Hernandez v. Cook County Sheriff's Office

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1440

IVAN H ERNANDEZ, et al.,

Plaintiffs-Appellees,

v.

C OOK C OUNTY S HERIFF’S O FFICE, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07-CV-00855—Ronald A. Guzman, Judge.

A RGUED S EPTEMBER 23, 2010—D ECIDED F EBRUARY 24, 2011

Before C UDAHY, FLAUM, and W OOD , Circuit Judges.

C UDAHY , Circuit Judge. The defendants, officers of the

Cook County Sheriff’s Office (CCSO) and the Sheriff’s

Office itself, appeal from a denial of summary judgment

sought on grounds of qualified immunity. We reverse

the denial of summary judgment and remand for recon-

sideration of the qualified immunity defense.

2 No. 10-1440

I. Facts and Procedural History

A. Factual Background

The event immediately precipitating this factually

confusing case was a jailbreak at the Abnormal Behavior

Observation (ABO) unit of the Cook County jail on Febru-

ary 11, 2006. At approximately 11:30 p.m. on that date,

an inmate named Patrell Doss overpowered a jail guard

named Darin Gater after temporarily blinding him

by throwing a cleaning solution in his face. Doss then

released seven other inmates from their cells. The

inmates shut off the lights and set a diversionary fire,

and Doss put on Gater’s uniform. In the confusion, the

disguised Doss convinced other jail guards to open

certain internal doors, after which the inmates beat

several guards. Using keys obtained from the subdued

guards, six inmates managed to escape the facility. They

were soon recaptured in the Chicago area. Sheriff’s

Office authorities immediately suspected that the in-

mates had help from within the CCSO ranks, and Darin

Gater soon admitted to being one who, among others,

was complicit in the escape.

The six plaintiffs are former officers of the CCSO Special

Operations Response Team (SORT),1 each of whom was

investigated in connection with the jailbreak. Hernandez

and Rodriguez were sergeants, while the remaining

four plaintiffs were regular SORT correctional officers.

1

The SORT was an approximately twenty-member elite unit

of the CCSO. This team was responsible for security in the

jail’s ABO unit.

No. 10-1440 3

Darin Gater identified plaintiffs Jones, Rodriguez and

Michno specifically as having advance knowledge of the

jailbreak, while suspicion fell on the other three officers

indirectly. In particular, Gater asserted that plaintiff

Jones had approached him multiple times with a proposi-

tion to stage a jailbreak to draw adverse attention to the

leading Cook County Sheriff candidate, Tom Dart, in

advance of a pending election. Gater asserted that Sergeant

Rodriguez was present for at least one such conversation.

Plaintiffs Bailey and Davis came under suspicion

because both were on duty at the jail, but away from

their posts when the jailbreak occurred. Moreover, Gater

described Bailey and Davis to investigators as being

cozy with the inmates, allowing them to engage in pro-

hibited conduct. Finally, plaintiff Hernandez was the

shift commander for the shift immediately preceding

the jailbreak. He allegedly failed to conduct a physical

roll call of SORT officers for the oncoming shift, and

did not respond to reports that one inmate was in pos-

session of a shank. Hernandez left the jail at 10:00 p.m.

on the night of the jailbreak.

Internal and criminal investigations followed the jail-

break, and the investigations gave rise to the plaintiffs’

alleged injuries. Almost immediately after the jailbreak

five of the six plaintiffs were suspended with pay

“pending [the] criminal investigation.” The plaintiffs

claim variously that in the days following the jail-

break, investigators detained them under guard for up

to 24 hours, and denied them food, water and sleep.

Several claim that they were discouraged from con-

4 No. 10-1440

tacting a union steward or an attorney. All of the plain-

tiffs were brought up on administrative charges

within the CCSO. Jones, Michno, Bailey, Davis and

Hernandez were immediately transferred from the

SORT; Rodriguez was transferred several months later.

