may please the court my name is andrew grill and i represents talent gregory earths the district court erred when it denied ernst qualified immunity and mr taylor's race based employment discrimination claims and to demonstrate this air i want to start out by talking about why probable cause matters in the context of plaintiff's employment discrimination claim it matters because probable cause provides an objective measure of the reason of this appearance participation in plaintiff's disciplinary proceedings and if its actions are objective a reasonable he could not have violated mr taylor's kasa to civil rights which means he is entitled to qualified immunity ertz participation in mr taylor's disciplinary proceedings was reporting that for purposes of this appeal we have to take it is true mr ernst's repeated use of the n word both about and directly to mr taylor and must assume that he acted out of racial anim violation the question is not whether its conduct was offensive upsetting crude or humiliating the question is whether ernst recommended rather we can assume and must assume racial animus in his actions i realize that it's not the entire case but kemp must we have soon that much i disagree around or we can assume that he had racial animus but that it was not the reason that he recommended that mr taylor be fired so do you want to that when earth's his participation because that's really what the airplane it you know th amendment equal protection claim our courts no equal protection claim centers and the fact that the district court bases decision on are the same facts to cause ers to recommend that mr taylor be fired on student make those facts up in fact the plaintiff didn't even dispute us facts and summary judgment those facts prove that ernst recommendations of fire plan it was not pretextual rather it was based on his reasonable belief that plaintiff committed multiple tracks the difficulty i have with mr grunow is that it really doesn't come to grips with the very well established doctrines you know since discriminatory discipline i mean st of all there may be factual issues about what it was mr taylor actually did i'll have some questions worry about them and if mirrors racial discrimination in the way those decisions are made that's the title seven an equal protection problem right yeah that's correct your honor but the facts is that  honor the if if there is if the facts that earth's based history a nation recommendation are not in dispute and they establish that he committed a crime then no reasonable jury could conclude it's recommended that the plaintiffs be fired or that his recommendation would have been any different had played if not been a member of a protected class we have a people in  actors including state actors and involving public employment issues was a was unconstitutional and there was some discussion in the case in the briefs of smith against question well smith be brave as an initial matter your honor concerns individual section one hundred and eighty three liability of supervisors because their participated in a constitutional deprivation that erst wasn't a supervisor and that's a big distinction between the facts of this case your answer my question please the question was whether i can identify any authority to the contrary yes on a cat's paw involving public police officer to cause another officer to be fired based upon actions taken for racial reasons well our position your honor has always been that or its  and eleven that as a subordinate who is making a recommendation to a supervisor who is charged with actually making the recommendation the final recommendation to terminate that if he his racial animus would somehow subject him to a constitutional violation simply because he has allegedly used discriminatory language yet there's no dispute that mr yes so there's no evidence that is in the record that ernst knew at the time he was investigating this incident that the vehicle could have been facing in the other direction there are photographs taken of the vehicle the c p d report indicated was facing in the direction that the shots came from that piece of evidence didn't come out for about maybe fifty six years after the fact in a deposition given by the car owner so the standard from our point of did not they they they took the scene at as they found it and there was nothing in the record to suggest that they should that the car had ever been lived there no tire tracks there was no way that said the car is facing a different way that wasn't an issue that came out and still years and years later and capacity for recommending planes and terminator sure because the evidence prevents that he shot without provocation and an arm neighbor qualified immunity exists for this exact situation purpose when making the right conditions under a car and cases that follow it defendants may only be personally liable for their own constitutional violations and their own individual e and the sheriff's office has separate representation correct i also represent the sheriff's office i anticipate ok well that maybe that may simplify things a bit here is i understand it and correct me if i'm wrong please wiggler are saying in essence we reviewed the investigation we got from ernst and others for correctness completeness and thoroughness but we did not undertake our purposes here as it relates only to the one thousand nine hundred and eighty three case our argument is simply that that there is no evidence that had a discriminatory and as it relates to the title seven claim title title seven  with your so you're trying to basically maintain the defense of the two separate claims on a somewhat different grounds lack of personal and responsibility for any racial animus on the part of can proceed under cat's yury which necessarily assume that will learn ways were innocent so so the district court really can't have it both ways and play to the point of also and not have it both ways where you have a decision saying that the decision makers are the ones who recommended that decision and were in a sense and then at the same time saying that they were they were personally liable because they had a discriminatory intent so there is no evidence whatsoever  there is no evidence as to that and even if there weren't really wouldn't go that issue here undershirt where or who is african american herself and numerous times in your brief so so both both did i just wanted you so you say that didn't happen that is a crime ok nd question could you address this evidence the plaintiff has relied upon to the effect that the b image to the vehicle that that evidence came out in a deposition for the civil litigation and has nothing to do with what anyone knew at the time of the investigation and there's no evidence suggesting