Spalding v. City of Chicago (186 F. Supp. 3d 884, 2016)

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

Shannon Spalding and Daniel Echever-ría, both officers with the Chicago Police Department (“CPD”)) brought this suit under 42 U.S.C. § 1983 and Illinois law against the City of Chicago and several CPD officers, of whom Juan Rivera, James O’Grady, Nicholas Roti, Joseph Salemme, Thomas Mills, Maurice Barnes, and Robert Cesario remain as defendants. Rivera was Chief of the CPD Internal Affairs Division (“IAD”); O’Grady was Commander of the CPD Narcotics Division; Roti was Commander of the Narcotics Division (pri- or to O’Grady) and Deputy Chief of Organized Crime, the bureau that includes the Narcotics Division; Salemme was Commander of the CPD Fugitive Apprehension Division (“FAU”); Mills was supervisor of the FAU’s Third Watch team; Barnes was an FAU sergeant; and Cesario was an FAU lieutenant.

The amended complaint alleges that Defendants violated the First Amendment and the Illinois Whistleblower Act (“IWA”), 740 ILCS § 174/15, by conspiring to retaliate and actually retaliating against Plaintiffs for reporting criminal misconduct by other CPD officers to the Federal Bureau of Investigation (“FBI”) and the IAD, and also for bringing and speaking to the media about this lawsuit. Doc. 44. Earlier in the litigation, Defendants moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), Docs. 57, 59-60, and the court denied the motion. Docs. 80-81 (reported at 24 F.Supp.3d 765 (N.D.Ill.2014)). Discovery has closed and a jury trial is set for May 31, 2016. Doc. 136.

Defendants have moved for summary judgment on all claims. Doc. 164. Briefing concluded on March 25, 2016, and argument was held on March 30, 2016. The motion is: (1) denied on the First Amendment retaliation claim; (2) denied on the Monell claim against the City; (3) granted on the § 1983 conspiracy claim, except for the alleged conspiracies (a) among O’Grady, Roti, and Rivera, and (b) among Barnes, Cesario, and Salemme; and (4) granted on the IWA claim as to Roti and Rivera, but not as to the other defendants.

Background

A. Evidentiary Issues

Before setting forth the factual background, the court resolves evidentiary issues raised by the parties.

1. Defendants’ Hearsay Objections

In their response to Plaintiffs’ Local Rule 56.1(b)(3)(C) statement of additional facts, Defendants challenge several of Plaintiffs’ factual assertions as resting on inadmissible “hearsay within hearsay.” Doc. 176 at ¶¶ 20, 24, 26, 34, 38, 55, 69.

In ¶ 24 of their Local Rule 56.1(b)(3)(C) statement, Plaintiffs rely on Spalding’s deposition testimony to assert that Sergeant James Padar told Plaintiffs and Officer Anthony Hernandez, Spalding’s boyfriend, that O’Grady (who, as noted, was Commander of the Narcotics Division) had called Plaintiffs “IAD rats” and had prohibited Padar from working with them or from sending them backup in an emergency. Id. at ¶ 24 (citing Doc. 173-1 at 25). Defendants contend that O’Grady’s statements to Padar and Padar’s statements to Spalding (relaying O’Grady’s statements) are inadmissible hearsay.

“Under Rule 805, both levels of hearsay must come within exceptions to the hearsay rule for hearsay within hearsay to be admissible.” United States v. Severson, 49 F.3d 268, 271 (7th Cir.1995); see Fed. R. Evid. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”). Thus, as to ¶ 24, both the “inner layer”—O’Grady’s statements to Padar— and “outer layer”—Padar’s statements to Spalding—must fall within a hearsay exception or exclusion for Spalding’s testimony to be admissible. Halloway v. Milwaukee Cnty., 180 F.3d 820, 824-25 & n. 4 (7th Cir.1999).

Because O’Grady is a defendant, his statements to Padar are admissible as opposing party statements under Rule 801(d)(2)(A), which provides that a “statement [that] is offered against an opposing party and ... was made by the party in an individual or representative capacity” is not hearsay. Fed. R. Evid. 801(d)(2)(A); see Halloway, 180 F.3d at 825 n. 4, In addition, O’Grady’s statements are not hearsay because they are offered not “to prove the truth of the matter asserted,” Fed. R. Evid. 801(c)(2)—that Plaintiffs are “rats”—but rather “to show what [O’Grady] himself’ believed about Plaintiffs, United States v. Smith, 816 F.3d 479, 482 (7th Cir.2016). “Statements that constitute verbal acts (e,g., ... slander) are not hearsay because they are not offered for their truth.” Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.2007); see also Carter v. Douma, 796 F.3d 726, 735 (7th Cir.2015) (holding that an officer’s verbal instruction to an informant was not hearsay because “[s]uch verbal acts are not statements offered to prove the truth of their contents”). For both of these reasons, O’Grady’s statements to Padar are not barred by the hearsay rule.

Padar’s statements, meanwhile, came in the context of his conveying to Plaintiffs and Hernandez that O’Grady had denied their request for funds to develop a confidential informant for a narcotics investigation. Doc. 176 at ¶¶ 22-24. Because (as detailed below) Plaintiffs were required to convey such requests to O’Grady after obtaining approval from Padar, and because Padar had presented Plaintiffs’ request to O’Grady, Padar’s statement falls under Rule 801(d)(2)(D)’s exclusion from the hearsay rule of statements “offered against an opposing party” and “made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2)(D); see Bordelon v. Bd. of Educ. of Chi., 811 F.3d 984, 992 (7th Cir.2016). Although “[n]ot everything that relates to one’s job falls within the scope of one’s agency or employment,” Padar acted as O’Grady’s agent, and his duties clearly “related to the decisionmaking process affecting” Plaintiffs’ request for funds to develop a confidential informant. Bordelon, 811 F.3d at 992 (internal quotation marks omitted).

The court thus accepts as true ¶ 24 of Plaintiffs’ Local Rule 56.1(b)(3)(C) statement. Although Defendants offer factual denials of ¶ 24, the parties’ genuine factual dispute must be resolved in Plaintiffs’ favor on summary judgment. See Woods v. City of Berwyn, 803 F.3d 865, 867 (7th Cir.2015). The same holds for Defendants’ factual challenges to- the Local Rule 56.1(b)(3)(C) assertions discussed below, at least to the extent those assertions do not rest on inadmissible hearsay.

Plaintiffs’ ¶ 20 asserts: “On an unknown date to Plaintiffs, information that Plaintiffs had reported criminal misconduct by a sworn officer and were working with an outside investigation was .leaked within the department, and became known to Defendant Commander . O’Grady. (Spalding Dep. pp. 85-89),” Doc. 176 at ¶ 20. As with ¶ 24, Plaintiffs support this assertion by citing to Spalding’s testimony that Padar had told her that O’Grady had called Plaintiffs “IAD rats/’ Doc, 173-1 at 24-25. For the reasons discussed above with regard as to ¶ 24, the hearsay rule does, not bar this evidence.

