The opinion
HARLINGTON WOOD, Jr., Circuit Judge,
dissenting.
*349 This is not an easy ease in which to administer the accepted principles of law, with which I have no disagreement, applied by the majority. It is only in the application of those principles to the facts of this case which causes me, in part, to respectfully dissent.
In Count III the eighteen white plaintiff high-ranking police officers charge that they were demoted because of race, and that black officers were advanced to positions which had previously been held by them. Former Superintendent Rice, also a black, absolutely denies his decision was based on race. Rather, he explains it was done only to advance people who embraced “his philosophy,” and “accepted his management style.” What that philosophy and management style may have been, or how it was determined that these plaintiffs neither embraced or accepted whatever there was to embrace or accept, is not explained. Ability to perform as police officers clearly appears not to have been a factor as Rice stated he had no reason to believe that the replaced plaintiffs would not have continued to do a good job.
The majority agrees, and so do I, with the decision of the district court insofar as it held that the plaintiffs sufficiently alleged a constitutional violation based on racial animus. The next step, however, the qualified immunity inquiry, is where we begin to part company. The majority correctly explains that the right alleged to have been violated must be clearly established at the time and be characterized with particularity. The contours of that right are required to be sufficiently clear to enable a reasonable official to understand that what he contemplates doing may violate that right. The majority rejects plaintiffs’ characterization of the clearly established right at issue.
Plaintiffs complain that their demotions and the promotions of the substitute officers were based on race and therefore violated their equal protection rights. That is too general a charge for the majority but not for me when viewed as it must be in its factual context. As the majority recounts, Rice reorganized the top management of the Chicago Police Department. Twenty-five white officers were demoted although only eighteen of them joined as plaintiffs in this suit. Not a single black officer was demoted, but thirteen black officers and no white officers were promoted to the vacancies created by the white demotions. It seems to me that the top police officer of a large metropolitan police force, considering Rice and others similarly situated, objectively and reasonably would or should have known that what was being done would likely violate a right of the plaintiffs. High police officials are experienced to some extent in legal issues and constitutional rights. More therefore can reasonably and objectively be expected from top police officials than, for instance, from a mere supervisor in some other ordinary government office. Rice and other police superintendents ordinarily have access to legal advice within the municipality. The majority states the issue to be whether a reasonable superintendent of police could have concluded that he could take race into consideration for his reorganization. It seems to me a little more than just “taking race into consideration” when all whites are out and all blacks are in, but that states the issue fairly enough.
The majority then proceeds to create what is in effect an affirmative action defense for Rice, but he made it very plain he claimed none. He had not approached the reorganization on that basis and had done no affirmative action statistical analysis or anything else for affirmative action purposes. In fact, Rice explained that if he had injected any factors other than efficiency and effectiveness into the top command structure, he would have been doomed to failure as a superintendent. Rice not only denies that race was a factor, but offers the explanation that his reorganization only had to do with his own philosophy and style, not race or anything else. The majority, nevertheless, creates for Rice a paper-mache affirmative action defense just for the purposes of granting qualified immunity. In disagreeing with the majority’s qualified immunity affirmative action approach in these circumstances I do not mean or intend to disparage affirmative action in the slightest. I fully support affirmative action appropriately applied. *350 To justify what it does the majority cites a number of cases which we need to examine.
Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.1989), is viewed by the majority as its pattern for what it does. In the present case, however, Cygnar’s significant factual distinctions are discounted. In Cygnar, 865 F.2d at 844 , this court held that the state of the law at about this same time did not clearly prevent that defendant from transferring those plaintiffs based upon their race to correct what the Cygnar defendant perceived to be a statistical under-representation of minorities in the office. Therefore, it was held that the defendant was entitled to qualified immunity as the criteria had been met, perhaps unwittingly, for a valid affirmative action plan under Lehman v. Yellow Freight Systems, Inc., 651 F.2d 520 (7th Cir.1981). In Cygnar, 865 F.2d at 835-36 , however, there was evidence to suggest such a course. A very pertinent memo had been sent to his supervisor by the defendant who had instituted the racial transfers. That memo informed his supervisor that he was assuming command of the “affirmative action posture” of his new office. Thereafter in the memo was set out an office personnel listing showing race. In view of the apparent disparity in the listing, that defendant concluded that affirmative action did not exist in the department and that something would be done about it, and it was. A follow-up memo indicated progress in correcting the racial imbalance. As this court noted in Cygnar that defendant also testified that he instituted the transfers not because of a discriminatory animus but to bring in people he knew and trusted.