Ultimately, Hernandez, Davis and Bailey were found to

have violated their professional duties. Hernandez was

suspended for five days, whereas Davis and Bailey were

apparently either terminated or encouraged to quit.

The evidence was deemed insufficient to sustain admin-

istrative charges against the other three plaintiffs. At

some time during or soon after the investigations, the

SORT unit was disbanded.

The plaintiffs argue that the defendant leaders of the

CCSO2 violated their First Amendment rights,3 because

the harsh investigation and the sanctions that followed

were motivated by retaliation for the plaintiffs’ com-

2

In particular, the defendants (and their offices during the

relevant time) are Michael Sheahan, Cook County Sheriff; Tom

Kaufmann, Chief of the Internal Affairs Division; Thomas

Snooks, the Superintendent of the CCSO’s Department of

Corrections (DOC); Scott Kurtovich, DOC Assistant Director;

and Dennis Andrews, the DOC’s Director of External Opera-

tions; as well as the CCSO and Cook County.

3

Based on their alleged injuries, one might expect that the

plaintiffs were making a Fourth Amendment-based argument

that they were arrested or detained without probable cause,

or a Fifth Amendment argument based on a post-arrest denial

of counsel. These are not their arguments, however, and

we confine our discussion to the issues they have raised.

No. 10-1440 5

plaints about jail conditions and by politics within the

CCSO. In addition, the plaintiffs raise emotional distress

and false imprisonment claims.

In view of the plaintiffs’ argument that the post-jailbreak

investigation had ulterior motives, some background

information is needed about the plaintiffs’ workplace

safety complaints and the political context at the Cook

County Sheriff’s Office. The plaintiffs alleged that in

the months leading up to the jailbreak several of the

plaintiffs had complained about jail security problems

both within and outside of the CCSO chain of command.

In particular, they pointed to jail overcrowding, insuf-

ficient staffing during the night shift and the need

for Plexiglas in the cells. Sergeants Hernandez and Rodri-

guez had forwarded some of these complaints to the

CCSO Inspector General’s office.

As to the political context, around the time of the jail-

break the leader of the SORT, Richard Remus, had chal-

lenged Tom Dart, the presumably favored candidate and

the incumbent sheriff’s Chief of Staff, in the election

for Cook County Sheriff. Remus drew strong support

from the officers of the SORT unit, and the plaintiffs

allege that this put them at odds with others within

the CCSO, including defendant Kaufmann.

The plaintiffs draw support for the view that the defen-

dants had an allegedly political motive from state-

ments the defendants made during the post-jailbreak

investigation. The plaintiffs assert that when defendant

Kaufmann responded to the ABO unit following the

jailbreak, he immediately linked the jailbreak with the

6 No. 10-1440

plaintiffs’ political affiliation, shouting “this smells of

Remus,” and “this is a Remus set-up.” In addition, while

questioning the plaintiffs, investigators made state-

ments linking the jailbreak to the political context in

the CCSO, including that “we know you guys had some-

thing to do with this because of Remus.” When Bailey

and Michno went to receive their suspension and reas-

signment orders from defendant Andrews, he allegedly

stated that the investigation was “political” and out of

his hands.

The plaintiffs also allege that two other sets of officers,

the Post 3 and Post 78 officers, were present for the jail-

break. While their failure to stop the inmates was

essential for the escape, these officers were not

formally investigated or suspended. This omission, the

plaintiffs argue, illustrates that ulterior motives

underlay the investigation. The defendants, on the other

hand, argue that the guards who were not investi-

gated were violently subdued by the escaping inmates

and that this explains why they did not come under

the same scrutiny.

B. Procedural History

The plaintiffs filed a complaint in February of 2007,

raising five claims: (1) retaliation in violation of the right

to free political association under the First Amendment;

(2) retaliation in violation of the right to free speech

under the First Amendment; (3) conspiracy to retaliate

based on political affiliation, in violation of the First

No. 10-1440 7

Amendment;4 (4) state law intentional infliction of emo-

tional distress; and (5) state law false imprisonment.

