Renee Lange v. City of Oconto ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-3048, 21-1110
RENEE LANGE,
Plaintiff-Appellant,
v.
CITY OF OCONTO and CITY OF OCONTO FALLS,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 18-cv-00821 — William C. Griesbach, Judge.
____________________
ARGUED SEPTEMBER 17, 2021 — DECIDED MARCH 16, 2022
____________________
Before SYKES, Chief Judge, and FLAUM, and KIRSCH, Circuit
Judges.
FLAUM, Circuit Judge. Plaintiff-appellant Renee Lange,
who is deaf and communicates in American Sign Language
(“ASL”), filed suit against defendants-appellees the City of
Oconto and the City of Oconto Falls (“the Cities”). She alleged
that the Cities violated Title II of the Americans with Disabil-
ities Act (“ADA”), 42 U.S.C. § 12131, et seq., and § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, when their police
2 Nos. 20-3048, 21-1110
officers did not provide a qualified ASL interpreter for her
during four interactions in 2016 and 2017. The case proceeded
to trial, and the jury returned a verdict for the Cities. The dis-
trict court then awarded costs to the Cities.
Lange now appeals, asserting that various errors require
reversal of the district court’s judgment or, at the least, rever-
sal of the decision to impose costs on her. We conclude, how-
ever, that Lange was not prejudiced by the district court’s jury
instructions, and the district court did not abuse its discretion
in awarding a reduced amount of costs to the Cities despite
Lange’s apparent indigency. Therefore, we affirm both the
judgment of the district court, as well as the decision to im-
pose costs on Lange.
I. Background
Lange was born deaf. She primarily communicates
through ASL, 1 with some ability to verbalize and read lips.
She has two children, R. and B., who were minors at the time
of the events that form the basis of this case. Her daughter, R.,
was seventeen, and her son, B., was fourteen. These children
are not deaf, and Lange communicates with them using ASL.
1 “American Sign Language … is a complete, complex language that
employs signs made by moving the hands combined with facial expres-
sions and postures of the body.” Noll v. Int’l Bus. Machines Corp., 787 F.3d
89, 99 n.1 (2d Cir. 2015) (Sack, J., dissenting) (alteration in original) (quot-
ing Nat’l Inst. on Deafness and Other Commc’n Disorders, U.S. Dep’t of
Health & Human Servs., NIDCD Fact Sheet: American Sign Language,
http://www.nidcd.nih.gov/health/hearing/pages/asl.aspx). ASL “is a lan-
guage completely separate and distinct from English,” with “its own rules
for pronunciation, word order, and complex grammar.” Id. (quoting
NIDCD Fact Sheet).
Nos. 20-3048, 21-1110 3
Lange brought this lawsuit asserting that the Cities dis-
criminated against her in violation of the ADA and the Reha-
bilitation Act during interactions between Lange and the Cit-
ies’ police departments. The case survived summary judg-
ment and proceeded to trial regarding four episodes (the “in-
cidents”), which occurred from May 30, 2016, to February 3,
2017. One of the incidents at issue occurred in Oconto; the
other three occurred in Oconto Falls. In each of these inci-
dents, the police did not provide Lange with an ASL inter-
preter but instead relied on one of Lange’s minor children for
interpretive services in some capacity. Lange alleged that dur-
ing each incident she requested an interpreter or, alterna-
tively, the need for an interpreter was obvious. Because the
Cities did not provide an interpreter, Lange contended, she
could not effectively communicate with the officers involved.
The jury returned a verdict in favor of the Cities. The fol-
lowing facts reflect the witness testimony and documentary
evidence introduced at trial.
A. Factual Background
1. The May 30, 2016 Incident
The first incident took place on the evening of May 30,
2016, in Oconto. Oconto Police Officers Glenn Sowle and Erek
Belongia arrived at Lange’s residence in response to a noise
complaint. Officer Sowle and Lange offered competing ver-
sions of what transpired.
According to Officer Sowle, upon arriving, the officers
could hear banging on a door inside the home. Lange’s
daughter, R., then came outside and said that Lange’s friends,
who are also deaf, had caused the noise. Lange came out after
a few minutes, yelling and screaming. R. tried signing to
4 Nos. 20-3048, 21-1110
Lange that R. did not call the police, and Officer Sowle at-
tempted to tell Lange verbally that the officers had responded
to a noise complaint from a neighbor. Lange herself testified
that she was upset and yelled at R. to “[s]hut up” and “[s]top
it.” Officer Sowle testified that he wrote on his notepad asking
Lange to “please be quiet” and showed that message to her “a
number of times”—although Lange testified that he only
showed it once—but she still would not keep quiet. Officer
Sowle testified that he could smell a strong odor of intoxicants
coming from Lange, so he wrote on his notepad, “How much
have you had?” Lange did not answer. Officer Sowle stated
that after everybody calmed down, he told them verbally that
if the officers had to come back, they would arrest somebody.
According to Officer Sowle, all parties “agreed to call it a
night.”
About fifteen minutes later, the officers received another
call about a disturbance at Lange’s residence. Officer Sowle
testified that, when he returned, he could hear “yelling and
screaming coming from inside the house.” R. came outside
and said that Lange had locked them out of the house. Lange’s
next-door neighbors, Doug and Cheryl Wusterbarth, also
came outside and were upset. They told Officer Sowle that
Lange had been fighting with and hitting her children in the
street, and they complained about “drugs going in and out of
the house.”
Officer Sowle testified that Lange came outside and
started yelling and screaming again. He verbally requested
that she please be quiet, but she did not comply. He stated
that he again showed her his notebook with the “please be
quiet” message. Lange still did not comply. Other neighbors
came out, and they also said that Lange had fought with her
Nos. 20-3048, 21-1110 5
children in the street. At that time, Officer Sowle had R. sign
to Lange that he was placing her under arrest for disorderly
conduct. Lange signed back asking, “Why are we being
placed under arrest?” R. showed Officer Sowle the sign for
arrest by clicking the wrists together, and he mimicked that
sign. Officer Sowle testified that he placed Lange’s handcuffs
on in the front in response to a comment from R. about pro-
tecting Lange’s ability to communicate with her hands.
As Officer Sowle walked Lange to the squad car after plac-
ing her in handcuffs, R. told him that Lange was requesting
an interpreter. He said that he called dispatch to report the
request. According to Officer Sowle, as they drove to the jail,
Lange was yelling, screaming, and jumping around in the
back of the car. At the jail, she demanded to know why she
was being arrested. Officer Sowle told her it was for disor-
derly conduct, and Lange became upset again. The parties do
not dispute that Lange never received an interpreter at the jail.
At trial, Officer Sowle testified that he believed that Lange
“fully understood what was going on.” He stated that he had
at least four or five previous contacts with Lange, and during
those contacts, he had primarily communicated with Lange
using a pen and paper, as well as speaking verbally. He con-
tended that Lange had a strong ability to read and write, as
well as lip read, and they could effectively communicate
through these methods. Officer Sowle further testified that—
other than during the May 30, 2016 incident—Lange never re-
quested an ASL interpreter during any of her contacts with
him. Finally, Officer Sowle stated that Lange was easily agi-
tated, and communication became difficult if not impossible
when she was agitated. He added that he was concerned for
6 Nos. 20-3048, 21-1110
the safety of Lange’s children on the night of her arrest, and
that concern factored into his decision to arrest Lange.
Lange, however, testified that she had great difficulty un-
derstanding the May 30, 2016 interaction with the police. She
said that she did not know if R. interpreted Lange’s questions
to the police or the fact that she wanted an interpreter. Lange
said that she attempted to request an interpreter through R.
as well as through verbal communication, body language,
and a written note. She said that if she had received an inter-
preter, she “would have been less upset because I would have
understood what was going on.”
Several other witnesses testified regarding the May 30,
2016 incident, as well as other interactions Lange had with the
Oconto Police Department.
Lange’s next-door neighbor at the time, Doug
Wusterbarth, confirmed that he witnessed Lange and R.
fighting in the street and called the police. He testified that he
observed the police attempting to talk to Lange after they ar-
rived. He saw Lange and R. signing back and forth and
watched an officer offer Lange a pad of paper. Nonetheless,
the yelling continued. Wusterbarth said that the police asked
Lange to be quiet and go back in her house, but Lange did not
comply or quiet down. He stated that the officer had a note-
pad in his hand “pretty much the whole time” and offered it
to Lange “[a]t least a couple times.” Wusterbarth testified that
Lange appeared intoxicated, and he never heard her request
an interpreter (although he acknowledged the possibility he
simply did not hear such a request).
