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 Disabilities 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 district 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, reversal of the decision to impose costs on her. We conclude, however, 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 impose 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 expressions 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) (quoting 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 language 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 discriminated against her in violation of the ADA and the Rehabilitation Act during interactions between Lange and the Cities’ police departments. The case survived summary judgment and proceeded to trial regarding four episodes (the “incidents”), 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 incidents, the police did not provide Lange with an ASL interpreter but instead relied on one of Lange’s minor children for 

interpretive services in some capacity. Lange alleged that during each incident she requested an interpreter or, alternatively, 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 following 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 versions 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 attempted 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 protecting Lange’s ability to communicate with her hands. 

As Officer Sowle walked Lange to the squad car after placing 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 disorderly 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 contended 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 requested an ASL interpreter during any of her contacts with 

him. Finally, Officer Sowle stated that Lange was easily agitated, 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 understanding 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 interpreter, 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 arrived. 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 notepad 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., interpreting, Lange requested a complaint and witness forms 

regarding her arrest on May 30; she later returned the completed 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 requested 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. According 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 Department, 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 contacts with Lange. In Crocker’s experience, Lange never requested an ASL interpreter; instead, she estimated, Lange relied 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 communication 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 understand 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 immediate 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 Officer 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 communicate 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 interpreter during the incident; however, Lange also never requested 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. After 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 Officer Kuhn asked B. if she could come in, Lange answered verbally, “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 something 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, whereupon 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 instance in which Lange had requested an ASL interpreter and 

had never seen Lange communicating with an interpreter. Instead, Officer Kuhn testified that she believed Lange could 

communicate adeptly through lip reading and by pen and paper, 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, Officer 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 encounter.

Lange showed the message, sent over the Facebook Messenger 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 Parmer 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 afternoon. Although they knew Lange was deaf, they did not attempt to secure an interpreter before going to her home.

The officers saw B. when they arrived at Lange’s apartment 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 became agitated, loud, argumentative, and generally uncooperative. Officer Fischer explained that the police informed B.

that they were looking for a particular hat and electronic devices, and he believed B. and Lange clearly understood because 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 electronic 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 searching her home.

Officer Fischer further testified that he had many contacts 

with Lange, and he believed that she could adeptly communicate through writing. He said that he could not remember any 

contact where he wrote something and Lange did not understand it. Additionally, he testified that Lange never asked for 

an interpreter.

Chief Olsen and Officer Fischer testified that Lange initiated 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 sometimes 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 thirtyfive 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 effective 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 advisement 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 interpreter;

3. As a result, Plaintiff was unable to effectively 

communicate with the officers; and

4. In failing to provide an interpreter, the Defendant intentionally discriminated against 

Plaintiff based on her disability. Intentional 
14 Nos. 20-3048, 21-1110 

discrimination does not require personal animosity or ill will.

The district court also instructed the jury on certain regulations, discussed further below, that elaborate on a public entity’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 objection, 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 recognized 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 admitting 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, however, 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 nonemergency situations. Third, she asserts that the court wrongly allowed Detective Crocker, a nonparty to the four incidents at 

issue, to testify to Lange’s approximately 115 unrelated contacts 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 address 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 imminent threat to the safety or welfare of an individual or the public where there is no other interpreter readily available. Police need not interfere, however, in the decision of a private citizen to use his or her own child to facilitate her 

communication.

According to Lange, the final sentence of this instruction misstated 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 misguides the jury to the extent that the complaining party suffered 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 discrimination 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 disability ... shall, solely by reason of ... disability, be excluded 

from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....”). For purposes of this appeal, 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 Congress,” Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 

751 (7th Cir. 2006) (en banc), has issued implementing regulations concerning when covered entities may rely on friends 

or family members accompanying individuals with disabilities 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 regulations 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] deference” 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 auxiliary 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 different auxiliary aid—is necessary to “ensure effective communication,” 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 prohibition 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 appropriate 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 assumed 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 exception. Id. § 35.160(c)(3).