Plaintiffs’ ¶ 26 asserts: “Rivera responded [to Spalding] stating ’That might be my fault; I might have f.ed up.’ Rivera then told Spalding that he had informed Chief Ernie Brown (the current Chief of Organized Crime) about [Plaintiffs’] role in the investigation and [Brown] had told. Deputy Chief Nick Roti and Commander O’Grady and his command staff. (Spalding Dep. pp, 98-100).” Id. at ¶ 26. (As noted, Rivera was Chief- of IAD.) Because Rivera is a. party opponent, his statement to Spalding that he told Brown about Plaintiffs’ role in the investigation is not hearsay under Rule-801(d)(2)(A). Sep Halloway, 180 F.3d at 825, n. 4. And although Brown’s statements to. Roti and O’Grady may be inadmissible, hearsay, Plaintiffs do not rely on them: they rely only on Rivera’s statements about what Brown did (telling Roti and O’Grady about Plaintiffs’ role in the investigation), and not on Rivera’s- statements about what Brown told .Rivera about what Brown had told others. Accordingly, ¶ 26- is deemed true.

Plaintiffs’ ¶ 34 asserts: “Juan Rivera told Plaintiffs that he was present at the meeting where it was decided that Plaintiffs would be reassigned from Unit 543. Also present were Nick Roti, James O’Grady, Beatrice Cuello, and others. (Spalding Dep., p. 109.) At that meeting, O’Grady said that ‘I’m not taking those F-ing IAD rats back; and furthermore, God help them if they need help on the street ... it’s not going to come.’ (Spalding Dep., p. 111).” Doc. 176 at ¶ 34. Because Rivera and O’Grady are both party opponents, O’Grady’s statement to Rivera and Rivera’s statement to Spalding are non-hearsay under Rule 801(d)(2)(A). See Halloway, 180 F.3d at 825 n. 4.

Plaintiffs’ ,¶ 38 asserts: “After [Plaintiffs] informed Peter Koconis that they had been removed from their detail of 543, Koconis had a telephone conversation with Deputy Superintendent Beatrice Cuello inquiring why [Plaintiffs] would be removed from their assignments. During this conversation, Cuello told Koconis that both [Plaintiffs] were good officers and Cuello never had experienced any problems with them. -However, she said that during a meeting where she was present, which included Deputy Chief James Jackson, Commander James O’Grady, and Chief Nicholas Roti, that James O’Grady and Nicholas Roti refused to allow either officer to return to their units of assignments within [Unit] 189,’ due to the fact that [Plaintiffs] were ‘IAD rats.’ (Koconis Dep., pp. 42, 95, 96).” Doc. 176 at ¶ 38. This paragraph is supported by Koconis’s deposition; because he was on the call with Cuello but not in the meeting that she discussed, he has' the knowledge to testify as to what Cuello said on the call but not as to what Roti and O’Grady said at the meeting. Doc. 173-9 at 42, 92-96.

O’Grady and Roti are party opponents, so their statements to Cuello are non-hearsay under Rule 801(d)(2)(A). See Halloway, 180 F.3d at 825 n. 4. Cuello, however, is not a party opponent. Also, there is no indication that, during her conversation with Koconis, Cuello was acting as O’Grady’s or Roti’s “agent or employee,” as she worked in a different CPD department and was only “present” for the meeting in which Plaintiffs’ removal from their assignments was discussed. See Bordelon, 811 F.3d at 992. It follows, at least on the current record, that Cuello’s statement to Koconis, the “outer layer” of the hearsay within hearsay, is inadmissible, and so O’Grady’s and Roti’s statements (which Cuello related to Koconis) are as well. See Halloway, 180 F.3d at 824-25 (excluding “hearsay within hearsay” where the “outer layer,” but not the “inner layer,” was barred by the hearsay rule); Swearnigen-El v. Cook Cnty. Sheriff’s Dep't, 602 F.3d 852, 864 (7th Cir.2010). If Plaintiffs wish to introduce this evidence at trial, they will be given the chance to establish the required predicates.

Plaintiffs’ ¶ 55 asserts: “Detective Kevin Culhane told Jan[et] Hanna that he had been told directly by Lt. Cesario not to give Plaintiffs access to both Accurint and Leads 2000 data bases. (Hanna Dep., p. 88).” Doc. 176 at ¶ 55. This paragraph is supported by Hanna’s deposition, and she has the knowledge to testify as to what Culhane told her. See Doc. 173-11 at 22-23. But Culhane is not a party opponent, and there is no indication that Culhane was acting as Cesario’s agent or employee when Culhane reported Cesar-io’s statement to Hanna. See Bordelon, 811 F.3d at 992. (As noted, Cesario was a lieutenant in FAU.) Because Culhane’s statement to Hanna is offered for the truth of the matter asserted—that Cesario told Culhane not to give Plaintiffs access to certain databases—¶ 55 rests on inadmissible hearsay and is disregarded. See Halloway, 180 F.3d at 825 n. 4. Again, if Plaintiffs wish to introduce this evidence at trial, they will be given the chance to establish the required predicates.

Defendants challenge only one sentence of Plaintiffs’ ¶ 56: “[At a meeting with Plaintiffs, Cesario] said, ‘you want to go against officers, you want to do this type of activity, you are going to be put on the night team way up north ... you will no longer work days, you will no longer have a take home car and if I can help it you will never be deputized.[’] (Spalding Dep., p. 248).” Doc. 176 at ¶ 56. Because Cesario is a party opponent, his statement to Spalding is non-hearsay under Rule 801(d)(2)(A). See Halloway, 180 F.3d at 825 n. 4. In addition, Cesario’s statement is not offered for the truth of the matter asserted, but rather is a verbal act offered to show his hostility towards about Plaintiffs. See Smith, 816 F.3d at 482; Carter, 796 F.3d at 735. For either of these reasons, it is not barred by the hearsay rule. Schindler, 474 F.3d at 1010.

Paragraph 69 asserts: “Officer Jan Hanna was in the room when a telephone conversation came in for Lt. Cesario from Commander O’Grady. She heard Cesario say ‘hello Commander O’Grady.’ (Hanna Dep., p. 86.) She did not hear the conversation. As soon as Cesario hung up the telephone, Lt. Cesario told Hanna ‘that was Commander O’Grady and he just informed me that [Spalding] is no longer allowed, like I said, she’s no longer permitted, she’s banned from Homan Square and if she goes there, she will be arrested. (Hanna Dep., p. 86.).” Doc. 176 at ¶ 69. As Cesario and O’Grady are both party opponents, O’Grady’s statement to Cesario and Cesario’s statement to Hanna are non-hearsay.