Retired Oconto Police Chief Bernard Faith testified that
Lange voluntarily came to the Oconto Police Department two
Nos. 20-3048, 21-1110 7
days after the incident, on June 1, 2016. With her son, B., in-
terpreting, Lange requested a complaint and witness forms
regarding her arrest on May 30; she later returned the com-
pleted complaint. Both Chief Faith and current Oconto Police
Chief Michael Rehberg testified generally that they had other
contacts with Lange, and in their experience, she never re-
quested an ASL interpreter. Chief Faith would write notes to
her, and she would frequently use her children to translate
back to him. Chief Rehberg would let Lange dictate the
method of communication; if she wanted to write on paper or
use her children to interpret, he would follow her choice. Ac-
cording to Chief Rehberg, R. said that Lange could read lips,
but the speaker needed to face Lange and speak clearly and
slowly for her to do so. Finally, Rehberg acknowledged that it
would be inappropriate to rely on Lange’s minor children to
interpret under the department’s current policy, which it
adopted after the incidents.
Rounding out the witnesses from the Oconto Police De-
partment, Detective Nicole Crocker also testified—over
Lange’s objection. Detective Crocker was not present at the
May 30, 2016 incident, but nonetheless had over a dozen con-
tacts with Lange. In Crocker’s experience, Lange never re-
quested an ASL interpreter; instead, she estimated, Lange re-
lied on one of her children to interpret about 75% of the time
and used a pen and paper the rest of the time. Detective
Crocker would follow Lange’s decision to initiate communi-
cation through her children or using notes. Detective Crocker
believed Lange was adept at lip reading based on what B. had
told her, as well as her experience with Lange. Lange could
also speak well enough for Detective Crocker to fully under-
stand her. Lange’s demeanor when agitated, however, made
it impossible to effectively communicate. Finally, Detective
8 Nos. 20-3048, 21-1110
Crocker testified that, based on her review of records from the
Oconto County Sheriff’s Department, Lange had around 115
total contacts with Oconto County agencies, including both
the Oconto and Oconto Falls police departments.
2. The November 13, 2016 Incident
The remaining incidents took place in Oconto Falls, with
the second occurring on the evening of November 13, 2016.
Lange’s son, B., called his uncle regarding a fight involving a
knife and told his uncle that he feared for his life. B. testified
that he contacted his uncle because he felt he was in immedi-
ate danger from Lange’s boyfriend, Jeremy Parmer—who is
also deaf. B. stated he did not want to directly call 911 himself
for fear of escalating the situation. B.’s uncle called 911, and
Oconto County Sheriff’s deputies and Oconto Falls Police Of-
ficer Corey Rank responded to Lange’s home. Upon arrival,
Officer Rank observed Lange and Parmer facing each other
and thrusting their arms toward one another. The deputies
and Officer Rank detained Parmer and then arrested him.
Officer Rank testified that he then began trying to com-
municate with B., the complainant, to figure out what had
happened, but Lange kept interrupting his conversation to try
to communicate with B. herself. According to Officer Rank,
Lange was loud and agitated. Officer Rank knew Lange was
deaf and that she communicated by ASL.
Lange later testified that she was upset because she did
not want Officer Rank to use B. as her interpreter. She asserted
that she told B. not to interpret. Officer Rank, on the other
hand, believed Lange was trying to obstruct his conversation
with B. He stated that he attempted to communicate with
Lange, but she ignored him. He also asked B. if he could try
Nos. 20-3048, 21-1110 9
to get Lange to calm down, and B. said that Lange would not.
Lange later testified that she had been drinking and was
“buzzed” at the time.
Officer Rank testified that he never requested an ASL in-
terpreter during the incident; however, Lange also never re-
quested an interpreter. Lange herself did not clearly dispute
this point, but B. testified that she did request one. Officer
Rank stated that he was not sure if he “would have brought
an interpreter into that situation” because “[i]t was … very
volatile and … not a good situation” in which to introduce
additional people. Instead, he tried “to control the situation
and reduce the emergency.” Officer Rank agreed, however,
that having an interpreter available might have led to a better
outcome.
3. The February 2, 2017 Incident
The third incident occurred on February 2, 2017. Oconto
Falls Police Officer Jamie Kuhn responded to a complaint by
Laurie King, a former friend of Lange who is also deaf. King
alleged that Lange’s boyfriend Parmer had assaulted her. Af-
ter speaking with King, Officer Kuhn proceeded to Lange’s
apartment to arrest Parmer. Officer Kuhn testified that she
knew Lange and Parmer were deaf, but she did not request
an interpreter because Lange “always used her children as
their interpreters.”
Upon arriving, B. met Officer Kuhn at the bottom of the
stairs to the apartment. Lange was also present, and when Of-
ficer Kuhn asked B. if she could come in, Lange answered ver-
bally, “yes.” Officer Kuhn testified that she then used B. as an
interpreter during her time at Lange’s apartment. Officer
Kuhn, with B. signing, asked Parmer about whether he
10 Nos. 20-3048, 21-1110
owned a hat that King described her assaulter as wearing.
Parmer denied owning the hat, and Lange verbally said some-
thing like “He doesn’t have that.”
Officer Kuhn testified that both Lange and Parmer were
agitated during the encounter, and when she told Parmer that
she was placing him under arrest, both Lange and Parmer got
up and started “screaming, yelling,” and “throwing their
arms around.” Parmer told Officer Kuhn that he was going to
“shoot the bitch [King],” (although Lange testified that he said
“sue,” not “shoot”) and Lange threatened the officer, saying,
“I’m coming after you.” Officer Kuhn then told B. that if
Lange did not stop, Officer Kuhn would arrest her too, where-
upon Lange backed up a few feet and quieted down.
Officer Kuhn testified that Lange never requested an ASL
interpreter. She also stated that she did not know of any in-
stance in which Lange had requested an ASL interpreter and
had never seen Lange communicating with an interpreter. In-
stead, Officer Kuhn testified that she believed Lange could
communicate adeptly through lip reading and by pen and pa-
per, and she had effectively communicated with Lange
through those methods in the past. Officer Kuhn explained
that she felt it was impossible to communicate with Lange
when Lange was screaming and yelling.
When asked why she did not request an interpreter, Of-
ficer Kuhn testified that it was not safe to bring an interpreter
into that “escalating” situation. Officer Kuhn added that she
did not attempt to call a virtual interpreter on her smartphone
because she did not want “to unnecessarily put anything in
my hands at that moment.” She specifically testified that she
believed holding a phone in her hand when dealing with
Nos. 20-3048, 21-1110 11
volatile individuals is “not safe for [other people] and it’s not
safe for me.”
4. The February 3, 2017 Incident
The fourth incident at issue took place the following day,
February 3, 2017. That morning, Lange came with B. on her
own initiative to the Oconto Falls Police Department. Oconto
Falls Police Chief Brad Olsen testified that Lange brought her
cell phone to show him a purported harassing message from
King to Lange. Lange used B. to interpret during this encoun-
ter.
Lange showed the message, sent over the Facebook Mes-
senger application, to Chief Olsen. The message essentially
stated that King had lied to the police the previous evening
about being assaulted by Parmer and that she was sorry Par-
mer was arrested. Chief Olsen took a photo of the message
with his department phone.
Chief Olsen testified that after Lange departed, the police
brought in King for an interview. During that interview, Chief
Olsen and Officer Keith Fischer concluded that King did not
send the message or create the profile that sent it. Chief Olsen
then obtained a search warrant for Lange’s electronic devices
and the distinctive hat that King had reported Parmer was
wearing during the alleged assault. Chief Olsen and Officer
Fischer executed the warrant at Lange’s residence that after-
noon. Although they knew Lange was deaf, they did not at-
tempt to secure an interpreter before going to her home.
The officers saw B. when they arrived at Lange’s apart-
ment and explained why they were there; B. then invited
them in. When they got inside, B. began signing to Lange.
