suspicions, the

jury did not have to credit Swearengen’s testimony

that Kevin was strangely stoic that day.

The defendants rely on disputed facts for another

somewhat bizarre factor in their probable cause

analysis; they contend that the officers reasonably

believed that Riley’s injuries “were not consistent with

a sexual predator having killed and sexually assaulted

her,” thus supporting their theory that Kevin was in-

volved. Swearengen and Sergeant Michael Markowski,

No. 08-3736 23

who attended the autopsy, testified that the pathologist

stated that Riley’s sexual injuries were minor. The defen-

dants argue that Riley’s “minor” injuries, together with

the relatively small amount of duct tape found on the

body and what they say are a lack of defensive

wounds, were inconsistent with the involvement of a

sexual predator because, according to them, the trauma

was insufficiently brutal. But at trial the pathologist

flatly denied ever characterizing Riley’s sexual injuries

as minor. He testified that her injuries would have

been severe for an adult woman and were absolutely at

the top of the scale for a small child. The autopsy

also revealed wounds on Riley’s legs and head which,

according to another expert, were defensive. Given this

testimony, the jury did not have to believe the officers

when they testified that they thought the injuries were

“minor.” And even absent the conflict, probable cause

must rest on reasonable belief, see Phelan v. Vill. of Lyons,

531 F.3d 484, 489 (7th Cir. 2008), and here the officers’

theory is absolutely unreasonable. The officers knew

that Riley, a three-year-old child, had lacerations and

bruises in her vagina, that she had been bound with duct

tape, and then, following the sexual assault, left for dead

in the creek. Under those circumstances it was unrea-

sonable for them to rule out a sexual predator as her

attacker. Probable cause may be a loose concept, but it

leaves no room for the absurd.

Nor does the probable cause standard allow the defen-

dants to rely on facts without regard to the full context

of the circumstances known to them. Guzell v. Hiller,

223 F.3d 518, 520 (7th Cir. 2000) (noting that police

24 No. 08-3736

“can’t close their eyes” to information that undercuts

probable cause). Here, the defendants highlight as a

probable cause factor Kevin’s statement that he locked

the front door before going to bed, when the next

morning the front door was open with no sign of forced

entry. Standing alone, this would suggest an inside job.

But that inference is reasonable only if we ignore other

facts known to the officers at the time of the arrest: specifi-

cally, that the back door to the Fox house did not lock, so

an intruder would not need to force entry to get inside.

Under these circumstances, the lack of a forced entry

is irrelevant.

The defendants also rely on Tyler’s videotaped VSI,

noting that at one point in the interview Tyler said that

he saw his father leave the house after they returned

home. They argue that this statement gave them

probable cause to think that Kevin left the house to

dispose of Riley’s body. But the defendants fail to

mention (until their reply brief) the fact that during the

VSI Tyler repeatedly and consistently stated that Kevin

left without Riley and that she remained sleeping while

he was outside. Kevin already had explained that he

went outside to smoke a cigarette after putting the kids

to sleep. Thus, Tyler’s VSI statement would add no fuel

to a reasonable officer’s suspicion.

In addition to relying on disputed facts and taking

others out of context, the defendants point to many

facts that are simply irrelevant to the probable cause

analysis. For example, the defendants note that FBI statis-

tics show that 60 percent of murdered children under

No. 08-3736 25

the age of five were killed by their parents. But this

statistic is unmoored from the facts of this case—both

the defendants and the plaintiffs presented expert wit-

nesses who stated that the statistic’s percentage is

greatly reduced when the murder is coupled with a

sexual assault. The defendants also rely on Kevin’s

history of occasional cocaine use as a probable cause

factor. The judge excluded that evidence as unduly preju-

dicial, but even had it come in, his past drug use

would not undermine the jury’s verdict. There is no

suggestion that Kevin was impaired by drugs on the

night of Riley’s death, and the defendants fail to

explain how his cocaine use months prior to Riley’s death

could add anything to a reasonable officer’s suspicion

that he killed his own daughter. The same goes for

Kevin’s statement that he was “pissed” when he

learned that Riley’s body had been found. What

rational person would not be angry when told that

their child had been murdered, and in any event, even

Swearengen testified that this statement is insignificant

in the probable cause calculus.

After factoring out the fluff—the disputed, mischarac-

terized, and irrelevant facts—the defendants’ argument

rests on the following: Kevin (1) was the last known

adult to be with Riley; (2) looked for Riley for 40 minutes

before reporting her disappearance to a nonemergency

number; (3) did not call Melissa immediately upon dis-

covering that Riley was gone; (4) did not reveal that he

watched an adult video the night that Riley disappeared

until the night of his interrogation months later, and

(5) a vehicle that could have been Kevin’s Ford Escape

26 No. 08-3736

appeared on a gas station’s surveillance video during a

time when Kevin said he was asleep and in the general

timeframe of Riley’s disappearance. Although of course

the officers did not need anything close to an airtight case

before they arrested Kevin, they needed concrete facts

sufficient to elevate their hunch that he was involved

in Riley’s death to a reasonable belief. See Holmes v. Vill. of

Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007). Here,

the facts, when taken in the light most favorable to the

Foxes, fall short.

