which pool political loyalty can be considered i mean cardless of how the position is described to set a matter of common sense that these officers will be working in close proximity with the mayor and be in a position to hear high level sensitive  conversations so there are two areas that i would like to respond your question first the city made the determination through the shack and decrees to make this a check and protected position so there's a hiring plan in place which was titled department notice seven dash forty seven where the city of chicago specifically noted for all hiring officials in this case that politics cannot be used for the position so in that regard any official w hiring or making any employment decision with regard to a security specialist had to read through the hiring process and specifically had to sign what was called the higher certification form and in that higher certification form they were testing under the penalty of perjury that there were no political factors used in the employment process for the security specialists so any reasonable state actor as the case law holds that was reviewing this position i wish to address my colleagues question yes which concerns the merits of her nineteen eighty three clip it's a problem that occurs to me too and i would appreciate perceiving your response to it rather than just saying they've taken a mayor on a regular basis in this case specifically the facts show that the security specialists worked in our office separately from the mayor they were with mayor when they were driving him to certain locations but they did not sit and in and out meetings with him they did not overhear conversations specifically what the testimony was that they if the mayor would either step out of the car or the oric the mayor would be in the back and turn up the radio when he was listening to conversations and the majority of the security specialists worked in what are called advance or other functions where they were not in the car with the mayor specifically so in reality there was only one driver with the mayor as well as the commander and then the other security specialists would be driving and doing advance work or tail work and specifically when you're addressing the question of political loyalty in this case political loyalty was not a requirement of this position and that can be seen by the fact that in this case mayor eight members of mayor daley seem works were forwarded on to mayor emanuel's team so it was not important specifically that the scary specialists were loyal and regarding the in detail the that it was inherently political for the defendants to say let's draw practical one the officers who volunteered in the campaign were already driving the mayor elect around they knew him and of course this was this is going to be an interim detail for a few months what with respect to the interim detail it was not practical to take volunteers who had been driving the mayor around for this interim detail because the detail did not a end up to be temporary but be well they didn't know that at the time to take not necessarily that's correct but the people that were chosen solely a pool of volunteers so anyone else who would have wanted to beyond the interim detail could not have been considered because they did not volunteer for rahm emanuel's campaign under the shadow of the trees and a decision  made must be considered by a relevant pool of it's these individuals who are volunteering for rahm emanuel were in that pool soley because they volunteered and so anyone who was selected from that pool to be put on the interim team could only have been monitors is non political don't we have to independently as says the nature of the position is the first in the matter i don't know how much  emphasis you know you you should be putting on one check and in this regard that's correct the case thought holds that you look at the ordinances statutes and a fact or you can look at the duties in the job description and so  my position in this case in the briefs is that shakin was another thing that we could look at but specifically if duties are the issue then that should have been a general national material fact and the court should have let that go to the jury to examine whether the duties in the position were either confidential or require political loyalty but rather the courts do not do that in the grant to qualified immunity so we respectfully submit that that was an issue for the jury rather than an issue for the court to determine i do want to move on to the court's decision with respect to the actual check in claims themselves with four plaintiffs and in that regard made that mr foreman selected what he called what the judge called the best of these individuals and there was no testimony in the shack and portion of the trial that revealed that mr fahlman made any evaluation of the qualities of these individuals and mr pollin specifically testified that he had no preferences as well as mr emanuel mayor elect emanuel at that time and no preferences now another way that the court was clearly erroneous was respect to  superintendent hillard and where it said that superintendent hillard did not use politics at all in coming to the decision to place these volunteers on any of the security details we had evidence at trial where m manual specifically admitted that he put an individual who was a volunteer named francisco gonzales on the security detail both the interim detail and mayor emanuel's actual security detail based solely on the recommendation of mr fall and who mr hill or knew was a senior aide so this legal conclusion was clearly erroneous and it should lead to a decision in the plaintiff favor  there was of course a second part to the case which involved the racial claims the equal protection claim that the plaintiffs brought and went to a jury trial in this case there were two significant errors that occurred during the jury trial which we s preclude evidence of a racial historical quota which plaintiffs submit was highly