12 Nos. 20-3048, 21-1110
Neither Chief Olsen nor Officer Fischer asked B. to interpret,
and Lange did not object to B. interpreting.
Both Chief Olsen and Officer Fischer testified that when
Lange received a written copy of the search warrant, she be-
came agitated, loud, argumentative, and generally uncooper-
ative. Officer Fischer explained that the police informed B.
that they were looking for a particular hat and electronic de-
vices, and he believed B. and Lange clearly understood be-
cause they responded appropriately, saying—through both B.
interpreting and Lange speaking verbally—that they did not
“have that hat anymore” and that “nothing like [those elec-
tronic devices] would be here.” Thus, Officer Fischer at no
point felt the officers were not effectively communicating
with Lange. In contrast, Lange testified that she was confused
about the warrant’s contents and why the police were search-
ing her home.
Officer Fischer further testified that he had many contacts
with Lange, and he believed that she could adeptly communi-
cate through writing. He said that he could not remember any
contact where he wrote something and Lange did not under-
stand it. Additionally, he testified that Lange never asked for
an interpreter.
Chief Olsen and Officer Fischer testified that Lange initi-
ated several in-person and written contacts with the police in
the ensuing weeks, including multiple trips and calls to the
department about Parmer. Chief Olsen said that she some-
times brought B. to interpret and other times used written
notes, but she never requested an interpreter. Officer Fischer
testified that Lange wrote letters to the police department
complaining about the incidents. The district court admitted
two of those letters into evidence.
Nos. 20-3048, 21-1110 13
Finally, Chief Olsen testified that the police would obtain
any required interpreter through the Oconto County Sheriff’s
Department dispatch. He explained his understanding that
the ASL interpreters that dispatch would call are about thirty-
five minutes to an hour away.
B. Procedural History
After presenting her case, Lange moved for judgment as a
matter of law. She argued that the evidence permitted only
one reasonable conclusion—that the Cities denied Lange ef-
fective communication at each of the four incidents by not
providing an ASL interpreter and by using a minor child to
interpret. The district court took the motion under advise-
ment until the jury rendered a verdict.
At the close of evidence, the court instructed the jury on
the elements of Lange’s claim, explaining:
In order to prevail on her discrimination claim
… Plaintiff must prove by a preponderance of
the evidence that
1. Plaintiff requested an interpreter or the need
for an interpreter was known or obvious;
2. The Defendant unreasonably failed to give
primary consideration to her request for an in-
terpreter;
3. As a result, Plaintiff was unable to effectively
communicate with the officers; and
4. In failing to provide an interpreter, the De-
fendant intentionally discriminated against
Plaintiff based on her disability. Intentional
14 Nos. 20-3048, 21-1110
discrimination does not require personal ani-
mosity or ill will.
The district court also instructed the jury on certain regu-
lations, discussed further below, that elaborate on a public en-
tity’s obligation to ensure effective communication. Relevant
to this appeal, the court informed the jury that police officers
generally should not rely on a minor child to interpret, except
in emergencies. It went on to state: “Police need not interfere,
however, in the decision of a private citizen to use his or her
own child to facilitate her communication.” Lange objected to
this instruction, arguing that it had no basis in the regulation
and misstated the law. The district court overruled her objec-
tion, reasoning that it “d[id not] think that the police should
be preventing a deaf person from communicating with them
in the manner they choose” and that this instruction was
“consistent with the requirement of reasonableness.”
After deliberating for approximately two hours, the jury
returned a verdict in favor of the Cities on each of Lange’s
four claims. The district court denied Lange’s motion for
judgment as a matter of law, concluding that the evidence was
sufficient for the jury to find in favor of the defendants on
each count.
Following the verdict, the clerk of the court taxed costs to
Lange in the amount of $4,012.97. Lange then filed a motion
for the district court to review the decision to tax costs. She
requested that the district court deny the Cities’ bill of costs
because she is indigent. The Cities and the district court rec-
ognized Lange’s indigency; nonetheless, the district court still
taxed Lange a reduced amount of $1,000 in costs.
Nos. 20-3048, 21-1110 15
After the entry of the district court’s final judgment
awarding costs to the Cities, Lange appealed to this Court.
II. Discussion
On appeal, Lange seeks a determination that the district
court made prejudicial errors instructing the jury and admit-
ting evidence, warranting a new trial or flat-out reversal of
the trial court’s decision denying her motion for judgment as
a matter of law. In the alternative, she seeks reversal of the
district court’s award of costs.
Lange argues that the district court erred in four ways.
First, she asserts that the district court misstated the law when
it instructed the jury that “[p]olice need not interfere, how-
ever, in the decision of a private citizen to use his or her own
child to facilitate her communication.” Second, and relatedly,
she contends that the district court erred when it denied her
motion for judgment as a matter of law because the Cities’
witnesses admitted to using her minor children in nonemer-
gency situations. Third, she asserts that the court wrongly al-
lowed Detective Crocker, a nonparty to the four incidents at
issue, to testify to Lange’s approximately 115 unrelated con-
tacts with both police departments in violation of Federal
Rules of Evidence 403 and 404. Fourth, Lange argues that the
district court erroneously taxed costs of $1,000 to her. We ad-
dress each argument in turn.
A. Jury Instruction Regarding the Use of Minors as
Interpreters
We review first the challenged jury instruction and
whether it was prejudicial so as to warrant a new trial. The
district court instructed the jury as follows:
16 Nos. 20-3048, 21-1110
Police officers should not rely on a minor child
to interpret or facilitate communication, except
in an emergency situation involving an immi-
nent threat to the safety or welfare of an indi-
vidual or the public where there is no other in-
terpreter readily available. Police need not in-
terfere, however, in the decision of a private cit-
izen to use his or her own child to facilitate her
communication.
According to Lange, the final sentence of this instruction mis-
stated the law. Lange timely objected to the instruction under
Federal Rule of Civil Procedure 51. See Pittman ex rel. Hamilton
v. County of Madison, 970 F.3d 823, 826 n.1 (7th Cir. 2020). She
now asserts that this error demands a new trial.
We review de novo whether a challenged jury instruction
misstated the law. Id. at 827. Even if an instruction is legally
deficient, we will reverse a district court and grant a new trial
“only if the instruction misstates the law in a way that mis-
guides the jury to the extent that the complaining party suf-
fered prejudice.” Sanchez v. City of Chicago, 880 F.3d 349, 355–
56 (7th Cir. 2018) (internal quotation marks omitted) (quoting
Viramontes v. City of Chicago, 840 F.3d 423, 428 (7th Cir. 2016)).
1. Whether the Instruction Correctly Stated the Law
Lange brought her claims under Title II of the ADA and
Section 504 of the Rehabilitation Act, which both prohibit dis-
crimination against qualified persons with disabilities. See
42 U.S.C. § 12132; 29 U.S.C. § 794(a). Specifically, these laws
seek to ensure that qualified individuals are not “excluded
from participation in or … denied the benefits of the services,
programs, or activities of a public entity, or … subjected to
Nos. 20-3048, 21-1110 17
discrimination by any such entity.” See 42 U.S.C. § 12132; see
also 29 U.S.C. § 794(a) (“No … qualified individual with a dis-
ability … shall, solely by reason of … disability, be excluded
from the participation in, be denied the benefits of, or be sub-
jected to discrimination under any program or activity receiv-
ing Federal financial assistance ….”). For purposes of this ap-
peal, these two laws are “functionally identical.” See Wagoner
v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). 2
Title II itself does not address the use of minor children as
interpreters for individuals who are deaf or hard of hearing.
Instead, the Attorney General, “at the instruction of Con-
gress,” Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737,
751 (7th Cir. 2006) (en banc), has issued implementing regu-
lations concerning when covered entities may rely on friends
or family members accompanying individuals with disabili-
ties to aid in providing effective communication, see 28 C.F.R.
§ 35.160. 3
2 For clarity, therefore, we generally refer only to the ADA throughout
the opinion. Unless otherwise stated, the analysis applies to both the ADA
and the Rehabilitation Act.