The defendants place particular weight on Kevin’s late

admission that he watched an adult video before going

to sleep on the night of Riley’s death, and they have

several theories regarding its importance. First, they

contend that although Kevin told them from day one

that he had watched TV that night, he did not specify

that he had watched an adult video until the evening of

his interrogation. According to the defendants, this ” new”

revelation showed that he originally had lied to them

about his behavior. Obviously false and inconsistent

explanations can lend support to a probable cause

finding, see United States v. Garcia, 179 F.3d 265, 269 (5th

Cir. 1999), especially when they go to a material fact in

the case, see Booker v. Ward, 94 F.3d 1052, 1058 (7th Cir.

1996). But what we have here is the omission of a detail,

not a lie about a material fact. Without more, a rea-

sonable officer would probably conclude from the “new”

information that Kevin omitted the detail of what he

watched because it was irrelevant and, perhaps, because

it was embarrassing.

No. 08-3736 27

The defendants try to jack up the significance of this

detail by claiming that on the day of Riley’s death

Kevin told police that he could not remember what

he watched on TV that night, so his admission on the

night of the interrogation represented not just new infor-

mation but an actual change in his story. But at trial the

only officer who testified that Kevin originally said he

could not remember what he watched was Markowski,

who was not involved in the interrogation or Kevin’s

arrest. None of the defendants testified that they knew

at the time of the arrest that Kevin originally had said

he could not remember what he watched, and in fact

Swearengen admitted that he did not know about

the supposed change in story at the moment of arrest.3

Because at trial the defendants did not show that the

“change” was a circumstance known to them at the time

of the arrest, they cannot point to it as a factor in their

probable cause analysis. See Holmes, 511 F.3d at 679 (noting

that probable cause turns on conclusions reasonable

officer could make from information known at time of

arrest); Booker, 94 F.3d at 1058 (same). And in any

event, Kevin testified that he did not change his story

on the night of his interrogation. The jury simply could

have found Kevin more credible than Markowski.

The defendants also argue that Kevin’s admission

regarding the adult video raised a red flag for them

3

The defendants do not argue that Markowski’s knowledge

of Kevin’s original statement should be imputed to them. See,

e.g., United States v. Parra, 402 F.3d 752, 764-66 (7th Cir. 2005)

(discussing collective knowledge doctrine).

28 No. 08-3736

because it added a sexual element to his behavior, which

they considered relevant given the sexual assault. In

addition to admitting that he watched pornography,

Kevin told the officers that he had felt “horny” that

evening and had masturbated into a condom. The

district court excluded these added details as unduly

prejudicial, a ruling that the defendants now challenge

on the ground that Kevin’s sexual mood was an

important factor in their probable cause determination.

But even the defendants’ own expert witness explained

in his offer of proof what should have been obvious to

any reasonable police officer: that just “because a man

watches adult pornography and masturbates,” does not

mean that “he is likely to sexually molest his three-year-

old daughter.” We do not second-guess the judgment of

the officers lightly, but courts have an obligation to

ensure that the reasons supporting an arrest are objec-

tively reasonable. See Devenpeck, 543 U.S. at 152-53; Sorn-

berger, 434 F.3d at 1014-15. To the extent they ask us to

conclude that Kevin’s admission to watching an adult

video and masturbating lends support to their decision

to arrest him for killing his daughter, that suggestion

strays beyond the boundaries of reasonableness.

The defendants’ last-ditch effort to salvage some rele-

vance out of the masturbation admission is their asser-

tion that Kevin’s use of a condom reasonably heightened

their suspicion. Specifically, they say that the defendants

thought that Kevin mentioned this detail as a “preemptive

strike,” maybe thinking that they had found a condom

at the scene that needed to be explained away. Perhaps

that assertion would make a sliver of sense if they

No. 08-3736 29

actually had found a condom in the house, but they

hadn’t. More importantly, this spin on his assertion is

utterly inconsistent with the officer’s stated theory that

Kevin accidentally killed Riley and then staged a sexual

assault using a finger or a pencil. In any event, this

kind of speculation adds no weight to the defendants’

probable cause analysis. See United States v. Cellitti, 387

F.3d 618, 624 (7th Cir. 2004) (noting that officer specula-

tion is insufficient to establish probable cause); Sherouse

v. Ratchner, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where

an officer observes inherently innocuous behavior that

has plausible innocent explanations, it takes more than

speculation or mere possibility to give rise to probable

cause to arrest.”).

Even fully crediting the remaining facts to which the

defendants point, a reasonable jury could conclude that

the defendants lacked probable cause. Kevin’s some-

what disorganized 40-minute search for Riley is not so

unusual to reasonably suggest that he was involved in

her death. Nor is the fact that he did not call Melissa

right away or that he called 411 instead of 911 in a small

town where the same police dispatcher answers both

lines. The grainy Mobil surveillance video lends only

an ounce of support to the officers’ theory. The video

did not conclusively show Kevin’s car, but only a car that

could have been a Ford Escape. In fact, an officer brought

in specifically to examine the tape could not even be

sure that the vehicle was a Ford Escape instead of any

other brand and model of SUV. After considering

that exceedingly weak evidence along with the other

undisputed facts known to the officers at the time of

30 No. 08-3736

Kevin’s arrest, we find no reason to disturb the jury’s

conclusion that the defendants lacked probable cause

to arrest him in connection with Riley’s death.