Soon after the defendants answered the complaint, they

moved to dismiss under Fed. R. Civ. P. 12(b)(6), claiming

qualified immunity in a four-page discussion. The de-

fendants separately argued that they were entitled to

statutory immunity on the plaintiffs’ state law claims

for emotional distress and false imprisonment.5 The

plaintiffs responded to the contrary, and the district

court apparently did not rule on this motion to dismiss.

Notwithstanding that the motion to dismiss had not

been adjudicated, the defendants moved for sum-

mary judgment on August 8, 2008. The court acknowl-

edged in a minute order that “[d]efendants have rep-

resented that the pending summary judgment motion

incorporates the arguments raised in the motion to dis-

miss.”

In their opening memorandum in support of sum-

mary judgment, the defendants argued only briefly

their entitlement to qualified immunity. The qualified

4

In characterizing the § 1983 conspiracy claim as based on

political retaliation rather than free speech retaliation, we

rely on the district court’s description in its summary judg-

ment memorandum.

5

The defendants pointed to the Illinois Local Government

and Governmental Employees Tort Immunity Act, 745 ILCS

10/2-202, providing that “[a] public employee is not liable for

his act . . . in the . . . enforcement of any law unless such act . . .

constitutes willful and wanton conduct.”

8 No. 10-1440

immunity discussion comprises three paragraphs, the

first two of which consist exclusively of discussion of

qualified immunity case law, and the third of which

attempts to apply the law to the facts of this case. The

third paragraph reads in its entirety as follows:

Applying the Anderson[ 6 ] standard to the case at

bar, Plaintiffs name all of the Defendants in their

individual capacities. A reasonable official would

not have known that by investigating the escape of

six dangerous inmates and the potential criminal

or negligent involvement of correctional officers

would violate any constitutional right. The investi-

gation was done in a lawful manner and was reason-

able in relation to the specific facts confronting

the public official[s] at the time they acted.

Unlike in their memorandum in support of their

motion to dismiss, at summary judgment the defendants

did not cite the Illinois Tort Immunity Act and they

made no argument that they were entitled to immunity

for the counts for state law emotional distress and

false arrest.

In the plaintiffs’ response to the defendants’ summary

judgment motion, they argued that the defendants

are not entitled to qualified immunity on the merits and

also claimed that the defendants had waived qualified

immunity by arguing it deficiently. Then, the defendants

filed a reply brief in which they discussed for four

6

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

No. 10-1440 9

pages their claim for qualified immunity with respect to

the plaintiffs’ First Amendment claims. The defendants’

reply brief discussion is much more thorough in

applying qualified immunity case law to the facts of

the present case than their main brief.

But the district court denied the defendants summary

judgment on the basis of qualified immunity. In its memo-

randum disposing of the defendants’ summary judg-

ment motion, the district court struck certain of the de-

fendants’ facts for noncompliance with Local Rule 56.1.7

The court then held that the defendants had waived

their qualified immunity argument by giving it such

limited treatment in their brief supporting summary

judgment. Thus, the court stated,

Defendants’ assertion of qualified immunity deserves

as much attention as they have given it. Defendants’

argument, which consists of three sentences, is so

deficient that the Court deems it waived for pur-

poses of the instant motion. The Court denies defen-

dants’ motion for summary judgment based on quali-

fied immunity.

The court did not reach the summary judgment merits

or inquire whether, if the issue had not been waived,

the defendants would be entitled to qualified immunity.

7

That Rule requires that parties submit with their summary

judgment memoranda a statement of material facts, “including

within each paragraph specific references to the affidavits,

parts of the record, and other supporting materials relied

upon[.]”

10 No. 10-1440

The outcome of the summary judgment motion was to

grant only partial summary judgment in favor of the

defendants. In particular, the district court granted the

defendants summary judgment on the merits as to the

First Amendment claim based on retaliation for work-

place complaints. But the court denied summary judg-

ment as to the First Amendment political retaliation

claim and the related conspiracy claim as well as the

state law emotional distress and false imprisonment

claims.