3 The parties and the district court proceeded as though the DOJ’s reg-
ulations were binding interpretations of the applicable law. Nonetheless,
“[w]e have noted that the Supreme Court never has decided whether the
Attorney General’s regulations here are entitled to [the degree of] defer-
ence” described in Chevron, U.S.A. Inc. v. National Resource Defense Council,
Inc., 467 U.S. 837, 844 (1984). Ashby v. Warrick Cnty. Sch. Corp., 908 F.3d 225,
231 n.12 (7th Cir. 2018). At a minimum, though, the Supreme Court has
said that the “well-reasoned views” of the DOJ, as the agency charged
with implementing Title II, “warrant respect” and “constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,
597–98 (1999) (internal quotation marks omitted). Accordingly, as the
18 Nos. 20-3048, 21-1110
The relevant regulation, codified at 28 C.F.R. § 35.160, first
mandates that public entities “shall furnish appropriate aux-
iliary aids and services where necessary to afford individuals
with disabilities … an equal opportunity to participate in, and
enjoy the benefits of, a service, program, or activity of a public
entity.” Id. § 35.160(b)(1). Subsection (b) then acknowledges
that “[t]he type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the
method of communication used by the individual; the nature,
length, and complexity of the communication involved; and
the context in which the communication is taking place.” Id.
§ 35.160(b)(2). Where an interpreter—as opposed to a differ-
ent auxiliary aid—is necessary to “ensure effective communi-
cation,” subsection (c) further provides that, in general, “[a]
public entity shall not rely on an [accompanying] adult [or] …
a minor child to interpret or facilitate communication ….” Id.
§ 35.160(c).
Nonetheless, there are exceptions to the general prohibi-
tion against using accompanying persons as interpreters,
which differ depending on whether the accompanying person
is an adult or minor child. If the accompanying person is an
adult, then a public entity may enlist his or her help in two
circumstances: (1) ”[i]n an emergency involving an imminent
threat to the safety or welfare of an individual or the public
where there is no interpreter available,” or (2) when both the
disabled individual and accompanying person consent and
“reliance on that adult for [communication] assistance is ap-
propriate under the circumstances.” Id. § 35.160(c)(2). If the
parties do, we assume that the regulations applied in this case. See Kikalos
v. Comm’r Internal Revenue, 190 F.3d 791, 796 (1999) (“The parties have as-
sumed that full Chevron deference is in order and so shall we.”).
Nos. 20-3048, 21-1110 19
accompanying person is a child, however, only the exigent
circumstances exception applies; there is no consent-based ex-
ception. Id. § 35.160(c)(3).
On Lange’s view, the district court created a second, im-
permissible exception to the DOJ’s regulation prohibiting the
use of minor children as interpreters when it instructed the
jury that the police could rely on “the decision of a private
citizen to use his or her own child to facilitate her communi-
cation.” During the jury instruction conference, the district
court reasoned that its instruction did not misstate the law be-
cause Lange, not the police officers, “relied” on her children
to interpret. Lange argues that that distinction employs an ex-
ceedingly narrow view of the implementing regulation and
elides the practical reality that if a minor child serves as an
interpreter, both parties—on either side of the interpreta-
tion—must rely on that child to facilitate communication.
Similarly, Lange contends, whether the officers employed
methods of communication in addition to using her children
as interpreters should have no bearing on the analysis.
Lange bolsters this argument by pointing to additional
guidance published by the DOJ. In its response to public com-
ments on its 2010 rulemaking amending 28 C.F.R.
§ 35.160(c)(3), the DOJ explained that it adopted a prohibition
on the use of minor children as interpreters both to avoid in-
volving minor children in adult situations (like those concern-
ing medical issues or domestic violence) and to avoid placing
minor children in an inappropriate position vis-à-vis their
adult relatives. See Nondiscrimination on the Basis of Disabil-
ity in State and Local Government Services, 75 Fed. Reg.
56,164, 56,224–25 (2010). Guidance published by the DOJ in
2014 elaborates that it has been “particularly problematic [for
20 Nos. 20-3048, 21-1110
covered entities] to use people’s children as interpreters,”
even beyond a general concern that accompanying family
members or friends may “lack[] the impartiality and special-
ized vocabulary needed to interpret effectively and accu-
rately.” U.S. Dep’t of Just., C.R. Div., Disability Rts. Section,
ADA Requirements: Effective Communication 5 (2014),
https://www.ada.gov/effective-comm.pdf. Furthermore,
while the DOJ’s 2014 guidance reiterates that a covered entity
may use an accompanying adult where the relevant parties
consent and it is “appropriate under the circumstances,” it ex-
plicitly emphasizes that “[t]his exception does not apply to
minor children.” Id.The Cities respond with a textual argument in support of
the district court’s instruction. They point to language in sub-
section (b) of the regulation, which states that, “[i]n determin-
ing what types of auxiliary aids and services are necessary, a
public entity shall give primary consideration to the requests
of individuals with disabilities.” 28 C.F.R. § 35.160(b)(2). On
the Cities’ view, the district court’s instruction that “[p]olice
need not interfere” with Lange’s use of her children appropri-
ately harmonized section (b)’s directive to give primary con-
sideration to disabled individuals’ preferred auxiliary aids,
with section (c)’s general prohibition on the use of accompa-
nying individuals. 4
4The Cities also point to out-of-circuit caselaw as support for their
argument. See Tucker v. Tennessee, 539 F.3d 526 (6th Cir. 2008), abrogated in
part on other grounds as recognized by Anderson v. City of Blue Ash, 798 F.3d
338, 357 n.1 (6th Cir. 2015). However, Tucker is not persuasive, as that case
involved an adult plaintiff and whether she consented to interpret for her
adult son; it did not concern minor children and whether their adult
mother could consent to the minors’ use as interpreters. Id. at 530, 533–34.
Nos. 20-3048, 21-1110 21
Lange replies that, even assuming she chose to use her mi-
nor children as interpreters (an assumption she disputes), the
Cities’ position misreads the regulation. Lange points out that
subsection (a) of the regulation directs a public entity to en-
sure that communications with individuals with disabilities
are “as effective as communications with others,” see id.§ 35.160(a)(1), and subsections (b)(1) and (2) concern how to
determine which “type of auxiliary aid or service [is] neces-
sary to ensure effective communication,” id. § 35.160(b)(1)–
(2). As Lange reads the statute, it is in making this preliminary
determination concerning the type of auxiliary aid that a pub-
lic entity should “give primary consideration to the requests
of the individuals with disabilities.” See id. When an inter-
preter represents the necessary type of aid or service under
the above subsections, however, then subsections (c)(1) to
(c)(3) of the regulation restrict who may serve as an inter-
preter. See id. § 35.160(c)(1)–(3). As discussed above, subsec-
tion (c)(3)—the provision at issue here—identifies the limited
circumstance in which a minor child may interpret: an immi-
nent emergency where no interpreter is readily available. See
id. § 35.160(c)(3). According to Lange, the prohibition con-
tained in 28 C.F.R. § 35.160(c)(3) thus supersedes an individ-
ual’s request to use her minor children as interpreters. See In
re Gulevsky, 362 F.3d 961, 963 (7th Cir. 2004) (“[W]hen both a
specific and a general provision govern a situation, the spe-
cific one controls.”).
However, while both sides present compelling arguments,
we need not resolve the dispute over these competing read-
ings of the regulation because, as discussed below, even if the
instruction was incorrect, it was not prejudicial.
22 Nos. 20-3048, 21-1110
2. Whether the Instruction Was Prejudicial
“Even in the face of legal error, ‘a new trial is appropriate
only if the [jury] instruction prejudiced the complaining
party.’” Kuberski v. Rev Recreation Grp., Inc., 5 F.4th 775, 780
(7th Cir. 2021) (alteration in original) (quoting Lewis v. City of
Chi. Police Dept., 590 F.3d 427, 433 (7th Cir. 2009)). “This is true
even for ‘patently incorrect’ instructions.” Id. (quoting Gile v.
United Airlines, Inc., 213 F.3d 365, 375 (7th Cir. 2000)). When
evaluating prejudice, “we ask, in light of the other instruc-
tions, the evidence, and the arguments advanced by the par-
ties, whether the ‘correct message [was conveyed] to the jury
reasonably well,’ such that the erroneous instruction likely
made no difference in the outcome.” Guzman v. City of Chicago,
689 F.3d 740, 745 (7th Cir. 2012) (alteration in original) (quot-
ing Gile, 213 F.3d at 375)).
