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.

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