The defendants appeal from the denial of qualified

immunity as to the political retaliation claim. They

argue only that there was error in denying qualified

immunity as to the First Amendment claims, but there

is no similar argument with respect to the state law

claims for intentional infliction of emotional distress and

false imprisonment; thus they apparently concede that

state law immunity is not now at issue. The plaintiffs

argue in their opening brief:

Political retaliation is the lifeblood of this case. If the

Court finds qualified immunity, Plaintiffs’ suit is

imperiled as tort law counts would be the only rem-

nants.

We now therefore consider only whether the district

court erred in denying summary judgment on the

grounds of qualified immunity as to the alleged viola-

tions of the First Amendment.8

8

Although the district court granted summary judgment on

the merits as to count two, the First Amendment workplace

(continued...)

No. 10-1440 11

II. Jurisdiction and Waiver

A. Law Applicable to Jurisdiction and Waiver

This court has jurisdiction over an appeal from a

denial of summary judgment only under limited circum-

stances because a denial of summary judgment is not

ordinarily a “final decision” for purposes of appellate

jurisdiction under 28 U.S.C. § 1291. The Supreme Court

has explained, however, that an appeal from a denial

of summary judgment on qualified immunity grounds

may be entertained where the denial turns on an issue

of law. Mitchell, 472 U.S. at 530; see also Levan v. George,

604 F.3d 366, 369 (7th Cir. 2010). Indeed, so long as the

issue is a legal one, we can consider the propriety of a

denial of qualified immunity even on grounds other

8

(...continued)

complaint-related claim, we nevertheless consider the denial

of qualified immunity as to that claim to be part of this appeal.

A grant of qualified immunity is distinct from a victory on

the merits, in that qualified immunity recognizes a right not

to litigate. See Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985).

The plaintiffs properly did not cross-appeal from the district

court’s merits adjudication of this claim. See Ill. ex rel. Hartigan

v. Peters, 861 F.2d 164, 166 (7th Cir. 1988) (explaining

that pendent appellate jurisdiction of a non-appealable inter-

locutory order is appropriate “if, but only if, there are compel-

ling reasons for not deferring the appeal of the [non-appealable]

order to the end of the lawsuit[.]”). But the plaintiffs could

certainly appeal in the future, and at that time, the distinction

between qualified immunity and prevailing on the merits

could become important.

12 No. 10-1440

than those relied on in the district court. See Dickerson

v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996) (“regard-

less of the district court’s reasons for denying qualified

immunity, we may exercise jurisdiction over the . . .

appeal to the extent it raises questions of law.”). An

appellate court does not have jurisdiction, however,

where qualified immunity involves factual issues. See

Levan, 604 F.3d at 369.

Accordingly, a finding of waiver is a legal determina-

tion which enables appellate review of the denial of

qualified immunity. See e360 Insight v. Spamhaus Project,

500 F.3d 594, 599 (7th Cir. 2007) (explaining that “the

legal question of whether [a party’s] conduct amounts

to waiver [is reviewed] de novo.”); see also Pasco v.

Knoblauch, 566 F.3d 572, 575 (5th Cir. 2009) (reviewing

de novo the issue of waiver of qualified immunity be-

cause it formed the basis for the denial of summary

judgment); Eddy v. V.I. Water & Power Auth., 256 F.3d 204,

209 (3d Cir. 2001) (reviewing de novo a denial of qualified

immunity based on waiver).

Turning to the merits of the waiver issue, the Su-

preme Court has described waiver as the “ ‘intentional

relinquishment or abandonment of a known right.’ ”

United States v. Olano, 507 U.S. 725, 733 (1993) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is well estab-

lished in our precedents that “skeletal” arguments may

be properly treated as waived, see, e.g., United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), as may argu-

ments made for the first time in reply briefs, see, e.g.,

United States v. Diaz, 533 F.3d 574, 577 (7th Cir. 2008).