Under this standard, Lange cannot demonstrate that she
suffered prejudice from the district court’s jury instruction,
even if it was erroneous. The district court correctly instructed
the jury that to prevail on her claims, Lange had to prove by
a preponderance of the evidence that: (1) she “requested an
interpreter or the need for an interpreter was known or obvi-
ous,” (2) the Cities “unreasonably failed to give primary con-
sideration to her request for an interpreter,” (3) as a result,
Lange “was unable to effectively communicate with the offic-
ers,” and (4) in “failing to provide an interpreter, [the Cities]
intentionally discriminated against [Lange] based on her dis-
ability.” Given the totality of the circumstances, the evidence
on the record here does not show that Lange satisfied these
elements.
Fundamentally, the evidence of intentional discrimination
was “simply too thin on this record to warrant a new trial.”
Nos. 20-3048, 21-1110 23
See Kuberski, 5 F.4th at 780 (quoting Boyd v. Ill. State Police, 384
F.3d 888, 895 (7th Cir. 2004)). “[A] plaintiff can establish inten-
tional discrimination in a Title II damage action by showing
deliberate indifference,” Lacy v. Cook County, 897 F.3d 847, 863
(7th Cir. 2018), which requires “both (1) knowledge that a
harm to a federally protected right is substantially likely, and
(2) a failure to act upon that likelihood,” id. (internal quota-
tion marks omitted) (quoting S.H. ex rel. Durrell v. Lower Mer-
ion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)). In other words,
a plaintiff must prove “indifference that is a ‘deliberate
choice’” by defendants. Id. at 862 (quoting Liese v. Indian River
Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012)). Lange has
not contested the district court’s instruction on this element.
The evidence adduced at trial demonstrates that, while the
officers here knew that Lange was deaf from past interactions,
they also had ample experience communicating with her—ef-
fectively, in the officers’ view—without an ASL interpreter.
As noted, this communication included written notes, lip
reading, and some verbalization on Lange’s part. Lange’s
only significant evidence challenging the officers’ experience
was her testimony that she did not want to rely on those other
auxiliary aids in high-stakes interactions with the police—
specifically, the four incidents identified in her lawsuit. But
the deliberate indifference standard is directed to the defend-
ants’ state of mind, not the plaintiff’s. See S.H., 729 F.3d at 266
(affirming grant of summary judgment based on insufficient
evidence of deliberate indifference because “[t]he relevant in-
quiry is knowledge, and evidence that the [defendant] may
have been wrong about [the plaintiff’s disability] is not evi-
dence that the [defendant] had knowledge that” it was likely
violating the plaintiff’s rights). Given the officers’ under-
standing of Lange’s skills based on their prior interactions,
24 Nos. 20-3048, 21-1110
Lange has not demonstrated that they “knew that harm to a
federally protected right was substantially likely.” Lacy, 897
F.3d at 862 (quoting Liese, 701 F.3d at 344). Considering the
“evidence as a whole,” the jury could not have “reached a dif-
ferent outcome had the instructions been correct.” See Ku-
berski, 5 F.4th at 780. Mere “speculation that the jury might
have decided the case differently if given the proper instruc-
tion is insufficient to establish prejudice.” See Gile, 213 F.3d at
375.
At most, Lange argues that the district court misstated the
law regarding one facet of Lange’s claims. Lange still had to
meet her burden of proof on the remaining elements, which,
as noted, she could not. In sum, the jury’s outcome would
have been unchanged, even had it received Lange’s preferred
instruction. Accordingly, we conclude that Lange is not enti-
tled to a new trial based on the jury instructions.
B. Judgment as a Matter of Law
We review de novo a district court’s denial of a motion for
judgment as a matter of law under Rule 50 of the Federal
Rules of Civil Procedure. Turubchuk v. S. Ill. Asphalt Co., Inc.,
958 F.3d 541, 548 (7th Cir. 2020). We ask only whether “a rea-
sonable jury would not have a legally sufficient evidentiary
basis to find for the [prevailing] party” on the issue at hand.
Lawson v. Sun Microsystems, Inc., 791 F.3d 754, 761 (7th Cir.
2015) (quoting Fed. R. Civ. P. 50(a)(1)). We view all evidence
at trial “in the light most favorable to the verdict.” Turubchuk,
958 F.3d at 548. “Although we review the entire record, we do
not reweigh the evidence, make credibility determinations, or
consider evidence favorable to [Lange] that the jury was not
required to believe.” Rapold v. Baxter Int’l Inc., 718 F.3d 602,
613 (7th Cir.), as amended on denial of reh’g and reh’g en banc
Nos. 20-3048, 21-1110 25
(June 3, 2013). Under this standard, Lange’s argument for re-
versal has an even higher threshold to clear than under the
prejudice analysis above.
Lange argues that “[t]he trial record reveals that [the Cit-
ies] used Ms. Lange’s minor children absent an emergency in-
volving an imminent threat to the safety or welfare of an in-
dividual or the public where there is no interpreter.” In the
absence of any “emergency situation,” she argues that the dis-
trict court had “no legal basis to deny [Lange’s] motion for
judgment as a matter of law.”
Even if Lange is correct that there was no emergency situ-
ation, however, as discussed above, the jury still had ample
evidence to support a defense verdict. Such a verdict is proper
if there was evidence allowing the jury to find that the officers
did not make a deliberate choice to deprive Lange of her
rights. The jury heard from police officers present during the
incidents that Lange could and did effectively communicate
through means other than an interpreter. Additionally, sev-
eral witnesses testified that any inability to communicate re-
sulted from Lange’s own uncooperative behavior during her
interactions with the police. Even Lange herself testified that
she was upset during the encounters. Viewed as a whole, this
evidence provides a reasonable basis for the jury’s conclusion
that the Cities’ police officers did not violate Lange’s ADA
and Rehabilitation Act rights.
C. Evidentiary Challenge to Detective Crocker’s Tes-
timony
Lange next argues that the district court erred by allowing
Oconto Police Detective Crocker to testify as to Lange’s
26 Nos. 20-3048, 21-1110
contacts with the Cities’ police departments other than the
four at issue in this case.
Detective Crocker was not present for any of the four inci-
dents, but she testified that she had interacted with Lange on
numerous other occasions, and she had been able to effec-
tively communicate with Lange through pen and paper, as
well as lip reading and verbal communication. Crocker also
testified that, if Lange’s minor children were interpreting dur-
ing one of their interactions, it was because Lange had initi-
ated that method of communication. Detective Crocker spe-
cifically recalled that there were occasions when Lange would
call one of her children over for the purpose of using them to
interpret. Finally, Detective Crocker stated that Lange had 115
total interactions with public agencies in Oconto County (in-
cluding the two police departments, but also including other
agencies like the county or sheriff’s office).
Lange contends that the court should have excluded
Detective Crocker’s testimony as irrelevant to any non-
propensity purpose under Federal Rule of Evidence 404. Even
if relevant for a permissible purpose, Lange maintains that the
court still should have excluded Detective Crocker’s
testimony as unfairly prejudicial under Federal Rule of
Evidence 403.
We review a district court’s decision to admit or exclude
evidence for an abuse of discretion. Thompson v. Mem’l Hosp.
of Carbondale, 625 F.3d 394, 403 (7th Cir. 2010). “A decision is
an abuse of discretion only if ‘no reasonable person would
agree with the decision made by the trial court.’” Smith v.
Hunt, 707 F.3d 803, 807–08 (7th Cir. 2013) (quoting United
States v. Thomas, 453 F.3d 838, 845 (7th Cir. 2006)). “Even if we
found such an abuse of discretion, we would order a new trial
Nos. 20-3048, 21-1110 27
only if there were a significant chance that the ruling affected
the outcome of the trial.” Ford v. Marion Cnty. Sheriff’s Off.,
942 F.3d 839, 859 (7th Cir. 2019); see also Palmquist v. Selvik,
111 F.3d 1332, 1339 (7th Cir. 1997) (“Disturbing the judgment
of the district court on evidentiary grounds is necessary only
if an erroneous ruling had a ‘substantial influence over the
jury.’” (quoting United States v. Fairman, 707 F.2d 936, 941 (7th
Cir. 1983)).