relevant and not unduly prejudicial in this case here we had this is a rare case where we had undisputed evidence a historical racial quota system in place where the defendants in this case benefited and participated in this practice and the jury did not hear this evidence in opening statement defendant's counsel pointed to the historical practices of the detail showing the numbers of african americans on the team of both mayor daley and mayor manual but the plaintiffs were not allowed to show the racial historical  system that led to these numbers being put in place specifically there was a commander named commander rody who would have testified that they these details were set up so that there were two african american spots a quota system for african americans on each team there isn't a team in a b team and that when he's submitted african americans for those african american spots he was only considering african americans specifically the testimony was that he actually kept a folder of african american resumes and he submitted african americans solely based on the fact that they were african americans and as to mr hillard and mr thompson that evidence was that mr hillard testified that he submitted mr thompson's name as a recommendation for the security detail after he was asked to submit the name of after american and he did not know of any of mr thompson's cough occasions so this evidence was highly relevant and it was going to go to the plaintiff's case which went to the motive and intent specifically of these actors the plaintiffs were precluded from putting on this evidence and precluded from specifically pointing to the practice that took place in this case well what about heller testimony regarding the two into practice you use that in your closing argument coming to in his testimony help you make your point in that regard plaints us were allowed centrally to put on in direct evidence but we weren't allowed to paint the whole picture of what was going on you see such evidence always percents the danger of a mini trial over what happened in the pants and and it's very proper while the evidence here specifically was that this was a practice that continued we have evidence that mr thompson labeled his name his the for african americans that he selected each of the american f americans who were on the daily detail and continue the practice of putting those four african americans on the team without knowing the qualifications of at least two of them and so we were not allowed to complete the picture sort of speak and show that this is store quota i mean it is a troublesome it is troublesome testimony  said this is not something that we come across every day but it further for terry miller to say we used to and to and for the plaintiffs not to be able to get into the practice that he was actually describing what was an error and evidence and objected either during motions in limine a and during opening statements and three different times during the testimony and we were shut down we tried to enter it through command essentially that that's enough we've heard enough so it is troublesome but with without the plaintiffs being able to show this practice we were unable to essentially to show the motive an intent of the defendants here in putting these teams together and precluding plaintiffs who are white and spanish from having the fair opportunity to be considered based on the qualifications rather than their race now the second area that took place during the trial in a moment or a day when did this security team start receiving higher pay than regular off of the same rank in this case specifically the new if i understand your question correctly the new detail members the volunteers received new pay starting in december of two thousand and eleven so approximately six months after they were put on the team and detailed so to speak to that position grade and they received also overtime pay out of grade then they dismissed certain slips so there was a pay differential by being on the detail yes  s now to go back to the jury instruction the jury instructions simply put presented the planes with a higher burden of persuasion than the law specifically allows the jury instruction in this case assert motivated in part by race you know you may be right that the course of phrase language was incorrect in the context of mixed motives instruction that it was argue that race has to be the only reason not just a reason yes other than at that point i certainly in their closing arguments specifically the defendants put up the first that the second part of the language as said motivated in part but this was frankly confusing for the jury the jury would not invent any idea which standard was the correct standard also as you raised the second part of the language this contained what is called the mixed motives defense and it is undisputed in this case that the defendant never pleaded any mixed motives defense in this case and the only time that that defined t this mixed motives defense specifically it it injured the plaintiffs and caused prejudice such that the plaintiffs did not know that they would have had to plead this and this was improperly included briefly i see my time is on the sub i do want to address three the plaintiffs know and also in a roman who were who were removed from this case in summary judgments an argument is that these plaintiffs were specifically removed improperly because the court did not consider the actions of commander thompson and removing these plaintiffs and that those decisions could be imputed to me to garry mccarthy who was  thank you and may it please the court to this court should affirm the judgment the district court up this morning i'd like to focus my my comments on the district court's qualified immunity ruling in the district court's shachtman ruling unless this court has any questions regarding the inappropriate as a matter of basic first amendment law it's only that the city based has a prophylactic measure for purposes of shachtman that the