The defendants make one final effort to support their

claim of qualified immunity: they argue that even if they

did not have probable cause to arrest Kevin for Riley’s

murder, they did have probable cause to arrest him for

other crimes. They correctly point out that an arrest

is reasonable under the Fourth Amendment so long as

there is probable cause to believe that some criminal

offense has been or is being committed, even if it is not

the crime with which the officers initially charge the

suspect. See Devenpeck, 543 U.S. at 153-56. They argue

that the district court erred when it failed to instruct

the jury on this point of law, and they assert that if it

had, the jury could have found that the defendants had

probable cause to arrest Kevin for attempted battery,

aggravated assault, or obstruction of justice. Specifically,

they point out that when Swearengen accused him of

killing Riley, Kevin stood up and said “if you accuse me

one more time, I am going to punch you,” right before he

attempted to leave and Wachtl told him to “sit [his] ass

down.” Accordingly, they argue that they had probable

cause at that moment to arrest him for attempted battery

or aggravated assault. Alternatively, they argue that

when Kevin said that he watched an adult video they

had probable cause to arrest him for obstructing justice.

The Foxes contend that the defendants waived this

argument by failing to present it below, and here they

have a point. To preserve their objection to the district

No. 08-3736 31

court’s decision not to give a Devenpeck instruction, the

defendants were required to object on the record in a

timely fashion and to make an argument in support of

the proposed instruction. See Fed. R. Civ. P. 51(c);

Consumer Prods. Research & Design v. Jensen, 572 F.3d 436,

439 (7th Cir. 2009). But the defendants did not ask for a

Devenpeck jury instruction, on the record, during the

jury instruction conference. Also, they never explained

to the judge their theory that they had probable cause to

arrest Kevin for one of the crimes they now cite, nor did

they ask for an instruction informing the jury of the

elements of those crimes. In fact, the only point in

the record that the defendants cite to show that they

developed the assault or obstruction of justice theories

in the district court was in a reply brief to their motion

for a new trial. But by then it was too late for them to

develop a new theory. See Narducci v. Moore, 572 F.3d

313, 324 (7th Cir. 2009).

In any event, even if the defendants had preserved

the Devenpeck component of their probable cause argu-

ment, the evidence does not support their contention

that they had probable cause to arrest Kevin for any of

the crimes they now name. There is no evidence sug-

gesting that Kevin’s statement to Swearengen was accom-

panied by a threatening gesture, such as a raised fist,

and both Wachtl and Swearengen (the only officers in

the room at the time) testified that they did not believe

that Kevin was actually threatening Swearengen. Given

the utter failure of Kevin’s statement to provoke in the

officers the slightest apprehension of a battery, no rea-

sonable jury could have found that the circumstances

32 No. 08-3736

known to the officers gave them probable cause to

arrest him for attempted battery or aggravated assault.

See 720 ILCS 5/12-1, 5/12-2(a)(6), 5/12-3; Kijonka v.

Seitzinger, 363 F.3d 645, 647-48 (7th Cir. 2004).

Similarly, because none of the officers were aware

of Markowski’s story that Kevin originally said he could

not remember what he watched on TV the night Riley

was taken, that statement could not have given them

probable cause to arrest Kevin for obstruction of jus-

tice. Probable cause is determined from the facts known

to the officers at the time of the arrest, see Holmes, 511 F.3d

at 679, and no evidence showed that at the moment of

his arrest any of the defendants had reason to believe that

Kevin had knowingly given them false information, see

720 ILCS 5/31-4(a). Accordingly, they did not have prob-

able cause for an arrest based on obstruction of justice.

Next, the defendants argue that they are entitled to a

new trial because, they say, the district court committed

numerous evidentiary errors that undermined their

ability to establish probable cause. We review the district

court’s evidentiary rulings only for abuse of discretion.

Hollins v. City of Milwaukee, 574 F.3d 822, 828 (7th Cir.

2009). First, as we have noted, the defendants argue that

the court abused its discretion in excluding evidence

that Kevin told the officers before his arrest that he

was “horny” on the night of Riley’s disappearance and

that he had masturbated into a condom while watching

an adult video. The defendants argue that this evidence

was relevant to show that Kevin had changed his story

about not being able to remember what he watched that

No. 08-3736 33

night. Even putting aside the defendants’ testimony that

they did not know about the supposed change, the court

allowed them to elicit testimony that Kevin watched

an adult video. That was the only fact they needed to

demonstrate the supposed change. The defendants com-

plain that without the “horny” comment and masturbation

details, the change in story loses its “dramatic” effect. But

here, “dramatic” might just as well stand in for “prejudi-

cial.” A district judge, at the controls of an emotional, gut-

wrenching trial like this, is in a far better position than

appellate judges to weigh the competing factors that go

into a probative value versus unduly prejudicial calculus.

A trial judge’s call on these types of issues can only be

upset if we are convinced that the judge has clearly

abused the wide discretion he enjoys. See Fed. R. Evid. 403;

Lewis v. City of Chi. Police Dep’t, 590 F.3d 427, 441 (7th Cir.

2009) (noting district court afforded special deference in

determining whether evidence unduly prejudicial). We

cannot say the judge abused his discretion when he

decided to keep these “dramatic” details from the jury.

The defendants also argue that the district court erred

in excluding evidence that Melissa told them on the day

Riley’s body was found that Kevin had a history of

lying about his cocaine use months prior to the events

underlying this case. But to the extent that this history

is relevant to the defendants’ probable cause analysis,

the court allowed them to submit evidence that Melissa

said that Kevin had a history of lying, it just prohibited

them from showing that the lies were about drug

use. Thus, once again the defendants were allowed to

present the core fact underlying their probable cause

34 No. 08-3736

analysis but now complain that it packed an insufficient

wallop with the jury because they were not permitted

to advance the (obviously prejudicial and barely proba-

tive) details. That is not enough to show that the district

court abused its discretion. Cf. Kunz v. DeFelice, 538 F.3d

667, 677 (7th Cir. 2008) (noting witness’s history of drug

use relevant only if goes to inability to recall or relate

events). Nor are we convinced that Kevin’s drug use

is relevant to Melissa’s loss-of-consortium claim. The

defendants point to no evidence that after Riley’s death

the marriage was at risk because of Kevin’s prior drug

use, and to the extent it would show that they had prob-

lems earlier (and both Kevin and Melissa testified that

they had what they considered typical marital problems),

again the district court did not abuse its discretion in

concluding that its probative value was outweighed by

its prejudicial effect. See Lewis, 590 F.3d at 441.