1. Whether the District Court Should Have Excluded the Tes-
timony Under Rule 404
We begin with Lange’s challenge under Rule 404. Alt-
hough Lange cites to Rule 404(a), which provides that “[e]vi-
dence of a person’s character or character trait is not admissi-
ble to prove that on a particular occasion the person acted in
accordance with the character or trait,” the advisory commit-
tee on the Rules of Evidence defines “character” as “a gener-
alized description of one’s disposition, or of one’s disposition
in respect to a general trait, such as honesty, temperance, or
peacefulness.” Fed. R. Evid. 406 advisory committee’s note to
1972 proposed rules (quoting McCormick on Evidence § 162 at
340 (1954)); see also Michelson v. United States, 335 U.S. 469, 477
(1948) (“What commonly is called ‘character evidence’ is only
such when ‘character’ is employed as a synonym for ‘reputa-
tion.’”). Despite her citation to Rule 404(a), Lange’s arguments
focus on the introduction of evidence of “other acts”—
Lange’s communications during other incidents—not her
character. Thus, Lange’s Rule 404 arguments are more appro-
priately analyzed under Federal Rule of Evidence 404(b),
28 Nos. 20-3048, 21-1110
which excludes evidence of specific acts to show a person’s
propensity to behave in a certain way. 5
Rule 404(b) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with the character.” Fed. R. Evid. 404(b)(1). But
that rule also provides that “[t]his evidence may be admissi-
ble for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id. 404(b)(2). Rule 404(b)(2)’s list
of non-propensity purposes is “not exhaustive.” United States
v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008).
Although this “rule is straightforward enough, … confu-
sion arises because admissibility is keyed to the purpose for
which the evidence is offered, and other-act evidence is usu-
ally capable of being used for multiple purposes, one of which
is propensity.” United States v. Gomez, 763 F.3d 845, 855 (7th
Cir. 2014) (en banc). We have clarified that “the rule allows
the use of other-act evidence only when its admission is sup-
ported by some propensity-free chain of reasoning.” Id. at 856.
However, “[o]ther-act evidence need not be excluded when-
ever a propensity inference can be drawn.” Id. at 860.
“[R]ather, Rule 404(b) excludes the evidence if its relevance to
‘another purpose’ is established only through the forbidden
propensity inference.” Id. at 856. Courts must therefore con-
sider not just “whether the proposed other-act evidence is
5Tracking Rule 404(b)’s language, Lange’s brief, though citing Rule
404(a), also frames the issue as whether Detective Crocker’s testimony
about “unrelated acts” evinced Lange’s “propensity to use other auxiliary
aids to communicate with officers[.]”
Nos. 20-3048, 21-1110 29
relevant to a non-propensity purpose but how exactly the evi-
dence is relevant to that purpose—or more specifically, how
the evidence is relevant without relying on a propensity infer-
ence.” Id.With this guidance in mind, it is clear that Detective
Crocker’s testimony was offered for a non-propensity pur-
pose based on a non-propensity line of reasoning. The district
court ruled during the pretrial conference that testimony con-
cerning prior interactions between Lange and the Cities’ po-
lice officers would be admissible to “show the relationship be-
tween the parties” and “explain why and what the defendants
were thinking” about why they believed that communication
with Lange was effective. The judge also held that the testi-
mony would bear on the plaintiff’s credibility as to the extent
of her disability and “whether the plaintiff had made clear
that her disability required more.” At trial when Lange re-
newed her objection to Detective Crocker taking the stand, the
district court reiterated that Detective Crocker would simply
“testify as to her ability to communicate with Ms. Lange with-
out using an ASL [interpreter]” and admonished the Cities to
“steer clear of … any prejudicial facts[.]” The court further ex-
plained that the parties were “free to go into evidence of
[Lange’s] communication ability” but not “evidence of other
acts by Ms. Lange that would unduly prejudice her in the eyes
of the jury.”
In compliance with that ruling, Detective Crocker did not
describe the underlying facts of her prior interactions with
Lange; she merely testified that they occurred, and that in her
experience Lange could communicate without an interpreter.
On cross-examination, Lange’s counsel elicited that Detective
Crocker did not know whether Lange had been provided an
30 Nos. 20-3048, 21-1110
interpreter or whether she had requested one in any of the 115
incidents where Detective Crocker was not present.
Lange attempts to frame Detective Crocker’s testimony as
impermissible propensity evidence because it was admitted
“for no other purpose than to show the jury Ms. Lange had a
history of contacts with both police departments and Ms.
Lange had a propensity to use other auxiliary aids to com-
municate with officers” in violation of Rule 404. The testi-
mony, however, was appropriately addressed to Lange’s ca-
pabilities and credibility: Lange testified that pen and paper
and lip-reading were not effective methods of communicating
with her because she did not understand them very well. De-
tective Crocker’s testimony that she had previously commu-
nicated with Lange using these methods, and that Lange re-
sponded appropriately using these methods, was properly
admissible to show that she had a better grasp of reading and
writing and lip-reading than she claimed.
Accordingly, the district court did not err in admitting De-
tective Crocker’s testimony concerning her prior interactions
with Lange. While the testimony that Lange had 115 interac-
tions with Oconto County public agencies presents a closer
question, we cannot say on this record that “no reasonable
person would agree with the decision made by the trial court”
to admit that evidence. Smith, 707 F.3d at 807–08 (citation
omitted).
2. Whether the District Court Should Have Excluded the Tes-
timony Under Rule 403
Even if we determine that the relevance of Detective
Crocker’s testimony does not depend on propensity reason-
ing, we must assess whether the district court still should
Nos. 20-3048, 21-1110 31
have excluded the testimony under Rule 403. That rule per-
mits a district court to exclude other-act evidence if its proba-
tive value “is substantially outweighed by the risk of unfair
prejudice.” Gomez, 763 F.3d at 860. “Recognizing that ‘most
relevant evidence is, by its very nature, prejudicial, we have
emphasized that evidence must be unfairly prejudicial to re-
quire exclusion.’” United States v. Boros, 668 F.3d 901, 909 (7th
Cir. 2012) (some internal quotation marks omitted) (quoting
United States v. Hanna, 630 F.3d 505, 511 (7th Cir. 2010)). “Evi-
dence poses a danger of ‘unfair prejudice’ if it has ‘an undue
tendency to suggest decision on an improper basis, com-
monly, though not necessarily, an emotional one.’” United
States v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009) (quoting Fed.
R. Evid. 403 advisory committee’s note on proposed rules).
“The amount of prejudice that is acceptable varies according
to the amount of probative value the evidence possesses.” Id.For other-acts evidence, specifically, “[t]he court’s Rule 403
balancing should take account of the extent to which the non-
propensity fact for which the evidence is offered actually is at
issue in the case.” Gomez, 763 F.3d at 860. Nonetheless, “[t]he
balancing of probative value and prejudice is a highly discre-
tionary assessment, and we accord the district court’s deci-
sion great deference, only disturbing it if no reasonable per-
son could agree with the ruling.” United States v. Thomas,
321 F.3d 627, 630 (7th Cir. 2003).
Here, the probative value of Detective Crocker’s testi-
mony was not substantially outweighed by its prejudicial ef-
fect. Lange’s capacity to communicate effectively using aids
other than her children’s interpretation (such as pen and pa-
per or lip reading) was a central issue at trial. Detective
Crocker’s testimony that Lange had 115 contacts with public
agencies in Oconto County, including the Cities’ police
32 Nos. 20-3048, 21-1110
departments, was highly probative of the fact that she was in-
deed able to communicate effectively through these alterna-
tive aids. Though it may have suggested an improper infer-
ence regarding Lange’s character based on her repeated con-
tacts with the police, again, we cannot say that “no reasonable
person could agree” with the district court’s decision to admit
the testimony. See id.In any event, there is not a “significant chance that the er-
ror affected the outcome of the trial” here. See Smith, 707 F.3d
at 811. As described above, the jury heard testimony from the
police officers involved in the four incidents at issue. Those
officers testified as to their past ability to communicate with
Lange without an interpreter. Lange does not challenge that
testimony on appeal. That testimony about Lange’s past en-
counters with the police did not differ substantially from De-
tective Crocker’s testimony, and such evidence reasonably
could have led the jury to conclude either that Lange did ef-
fectively communicate with the officers or that any fault in
achieving effective communication did not result from the de-
fendants’ deliberate indifference. Stated differently, other ev-
idence not challenged on appeal provided a strong basis for a
defense verdict, and we cannot say that Detective Crocker’s
testimony in this regard unfairly prejudiced Lange.