On Lange’s view, the district court created a second, impermissible 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 communication.” During the jury instruction conference, the district 

court reasoned that its instruction did not misstate the law because Lange, not the police officers, “relied” on her children 

to interpret. Lange argues that that distinction employs an exceedingly 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 interpretation—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 comments 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 involving minor children in adult situations (like those concerning 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 Disability 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 specialized vocabulary needed to interpret effectively and accurately.” 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 explicitly 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 subsection (b) of the regulation, which states that, “[i]n determining 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 appropriately harmonized section (b)’s directive to give primary consideration to disabled individuals’ preferred auxiliary aids, 

with section (c)’s general prohibition on the use of accompanying individuals.4 

4 The 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 minor 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 ensure 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] necessary 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 public entity should “give primary consideration to the requests 

of the individuals with disabilities.” See id. When an interpreter 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 interpreter. See id. § 35.160(c)(1)–(3). As discussed above, subsection (c)(3)—the provision at issue here—identifies the limited 

circumstance in which a minor child may interpret: an imminent emergency where no interpreter is readily available. See 

id. § 35.160(c)(3). According to Lange, the prohibition contained in 28 C.F.R. § 35.160(c)(3) thus supersedes an individual’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 specific one controls.”).

However, while both sides present compelling arguments, 

we need not resolve the dispute over these competing readings 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 instructions, the evidence, and the arguments advanced by the parties, 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) (quoting 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 obvious,” (2) the Cities “unreasonably failed to give primary consideration to her request for an interpreter,” (3) as a result, 

Lange “was unable to effectively communicate with the officers,” and (4) in “failing to provide an interpreter, [the Cities] 

intentionally discriminated against [Lange] based on her disability.” 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 intentional 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 quotation marks omitted) (quoting S.H. ex rel. Durrell v. Lower Merion 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—effectively, 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 defendants’ 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 inquiry is knowledge, and evidence that the [defendant] may 

have been wrong about [the plaintiff’s disability] is not evidence that the [defendant] had knowledge that” it was likely 

violating the plaintiff’s rights). Given the officers’ understanding 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 different outcome had the instructions been correct.” See Kuberski, 5 F.4th at 780. Mere “speculation that the jury might 

have decided the case differently if given the proper instruction 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 entitled 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 reasonable 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 reversal has an even higher threshold to clear than under the 

prejudice analysis above. 

Lange argues that “[t]he trial record reveals that [the Cities] used Ms. Lange’s minor children absent an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter.” In the 

absence of any “emergency situation,” she argues that the district 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 situation, 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, several witnesses testified that any inability to communicate resulted 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 Testimony

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 incidents, but she testified that she had interacted with Lange on 

numerous other occasions, and she had been able to effectively 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 during one of their interactions, it was because Lange had initiated that method of communication. Detective Crocker specifically 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 (including 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 nonpropensity 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 Testimony Under Rule 404 

We begin with Lange’s challenge under Rule 404. Although Lange cites to Rule 404(a), which provides that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in 

accordance with the character or trait,” the advisory committee on the Rules of Evidence defines “character” as “a generalized 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 ‘reputation.’”). 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 appropriately 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 admissible 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, ... confusion arises because admissibility is keyed to the purpose for 

which the evidence is offered, and other-act evidence is usually 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 supported by some propensity-free chain of reasoning.” Id. at 856. 

However, “[o]ther-act evidence need not be excluded whenever 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 consider not just “whether the proposed other-act evidence is 

5 Tracking 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 evidence is relevant to that purpose—or more specifically, how 

the evidence is relevant without relying on a propensity inference.” Id.

With this guidance in mind, it is clear that Detective 

Crocker’s testimony was offered for a non-propensity purpose based on a non-propensity line of reasoning. The district 

court ruled during the pretrial conference that testimony concerning prior interactions between Lange and the Cities’ police officers would be admissible to “show the relationship between 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 testimony 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 renewed 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 without using an ASL [interpreter]” and admonished the Cities to 

“steer clear of ... any prejudicial facts[.]” The court further explained 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 communicate with officers” in violation of Rule 404. The testimony, however, was appropriately addressed to Lange’s capabilities 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. Detective Crocker’s testimony that she had previously communicated with Lange using these methods, and that Lange responded 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 Detective Crocker’s testimony concerning her prior interactions 

with Lange. While the testimony that Lange had 115 interactions 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 Testimony Under Rule 403 