Next, the defendants argue that they were prevented

from establishing probable cause because the district

court granted the Foxes’ motion in limine to exclude

testimony regarding any advice that an FBI profiler,

Special Agent Dale Moreau, gave the defendants during

a conference call between him and several of the defen-

dants nine days after Riley’s death. The defendants

assert that the testimony would have shown that Moreau

told the defendants they were on the right track in

focusing on Kevin as a suspect. But the defendants

never really argued to the district court that the testi-

mony was relevant to the probable cause analysis. It

wasn’t. The FBI profiler did not say that any of the evi-

dence they collected amounted to probable cause;

No. 08-3736 35

instead, he simply told them it was reasonable to keep

investigating Kevin to see if they could come up with

probable cause. The only argument defense counsel made

to the district court with respect to relevancy was an

assertion that the testimony “goes to explain their course

of conduct or their behavior.” They go to much greater

lengths in their briefs on appeal to explain what that

means, but they did not develop the argument before

the district judge. Accordingly, we do not find that the

district court abused its discretion in excluding this

testimony.

Finally (with respect to the evidentiary arguments, that

is) the defendants argue that the district court erron-

eously excluded the videotape memorializing Kevin’s

“confession.” The video was the subject of repeated and

prolonged side bars during which the defendants argued

that it demonstrates that they had probable cause to

arrest Kevin. That argument goes out the window with

our conclusion that a reasonable jury could have found

that the arrest occurred shortly after 8 p.m., 11 hours

before the video was made. Recognizing that limitation, on

appeal the defendants focus on an argument that they

raised below, if only cursorily: that the video is relevant

to Kevin’s malicious prosecution and IIED claims.4 The

4

We note that the defendants also argue that it was prejudicial

for the district court to exclude the video memorializing the

end of the interrogation while allowing the Foxes to present

staged photographs reenacting their version of the interroga-

tion. In those photos the Foxes play themselves and actors

(continued...)

36 No. 08-3736

defendants argue that viewing the video would have

helped the jury decide whether the defendants coerced

his confession and whether he was showing signs

of severe distress immediately following the alleged

coercion. But there are no allegations of physical harm

that the video could verify, and all of the allegations of

coercion stem from events leading up to the video—

events that the defendants chose not to record. Most

importantly, the video represents just 23 of the 870

minutes or so of Kevin’s interrogation, and thus cannot

provide a complete picture of either the interrogation

itself or Kevin’s level of distress. Under those circum-

stances, we cannot say that the court abused its discre-

tion in concluding that the video’s prejudicial effect and

potential for confusing the jury outweighed its probative

value with respect to the issue of coercion or Kevin’s

demeanor following the interrogation.

Having resolved the probable cause and evidentiary

controversies in favor of the Foxes, we turn to the defen-

dants’ argument that they are entitled to judgment as

a matter of law on the Foxes’ Fourteenth Amendment

due process claim—a question we review de novo. See

Thomas v. Cook County Sheriff’s Dep’t, 588 F.3d 445, 451 (7th

Cir. 2009). The defendants argue that the due process

4

(...continued)

play the defendants. At first blush, this struck us as a persua-

sive argument, but then we checked the record and learned that

the defendants did not actually object when the court admitted

the reenactment photos at trial. It’s too late for them to com-

plain now. See Lewis, 590 F.3d at 444.

No. 08-3736 37

verdict cannot stand because Kevin’s malicious prosecu-

tion claim provides an adequate remedy for the

conduct underlying the § 1983 due process claim, and

thus cancels out the constitutional tort. See Brooks v. City

of Chi., 564 F.3d 830, 833 (7th Cir. 2009); McCullah v. Gadert,

344 F.3d 655, 658-59 (7th Cir. 2003). The Foxes argue that

the defendants waived this argument by not raising it

below, but once again their version of waiver slices the

salami a smidge too thin. The defendants pressed the

precise argument they raise on appeal in their summary

judgment motion and in their Rule 59(e) motion and

incorporated it by reference into their Rule 50(b) motion

for judgment as a matter of law. They also moved for a

directed verdict on the due process claim based on a

more general argument that the allegedly coercive inter-

rogation and police misconduct did not amount to a

due process violation. They pressed the general argu-

ment again in their Rule 50(b) motion for judgment as

a matter of law. Because the defendants presented their

due process argument to the district court before the

entry of judgment, we think the argument is preserved.

See Havoco of Am., Ltd. v. Sumitomo Corp. of Am., 971

F.2d 1332, 1336-37 (7th Cir. 1992).