D. The District Court’s Taxing of Costs to Lange
Our final issue on appeal is whether the district court
erred in imposing costs on Lange, given her indigence. We
review a district court’s decision to impose costs for an abuse
of discretion. Richardson v. Chi. Transit Auth., 926 F.3d 881, 893
(7th Cir. 2019).
Nos. 20-3048, 21-1110 33
The district court awarded costs to the Cities under Fed-
eral Rule of Civil Procedure 54. That rule states, in relevant
part, that “[u]nless a federal statute, [the Federal Rules of Civil
Procedure], or a court order provides otherwise, costs—other
than attorney’s fees—should be allowed to the prevailing
party.” Fed. R. Civ. P. 54(d)(1). “There is a presumption that
the prevailing party will recover costs, and the losing party
bears the burden of an affirmative showing that taxed costs
are not appropriate.” Richardson, 926 F.3d at 893 (quoting Bea-
mon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir.
2005)). This presumption in favor of awarding costs “is diffi-
cult to overcome”; therefore, “the court must award costs un-
less it states good reasons for denying them.” Id. (quoting
Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir.
1997)). “Generally, only misconduct by the prevailing party
worthy of a penalty or the losing party’s inability to pay will
suffice to justify denying costs.” Weeks, 126 F.3d at 945. Lange
argues that she falls under the latter exception because she is
indigent.
“[T]he indigence exception [under Rule 54(d)(1)] … is a
narrow one,” and its application is committed to the district
court’s discretion. Rivera v. City of Chicago, 469 F.3d 631, 636
(7th Cir. 2006). When exercising its discretion, a district court
must perform a two-step analysis. Id. at 635–36. First, the
court must “make a threshold factual finding that the losing
party is incapable of paying the court-imposed costs at this
time or in the future.” Richardson, 926 F.3d at 893 (internal
quotation marks omitted) (quoting Rivera, 469 F.3d at 635).
“The burden is on the losing party to provide the district court
with sufficient documentation to support such a finding.” Id.(quoting Rivera, 469 F.3d at 635). “Second, the district court
should consider the amount of costs, the good faith of the
34 Nos. 20-3048, 21-1110
losing party, and the closeness and difficulty of the issues
raised by a case … . No one factor is determinative, but the
district court should provide an explanation for its decision to
award or deny costs.” Rivera, 469 F.3d at 635–36.
In this case, the district court did not make a specific find-
ing regarding Lange’s indigency—instead stating that it
would award costs regardless of her indigent status. The
court did, however, reduce the amount of costs from the
$4,012.97 taxed by the clerk to $1,000 based on Lange’s indi-
gency. The Cities do not dispute Lange’s indigency on appeal.
Furthermore, Lange submitted to the district court an affida-
vit and “other documentary evidence of both income and as-
sets, as well as a schedule of expenses,” as required. See id. at
635. Accordingly, Lange satisfactorily demonstrated her indi-
gent status, and we proceed to the second part of the in-
quiry—the district court’s explanation of its decision to award
costs.
The district court gave a brief explanation of its decision
to award $1,000 in costs to the Cities. Regarding good faith,
the court stated that it “[did] not find that [Lange’s] suit was
frivolous, but” Lange’s prior interactions with the Cities’ po-
lice officers “raises questions about [Lange’s] ability to com-
municate with law enforcement.” The court also explained
that “[t]he issues presented in this case were not close or dif-
ficult, and [Lange] did not succeed on any of her claims.”
Lastly, the district court remarked that the $1,000 award it im-
posed would “allow[] [the Cities] to recover a portion of the
costs they were forced to incur and imposes a measure of ac-
countability on [Lange].”
On appeal, Lange argues that the district court’s decision
lacks any basis and that none of the factors warrant imposing
Nos. 20-3048, 21-1110 35
costs on her. We disagree. Addressing first the good-faith fac-
tor, the record demonstrates that Lange showed good faith.
For instance, the record does not show that Lange filed suit to
harass her opponents or abuse the legal process. See Popeil
Bros. v. Schick Elec., Inc., 516 F.2d 772, 776 (7th Cir. 1975). That
her claims were not frivolous but involved “issues as to which
the law is in doubt,” see Chi. Sugar Co. v. Am. Sugar Ref. Co.,
176 F.2d 1, 11 (7th Cir. 1949), further suggests she brought her
action in good faith.
A showing of good faith alone, however, is insufficient to
shield a losing litigant from paying costs. Muslin v. Freling-
huysen Livestock Managers, Inc., 777 F.2d 1230, 1236 (7th Cir.
1985); see also Congregation of the Passion, Holy Cross Province v.
Touche, Ross & Co., 854 F.2d 219, 221 (7th Cir. 1988) (“[T]he
mere fact that the unsuccessful party was an ordinary party
acting in good faith and neither harassing its opponent nor
abusing legal process is not sufficient to overcome the pre-
sumption that the prevailing party is entitled to costs.” (quot-
ing Popeil Bros., 516 F.2d at 776)). Therefore, to the extent that
Lange argues that her good faith in pursuing her lawsuit
alone provides a basis to deny costs to defendant-appellees,
we disagree. Instead, Lange’s good faith is but one factor in
the analysis.
Lange also contends that the closeness and difficulty of the
issues raised in her case provide a basis to overcome the pre-
sumption in favor of awarding costs. Certainly, “the closeness
of a case can be a reason for denying an award of costs to the
prevailing party in cases in which the losing party is indi-
gent ….” U.S. ex rel. Pileco, Inc. v. Slurry Sys., Inc., 804 F.3d 889,
894 (7th Cir. 2015). To support her position, Lange relies on a
Sixth Circuit decision stating that “[t]he closeness of a case is
36 Nos. 20-3048, 21-1110
judged not by whether one party clearly prevails over an-
other, but by the refinement of perception required to recog-
nize, sift through and organize relevant evidence, and by the
difficulty of discerning the law of the case.” White & White,
Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 732–33 (6th Cir.
1986).
Even applying that standard, however, the district court
did not abuse its discretion in finding that Lange’s case did
not present close or difficult issues. A district court “only
abuses its discretion in reviewing a bill of costs if ‘no reason-
able person could take the view adopted by the trial court.’”
Williams v. Off. of Chief Judge of Cook Cnty., 839 F.3d 617, 628
(7th Cir. 2016) (quoting Rivera, 469 F.3d at 636). The record
here provides a reasonable basis for the district court’s find-
ing. While Lange’s case involved some unresolved and nu-
anced issues of law, they were not particularly difficult. The
trial lasted only three days and did not require the court,
counsel, or jury to scrutinize vast or complex evidence. Lange
argues that her case was close because it survived summary
judgment. That the district court identified issues of material
fact allowing the case to go to trial, however, does not neces-
sarily mean that those issues were difficult or close at the trial
itself in view of all the evidence. Indeed, the jury deliberated
for less than two hours, providing additional evidence that
Lange’s case was not close.
Lastly, Lange argues that the district court’s finding that
the reduced award of $1,000 in costs would “impose a meas-
ure of accountability” on her does not justify awarding costs
to the Cities. She also contends that the court should have de-
nied costs because the amount imposed will have a chilling
effect on future civil rights litigants. Lange bolsters her
Nos. 20-3048, 21-1110 37
position with authority from the Ninth Circuit endorsing the
denial of costs when their “imposition … on losing civil rights
plaintiffs of modest means may chill civil rights litigation[.]”
Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1080 (9th Cir. 1999);
see also Ass’n of Mex.-Am. Educators v. California, 231 F.3d 572,
593 (9th Cir. 2000) (“[D]ivesting district courts of discretion to
limit or to refuse such overwhelming costs in important,
close, but ultimately unsuccessful civil rights cases like this
one might have the regrettable effect of discouraging poten-
tial plaintiffs from bringing such cases at all.”). Lange again
relies on Ninth Circuit authority to make the related argu-
ment that the district court ignored the public importance of
her case in deciding to impose costs. See Stanley, 178 F.3d at
1080 (noting that civil rights plaintiffs may “raise important
issues” that “test the boundaries of our laws” and spur “pro-
gress”).
