started working there i think in one thousand nine hundred and six over the course of time he has complained and many occasions about his perception that the police department favors white police officers over black police officers he was part of the lawsuit in two thousand and three that a change in agreed order that the city promised to make some reforms but he could and he continued to speak out about his perception that as a minority police officer he was being treated differently than white police officers in two thousand and fourteen he testified at  hearing and mentioned that there was a consent decree two years later the chief included that testimony at the hearing as one of the reasons why he was threatening to fire mr brooks if he continued to speak out about his perceptions of the way minority officers were treated in two thousand and sixteen mr brooks spoke out at a hearing before the mayor about the police department's treatment of all white police officer this was also included by the chief in his letter  and then a couple months later at a meeting before the police and fire commission mr brooks spoke out again about this treatment of the white police officer which he felt favored that officer because of his race but chief included those three items in his letter that he said to mr brock saying stop it or you're going to be disciplined up to being just charged mr brooks included that letter in a about the jury instruction with respect to the jury instruction given that there were three different statements at issue here isn't this in sort of case it requires a mixed y this was a jury ever asked to make that kind of assess you know the jury was not asked and i think that that argument by the defense or that argument that your honor is making for the defense has been waive innocent before you both parties proposed a disjunctive instruction before trial that if the jury found that either eighty or see the testimony as he or she hearing the comments about the  the two comments about preferential treatment for the white police officer that was mr brooks could have had or had a what was objective lee and valid that the chief then was violating title seven about improper jury instructions they cannot be raised on appeal in this case nobody asked for a mixed mode of instruction which would have asked the jury to say but for a b or c cases i would not be jack there a reversal on that fracture but the other thing that's important in a mixed mode of instruction it's the defendant's burden to show that the decision maker would not have been imposed were threatened to fire mr brooks for for any of those three things that were in there and that the very that was not raised t trial i think it would be i would be distressed if the defendants were given a nd bite at the apple to do the case right but i think before we get to the new trial the question i every issue for you how did this letter of reprimand harm play go well it harmed the place if because she told him stop speaking out about race discrimination because she'll get fired also that's another issue that was their star for the question is how is that harm yes there are an allegation for example that he would have said something that he did not as a result of that letter oh he would have continued to speak out about you know mr mr foxman please be careful i'm not asking for your testimony i'm asking whether there is an allegation in the record of this case backed up say by testimony from brock's that he would have said something which as a result of this letter he did not say i did not know the answer to that question addressed diction all question if there is no harm there is no standing and the plaintiff always has to establish harm or we don't have jurisdiction under article three if there is absolutely nothing in the record suggesting harm we have a problem the suggestion and i believe it's a very strong suggestion of harm comes from the chief's letter which says if you keep doing this you're going to get fired could have been a jury question the judge district judge resolved that in summary judgment there's no issue on appeal but he absolutely that that was incorrect and i think your honor should accept just records fighting that there's harm and move on to the merits of the case i would be glad to comb through mr brooks's deposition and submit a twenty eight letter twenty eight jail letter i believe to to point out those page references if there is anything that's directly responsive to your honor's question  if there are no further questions i will reserve the rest of my time thank you three things that do not make an appearance in the plaintiff's pleadings they are st of all the word credibility secondly seven circuit pattern jury instruction three dollars to which district judge bruce did his best to attack excuse me does his best to i doubt to the facts of this case is they were presented at trial and rd the complete lack of evidence that any similarly situated person to mr brooks was treated differently credibility matters because much of this is an appeal from a jury verdict and it is important to emphasize just counsel counsel let me ask you the same question that i just asked  any evidence in the record that brooks wanted to say something further but refrained from doing so as a result of the reprimand mr brooks did not say that at all in his deposition he claimed in his deposition to have experienced some kinds of emotional distress or worry in light of the letter that's really best described as a written reprimand that's how it was referred to a trial is the reprimand letter it is functionally indistinguishable from other letters of reprimand that the chief sent he even testified to a couple of those at trial assume there is no testimony in the record as to something mr brooks would have said what for district judge thought so and i'm not she alan g that that level of harm i wouldn't think it's well you know unfortunately counsel what authorities are challenging is not important at it when there's a jurisdictional issue we have a question about whether there is a case or controversy about this and now both sides have said well i haven't raised that so you shouldn't reach it this is something we have to reach even if the parties stipulate to federal unspecified level is in harm functionally this letter is a letter of written reprimand and i think it would be correct that a letter of written reprimand in employment case does quantify harm it's not it's a generally see you as a as a matter of law i'm very surprised at that position suppose we don't have a letter of reprimand but the city just says the plaintiff has said x y and z we believe that x y and z are all false yours sincerely kankakee police is that a little bold question there is a doctrine that the government has a right to speak on its own government speech doctrine says that's not something that courts can upset the question i'm asking is functionally how is this letter of reprimand different from government speech functionally one difference your honor is that he goes into mr brooks is employee file along with other letters of reprimand that he's gotten or the other employees we have gotten and that is something as your honour's kno it can always be obtained in litigation in something that is at least on to could be considered an income when it look if he if you have a plain government speech where the chief of police says brooks has said x all three of those statements are false that's my view that's all a matter of public record people can consider it they can think about it in the future you're surely not saying that despite the government speech doctrine that if that thing can be litigated right the supreme court has held otherwise that's not subject to judicial litigation i would certainly say that if the government makes a speech if for example your honor if i the former chief larry rainey would have made such a statement at a press conference or put something on a website or put it in some you know