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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