that the car was move and there was and there was no evidence technician that came onto the scene immediately and and and and observed the scene and again that this chase started by two private citizens who call not the sheriff's office but a completely here can't think of a case for example more racial animus and hatred from a fellow p r investigator that had no reason to lie no reason to make it up that in fact it would have been against his best interest implicate a full outside in the hallways and you better quit that or or i'm going to get your whatever else he said they call mr chiller refer to me as a gorilla his wife crystal's a i think are the two that were taken off because originally they said it was like a bunch of storm troopers they sent everybody that was for chillers house cherise just wife and kids block their vehicle and mr howe pull mr collins were part of the ritual search warrant i think to guard the crime under whatever the act was and they were removed and mr hemphill i don't know if your honour's had chance to read it that he had a different story were you know because they sent in investigated different person and he was told you know basically before the investigation began that this person filed a civil put the police department off time and time again from an get a file so whether she knew or not i think there's circumstantial evidence it shifted improperly how think we're ever going to track evidence to show she knew exactly  racial bias so how do we get to her state of mind is that all circumstantial it would be i mean she's not admit that she's a racist sentiments help us find this state of mind situation i think make sure that there is a proper investigation either they had discriminatory intent or just didn't give it time and i can't get up  sit the standard practices national standards you know require a rudimentary steps such as canvassing the area you know looking to see if there's any  do your view that no further discovery would be needed to buttress the position you take on the supervisors i don't think so i don't think we're going to you know find direct evidence me and i appreciate your answers and just trying to assemble a factual basis do you analyze this case it's just a difficult question when you know most people reconcile that line of cases with it and it still go to do you know i just don't think it applies and based on you know the circuits preston over and over and over again on the recommendation so for of those reason the stand and i always set forth in our grief you know judge had a really good question about you know aren't there questions of fact with respect to causation i mean i think these both these appeals as we set forth in her motion dismiss those taken all the case questions of fact really are plentiful this case  it's our position the court does not have jurisdiction that is a courts where if there's any questions of fact needed to resolve qualified immunity then there is no jurisdiction for ill treat people we set forth to in our brief that the facts known to ernst that mr taylor nor the district court disputes within this whole thing i kicked off when the victims called nine hundred and eleven the chicago police department responded to the scene of the incident and conducted a preliminary investigation they spoke to the victims they observed damage to the victim's vehicle is consistent with their accounts urson is zero p r investigators conducted their own investigation and eye witness that mr taylor who is his neighbor who he knew from close range shoot a b b gun at him and his other neighbor's truck ernst then observed damage to the truck that looked to have been caused by bieber pellet strikes in the locations that wilfork said were hit by the truck this damage was and photographed by ernst investigators and then the eyewitness personally identified taylor and seen as the shooter  reasonable person in earth's position with no that these facts at that at the knowing these facts at the time of earth's learned them would have recently thought that taylor had committed these crimes we have to ask ourselves put you even considering ernst the evidence of ernst racial you know animists in this case was he supposed to ignore this the that's what makes this case so different these facts and establish a reasonable basis to fire mr taylor no one contests we can talk all day about what he could have done or should have done in the investigation which is a big argument that mr landon and mr taylor makes but at the end of the day once earth's had probable cause there is no constitutional obligation and his ar those proceedings in fact there was an entire trial that was conducted before the mare board with judges evidence witnesses lawyers ertz testified mr taylor testified and the decision to fire him was still reached after all that if instead recommended that mr taylor be fired because of his race that that really was the case or there would be some evidence in the record that earth's manipulated some evidence underpinning his terminations recommendation in a way that finally did is constitutional rights such evidence which show they're not an objective basis to fire him or to recommend a firearm was lacking and that's just never been the case here that's the part that the plaintiff's case has always been missing yet we have evidence of racial bias but that's only half of that's only half of the issue there has to be added in sat he was fired because of this race he just can't say that under these facts these facts unlike many cases that establish a reasonable basis to fire  they're simply not contested so for those reasons your honor we ask that this court reversed the district court's decision to deny ers qualified immunity and mr taylor's are a space equal protection employment discrimination here and that really is the only theory that they presented on appeal but what what they get wrong is that under a blind eye theory they must have turned a blind eye to a known unconstitutional kunda they had meant they just admitted that there's no evidence that they knew of any sort of unconstitutional conduct and so it would be completely inconsistent with with well established  theory to apply if visuals must know about the unconstitutional conduct and then do something to further that discriminatory conduct but there's there's no case law that somehow implies that turning a blind eye to some something other than unconstitutional conduct can be sufficient to impose a personal live bill the answer and just briefly your honor the removal of the black officers there's no evidence of that there's no evidence that we learned ways somehow did that there's no evidence that it's well and and furthermore plaintiffs counsel didn't even raise that issue and there's no evidence t