Turning to the merits, the defendants gain some traction

with their argument that the Foxes’ state law remedies

knock out their substantive due process claim. See

Brooks, 564 F.3d at 833; McCullah, 344 F.3d at 658-59. The

Supreme Court has long counseled against shoe-horning

into the more general protections of the Fourteenth

Amendment claims for which another amendment pro-

vides more specific protection. See United States v. Lanier,

38 No. 08-3736

520 U.S. 259, 272 n.7 (1997); Albright v. Oliver, 510 U.S. 266,

273 (1994). It also has held, in a line of cases stemming

from Parratt v. Taylor, 451 U.S. 527, 535-44 (1981), that

a plaintiff cannot invoke the substantive due process

clause where state laws provide an adequate postdepriva-

tion remedy for the complained-of conduct. See McCullah,

344 F.3d at 658-59. But that is what the Foxes have done

here. In their complaint, the Foxes allege that the defen-

dants violated Kevin’s due process rights when they

“deliberately fabricated false statements and deliberately

obstructed justice, thereby causing the false arrest of

[Kevin], causing him to be falsely imprisoned [and]

prosecuted . . . .” They also allege that the defendants

“provided false allegations” and “withheld exculpatory

evidence.” Kevin’s due process claim thus consists of

nothing more than a hybrid of his Fourth Amendment

false arrest and state law malicious prosecution claims,

and accordingly, the due process claim is barred. See

Brooks, 564 F.3d at 833; McCann v. Mangialardi, 337 F.3d

782, 786 (7th Cir. 2003).

Perhaps recognizing the strength of the defendants’

argument, the Foxes now argue that Kevin’s due

process claim is not connected to the conduct underlying

their other claims, but instead rests on their theory

that what happened to Kevin during his interrogation

“shocks the conscience.” The Supreme Court has recog-

nized that police conduct that “shocks the conscience”

supports a due process claim under § 1983, Rochin v.

California, 342 U.S. 165 (1952), and we have acknowl-

edged that a free-standing due process claim may

succeed in a situation involving conscience-shocking

No. 08-3736 39

interrogation tactics, see Wallace v. City of Chicago, 440

F.3d 421, 429 (7th Cir. 2006). There is no clear-cut analysis

to determine what constitutes “conscience-shocking”

conduct; the question is whether the conduct is “too

close to the rack and the screw.” See Rochin, 342 U.S. at

172. For example, on the one hand, forcing an emetic down

a person’s throat to forcibly extract evidence from a sus-

pect’s stomach shocks the conscience, see id., but on the

other hand, lying to, threatening, or insulting a suspect

does not, see Tinker v. Beasley, 429 F.3d 1324, 1329 (11th

Cir. 2005).

We need not wade into the murky terrain between

those extremes to determine on which end of the spectrum

the defendants’ conduct falls, because the Foxes never

presented to the jury their theory that the defendants’

interrogation tactics shock the conscience. The jury was

instructed that it should find for Kevin on his due

process claim if (1) the defendants created false evidence

or statements by means of coercion, manipulation, or

fabrication, and (2) that those acts harmed Kevin. The jury

simply was never instructed that the due process claim

turns on the interrogation tactics nor that it must find

those tactics shocking to the conscience in order to find

for Kevin. The Foxes cannot now defend the due process

verdict based on a theory that was never put before

the jury. See Staub, 560 F.3d at 655-56; United States v.

Ienco, 92 F.3d 564, 570 (7th Cir. 1996). Because the only

due process theory presented to the jury fails as a matter

of law, the verdict on that count must be set aside.

We disagree, however, with Hayes’s contention that

he is entitled to judgment as a matter of law on Melissa’s

40 No. 08-3736

IIED claim. The evidence at trial showed that when

Hayes heard Melissa offer support to Kevin following

the polygraph, he became irate and screamed in her

face, “Your husband’s a fucking liar, and he’s a fucking

murderer. He never loved you or your fucking daughter,

and he killed her, and you need to learn to fucking get

over it.” Melissa testified that in that moment she was

terrified and that she felt like Hayes had “crushed the

spirit out of her.” The defendants argue that Hayes’s

conduct and Melissa’s reaction are insufficient to

support an IIED claim.

To prevail on her IIED claim under Illinois law Melissa

had to prove (1) that Hayes’s conduct was extreme and

outrageous; (2) that Hayes knew that there was a high

probability that his statement would cause Melissa

severe emotional distress; and (3) that Hayes’s comment

in fact caused Melissa severe emotional distress. See

Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20 (1992).

We think that she has made a strong showing on the

first two factors, and that the strength of those factors

compensates for the weakness of the evidence with

respect to the third. See Honaker v. Smith, 256 F.3d 477, 496

(7th Cir. 2001).

For conduct to be extreme and outrageous it must go

“beyond all bounds of decency” and be “considered

intolerable in a civilized community.” Lopez v. City of

Chi., 464 F.3d 711, 721 (7th Cir. 2006) (citations omitted).

An important factor in this analysis is whether a

defendant abused a position of authority. See Kolegas, 154

Ill. 2d at 21 (citing McGrath v. Fahey, 126 Ill. 2d 78, 86-87

No. 08-3736 41

(1988)). “[T]he extreme and outrageous character of a

defendant’s conduct may arise, not so much from what

he says or does, but from the defendant’s improper use

of a position of power which gives him the ability to

adversely affect the plaintiff’s interests.” Id. at 22. What’s

more, the first and second factors bleed into each other

because, as the Illinois Supreme Court has noted,

“[b]ehavior that might otherwise be considered merely

rude, abrasive or inconsiderate, may be deemed outra-

geous if the defendant knows that the plaintiff is particu-

larly susceptible to emotional distress.” Id. at 21.