It can, therefore, be seen that in Cygnar this court had something factual to go on to objectively support its view, but there is no similar factual support in this present case. A pseudo affirmative action-qualified immunity defense is manufactured only out of air. The majority supplies Rice with a statistical disparity backup which he did not have, did not use, or even want at the time. It is more than just a matter of Rice’s intent, expressed or unexpressed. He offered under oath his only explanation of why he took the official actions that he did. What the majority creates in these particular circumstances, quite apart from Rice’s expressed intent, which exonerates Rice without trial is for me just too contrived and artificial.
The Harlow objective legal reasonableness standard is the best standard that can be conceived, but I believe it is being unrealistically carried too far in the present factual circumstances. It affords a “reasonable superintendent of police,” viewing the matter objectively, more protection than a reasonable superintendent of police at that time should have needed. I would therefore affirm the district court on this count although our approaches to the issue vary somewhat.
Count IV raises the issue of Rice’s qualified immunity in the context of an alleged violation of plaintiffs’ civil rights under 42 U.S.C. § 1985 (3). The majority allows Rice qualified immunity as it is determined that at that time the law was not clear as to whether section 1985(3) covered whites as a class for qualified immunity purposes. I agree with that analysis, and therefore join that part of the opinion.
The final issue is raised by Count V of the amended complaint which alleges a pattern of harassment and retaliatory treatment by Rice, specifically that he subjected some of the plaintiffs to retaliatory transfers and denial of consideration for promotion in violation of their first amendment rights to freedom of speech in protecting their right to file this very civil rights suit. The district court granted summary judgment on the basis of qualified immunity for acts prior to but denied it after the date of our decision in Altman v. Hurst, 734 F.2d 1240 (7th Cir.), cert. denied, 469 U.S. 982 , 105 S.Ct. 385 , 83 L.Ed.2d 320 (1984). Altman established that retaliation for filing a civil law suit dealing with a matter of public concern was conduct protected by the first amendment. Altman involved a suit by a single police sergeant complaining about an undesirable reassignment. The sergeant also alleged that he was harassed for encouraging another officer to appeal her suspension from the force. This court held defendant’s actions not to be a first amendment violation because plaintiff’s speech was *351 only a private internal matter and not a matter of public concern.
I agree with the Altman holding, but the present case is much more than that. The majority finds no public interest based in part on Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983). Connick involved a single public employee who distributed a questionnaire within his own office. That was considered by his supervisor as insubordination motivated only for a private motive, except with a limited exception, and therefore not protected.
I do not find in Connick that the Supreme Court directs us to look only to the reasons the employee spoke out to determine whether there is a matter of public concern or not. Connick holds that the employer need not tolerate the employee’s insubordination, disruption of the office, and destruction of working relationships. Id. at 152 , 103 S.Ct. at 1692 . There was no disruption or destruction by the plaintiffs in the present case. No fault was found with them. Also in Connick the manner, time, place, and context are found relevant and significant. In Connick the plaintiff was transferred based on internal matters, then plaintiffs suit followed. In the present case the alleged retaliation followed from plaintiffs banding together to bring the acts of the superintendent to the attention of the federal court. Connick found that the circulated and disruptive interoffice questionnaire touched in part on a matter of public concern because of a single question, among many other irrelevant questions, that inquired about political pressure in their jobs. Id. at 149 , 103 S.Ct. at 1691 . That Connick finding is reached without any finding that the employee’s reason for circulating the questionnaire which contained that one question was only for a public and not a private concern. The Court held it “apparent” that the issue was a matter of interest to the community. Id. at 149 , 103 S.Ct. at 1691 . In this present case, the majority finds no public interest merely because it finds it was not the central intention of plaintiffs to promote a cause of public concern. Plaintiffs, it is assumed, were only concerned with their own private employment interests. This present case is much more than the Con-nick questionnaires one political question held to be of public concern.