city will not consider political loyalties when staffing that position but as far as qualified immunity goes shachtman decrease says nothing about whether a reasonable person could debate whether was beyond debate that the first but the first the man protects the  security specialist position and here it is quite clear both from the duties of the position and from the prevailing case law on on the most on the closest cases that we were able to find that the security detail the question was debatable it was a debatable question a reasonable person could question whether the security detail was a confidential position where the mayor or a similar situated individual with such a security detail could expect political loyalties that mase whether shot in the debate or whether shackman applied it was debatable whether shachtman applied to those positions that's all that's that's actually also a debatable question for the purposes of the first amendment for the could raise that issue but but the question here is whether as a matter first amendment jurisprudence for an one thousand eight three claim that it's beyond debate and it's simply not if anything the president points other way the bail out decision for instance providing security and having access to confidential interiors was a confidential employee who could be discharged for pull politically based reasons and that's that's about as close of a case as we could find here except perhaps the district court's decision in green which also ruled that what qualified immunity was appropriate for a similar security detail at the in cook county and that and that makes good sense with that the description of the position itself it's undisputed here that the security detail has access to the mayor's confidential thoughts it's not relevant whether or not the security detail shares an office with the mayor or sits in meetings that doesn't address the entire question it's whether they have access to those thoughts and it's undisputed here that they do they were able to overhear conversations such that mayor daley would have to get out of his car and leave if he didn't want his conversation to be overheard that just that plaintiff's response to the city's presentation of the record tell us whether the president of the united states jumps out of motorcades stance by the side of the road to prevent the secret service agents from here and i would i would have it the record just not and i would i hope that's not the case it's actually kind of kind of absurd to hope for to do to say that the security detail is not a confidential position because the protectee could just leave could just wander away and distance  from the detail there to protect him i would honestly hope that the president doesn't run off i do know that the mayor was consider rather when he was chief of staff he would run away from his detail as well at times at the record  but again it's not beyond reasonable debate here whether the detail is a confidential position and that's enough to satisfy a qualified immunity and chapman simply says nothing on that question  he meaningfully i guess considered the qualifications for the people he recommended for the transition team and you had you you haven't had an opportunity to reply to that point because it came up in the reply that's correct your honor so we would we would argue that that is the wave of that could have been brought up in the opening brief it was clear just that that was trial testimony there was no surprise in the city didn't come out of nowhere it's district court wasn't required to decide the hamilton was not credible the district court could credit could credit accountants testimony and hamilton testified at some length about the fact that he considered qualifications for the but that he was concerned about embarrassment of the mayor he was going sort of protecting the mayor he was concerned about the qualifications of the interviewers he that he was recommending to fall and fall mn reviewed those recommendations and he believed that they were qualified as well and that's why he passed them on he said if i thought they were qualified i would have had concerns so so that that in and of itself is enough to support to sustain the district court's shachtman findings here that hamilton and fahlman identified job related qualifications which is all that it takes a satisfying chatman there's no dispute here that the qualifications that the that the volunteers on the mayor's campaign that the skills they gained by being on a campaign were relevant job qualifications played a seem to argue that these individuals should just been dismissed out of hand because they're volunteers but that would be  actually prohibits that sort of discrimination against political volunteers have job qualifications and say give it a plane and said i have identified no person who had particular job related skills that these volunteers had they had worked with  the mayor elect nobody on mayor daley's standing detail had that experience so that personal experience of working with driving for protecting mayor emanuel and that's enough to sustain the the shachtman ruling it's not clear how the instruction was cracked in that respect but there's no dispute here that the second clause is your honored the second cause of that instruction made quite clear that the burden shifted if race motive i don't think so and plaintiffs themselves argued their closing exactly how we're reading this this instruction that this contributing to language at least twice the plaintiffs focused on their closing arguments that the work that the  contributing to language clarified made explain what that because mitt and this court has been quite clear that perfect jury instructions are required that they just have to get the message read across reasonably well and as the plaintiffs themselves explained to the jury that instruction was god that was put across recently well that it was clear that come near race merely contributing to the decision was enough to shift the burd