2. Other Objections

Defendants contend that ¶¶ 68, 77, and 80 of Plaintiffs’ Local Rule 56.1(b)(3)(C) statement improperly combine “numerous statements in one paragraph.” Doc. 176 at ¶¶ 68, 77, 80. Defendants contend that this violates Local Rule 56.1(b)(3)(C), which states in relevant part that a party opposing summary judgment may submit “a statement, consisting of short numbered paragraphs, of any additional facts.” N.D. Ill. L.R. 56.1(b)(3)(C) (emphasis added).

The Seventh Circuit “has consistently upheld district judges’ discretion to require strict compliance with Local Rule 56.1.” Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir.2015) (citing cases); see also Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir.2011) (“Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, .we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote, the clarity of. summary judgment filings.”). Although each of the challenged paragraphs contains several facts that, standing alone, could have supported a single paragraph, the paragraphs do not frustrate the “purpose of Rule 56.1,” which “is to have the litigants present to the district court a clear, concise list of material facts that are central to the summary judgment determination.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir.2015). While perhaps not as lean as they could have been, ¶¶ 68, 77, and 80 are sufficiently “clear” and “concise” to pass muster.

Defendants also argue that ¶¶ 77 and 80 of Plaintiffs’ Local Rule 56(l)(b)(3)(C) statement “state[ ] legal conclusions and opinions rather than facts,” and that ¶ 80(d) is not supported with a record citation. Doc. 176 at ¶¶ 77, 80. But ¶¶ 77 and 80 (other than part (d)) cite to record evidence for their factual assertions and do not state legal conclusions. For ¶ 77, Defendants appear to object to the assertion that Spalding’s post-traumatic stress disorder was caused by Defendants’ alleged misconduct; this objection is overruled because ¶ 77 states only that this is the opinion of Spalding’s treating psychiatrist, treating therapist, and the Chicago Police Pension Board’s evaluating psychologist. Similarly, for ¶ 80, Defendants appear to object to Plaintiffs’ expert Lou Reiter’s opinion about what policies the City does or does not maintain; this objection is overruled because ¶ 80 cites Reiter’s conclusions not as indisputable facts but'instead, accurately, as his opinions. Defendants are, however, correct that ¶ 80(d) fails to cite to any record evidence, and so it is disregarded.

Finally, Plaintiffs object to a few paragraphs of Defendants’ Local Rule 56.1(a)(3) statement on relevance grounds. Doc. 172 at ¶¶ 25, 32, 34, and 42. If the paragraphs are irrelevant, the court will not rely on them. In addition, Plaintiffs object on hearsay grounds to Defendants’ ¶ 42, which quotes a personnel assessment completed by Spalding’s former supervisor. Paragraph 42 is not material to the court’s summary judgment analysis, and so Plaintiffs’ objection is denied as moot.

B. Factual Background

With these evidentiary matters resolved, the court sets forth the follow facts as favorably to Plaintiffs, the non-movants, as the record and Local Rule 56.1 allow. See Woods, 803 F.3d at 867. In considering Defendants’ summary judgment motion, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir.2015). The court’s recitation of these facts should not be taken as indicating the court’s belief that Plaintiffs’ evidence is true and, by the same token, that disclaimer should not be taken as indicating the court’s belief that Plaintiffs’ evidence is false. The court does not know at this point whether Plaintiffs’ evidence— which purports to show extraordinarily serious retaliatory misconduct by officers at nearly all levels of the CPD hierarchy— is entirely true, partly true and partly false, or entirely false,

Spalding and Echeverría began their careers as CPD officers in 1996 and 1999, respectively. Doc. 172 at ¶¶ 1-2. In approximately 1997, while Spalding was assigned to the CPD’s Public Housing South unit, FBI Special Agent Ken Samuels contacted her and asked if she knew of any illegal activity by certain CPD officers, including Sergeant Ronald Watts. Id. at ¶ 8. Spald-ing believed that the focus of Samuels’s investigation was not Watts but instead Officer Joe Seinitz. Id. at ¶ 9. Spalding told Samuels that she was unaware of any illegal activity by Watts or the other officers. Id. at ¶ 8.

About a decade later, in May 2006, Spalding and Echeverría were assigned to the CPD’s Narcotics Division. Id. at ¶ 7; Doc. 176 at ¶ 1. In 2007, a suspect informed Echeverría that Watts was stealihg and both doing and dealing drugs in the Ida B. Wells housing projects. Doc. 172 at ¶ 10; Doc. 176 at ¶¶ 4-6. Echeverría passed along this information to his supervisor, CPD Sergeant Roderick Watson. Doc. 172 at ¶ 11; Doc. 176 at ¶¶ 6-7. Echeverría thought Watson might initiate a confidential investigation, but Watson instead told Echeverría that the report of the suspect’s debriefing should be marked as “a negative,” meaning that it had gathered no intelligence. Doc. 172 at ¶ 11; Doc. 173-1 at 11; Doc. 176 at ¶ 7.

Before the end of 2007, Spalding and Echeverría, lacking confidence that the CPD would fairly investigate Watts’s alleged activity, reported that activity to FBI Special Agent Patrick Smith. Doc. 172 at ¶ 12; Doc. 176 at ¶ 8. Spalding asked Smith to put her in touch with Samuels, the FBI agent who contacted her in 1997. Doc. 172 at ¶ 13. Smith, with whom Plaintiffs continued to meet intermittently through' August 2008, told Plaintiffs that he was already aware of an FBI investigation into Watts. Id. at ¶ 14. Plaintiffs met with Smith only while they were off-duty. Doc. 176 at ¶ 9.

After FBI agents asked Plaintiffs to spend more time assisting the Watts investigation, Echeverría told Smith that because his and Spalding’s additional involvement Would necessarily encroach on their CPD working hours, Echeverría planned to speak with Tina Skahill, who was at the time Chief of the CPD’s IAD. Doc. 172 at ¶21; Doc. 176 at ¶¶ 10-11. Ünbeknownst to Plaintiffs, upon becoming IAD Chief in March 2008, Skahill was briefed on an ongoing CPD investigation into Watts and Was told that Plaintiffs were working with IAD and the FBI on the investigation. Doc. 172 at ¶ 15. That was partially inaccurate, as Plaintiffs at the time were working only with the FBI, not with IAD. Ibid. In June 2008, Skahill asked Roti, then Commander of Narcotics, for permission for Plaintiffs to work with the FBI on an as-needed or part-time basis on a corruption case. Id. at ¶ 16. Roti granted the authorization, but Plaintiffs were not informed that he had done so. Ibid.

Echeverría set up a meeting with Skahill in August 2008. Doc. 176 at ¶ 12. At the meeting, also attended by Spalding, Smith, and some IAD personnel, Echeverría told Skahill how Plaintiffs had obtained their information and to whom they had reported it, and he added that Plaintiffs had decided on their own to inform the FBI, Doc. 172 at ¶ 20; Doc. 176 at ¶ 13. Although Samuels had mentioned Watts’s name in the 1997 call, Plaintiffs learned for the first time at the Skahill meeting that the FBI and CPD had been investigating Watts, along with an Officer Mohammed, for over a decade. Doc. 172 at ¶ 24; Doc. 176 at ¶ 17.