Even if we determine that the relevance of Detective 

Crocker’s testimony does not depend on propensity reasoning, we must assess whether the district court still should 
Nos. 20-3048, 21-1110 31

have excluded the testimony under Rule 403. That rule permits a district court to exclude other-act evidence if its probative 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 require 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)). “Evidence poses a danger of ‘unfair prejudice’ if it has ‘an undue 

tendency to suggest decision on an improper basis, commonly, 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 nonpropensity 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 discretionary assessment, and we accord the district court’s decision great deference, only disturbing it if no reasonable person 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 testimony was not substantially outweighed by its prejudicial effect. Lange’s capacity to communicate effectively using aids 

other than her children’s interpretation (such as pen and paper 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 indeed able to communicate effectively through these alternative aids. Though it may have suggested an improper inference regarding Lange’s character based on her repeated contacts 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 error 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 encounters with the police did not differ substantially from Detective Crocker’s testimony, and such evidence reasonably 

could have led the jury to conclude either that Lange did effectively communicate with the officers or that any fault in 

achieving effective communication did not result from the defendants’ deliberate indifference. Stated differently, other evidence 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 Federal 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 Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 

2005)). This presumption in favor of awarding costs “is difficult to overcome”; therefore, “the court must award costs unless 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 finding 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 indigency. The Cities do not dispute Lange’s indigency on appeal. 

Furthermore, Lange submitted to the district court an affidavit and “other documentary evidence of both income and assets, as well as a schedule of expenses,” as required. See id. at 

635. Accordingly, Lange satisfactorily demonstrated her indigent status, and we proceed to the second part of the inquiry—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’ police officers “raises questions about [Lange’s] ability to communicate with law enforcement.” The court also explained 

that “[t]he issues presented in this case were not close or difficult, and [Lange] did not succeed on any of her claims.” 

Lastly, the district court remarked that the $1,000 award it imposed would “allow[] [the Cities] to recover a portion of the 

costs they were forced to incur and imposes a measure of accountability 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 factor, 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. Frelinghuysen 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 presumption that the prevailing party is entitled to costs.” (quoting 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 presumption 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 indigent ....” 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 another, but by the refinement of perception required to recognize, 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 reasonable 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 finding. While Lange’s case involved some unresolved and nuanced 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 necessarily 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 measure of accountability” on her does not justify awarding costs 

to the Cities. She also contends that the court should have denied 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 potential plaintiffs from bringing such cases at all.”). Lange again 

relies on Ninth Circuit authority to make the related argument 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 “progress”).

This out-of-circuit authority is not binding on us. Even if 

it were, it would not undermine the district court’s conclusion. Setting aside that we have not recognized public importance as an appropriate basis for denying costs, see Weeks, 

126 F.3d at 945 (“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.”), the cases Lange 

cites involved costs many times greater than the award at issue in this case. Stanley v. University of Southern California involved an award of $46,710.97 in costs. See 178 F.3d at 1080. In 

Association of Mexican-American Educators v. California, the defendants sought an award of $216,443.67. See 231 F.3d at 579. 

Moreover, the amount awarded in Lange’s case not only comprised a substantially smaller amount of costs than in the 

above cases, it also represented a fraction of the amount originally 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 presumption that the prevailing party will recover costs,” Richardson, 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 attorney’s fees].” In its decision in Christiansburg Garment Co. v. 

EEOC, the Supreme Court set forth a higher standard to “inform a district court’s discretion in deciding whether to award 

attorney’s fees to a successful defendant” under one such statute, 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 efforts 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 recover 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 appropriate” in a Title VII case). 

It is well-established that the Christiansburg standard applies to an award of attorney’s fees under the ADA. See Summers 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 reasonable 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 expenses, and costs,” 42 U.S.C. § 12205. The Ninth Circuit extended 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 Rehabilitation 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 prevailing party to recover “a reasonable attorney’s fee as part of 

the costs” under the Rehabilitation Act) and 42 U.S.C. § 2000e5(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 expenses, and costs” under the ADA) (emphases added)). The 

Ninth Circuit thus concluded that “the wording of the [Rehabilitation Act] supports an inference that the general provision 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 Rehabilitation 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 instead 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 defendantsappellees, 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.