No. 10-1440 13

The underlying concern is to ensure that the opposing

party is not prejudiced by being denied sufficient notice

to respond to an argument. See generally Egert v. Conn.

Gen. Life Ins. Co., 900 F.2d 1032, 1035 (7th Cir. 1990).

B. Waiver

The district court erred by ruling that the defendants

waived their qualified immunity argument as to the

First Amendment retaliation claims. It is certainly true

that the discussion in their opening memorandum in

support of summary judgment left much to be desired,

but this is not the same as saying that it evinces a relin-

quishment of the qualified immunity defense. The sum-

mary judgment brief contained three paragraphs on

the topic of qualified immunity, beneath the heading,

“Qualified Immunity.” The defendants’ assertion in

their opening brief of a qualified immunity defense

was unambiguous.

In addition to the cursory treatment of the qualified

immunity issue in their summary judgment opening

brief, the defendants supplied a four-page discussion of

qualified immunity in their reply brief in favor of sum-

mary judgment. While arguments made for the first time

in a reply brief are generally treated as waived, it does

not necessarily follow that arguments that are better

developed in a reply brief are waived. Therefore, this case

is readily distinguishable from the numerous precedents

in this circuit upholding findings of waiver where argu-

14 No. 10-1440

ments were not raised until the reply brief.9

Moreover, it is absolutely clear that the defendants’

underdeveloped opening brief argument supplied ade-

quate notice to the plaintiffs and caused them no preju-

dice. The plaintiffs’ summary judgment response brief

contained a four-page discussion of the defendants’

qualified immunity theory—attacking an argument that

they now contend was so deficient as to constitute

a waiver. In addition, the plaintiffs could not have

been surprised to see qualified immunity appear in the

defendants’ summary judgment motion because they

knew the defendants were raising qualified immunity

from the beginning of the case.

In sum, qualified immunity has been at issue at every

significant stage of this litigation. In their summary

judgment filings, it was unambiguous that the defendants

were arguing that they were entitled to qualified immu-

nity, even if inexpertly. While we do not condone the

9

In addition, this case is distinguishable from our cases

holding that deficient discussion in an opening brief could

not be redeemed by fuller treatment in a reply brief, in that

our cases meeting this description concern even weaker

opening brief treatment. See Citizens Against Ruining the Env’t v.

EPA, 535 F.3d 670, 675 (7th Cir. 2008) (finding that waiver due

to a one-sentence section in an opening brief could not be

redeemed by lengthier treatment in the reply brief); Bakalis

v. Golembeski, 35 F.3d 318, 326 n.8 (7th Cir. 1994) (finding an

argument waived where it was “made only in a footnote in

the opening brief and was not developed fully until the

reply brief.”).

No. 10-1440 15

defendants’ failure to present their argument fully at

what they must have known would be a critical moment

in the litigation, as a matter of law their oversight in

this case does not amount to a waiver.

III. Qualified Immunity Merits

A. Law Applicable to Qualified Immunity

Since the issue of qualified immunity was not waived,

we will proceed to address the merits. Generally,

qualified immunity protects government agents from

liability when their actions do not violate “ ‘clearly estab-

lished statutory or constitutional rights of which a rea-

sonable person would have known.’ ” Purvis v. Oest, 614

F.3d 713, 720 (7th Cir. 2010) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). This involves two questions:

“(1) whether the facts, taken in the light most favorable

to the plaintiff, show that the defendant violated a con-

stitutional right; and (2) whether that constitutional

right was clearly established at the time of the alleged

violation.” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.

2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Whether the defendants are entitled to qualified im-

munity will depend on what constitutional affronts

the plaintiffs argue.

1. Whether a Constitutional Right Was Violated

We have formulated the inquiry into a public em-

ployee’s First Amendment rights as follows:

16 No. 10-1440

To determine whether a public employee has a pro-

tected First Amendment right, we undertake a two

part inquiry, known as the Connick-Pickering [1 0 ] test.