At the meeting, Skahill stated that she had decided to detail Plaintiffs to Unit 543 (“Detached Services”) so that “nobody [in the CPD] would be exactly sure what [they] were doing” and so that they could report directly to FBI headquarters in their official capacity as police officers without compromising the federal investigation—dubbed “Operation Brass Tax”— or risking that somebody would connect them to the investigation. Doc. 172 at ¶ 22; Doc. 176 at ¶¶ 14-15, 18. Other than the CPD personnel in the meeting with Ska-hill, only then-CPD Superintendent Jody Weis, Deputy Superintendent Peter Brust, Deputy Superintendent Debra Kirby, and Liz Glatz, the Commander of Unit 543, were to know of Plaintiffs’ involvement in the federal investigation. Doc. 176 at ¶ 16. When Rivera succeeded Skahill as IAD Chief, Skahill told Rivera that Plaintiffs were involved in an investigation of Watts and Mohammed. Doc. 172 at ¶ 35.

During Plaintiffs’ work on Operation Brass Tax, CPD command staff encouraged them to develop other narcotics-related cases that overlapped with their work on the federal investigation. Doc. 176 at ¶ 19. In developing those other cases, Plaintiffs were instructed to direct requests for payment for confidential informants through a sergeant in the Narcotics Division; the sergeant would then send the request to O’Grady, who had succeeded Roti as Commander of the Narcotics Division, for his approval. Doc. 172 at ¶ 26; Doc, 176 at ¶ 19. When O’Grady replaced Roti, Roti told him that Plaintiffs were on loan to IAD for work on a police corruption case, although Roti did not reveal which officers were under investigation. Doc. 172 at ¶ 26; Doc. 176 at ¶¶ 21, 31. O’Grady also became aware that Plaintiffs were working with the FBI on a special investigation into a police corruption case involving public housing and that Plaintiffs had reported criminal misconduct by a police officer to an outside law enforcement agency. Id, at ¶¶ 20, 31. 0?Grady earlier in his career worked in IAD, during which time he’ personally arrested other CPD officers. Doc. 172 at ¶ 32. Likewise, Roti earlier in his career was involved in the arrest of CPD officers charged with a federal narcotics conspiracy. Id. at ¶ 34.

On August 17, 2010,' Sergeant Padar presented O’Grady with a request from Plaintiffs for funds for a confidential informant on a narcotics case not involving Watts. Id. at ¶¶ 28-29; Doc. 176 at ¶¶ 22-23. Because Plaintiffs were not then working in the Narcotics Division, O’Grady knew little about their narcotics investigation. Doc. 172 at ¶ 29. Padar told Plaintiffs and Hernandez that O’Grady said that he would not “approve this [request from] these two IAD rats Spalding and Echever-ría.” Doc. 176 at ¶ 24. O’Grady also said that Padar was not to work with Plaintiffs, that O’Grady did not want Plaintiffs in the Narcotics squad’s building, and that if Plaintiffs ever called for emergency backup, Padar and other members of the Narcotics Division were not to respond. Ibid.

When Spalding confronted Rivera about O’Grady’s response, Rivera said that O’Grady’s knowledge of Plaintiffs’ involvement with Operation Brass Tax might be his (Rivera’s) fault, as he had relayed Plaintiffs’ involvement to Ernie Brown, then the Chief of Organized Crime, the bureau that includes the Narcotics Division. Id. at ¶ 26. Spalding told Rivera that O’Grady was informing Narcotics personnel that Plaintiffs were “snitches” and “rats,” but Rivera declined to investigate because, in his view, those were merely “unsubstantiated rumors” that Hernandez, who had not personally witnessed O’Grady using this language, had conveyed to Spalding. Doc. 172 at ¶¶ 98-99; Doc. 173-7 at 14; Doc. 176 at ¶¶ 27-28.

In April or May 2011, OPD Superintendent Terry Hilliard and Deputy Superintendent of Detached Services Beatrice Cuello began considering transferring Plaintiffs from Detached Services to another unit. Doc. 176 at ¶ 29. Rivera informally-asked Roti about returning Plaintiffs to the Narcotics Division. Doc. 172 at ¶ 43; Doc. 176 at ¶ 33. After consulting with O’Grady, Roti told Rivera that he was not interested in taking Plaintiffs back into Narcotics. Doc. 172 at ¶ 43; Doc. 176 at f 39. At a meeting attended by Roti, Cuel-lo, Rivera, and others, O’Grady vociferously rejected the idea of Plaintiffs’ returning to Narcotics, referred to them as “IAD rats,” and indicated once more that they would not receive help on the street. Id. at ¶¶ 34-36. O’Grady also noted that Spalding had a poor reputation from her previous stint in Narcotics, including from an incident where she engaged an on-duty officer to help her intimidate an individual into returning a dog that she had given that individual. Doc. 172 at ¶ 44. Plaintiffs did not request a return to Narcotics, and they were instead detailed to the police academy and then, at Skahill’s direction, to the Inspections Division, which deals with auditing. Doc. 172 at ¶ 41; Doc. 176 at ¶¶ 40-41.

After a brief period of inactivity, Plaintiffs in October 2011 once again began to work periodically on Operation Brass Tax. Id. at ¶ 42. On February 13, 2012, the FBI publicly announced the arrests of Watts and Mohammed. Id. at ¶ 43. On March 18, 2012, Plaintiffs were reassigned to FAU, to which they had applied prior to the arrest. Doc. 172 at ¶ 49; Doc. 176 at ¶ 43. Rivera and Skahill wrote recommendation letters to support their applications, and Plaintiffs do not claim that the move to FAU was retaliatory. Doc. 172 at ¶¶ 49-50. Prior to Plaintiffs’ arrival at FAU, Sa-lemme—the FAU commander—heard that at least one of the Plaintiffs was “IAD.” Doc. 176 at ¶ 44. Salemme also knew prior to the filing of this suit in November 2012 that Plaintiffs were involved in the Watts investigation. Ibid.

Cesario—an FAU lieutenant—told Officer Jan Hanna the day before Plaintiffs’ arrival that Plaintiffs were “IAD rats”; when Plaintiffs arrived the next day, Hanna asked: “So you two are the IAD rats?” Id. at ¶¶ 45-46. Cesario handpicked Plaintiffs’ assignments, ordered Hanna to give Plaintiffs only “dead-end cases that would not lead to arrests or officer activity,” and instructed Hanna to copy him on all emails giving Plaintiffs assignments. Doc. 173-11 at 13-14; Doc. 176 at ¶¶ 47-49. Cesario also directed Hanna to ignore Plaintiffs’ requests for overtime; although Hanna testified that Plaintiffs did no overtime work at FAU, Spalding does not claim that she ever requested such overtime, and Echev-erría is unaware of any circumstances where Plaintiffs’ fellow non-task force officers had opportunities to do overtime work and Plaintiffs did not. Id. at ¶ 51. Hanna also testified that she heard Cesario instruct his officers not to work with or provide backup for Plaintiffs and to inform their team members that they should do the same. Id. at ¶ 52. Plaintiffs’ sergeant removed them from a homicide case after Hanna inadvertently assigned them to it. Id. at ¶ 50.