i don't believe he has a twitter account but if he were to try have tweeted so so look i'm i'm just trying to pin down how this letter of reprimand is different from the statement at a press conference on the public record the way in which it's different it's a letter of reprimand says and if you say something like this again you will be fired now there wasn't any further disappoint so the way in which it's different is that it can be viewed as well the extreme contention would be this is a prior restraint on speech that it threatens or consequence which the st amendment doesn't allow and that then leads to the question whether the plaintiff has asserted that he wanted to make such a statement but as a result of this prior restraint was deterred that's what gets us into harm and that's why i asked mr fla an that's why i'm asking you whether there is any assertion about his point of you know filing in court in a deposition in testimony anywhere that he wanted to do that but was deterred judge i believe there is no assertion to that effect by this plaintiff i think i can say that you fenech least your honor i would respectfully disagree with your honor's position that that is decisive here i would submit to the court that the difference with respect to government speech here is this is it is functionally a brick reprimand that goes into a person's employee file it's certainly disordered things that could be and generally prior discipline twelve and three and this is all relevant so i i would submit to the court that again why would you know if this were a damages case and would certainly be arguing to the jury quite strongly no harm is minimal very low there is no harm there and that's that's the distinction i would draw for the court even think that we can and her grayness history of making critical state true reprimand letter that verse copy better shut up judge i would partially agree and partially disagree i would agree with your honor that one but i think based on the record and i'll get to that in a moment could agree that mr brooks might have kept saying certain thing i would respectfully disagree with your honor's characterization and both plaintiff's counsels claim that this is you better shut up or you can't speak out about discrimination not one  letter does it say that mr brooks can't happen in opinion or that he can't file future complaints there is even testimony even mr brooks and self admitted to that at trial what the letter warns mr brooks to do is to stop making false statements affect and  reason your honor i think one actually could a sit in for mr brooks may well have kept saying things is that and this goes to a critical jury issue too when it comes to credibility and motive because in the spin given by the  appeal the position given is that will mr brooks only mention does not exist to consent decree one time in two thousand and fourteen but the testimony from chief rainey and janet hass water was that even though after mr brooks nade this claim and sixteen meeting before the board of police and fire commissioners the testimony from the chief and from the senate passed water was he once again said even having been told there is no consent decree he said again that they in using them as two terms interchangeably judge it in response to that mr brooks isn't just a layperson neither is chief rainey they're both police officers and his chief rain testified that idea of each word consent decree has a very specific meaning in the law enforcement world but to get to a deeper issue your honor certainly a jury would have been entitled to take the position that you are suggesting and perhaps if you're on  the jury you might you might have reached that conclusion a juror certainly could have decided that mr brooks had a reasonable good faith basis to make his statements they could have said it was honest mistake and they could have found for him there is a plenty of test is the district judge put it very well if the jury would have believed mr brock's both as to what he said and why he said it the jury could have found for him but mr brooks they weren't required to agree with him this is it is fundamentally about motive and there's a nd half to the consent decree your honor the agreed order that mr brooks says was referring to expired years before and he never brought that up he didn't and he kept saying the same thing your honor multiple times after being corrected and i would submit to the court that a jury can certainly infer just like a citizen can infer if someone makes an accusation is correct about the facts and then continues making the same accusation over and over and over again without coming forward with any new evidence the jury can consider that person it doesn't have a reasonable good faith basis in what they're saying and so that is one of again mr  said he only made that statement once with this is one of many factual tissues the jury was entitled to resolve i'm want to address very briefly that question of the jury instruction there's two issues here one the reasonable a that and asking for a reheat asking this court to reconsider its precedent really in this the argument with respect to the reason illness and good faith is the exact same argument that was raised in and forty six they also give reasons for that text really and i would just simply refer you to their the question of the mixed motives the plaintiffs certainly could have asked for that jury instruction he didn't this court could certainly recommend an opinion and suggest that might be a good idea in the future but that certainly doesn't require reversal here jury instructions need to actually accurately state the law they don't have to be perfect and the critical issue here is what caused this written reprimand and one of the few things the plaintiffs and the defendant agree on is that the standard is but for causation and the judge was attempting to  is statements were not in fact unprotected and finally your honor there hasn't been any argument on to the summary judgment ruling by the judge ultimately it's in the grease but the disparate impact claim was raised at the last nd half with no warning that it was there the district judge applied that very well as the judgment standard the plaintiff was never similarly situated on two other employees and that's why his failure to promote claim was properly dismissed i've got like twenty seconds left is the court have any questions i'll take that as another when you have my last ten seconds thank you your honors for your time f it's important to note that if we had proposed to but for instruction the jury would have been told that if it found that either one or two or all three of the incidents where the but for cause of the letter threatening just charged that we would with that plaintiff would win that's kind of where i think there was one one question that was entitled to free speech protection but thirteen or fourteen were not we only have to prove one in a typical but for instruction the question that about standing and article three is  a question that has not been developed in the record in this case but if it had been raised in a district court either suicide to hear about a defendant's the parties would have had an opportunity to present evidence on that issue  we did not we didn't make the argument well there is an argument that you could infer harm that he stops speaking out about his perceived racial discrimination because  threaten with being fired the other argument which is also not developed in this record but is there is that in title seven the congress stablished a cause of action for retaliation which the supreme court has construed as whether the retaliatory acts would dissuade another someone else a reasonable employee from speaking out harm to the plaintiff and if this had been raised in the district quote we would argue that congress intended to allow the plaintiffs to raise the standing of others to to get into court to complain about this your initial retaliation thank you and