This out-of-circuit authority is not binding on us. Even if
it were, it would not undermine the district court’s conclu-
sion. Setting aside that we have not recognized public im-
portance as an appropriate basis for denying costs, see Weeks,
126 F.3d at 945 (“Generally, only misconduct by the prevail-
ing party worthy of a penalty or the losing party’s inability to
pay will suffice to justify denying costs.”), the cases Lange
cites involved costs many times greater than the award at is-
sue in this case. Stanley v. University of Southern California in-
volved an award of $46,710.97 in costs. See 178 F.3d at 1080. In
Association of Mexican-American Educators v. California, the de-
fendants sought an award of $216,443.67. See 231 F.3d at 579.
Moreover, the amount awarded in Lange’s case not only com-
prised a substantially smaller amount of costs than in the
above cases, it also represented a fraction of the amount orig-
inally taxed by the clerk’s office. Accordingly, we cannot
38 Nos. 20-3048, 21-1110
conclude that the award of costs here represented an abuse of
discretion because of the potentially chilling effect on other
civil rights litigants or the public importance of the case.
Perhaps anticipating the strong headwinds confronting
her challenge to the district court’s costs award, Lange turns
to other areas of law for support, in particular, the standard
that applies to an award of attorney’s fees.
Critically, the district court in this case awarded costs, not
attorney’s fees. As noted, Federal Rule of Civil Procedure
54(d)(1) provides that costs other than attorney’s fees “should
be allowed to the prevailing party,” and “[t]here is a pre-
sumption that the prevailing party will recover costs,” Rich-
ardson, 926 F.3d at 893 (quoting Beamon, 411 F.3d at 864).
Attorney’s fees are addressed separately, in Rule 54(d)(2),
which sets forth the procedures for assessing attorney’s fees
and requires the moving party to “specify the … statute, rule,
or other grounds entitling the movant to the award [of attor-
ney’s fees].” In its decision in Christiansburg Garment Co. v.
EEOC, the Supreme Court set forth a higher standard to “in-
form a district court’s discretion in deciding whether to award
attorney’s fees to a successful defendant” under one such stat-
ute, Title VII of the Civil Rights Act of 1964. 434 U.S. 412, 417
(1978) (emphasis omitted); see also 42 U.S.C. § 2000e-5(k) (Title
VII’s fees and costs provision). In Christiansburg, the Supreme
Court held that Title VII permits the recovery of attorney’s
fees by a prevailing defendant only when the plaintiff’s claim
“was frivolous, unreasonable, or without foundation,” since
“assessing attorney’s fees against plaintiffs simply because
they do not finally prevail would substantially add to the
risks inhering in most litigation and would undercut the ef-
forts of Congress to promote the vigorous enforcement of the
Nos. 20-3048, 21-1110 39
provisions of Title VII.” Id. at 421–22. Christiansburg did not
disturb the presumption that a prevailing party should re-
cover costs under Title VII and Rule 54(d). See, e.g., Beamon,
411 F.3d 854 (holding that “the losing party bears the burden
of an affirmative showing that taxed costs are not appropri-
ate” in a Title VII case).
It is well-established that the Christiansburg standard ap-
plies to an award of attorney’s fees under the ADA. See Sum-
mers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997);
Adkins v. Briggs & Stratton Corp., 159 F.3d 306, 307 (7th Cir.
1998). Lange wishes to take things a step further and contends
that we should apply the heightened attorney’s fees standard
from Christiansburg to an award of costs under the ADA. The
Ninth Circuit has adopted Lange’s position, holding that the
structure of the ADA’s fees and costs provision warrants the
extension of the Christiansburg standard to an award of costs
under the ADA, as well. See Brown v. Lucky Stores, Inc.,
246 F.3d 1182, 1190 (9th Cir. 2001). Unlike Title VII, which
states that a court may award “the prevailing party … a rea-
sonable attorney’s fee (including expert fees) as part of the
costs,” 42 U.S.C. § 2000e-5(k), the ADA states that a court may
award “a reasonable attorney’s fee, including litigation ex-
penses, and costs,” 42 U.S.C. § 12205. The Ninth Circuit ex-
tended the Christiansburg standard to an award of costs under
the ADA because the statute “makes fees and costs parallel”
in a way that Title VII does not. Brown, 246 F.3d at 1190.
We need not decide today whether to adopt this standard,
however, because Lange also brought a claim under the Re-
habilitation Act. No circuit court, including the Ninth Circuit,
has applied the Christiansburg attorney’s fee standard to an
award of costs under the Rehabilitation Act. In fact, when
40 Nos. 20-3048, 21-1110
given the opportunity to do so, the Ninth Circuit declined,
concluding that the “parallel structure in the ADA between
costs and attorney fees is critically absent from the relevant
texts of both the Rehabilitation Act and Title VII.” Martin v.
Cal. Dep’t of Veterans Affs., 560 F.3d 1042, 1052 (9th Cir. 2009).
In fact, the Rehabilitation Act’s text is materially identical to
that of Title VII. Compare 29 U.S.C. § 794a(b) (permitting pre-
vailing party to recover “a reasonable attorney’s fee as part of
the costs” under the Rehabilitation Act) and 42 U.S.C. § 2000e-
5(k) (permitting a court to award “the prevailing party … a
reasonable attorney’s fee (including expert fees) as part of the
costs” under Title VII) with 42 U.S.C. § 12205 (permitting court
to award “a reasonable attorney’s fee, including litigation ex-
penses, and costs” under the ADA) (emphases added)). The
Ninth Circuit thus concluded that “the wording of the [Reha-
bilitation Act] supports an inference that the general provi-
sion in Rule 54(d)(1) of the Federal Rules of Civil Procedure—
that costs are allowed in the ordinary course to the prevailing
party—applies.” Martin, 560 F.3d at 1053. We agree.
Accordingly, Lange has not demonstrated a basis in law
to require that an award of costs under the Rehabilitation Act
satisfy the Christiansburg standard. If that standard does not
apply, then the district court did not abuse its discretion by
awarding costs to the Cities as the prevailing party on the Re-
habilitation Act claim, even while finding Lange’s claims not
frivolous.
Finally, Lange points to our own precedent regarding
attorney’s fee awards to argue that the district court should
not have awarded costs to the Cities because her case
involved novel legal issues. For two significant reasons,
however, the cases Lange cites do not dictate the outcome
Nos. 20-3048, 21-1110 41
here. First, those cases involved awards of attorney’s fees, not
costs. See LeBeau v. Libbey-Owens-Ford Co., 799 F.2d 1152, 1156
(7th Cir. 1986), reh’g denied and opinion modified sub nom. Le
Beau v. Libbey-Owens-Ford Co., 808 F.2d 1272 (7th Cir. 1987);
Reichenberger v. Pritchard, 660 F.2d 280, 287–88 (7th Cir. 1981).
We have not endorsed considering whether a case presents
novel issues as a basis for denying costs. Second, the plaintiffs
in those cases brought claims under Title VII and 42 U.S.C.
§§ 1983 and 1985—not the ADA or the Rehabilitation Act. See
LeBeau, 799 F.2d at 1154–55; Reichenberger, 660 F.2d at 284. As
we have just explained, no court has held that Christiansburg
applies to costs imposed under the Rehabilitation Act.
“In making a discretionary decision, a court must present
an explanation for its choice sufficient to enable a reviewing
court to determine that it did not act thoughtlessly, but in-
stead considered the factors relevant to its decision and in fact
exercised its discretion.” Patton v. MFS/Sun Life Fin. Distribs.,
Inc., 480 F.3d 478, 491 (7th Cir. 2007). The district court here
set forth a reasonable explanation for its decision to impose
costs that took the relevant factors into consideration. While
room for disagreement exists, the district court did not abuse
its discretion. Accordingly, we affirm the court’s decision to
impose costs.
III. Conclusion
For the reasons explained above, the Court AFFIRMS the
judgment of the district court in favor of defendants-
appellees, the denial of Lange’s motion for judgment of
matter of law, the decision to admit Detective Crocker’s
testimony, and the assessment against Lange of $1,000 in
costs.