Barnes was Plaintiffs’ immediate supervisor when they began at FAU. Doc. 172 at ¶ 53. Before Plaintiffs’ arrival, Barnes told a member of the squad that two officers “from IAD” were joining the team. Doc. 176 at ¶ 58. Spalding told Barnes that she had been told that the rest of the squad had been instructed not to work with Plaintiffs. Id. at ¶ 59. Barnes said that “[t]he team doesn’t like” Plaintiffs, was “not going to back [them] up,” and doesn’t “trust” them. Ibid. Barnes added:

I know that, you know, you worked for IAD, you brought a sergeant down. ... You like to bring sergeants down, huh? You like to have sergeants arrested? ... To be honest with you, I’d hate to one of these days have to be the one to knock on your door and tell your daughter you’re coming home in a box. That’s how serious it is.

Id. at ¶¶ 60-61. Barnes -testified that he was unaware of any complaints about Plaintiffs while they worked for his team and that he believed they were good officers. Id. at ¶¶ 63-64.

In June 2012, Plaintiffs attended a meeting with Cesario, Salemme, and Barnes, at which they were removed .from Barnes’s team and placed on Third Watch, a later shift. Doc. 172 at ¶¶ 62-65; Doc. 176 at ¶ 62. As reasons for the move, Cesario (who made the decision) and Salemme cited: (1) a confrontation that Barnes had with Hernandez, who was upset by rumors that Spalding might be transferred from FAU; and (2) Plaintiffs’ alleged poor performance, including their low arrest activity from March 22, 2012 to June 21, 2012. Doc. 172 at ¶¶ 64-66. Salemme also told Plaintiffs that they “should have known better” and that if they went “against other sworn personnel, [they] should have known this shit was going to happen to” them. Doc. 176 at ¶ 65. Cesario and Sa-lemme questioned Plaintiffs about their work with IAD. Id. at ¶ 57.

At the time of Plaintiffs’ transfer from Barnes’s team, the FAU’s Third Watch was a new unit that required staffing. Doc. 172 at ¶ 71. The supervisor of Plaintiffs’ Third Watch team was Mills, who was not working at FAU when Plaintiffs were on Barnes’s team and who had worked at IAD earlier in his CPD career. Id. at ¶¶ 72-73. In one of his first conversations with Plaintiffs, Mills told them that they would have a fresh start with him. Id. at ¶ 74. Mills did not speak with Cesario about the types of cases that Plaintiffs were assigned, did not speak to O’Grady about Plaintiffs, and had no control over how assignments were dispensed to his team. Id. at ¶¶ 76, 78-79.

In July 2012, O’Grady told Hernandez that Spalding was banned from the CPD’s facility in Homan Square due to “all the trouble she’s caused” and because “she can’t be trusted as she’s an IAD rat.” Doc. 176 at ¶ 66. (Plaintiffs’ Local Rule 56.1(b)(3)(C) statement places this event in July 2011, but that appears to be a typographical error given that Plaintiffs did not begin working with Cesario and Sa-lemme until March 2012, and also given that this episode appears chronologically in the " Local Rule 56.1(b)(3)(C) statement with events from 2012.) Salemme testified that O’Grady told him that Spalding should not go to Homan Square unless she had a specific police purpose. Doc. 172 at ¶ 80; Doc. 176 at ¶ 67. O’Grady had never seen Spalding in Homan Square and had never spoken to Spalding about Homan Square before issuing this directive, but someone (O’Grady does not recall whom) had told him that he or she had seen Spalding talking to Hernandez at Homan Square and that Hernandez had left his post to talk to Spalding. Id. at ¶ 68. Hanna testified that she was in the room when Cesar-io received a phone call, said “hello, Commander O’Grady,” and then, after the call was over, told Hanna that O’Grady had just told him that Spalding was banned from Homan Square. Id. at ¶ 69. Mills told Spalding that O’Grady hated her so much that he (O’Grady) might shoot her, and advised Spalding to wear her bulletproof vest. Id. at ¶ 74.

When Plaintiffs filed this suit in November 2012, Mills instructed the officers under his command to watch Plaintiffs’ news conference. Id. at ¶ 70. Mills then told Spalding that his team members no longer wanted to work with Plaintiffs because “[fjor all” the team knew, Plaintiffs “could still be -working IAD investigating” the team. Id. at ¶¶ 70, 73. Mills also said that he didn’t “know how [Plaintiffs were] going to have a career when this [suit] is over.” Id. at ¶ 73. After Plaintiffs filed suit, Mills’s behavior toward Plaintiffs changed. Id. at ¶ 71. He ordered Plaintiffs to spend their entire tours of duty on the street and began to switch their hours. Ibid. On one occasion, Mills told Plaintiffs that two fellow officers would be available for backup in connection with a specific arrest, but when the arrest was set to take place, the promised officers were not available. Id. at ¶ 72.

In late March or early April 2013, Mills, prompted by another officer’s report, filed an internal CPD complaint accusing Spald-ing of secretly recording a conversation with him. Doc. 172 at ¶¶ 77-78; Doc. 176 at ¶ 75. When interviewed by the investigating officers, Mills said that he did not see any evidence of Spalding recording the conversation. Doc. 172 at ¶ 78. Spalding was taken into custody and told that she could lose her job as a result of the charges. Doc, 176 at ¶ 76. One of the CPD officers who took Spalding into custody told her that the charges against her could “go away” if she dropped this lawsuit. Ibid.

Shortly after that incident, Spalding became unable to continue active employment with the CPD as a result of her emotional distress, and she has since been diagnosed with Post-Traumatic Stress Disorder or Adjustment Disorder. Id. at ¶ 77. Echeverría experienced emotional distress that required him to take a medical leave from May 14, 2013 through December 10, 2013. Id. at ¶ 78. At an unspecified date, Plaintiffs requested to be and were moved back to a daytime shift at FAU, although Spalding has not reported for duty since the transfer. Doc. 172 at ¶¶ 81-82.

During the events detailed above, Plaintiffs’ salary and employment benefits were not diminished. Id. at ¶¶ 101,103. Spalding is not sure if she received salary increases during this time, and Echeverria’s step salary increases were not impeded. Id. at ¶¶ 101,103; Spalding believes that she lost some overtime opportunities after she was transferred from Narcotics, but she “can’t guess” how much, and she does not claim to have ever submitted an overtime request while at FAU. Id. at ¶ 102. Echever-ría similarly believes that some of his overtime opportunities were impeded, but he admits that he “can’t put a dollar number on it because overtime is always a variable.” Id. at ¶ 104.