Here, we think Hayes’s abuse of his authority, involving

an obviously vulnerable mother and wife, boosts what

otherwise might be characterized as a particularly ugly

insult across the threshold into a valid IIED claim. At

the moment he made the comment, Hayes was the super-

visor in charge of Kevin’s interrogation. He had Kevin

under arrest and was threatening to charge him with

Riley’s murder. Essentially, at that moment, a jury could

easily find that Hayes held Melissa’s family life in the

balance and he exploited his position of power to inten-

tionally cause her distress. What’s more, he knew that

as the mother of a recently murdered child and the wife

of the man accused, she was particularly susceptible

to emotional distress. Although it is true that the

evidence showed that Melissa’s distress stemming from

his comment may have been short-lived, the duration

of distress is only one factor that must be weighed. See

Honaker, 256 F.3d at 497. As we have noted, “in many

cases the extreme and outrageous character of the defen-

dant’s conduct is in itself important evidence that the

42 No. 08-3736

distress has existed.” Id. at 496 (quoting Restatement

of Torts, 2d). We think that this is such a case, and ac-

cordingly Hayes is not entitled to judgment as a matter

of law on Melissa’s IIED claim.

Next, we turn to the defendants’ argument that they

are entitled to a new trial based on what they charac-

terize as prejudicial errors in the jury instructions. Our

review of jury instructions is limited; we ask whether

the instructions as a whole were sufficient to inform the

jury of the applicable law. Lasley v. Moss, 500 F.3d 586, 589

(7th Cir. 2007). We will reverse only if an instruction

so misled the jury that the deficiency prejudiced the

defendants. See Cruz v. Safford, 579 F.3d 840, 843 (7th

Cir. 2009).

First, the defendants argue that the district court errone-

ously refused to instruct the jury that it is impermissible

to award duplicative damages. Specifically, they argue

that the jury should have been instructed “to adjust

damages based on the distinct injury suffered,” because,

according to the defendants, the claims for malicious

prosecution, false arrest, and due process rested on the

same conduct and gave rise to the same injuries. The

district court refused the defendants’ proposed instruction

because it found that the jury form protected against

the risk of duplicative damages by separating the

claims and requiring the jury to award damages on each

distinct claim.

As an initial matter, counsel for the defendants did not

meet their obligation to explain to the district court why

the verdict form was insufficient to protect against the

No. 08-3736 43

risk of duplicative damages. See Fed. R. Civ. P. 51(c);

Consumer Prods. Research & Design, 572 F.3d at 438-39. But

even if counsel had fully developed the argument, given

our ruling that the due process claim cannot stand, the

duplicative damages argument loses its teeth. Viewing

the false arrest and malicious prosecution verdicts with

the deference they are due, there is no evidence of duplica-

tion. The jury was instructed on the legal distinctions

between the two claims. It assessed damages against all

five defendants on the false arrest claim, but only against

Hayes and Swearengen on the malicious-prosecution

claim. That verdict demonstrates that the jury under-

stood that separate conduct and harms corresponded to

the distinct claims. Accordingly, the defendants have not

demonstrated that they were prejudiced by the district

court’s decision not to give their proposed duplicative

damages instruction. See Cruz, 579 F.3d at 843.

Next, the defendants argue that the district court errone-

ously rejected their instruction informing the jury that

Kevin failed to mitigate his damages because he did not

move to suppress his confession in his criminal case.

But the district court rejected the proposed instruction

without prejudice, telling the defendants that they could

file a new mitigation instruction omitting the one

sentence referencing Kevin’s failure to file a motion to

suppress. Counsel for the defendants did not object to

that ruling, and on appeal the defendants have not

argued that they tendered a revised instruction as the

court requested. Accordingly, they have waived their

argument with respect to the mitigation instruction.

44 No. 08-3736

The defendants also argue that the district court errone-

ously excluded their proposed instruction informing the

jury that Kevin is not constitutionally entitled to a full

police investigation or specific testing. The district court

pointed out that Kevin never argued that he was

entitled to those things; instead, he argued that the defen-

dants intentionally obstructed DNA testing and framed

him for the murder. Under those circumstances, we

agree with the district court that the proposed instruc-

tions were more likely to confuse, than to assist, the jury.

Their exclusion did not prejudice the defendants.

The defendants’ last argument pertaining to jury instruc-

tions is that they were prejudiced by the district court’s

denial of their request to excise a reference to Will County

from one of the instructions regarding damages. The

defendants argue that the instruction falsely suggested

that Will County’s deep pockets would cover the

damages, thus loosening the jury’s inhibitions about a

large damages award. They say that the Foxes’ attorney

made this suggestion explicit when she told the jury

in closing that it should award damages that “send a

message to Will County.” But the defendants did not

object to that comment when it was made, see Lewis,

590 F.3d at 444, and their own attorneys repeatedly refer-

enced the “Will County Defendants” during the trial. As

a result, there is no reason to suppose that they were

prejudiced by the district court’s jury instruction decision.

As we mentioned in a footnote many pages ago, two

insurers, the American Alternative Insurance Corporation

and the Essex Insurance Company, were granted leave

No. 08-3736 45

to intervene in the case for purposes of appealing the

punitive damage awards. Leave to join in was granted

after the defendants entered into an agreement to assign

their individual rights and interests in two insurance

policies to the Foxes in exchange for a purported “Release

of Personal Liability To Satisfy The Punitive Damage

Award.” The individual defendants then simultaneously

withdrew their appeal of the punitive damage awards.

The intervenors seek reversal of the punitive damage

awards or, alternatively, a remand for a new trial.

