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Green v. Howser

United States Court of Appeals, Seventh Circuit

November 7, 2019

Jade V. Green, Plaintiff-Appellee,
Jack Howser and Angela Howser, Defendants-Appellants.

          Argued September 11, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:16-cv-00863 - Stephen C. Williams, Magistrate Judge.

          Before Ripple, Rovner, and Barrett, Circuit Judges.


         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 Angela'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 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 conspiring 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 evidence to support the verdict and that it is contaminated by an evidentiary error in any event. They also find fault with several aspects of the damages award. We reject all of the Howsers' arguments.


         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 understatement.

         The Howsers made no bones about telling Jade that they thought Josh was bad news. Nor did they hesitate to inform 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 persuade 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 information 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 officers to encourage them to execute it. The Howsers organized a meeting at the courthouse with the county sheriff, the chief of police, and the Howsers' private investigator. At the meeting, 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 arrest 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 committed 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 entered 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 department'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.

         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 prosecutor and put him on speaker phone. The prosecutor advised the sheriff and the police chief to move forward and told the sheriff 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 active 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, ...

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