Although Rule 1 of the Chicago Police Board’s Rules of Conduct prohibits “[violation of any law or ordinance,” id. at ¶ 105, Hanna testified that instructors at the CPD police academy repeatedly tell officers:

[W]e do not break the code of silence. Blue is Blue. You stick together. If something occurs on the street that you don’t think is proper, you go with the flow., And after that situation, if you have an issue with that officer or what happened, you can confront them. If you don’t feel comfortable working with them anymore, you can go to the watch commander and request a new partner. But you never break the code of silence.

Doc. 176 at ¶ 79. Plaintiffs’ police procedural expert, Lou Reiter, opined that the City maintains the following de facto policies and practices: maintaining a police code of silence, whereby police officers do not report the misconduct of other police officers; consciously failing to acknowledge or make any efforts to address the code of silence; and failing to discipline officers who engage in misconduct. Doc. 172 at ¶ 110; Doc. 176 at ¶ 80. Echeverría believes that Plaintiffs’ breaking the code through their work at IAD and their reports to the FBI motivated the alleged retaliation against them. Doc. 172 at ¶ 107. Echeverría testified that other CPD officers allegedly subject to retaliation for breaking the code include Hernandez and an Officer Finnigan; Spalding offered Officer Michael Spaargaren and a few other officers whose ñames she did not know as other examples; and Reiter - reported knowledge of another case involving Officer Michael Spaargaren. Id. at ¶¶ 108-109, 111. Reiter does not know the percentage of officers reporting misconduct by other officers who suffer some level of retaliation. Id. at ¶ 112.

Discussion

Plaintiffs allege First Amendment retaliation based on their pre-suit speech (reporting criminal misconduct by other CPD officers to the FBI and assisting the FBI investigation prior to their IAD assignment) and their suit-related speech (filing, and speaking with the media about, this suit). The'conspiracy claim appears to pertain solely to the pre-suit speech. Doc. 171 at 18 (where Plaintiffs argue, to support that claim, that they “can present evidence of a pattern of retaliatory harassment by several officers over a period of months ... all tied to Plaintiffs’ protected activities that resulted in the conviction of two corrupt police officers,”-which occurred prior to their filing, this suit). Plaintiffs also assert that. Defendants’ retaliatory conduct, both before, and after their assignment to IAD, violated the IWA.

I. First Amendment Retaliation Claim

A. Nature of Plaintiffs’ Speech

“For a public employee’s speech to be protected under the First Amendment, the employee must show that (1) he made the speech as a’private citizen, (2) the speech addressed a matter of public concern, and (3) his interest in expressing that speech was not outweighed by the state’s interests as an employer in promoting effective and efficient public service.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir.2013) (internal quotation marks omitted); see also Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”). But “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir.2016) (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). “Determining the official duties of a public employee requires a practical inquiry into what duties the employee is expected to perform, and is not limited to the formal job description.” Ibid. (internal quotation marks omitted). “The determination of whether speech is constitutionally protected is a question of law.” Ibid.

The parties agree that Plaintiffs’ work for IAD is not protected by the First Amendment. Doc. 165 at 7-10; Doc. 171 at 11. They disagree, however, over whether Plaintiffs’ reports to the FBI about Watts’s illegal activity, and their pre-IAD work for the FBI, are constitutionally protected. Doc. 165 at 7-9; Doc. 171 at 8-11; Doc. 175 at 1-3.

The Seventh Circuit in Kubiak recently addressed the distinction between protected and unprotected employee speech in the police context. Kubiak worked as a beat patrol officer with the CPD for fourteen years, and then was detailed to the Office of News Affairs (“ONA”), the CPD’s public relations arm. In her new position, Kubiak served as a liaison to the news media, keeping it “apprised of police activity by providing information on topics such, as crimes committed, arrests made, and providing information with regard to community safety alerts.” 810 F.3d at 479. Kubiak alleged that she was verbally assaulted by another ONA officer who became enraged by a work-related report that Kubiak had drafted. Kubiak reported the incident to her supervisor, Stratton, and attempted to report it to her supervising lieutenant, Biggane, who repeatedly refused to discuss it. Kubiak then submitted a memorandum, which initiated an IAD investigation, and Kubiak provided a statement to the investigators. After the IAD complaint was “sustained,” Biggane canceled Kubiak’s ONA detail and reassigned her to a position as a beat officer on a midnight shift in a dangerous neighborhood. Kubiak filed suit against Stratton, Biggane, and the City of Chicago, alleging retaliation in violation of the First Amendment. Id, at 479-80.

The Seventh Circuit held that Kubiak’s statements to Stratton and Biggane, and her cooperation with the IAD investigation, were unprotected employee speech. First, while assuming that Kubiak’s official ONA duties “did not include reporting misconduct of her coworkers,” the court held that the “concept of ‘official duties’ is overly narrow” and that “[generally, an employee who is verbally assaulted by a colleague would be expected to report the inappropriate behavior to a supervisor.” Id. at 481-82. Second, the court noted that Kubiak’s speech “was intimately connected with her professional duties,” as she “complained that her co-worker treated her inappropriately at work and yelled at her over a work-related report,” and that she attempted to use official internal channels—her supervisor, her office’s director, and IAD— to report the misconduct. Id. at 482. Third, the court observed that Kubiak was primarily motivated by personal, not public, concern. Id. at 482-84.

Kubiak did not break new ground, but instead reaffirmed the settled principle that if a public employee reports official misconduct in the manner directed by official policy, to a supervisor, or to an external body with formal oversight responsibility, then the employee speaks pursuant to her official duties and her speech is unprotected by the First Amendment. See Fairley v. Andrews, 578 F.3d 518, 522 (7th Cir.2009) (where Cook County Jail guards filed internal complaints in the manner required by General Orders); Tamayo v. Blagojevich, 526 F.3d 1074, 1091 (7th Cir.2008) (where an Illinois Gaming Board employee reported agency misconduct to “a legislative committee responsible for overseeing the [Gaming Board’s] activities”); Vose v. Kliment, 506 F.3d 565, 570-71 (7th Cir.2007) (where a police sergeant reported misconduct to his supervisors); Sigsworth v. City of Aurora, 487 F.3d 506, 511 (7th Cir.2007) (where a detective reported his colleagues’ alleged misconduct to his supervisor, as required by established policy); Spiegla v. Hull, 481 F.3d 961, 965-67 (7th Cir.2007) (“Spiegla II”) (where a correctional officer reported other officers’ violations of prison security rules to a supervisor, consistent with official policy). By contrast, if an employee testifies about misconduct to a jury or grand jury, or reports misconduct outside established channels or in violation of official policy, she speaks as a private citizen and her speech is constitutionally protected. See Chrzanowski v. Bianchi, 725 F.3d 734, 739-40 (7th Cir.2013) (where a county prosecutor testified under a subpoena before a grand jury and at trial regarding alleged wrongdoing by his supervisors); Chaklos v. Stevens, 560 F.3d 705, 709-12 (7th Cir.2009) (where an Illinois State Police (“ISP”) employee protested an ISP contract award to an ISP procurement official, rather than to the individuals—the Attorney General of Illinois and the chief procurement officer—required by the Illinois Procurement Code); Houskins v. Sheahan, 549 F.3d 480, 491 (7th Cir.2008) (where a social worker employed at the county jail by a county sheriff reported to the city police that a county correctional officer hit her).