The intervenors argue that the punitive damage ver-

dicts are inconsistent. The individual defendants did not

object to the supposed inconsistency before the jury

disbanded, so the Foxes assert that the present argu-

ment has been waived. Several circuits have held that

the failure to lodge a contemporaneous objection to

an inconsistent verdict constitutes a waiver, see, e.g.,

Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir.

2006); Oja v. Howmedica, Inc., 111 F.3d 782, 790 (10th

Cir. 1997); Home Indem. Co. v. Lane Powell Moss & Miller,

43 F.3d 1322, 1331 (9th Cir. 1995), but we have left that

question open, see Pearson v. Welborn, 471 F.3d 732, 739

(7th Cir. 2006); Carter v. Chi. Police Officers, 165 F.3d 1071,

1079-80 (7th Cir. 1998). We need not resolve the question

here, because we fail to see any inconsistency.

A new trial based on inconsistent verdicts is warranted

only when a jury’s verdict cannot be reconciled with the

evidence at trial. Pearson, 471 F.3d at 739. Any plausible

explanation for the verdict precludes reversal. Carter,

165 F.3d at 1081. Here, the intervenors argue that the

46 No. 08-3736

jury’s finding in favor of the defendants on Kevin’s false

imprisonment claim cannot be reconciled with its

findings for Kevin on the false arrest and malicious prose-

cution claims. Specifically, they note that false impris-

onment requires a finding that the officers lacked

probable cause and that their conduct was willful and

wanton. They argue that the jury’s finding on false impris-

onment implies either that it found no probable cause,

which would be inconsistent with the false arrest and

malicious prosecution findings, or that it found that the

underlying conduct was not willful and wanton, which

would be inconsistent with the punitive damage awards.

Because we review the findings in the light most favor-

able to the verdicts, Carter, 165 F.3d at 1079, we presume

that the jury found a lack of probable cause but did not

agree that the defendants’ conduct was willful and

wanton. Thus, the question is whether a lack of willful and

wanton conduct can be squared with the punitive

damages on the false arrest and malicious prosecution

claims. It can. The court instructed the jury that willful

and wanton conduct shows “an actual or deliberate

intention to cause harm or, if not intentional, shows an

utter indifference to or conscious disregard for the safety

of others . . . .” It instructed the jury that punitive

damages could be assessed if it found that the defendants’

conduct was malicious or reckless. It explained that

malicious conduct “is accompanied by ill will or spite or

is done for the purpose of injuring plaintiffs.” Under this

set of instructions it is plausible that the jury concluded

that the officers’ actions were not reckless or deliberate,

No. 08-3736 47

but that they were “accompanied by ill will or spite.”

Because there is a plausible basis to find the verdicts

consistent, a new trial is not warranted. Id. at 1081.

The defendants also argue that the district court

should have granted their motion for a new trial because,

according to them, the compensatory damages are exces-

sive with respect to the false arrest claim and Melissa’s

claims for loss of consortium and IIED. We review the

district court’s decision not to grant a new trial based on

excessive damages only for abuse of discretion. Thomas,

588 F.3d at 461. In reviewing whether an award of com-

pensatory damages is unreasonably large, we ask

“whether the award is ‘monstrously excessive,’ ‘whether

there is no rational connection between the award and

the evidence,’ and whether the award is comparable to

those in similar cases.” Id. at 463 (quoting Naeem v.

McKesson Drug Co., 444 F.3d 593, 611 (7th Cir. 2006)); see

also Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009).

The defendants argue that the $2.7 million award

for Melissa’s loss of consortium is so excessive that it

should “shock the judicial conscience.” See Richardson v.

Chapman, 175 Ill. 2d 98, 113 (1997). But their argument

fails to account for the unique circumstances underlying

Melissa’s claim. During Kevin’s incarceration Melissa

was separated from her main source of emotional sup-

port at a time when she was coping with extraordinary

grief. She was left alone to help Tyler deal with his own

grief and fear and was thrust into the position of being

a single parent to him at a time when Tyler most needed

the support of both parents. She was forced to endure

48 No. 08-3736

Riley’s birthday and the first anniversary of her death

without Kevin, whom she testified was the only person

who could understand those experiences. In short, the

eight months of Kevin’s incarceration came at a crucial

moment in their marriage, and accordingly there is a

rational connection between the evidence and the sub-

stantial award. See Naeem, 444 F.3d at 611. And although

the award undeniably is high, it is not out of line with

other loss of consortium verdicts upheld by Illinois courts.

See, e.g., Velarde v. Ill. Central R.R. Co., 354 Ill. App. 3d 523,

543 (Ill. App. Ct. 2004) (upholding $3.5 million loss of

consortium claim); DeYoung v. Alpha Constr. Co., 186 Ill.

App. 3d 758, 765-67 (Ill. App. Ct. 1989) (upholding

$3.6 million loss of society award for death of 75-year-

old). Given the circumstances, we do not think the

district court abused its discretion in concluding that the

$2.7 million award is not “monstrously excessive.”

See Thomas, 588 F.3d at 463.

By contrast, the evidence does not come close to sup-

porting the $1 million compensatory award for Melissa’s

IIED claim. The Foxes have pointed to no evidence that

any of her lingering emotional problems are linked to

her short interaction with Hayes. There is no connection

between the evidence that she was terrified and that her

“spirit was crushed” and the jury’s $1 million award

against Hayes on this claim. Nor have the Foxes pointed

to any cases upholding comparable awards for an IIED

claim based on the fallout of a brief verbal interaction.