Rice’s “intent” in the qualified immunity context is quite properly immaterial, but on the other hand the personal intent of plaintiffs in this context is found by the majority to be the only controlling factor. It is, of course, obvious that plaintiffs have a personal financial interest in this law suit. These white officers held ranks and positions noted by the majority to be “the highest level managers of the Chicago police department, and who helped create and execute police policy in the supervision and direction of over 15,000 police employees.” Nevertheless, the majority does not find enough to interest the public in what was done allegedly because this suit had been filed challenging the demotions and promotions for reasons other than merit at the highest level of one of the nation’s most important metropolitan police forces. If the public was not concerned about this type of police reshuffling and the alleged retaliation which could impact for better or worse on its safety and welfare, then it should have been, but I think the public was interested. 1
The majority also cites Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985), as support for its view, but that is only a case of a disgruntled acting chief of police who tried to maneuver his appointment as the permanent chief. Instead of the appointment he received only a letter of reprimand for his personnel file. I agree with that *352 decision, but it is likewise of little guidance when contrasted with the present factual circumstances. Yatvin v. Madison Metropolitan School District, 840 F.2d 412 (7th Cir.1988), is also cited by the majority. It is likewise a decision I find no fault with, but again it is so factually distinguishable as to be of little help. Yatvin involved the principal of a public school who complained about the denial of two promotions she had sought. She claimed that she lost the first promotion because of her sex and that she lost the second promotion in retaliation for her filing a sex discrimination charge after losing the first promotion. These facts were found not to raise a matter of public concern because, in essence, Yatvin made no attempt “to distinguish this case from the run-of-the-mine [sic ] single-plaintiff discrimination case.” 840 F.2d at 420 . That situation, however, is far from the present case where a large number of high-ranking white police officers with important public responsibilities were demoted and replaced by black officers, and then were allegedly harassed for filing this federal civil rights suit. There is public significance in this present case because it involves a most important public agency and very sensitive and significant racial changes which could affect the public generally. This case is of much greater public significance than the cases the majority uses as precedents to dispose of it.
I do not intend to suggest any opinion whatsoever about plaintiffs’ allegations on their merits. My view is only that I do not believe that Counts III and V are ready for summary judgment on the basis of the qualified immunity of Rice, or dismissal for failure to state a claim because of the majority’s determination that it is not a matter of public concern. The last thing I would suggest is that the federal court just second-guess public officials in the way they administer their offices. Qualified immunity for public officials is an absolutely essential protection for them, but in the way the majority applies it here in Count III it could become more than a shield to protect public officials from the disruption of trials. It could become a shield for the activities of public officials for which they should reasonably have anticipated being later held to answer. As I read Connick in regard to Count V it supports plaintiffs. This present case is more than a reflection of “one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre,” much more. 461 U.S. at 148 , 103 S.Ct. at 1691 . Count V does not deserve to be dismissed.
I would prefer to affirm the district court on Counts III and V, and so to that extent I respectfully dissent.
. It seems, however, that others viewed the police reshuffling as a matter of considerable public interest. When it happened it was a front page story in the Chicago Tribune on December 3, 1983. It was reported in a two-page article that the police "department’s top commanders got new jobs Friday from Superintendent Fred Rice in the biggest department shake-up in recent history.” One of the plaintiffs, Larry For-berg, Commander of the Narcotics Section, is quoted as speaking out strongly against his demotion and transfer. He recited the awards he had been given for his narcotics work by the federal government. Even before it happened it made news in the Chicago Tribune as something sources said was about to happen. There was a photograph of Rice. Chicago Tribune, Dec. 2, 1983, § 3, at 1, 3. It is not surprising that this *352 police shake-up got public attention from the beginning.