First, the court must determine whether the plaintiff’s

speech addressed a matter of public concern. If it did,

the court must then apply the Pickering balancing

test to determine whether “the interests of the [plain-

tiff] as a citizen in commenting upon the matters

of public concern” are outweighed by “the interest

of the state, as an employer, in promoting the

efficiency of the public services it performs through

its employees.”

Coady v. Steil, 187 F.3d 727, 731 (7th Cir. 1999) (internal

citations omitted).

If, on the other hand, a public employee’s speech does

not implicate a matter of public concern, the Pickering

balancing test is not reached because “the Constitution

does not insulate [the employee’s] communications

from employer discipline.” Garcetti v. Ceballos, 547 U.S.

410, 421 (2006). In Spiegla v. Hull, 481 F.3d 961 (7th Cir.

2007), we explained that Garcetti stands for the proposi-

tion that “public employees speaking ‘pursuant to

their official duties’ are speaking as employees, not citi-

zens, and thus are not protected by the First Amendment

regardless of the content of their speech.” Spiegla, 481

F.3d at 965.

10

Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of

Educ. of Twnshp. H.S. Dist. 205, 391 U.S. 563 (1968).

No. 10-1440 17

In all cases, we consider only the speech that resulted

in the adverse action against the employee. We have

stated that “[t]he scope of our inquiry is defined by the

number of instances in which the plaintiff has produced

‘specific, nonconclusory allegations’ reasonably linking

her speech to employer discipline.” Wright v. Ill. Dep’t of

Children & Family Servs., 40 F.3d 1492, 1500 (7th Cir. 1994)

(citing O’Connor v. Chicago Transit Auth., 985 F.2d 1362,

1368-71 (7th Cir. 1993)).

2. Whether a Violated Right Was Clearly Established

The second inquiry, see Saucier, 533 U.S. at 201, is

whether the constitutional standards at issue were

clearly established at the time the alleged violation oc-

curred. See Purvis, 614 F.3d at 720. “The relevant,

dispositive inquiry . . . is whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier, 533 U.S. at 202. Most of

the defendants’ arguments here in favor of qualified

immunity are addressed to this latter part of the Saucier

inquiry, in that they revolve around reasons why the

defendants might have been objectively reasonable in

investigating and sanctioning the plaintiffs following

the jailbreak.

This court has explicitly reserved the question whether

government defendants per se avoid First Amendment

§ 1983 claims by demonstrating that they had probable

cause. See Abrams v. Walker, 307 F.3d 650, 657 (7th Cir.

2002), overruled on other grounds by Spiegla v. Hull, 371

18 No. 10-1440

F.3d 928, 941-42 (7th Cir. 2004) (Spiegla I). So it would be

fruitless to pursue probable cause as such. Nevertheless, it

is clear that evidence of probable cause may act as

“highly valuable circumstantial evidence” that the

complained-of conduct “would have occurred without

a retaliatory motive.” Hartman v. Moore, 547 U.S. 250,

261 (2006). Therefore, facts which would be relevant

to probable cause in a Fourth Amendment case will

also be relevant to the reasonableness of the defendants’

actions in a First Amendment case. See, e.g., Purtell v.

Mason, 527 F.3d 615, 622, 626 (7th Cir. 2008).

B. The Merits of Qualified Immunity

1. Retaliation for Workplace Safety Complaints

We are able to determine as a matter of law, based

purely on the undisputed facts presented to the district

court, that the defendants are entitled to qualified immu-

nity as to the plaintiffs’ claim of retaliation based on

workplace complaints. As noted, the district court re-

viewed the facts and concluded that based on the undis-

puted facts, the plaintiffs were acting as public em-

ployees when they complained about unsafe conditions

at the jail. Specifically, in complaining about over-

crowding, the lack of supervision and the need for Plexi-

glas, the plaintiffs were acting pursuant to their duties

as set forth in the CCSO’s General Orders. Therefore,

No. 10-1440 19

consistent with Spiegla I, 371 F.3d at 936,1 1 the district court

concluded that the plaintiffs did not enjoy First Amend-

ment protections.