Indeed, the cases we found affirming damage awards

for IIED claims based on verbal altercations involved

awards no greater than $150,000. See, e.g., Littlefield v.

No. 08-3736 49

McGuffey, 954 F.2d 1337, 1348-49 (7th Cir. 1992); Webb

v. City of Chester, Ill., 813 F.2d 824, 837 (7th Cir. 1987).

Accordingly, we agree with the defendants that the

$1 million award for Melissa’s IIED claim is excessive.

Similarly, we think the district court abused its discre-

tion in brushing past the defendants’ argument that the

$1.6 million false arrest award to Kevin (excluding

Ruettiger) is excessive. Damages on a false arrest claim

cover the period of detention from a plaintiff’s arrest until

the first issuance of process. See Wallace v. Kato, 549 U.S.

384, 389-90 (2007); Snodderly v. R.U.F.F. Drug Enforcement

Task Force, 239 F.3d 892, 899-900 n.9 (7th Cir. 2001). Kevin

was arrested (i.e., not free to leave) shortly after 8 p.m.,

on October 26, 2004. He appeared in court on October 28.

For this, the jury awarded $1.7 million, a staggering rate

of about $1,100 per minute. The Foxes assert without

argument that the false arrest award covers the 84 days

between Kevin’s arrest and his arraignment. But a state

judge determined at the first hearing that there was

sufficient basis to detain Kevin for further proceedings.

It is hard to see how that proceeding could be viewed

as anything other than the issuance of process, see

Young v. Davis, 554 F.3d 1254, 1257 (10th Cir. 2009), and

accordingly we agree that the false arrest damages can

cover only some 36 hours of detention that preceded the

hearing. There is no way to bridge the gap between such

a brief detention and a $1.7 million award. Especially

because the jury awarded less than half that amount on

Kevin’s malicious prosecution claim, which covered the

remaining 242 days of his incarceration, the award is

simply unsupported by the evidence. Accordingly, we

50 No. 08-3736

agree with the defendants that the false arrest damage

award cannot stand.

But contrary to the defendants’ assertions that the

excessive damages require a new trial, we believe a

remittitur is the appropriate remedy to correct any

error that may have occurred. See Ramsey v. Am. Air Filter

Co., 772 F.2d 1303, 1314 (7th Cir. 1985); Richardson, 175 Ill.

2d at 115; Wright, Miller & Kane, 216-17 Federal Practice &

Procedure § 2820 (2d ed. 1995 & Supp. 2009). This is not

a case where the IIED or false arrest claims are unsup-

ported as a matter of law; the problem is simply that the

jury overcompensated the Foxes for those two claims.

The trial in this case was long, intensive, and, from what

we can see from the record, contentious. More than

40 witnesses took the stand. Everyone involved made

substantial investments of their time and money. There

is no need to squander those investments when a

remittitur can resolve the overcompensation problem.

Thus, with respect to Melissa’s IIED claim, we order a

remittitur to $150,000. As for Kevin’s false arrest claim,

we order a remittitur to $16,000 ($5,000 each from

Hayes, Swearengen, and Guilfoyle and $1,000 from

Wachtl). If the Foxes do not consent to the remittiturs, the

district court is instructed to grant the motion for a new

trial on the question of damages for the two claims. See

Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1244

(7th Cir. 1982).

The remainder of the arguments raised by the

defendants and intervenors focus on their assertion

that the punitive damage awards cannot stand because

No. 08-3736 51

they are listed separately in the jury verdict form and

thus are untethered to any of the particular claims. They

argue that because there is only a general verdict with

respect to the punitive damage awards, there is no way

to know how much of the punitive damage awards are

tied to Kevin’s IIED claim (which, they argue, already

includes a punitive element) or the substantive due

process claim on which they are entitled to judgment as

a matter of law. These arguments rest entirely on what the

defendants and intervenors now assert is an incorrectly

structured verdict form, but as the Foxes correctly point

out, the defendants never objected to the structure of

the verdict form at trial, nor did they propose their

own version of the jury form. Accordingly, they have

waived their argument that the punitive damage awards

cannot stand because the verdict form does not tie them

to specific substantive claims. See Gagan v. Am. Cablevision,

Inc., 77 F.3d 951, 966 (7th Cir. 1996); Rosario v. Livaditis,

963 F.2d 1013, 1022 n.4 (7th Cir. 1992); Perry v. Larson,

794 F.2d 279, 285 (7th Cir. 1986).

With respect to Kevin’s substantive due process claim,

the judgment of the district court is V ACATED and the

matter R EMANDED with instructions to enter judgment

for the defendants. With respect to Kevin’s false arrest

claim and Melissa’s IIED claim, if the Foxes consent to the

remittiturs we have ordered, the award on Melissa’s IIED

claim will be reduced to $150,000. The award on Kevin’s

false arrest claim will be reduced to $16,000.

Thus, to summarize, of the $12,200,000 in play on

this appeal, the Foxes may have judgment for $8,166,000

52 No. 08-3736

if the remittiturs we have ordered are accepted. If not,

they may have judgment for $8,000,000 and a new trial

on the two claims that we have cut back. But we hasten

to add that if the Foxes elect to have a new trial on the

claims we have reduced, any new award, considering the

substantial damages awarded on the other claims, will

have to be close to the vicinity we have suggested to be

sustained as reasonable.

For all these reasons, the judgment of the district court

is A FFIRMED in part and R EVERSED and V ACATED in part

consistent with this opinion.

4-7-10