Under these precedents, all of which‘were issued before the retaliatory conduct alleged in this case, Plaintiffs’ speech to thé FBI—from their initial report to Smith in late 2007 until the August 17, 2008 meeting where the CPD formally assigned them to Operation Brass Tax—is protected by the First Amendment. Prompted by Watson’s dismissal of Echev-erria’s debriefing of the suspect who reported Watts’s activity, Plaintiffs reported Watts’s misconduct to an outside law enforcement agency, on their own initiative, while off-duty and on their own time. These were not “the tasks [Plaintiffs were] paid to perform,” Garcetti, 547 U.S. at 419, 126 S.Ct. 1951, and police corruption is, as Defendants concede, Doc. 165 at 9, a matter of public concern. It follows that Plaintiffs’ speech to the FBI before August 17, 2008—when, with their assignment to Detached Services, their reports to the FBI became part of their official CPD duties— is constitutionally protected.

Defendants’ challenges to this conclusion fail to persuade. First, drawing on Kub-iak’s statement that “Kubiak is a police officer, and as part of that job she is responsible for protecting the public from harm,” 810 F.3d at 482, Defendants contend that Plaintiffs’ reporting of Watts’s activity “was what they were expected to do as Chicago police officers to protect the public from harm.” Doc. 165 at 7; Doc. 175 at 2. But this removes the quoted statement from its context: the Seventh Circuit’s point was thát employees are generally expected to report.other employees’ inappropriate behavior to a supervisor, and that this “makes even more sense” in a police department. 810 F.3d at 482. Kubiak does not, however, stand for the proposition that a police officer’s official duties include “protecting the public from harm” in every conceivable way, regardless of the officer’s job function. If this were so, police whistleblowers could never speak as private citizens entitled to First Amendment protection,- a result that Garcetti and its Seventh Circuit progeny clearly reject. Further, this would run contrary to Chaklos, which held that the fact that state police employees have a “general duty” to report collusion among bidders for state contracts does “not by itself mean that all speech made by [the plaintiffs] regarding anticompetitive practices [were] necessarily made pursuant to their official job duties.” 560 F.3d at 712. Rather, what placed the state police employees’ speech within the First Amendment’s protections was that they “did not submit their com cerns to the Attorney General or the chief procurement- officer[,] as required by the [Illinois Procurement] [C]ode,” but rather to a procurement officer with the state police. Id. at 711-12; see also Houskins, 549 F.3d at 491 (holding that a county social worker’s “statements to the police” about being hit by a county correctional officer were constitutionally protected because they “were not made pursuant to her job, as the report was not generated in the normal course of her duties and most likely was similar to reports filed by citizens every day”).

Defendants also argue that because Echeverría first learned of Watts’s misconduct in the course of performing his professional duties and first reported Watts’s misconduct to Watson, Echeverria’s supervisor, Plaintiffs were, in reporting the same misconduct to the FBI, acting pursuant to their official duties. Id. at 8. But Plaintiffs reported Watts’s misconduct to the FBI only after they felt that official channels had failed them, and they do not claim that they suffered any retaliation for Echeverria’s report to Watson. Unlike the plaintiff in Kubiak, Plaintiffs here did not escalate their report of Watts’s activity through successively higher official channels; instead, viewing what based on Watson’s response they reasonably believed to be the CPD’s systemic disregard for their report about Watts, brought the information to an outside law enforcement agency. Watson’s rebuffing of Echeverría forced Plaintiffs to go outside official channels; it did not transform the outside channel into an official channel.

Similarly, the fact that Echeverría learned of Watts’s misconduct in the course of performing his professional duties does not place outside the First Amendment their whistleblowing to an external agency. That would frustrate “the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion.” Garcetti, 547 U.S. at 419, 126 S.Ct. 1951. For the same reason, Defendants’ argument that the seriousness of Watts’s criminal activity (by contrast to the verbal assault in Kubiak) rendered Plaintiffs’ report within the bounds of their official duties, Doc. 165 at 8-9, misses the mark. The governing precedents do not establish a sliding scale based on seriousness of the reported misconduct.

Samuels’s mentioning of Watts’s name on a call with Spalding in 1997—a call that Spalding believed to be primarily about another officer—does not mean that Plaintiffs’ unsolicited report of Watts’s activity to a different FBI agent a decade later was part of their official duties. Plaintiffs did not know until their August 2008 meeting with Skahill and IAD personnel that the CPD was involved in the FBI’s Watts investigation. Although Spalding asked Smith (the FBI agent she and Echeverría contacted in 2007) to put her in touch with Samuels, it is reasonable to infer that Spalding did so because she believed that Samuels was the FBI’s point person on CPD corruption, not because she was aware of an open investigation or, as Defendants implausibly argue, had been “expressly asked by the FBI to” do so, Doe. 165 at 11 n.8, as “a continuation of the communication initiated by the FBI” in 1997, Doc. 175 at 3. So, contrary to Defendants’ most improbable submission, Spald-ing did not “return[] Agent Samuels’s telephone call ten years later,” ibid.] indeed, the fact that she had to ask Smith to put her in touch with Samuels belies any notion that reporting to Samuels was in any way connected to Spalding’s official duties.

Finally, Defendants do not contest that Plaintiffs’ filing this lawsuit was protected speech. Any such argument was likely to fail, as “participating in a lawsuit may amount to protected speech” if “the lawsuit involves a matter of public concern.” Salas v. Wis. Dep’t of Corrs., 493 F.3d 913, 925 (7th Cir.2007) (internal quotation marks omitted); see also Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 648 (7th Cir.2013) (“[I]t was clearly established at the time of the Gaming Board’s actions that the First Amendment prohibited investigating and then suspending and terminating a public employee because he had helped another employee pursue a lawsuit aimed at uncovering and proving public corruption.”); Zorzi v. Cnty. of Putnam, 30 F.3d 885, 896 (7th Cir.1994) (“Retaliation for filing a lawsuit is prohibited by the First Amendment’s protection of free speech.”). Regardless, Defendants forfeited the argument by failing to raise it. See Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir.2012) (“[T]he forfeiture doctrine applies not only to a litigant’s failure to raise a general argument ... but also to a litigant’s failure to advance a specific point in support of a general argument.”); Costello v. Grundon, 651 F.3d 614, 635 (7th Cir.2011) (“As the moving party, the [defendant] had the initial burden of identifying the basis for seeking summary judgment.”); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010) (“We have made clear in the past that it is not the obligation of this court to research and construct legal arguments open to parties, especially when they are represented by counsel, and we have warned that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.”) (internal quotation marks and alterations omitted); Titran v. Ackman, 893 F.2d 145, 148 (7th Cir.1990) (“When a party moves for summary judgment on ground A, the opposing party need not address grounds B, C, and so on.”).