The conclusion based on undisputed fact that the plain-

tiffs acted as public employees in complaining, which

the district court found to be dispositive of the merits,

is equally dispositive of the qualified immunity ques-

tion that the district court might have been asking. The

district court properly determined that there was no

violation of a constitutional right; therefore, the

defendants are entitled to qualified immunity on this

claim as a matter of law. See Terry v. Richardson, 346

F.3d 781, 782 (7th Cir. 2003).

2. Political Retaliation

As to the political retaliation-based claims (i.e., claims

one and three), we will not attempt to determine whether,

as a matter of law, the defendants are entitled to qualified

immunity. We have no decision to review because the

11

The holding of Spiegla on which the district court relied has

been broadened by the Supreme Court. As we observed in our

second encounter with Spiegla, 481 F.3d 961 (7th Cir. 2007)

(Spiegla II), the Supreme Court’s Garcetti v. Ceballos opinion,

547 U.S. 410 (2006), prescribed an expanded view of an em-

ployee’s non-protected “official duties.” Spiegla II, 481 F.3d

at 966. Garcetti clarified that “official duties” encompass

even unusual communications outside an employee’s “core”

job functions. See id.; Trigillo v. Snyder, 547 F.3d 826, 829

(7th Cir. 2008). Thus, since Spiegla I, the definition of non-

protected speech has been broadened.

20 No. 10-1440

court, having decided the matter was waived, never

reached the question whether the defendants are entitled

to qualified immunity and consequently to summary

judgment. In its short summary judgment memorandum,

the district court did not determine which facts

were disputed and undisputed in connection with the

political retaliation claims, or whether any disputed

facts were material to the question of qualified immu-

nity. The court made no comment about the plaintiffs’

assertions that they were openly supportive of Remus,

or that the defendants knew of that support or

that the support motivated an overly vigorous investiga-

tion and harsh penalties.1 2 The district court also did not

inquire into facts which, for purposes of the second

Saucier inquiry, might have made the defendants ob-

jectively reasonable in believing that they were not vio-

lating the plaintiffs’ First Amendment rights. This over-

sight is especially problematic given the simple facts of

a serious jailbreak and the suspicion of internal coopera-

tion, which are undisputed and which make the under-

taking of a vigorous investigation unsurprising.

We are not reassured by the district court’s statement

that “the record is rife with genuine issues of material

fact regarding [the First Amendment political retalia-

tion] claim.” Although this statement was perfectly

adequate to explain why summary judgment on the

12

We note that this cannot be solely attributable to the

striking of the defendants’ facts for noncompliance with

Local Rule 56.1, since the allegations initially necessary to

evaluate the political retaliation claims were supplied by the

plaintiffs, not the defendants.

No. 10-1440 21

merits ought to be denied, it is too conclusory to serve

as a basis for this court to find against qualified

immunity, particularly when we do not have the bene-

fit of reviewing the district court’s determinations of

disputed versus undisputed fact, or materiality to

qualified immunity.1 3

Issues relating to whether facts are disputed are appro-

priately determined in the first instance by the district

court. This procedure is consistent with our present

reluctance to adjudicate those issues which have not

been addressed by the district court. We cannot easily

determine whether the defendants are entitled as a

matter of law to qualified immunity, and we remand

for the district court to reconsider whether the defen-

dants are entitled to summary judgment on the basis of

qualified immunity as to the political retaliation claims.

The denial of summary judgment with respect to the

political retaliation claims is R EVERSED and the case

R EMANDED for proceedings consistent with this opinion.

13

To emphasize, we do not fault the district court for failing to

decide disputed issues of fact, since that is outside the scope

of summary judgment, including when a motion for summary

judgment is based on qualified immunity. See Gonzalez v. City

of Elgin, 578 F.3d 526, 540 (7th Cir. 2009). But the court may

identify disputed and undisputed facts and determine

whether any disputed facts are material to the question of

qualified immunity.

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