B. Qualified Immunity

Next, Defendants contend that the-defendant officers are entitled to qualified immunity. Doc. 165 at 10-13. “The doctrine of qualified immunity protects government officials from liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir.2016); see also Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam); Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir.2015). “Whether a government official is entitled to qualified immunity is a legal question for resolution by the court, not a jury.” Purtell v. Mason, 527 F.3d 615, 621 (7th Cir.2008).

“Two central questions must be addressed in the course of determining whether ' qualified immunity is available: whether the plaintiff has alleged a deprivation of a constitutional right at all, and whether the right at issue was clearly established at the time and under the circumstances presented.” Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir.2016) (internal quotation marks omitted). To remove the shield of qualified immunity from the defendant officers, the constitutional right that they allegedly violated must at the time of the violation have been clearly established “in a particularized sense” and not merely “at a high level of generality.” Alicea, 815 F.3d at 291; see also Mullenix, 136 S.Ct. at 308 (“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”) (internal quotation marks omitted); Zimmerman v. Doran, 807 F.3d 178, 182 (7th Cir.2015). For a right to be clearly established, it “must be specific to the relevant factual context of a cited case and not generalized with respect to the amendment that is the basis of the claim.” Surita v. Hyde, 665 F.3d 860, 868 (7th Cir.2011). “The basic question is whether the state of the law at the time that [the defendant officers] acted gave [them] reasonable notice that [their] actions violated the Constitution.” Roe v. Elyea, 631 F.3d 843, 858 (7th Cir.2011). “[I]n a § 1983 claim, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forth with sufficient evidence to create genuine issues of material fact to avoid summary judgment.” Ault v. Speicher, 634 F.3d 942, 945 (7th Cir.2011) (internal quotation marks omitted).

As discussed above, the record would allow a reasonable jury to find a First Amendment violation, so Plaintiffs have met their “burden of establishing that [their] rights were violated” under the first prong of the qualified immunity inquiry. Burritt, 807 F.3d at 249. For the second element, Plaintiffs submit that ever since the Supreme Court issued Garcetti in 2006, it “has been clearly established law ... that the First Amendment protects a public employee who complains about public corruption in a forum outside of his or her official job duties.” Doc. 171 at 11. As noted above, the Seventh Circuit has applied the Garcetti standard in a variety of contexts. See, e.g., Chaklos, 560 F.3d at 711-12; Fairley, 578 F.3d at 522; Houskins, 549 F.3d at 489-93; Tamayo, 526 F.3d at 1091; Vose, 506 F.3d at 570-71; Spiegla II, 481 F.3d at 963; Sigsworth, 487 F.3d at 511. All of these cases were issued before August 17, 2010, the first alleged act of retaliation in this case. And because the Seventh Circuit—in Chaklos, Chrza-nowski, and Houskins—has consistently interpreted Garcetti to hold that the speech of an employee who reports misconduct outside official or established channels is constitutionally protected, reasonable police officers in the defendant officers’ position would have known that Plaintiffs’ speech to FBI was protected and that any retaliation against them for that speech would violate the First Amendment. See also Dahlia v. Rodriguez, 735 F.3d 1060, 1074 (9th Cir.2013) (“[Particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside his chain of command, it is unlikely that he is speaking pursuant to his official duties.”); Gibson v. Kilpatrick, 773 F.3d 661, 670 (5th Cir.2014) (“[I]f a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee but as a citizen.”) (internal quotation marks omitted).

Defendants incorrectly contend that Kristofek v. Village of Orland Hills, 712 F.3d 979 (7th Cir.2013), muddled the law in a way that compels a different result on the qualified immunity issue. Kristofek, a part-time police officer for the Village of Orland Hills, reported an alleged instance of police misconduct to fellow officers and to the FBI and, when he told other officers what he had done, the Village fired him. Id. at 982-83. In holding that Kristofek had stated a plausible First Amendment claim, the Seventh Circuit did not even reach the issue of qualified immunity. Defendants correctly note that the Seventh Circuit declined to address whether Kris-tofek’s speech to the FBI was protected, but that does not mean, as Defendants assert, that “the Seventh Circuit expressly left open the question.” Doc. 165 at 12-13; Doc. 175 at 3. Rather, as Defendants acknowledge, Doc. 165 at 12-13, the Seventh Circuit did not address that issue because the Village did not raise it, 712 F.3d at 984 n. 1—probably because it was exceptionally clear based on Garcetti and its progeny that Kristofek’s speech to the FBI was protected. It follows that the Seventh Circuit’s declining to address that issue cannot possibly be read to have left it open. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925)); United States v. Richardson, 558 F.3d 680, 681 (7th Cir.2009) (“[T]he absence of any discussion [in a prior case] means that there is no holding on the point that might bind us in this case.”); Matter of Volpert, 110 F.3d 494, 497 (7th Cir.1997) (reasoning that because earlier opinions “did not discuss” whether a statute applies to bankruptcy courts, those opinions did not settle the question). Defendants thus had “fail-warning that their treatment of [Plaintiffs] was unconstitutional.” McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir.2004).

Because Defendants do not assert qualified immunity based on the nature of their alleged retaliatory actions, any such argument is forfeited. See Milligan, 686 F.3d at 386; Costello, 651 F.3d at 635; Judge, 612 F.3d at 557; Titran, 893 F.2d at 148. Defendants also do not dispute that it was clearly established as of November 1, 2012 that retaliation for filing a lawsuit involving a matter of public concern violates a constitutional right, and so that argument is forfeited as well. Defendants are thus not entitled to qualified immunity.

C. Causation

In addition to showing that their speech was constitutionally protected, Plaintiffs must adduce evidence that would allow a reasonable jury to find that their “protected conduct was a motivating factor” in Defendants’ alleged retaliation. Peele v. Burch, 722 F.3d 956, 959-60 (7th Cir.2013) (internal quotation marks omitted). As the Seventh Circuit has explained:

[T]he “motivating factor” requirement splits the burden of production between the parties on summary judgment. The plaintiff has the initial burden to produce evidence that his speech was at least a “motivating factor” in the employer’s decision to take adverse action against him—or, in philosophical terms, a “sufficient condition” of th