10-1440 Hernandez v. Cook County Sheriff’s Office

Listen to this article

Civil Rights
Qualified immunity; waiver

Defendants do not waive a qualified immunity defense by only treating the issue in a cursory fashion.
“The district court erred by ruling that the defendants waived their qualified immunity argument as to the First Amendment retaliation claims. It is certainly true that the discussion in their opening memorandum in support of summary judgment left much to be desired, but this is not the same as saying that it evinces a relinquishment of the qualified immunity defense. The summary judgment brief contained three paragraphs on the topic of qualified immunity, beneath the heading, ‘Qualified Immunity.’ The defendants’ assertion in their opening brief of a qualified immunity defense was unambiguous.”

“In addition to the cursory treatment of the qualified immunity issue in their summary judgment opening brief, the defendants supplied a four-page discussion of qualified immunity in their reply brief in favor of summary judgment. While arguments made for the first time in a reply brief are generally treated as waived, it does not necessarily follow that arguments that are better developed in a reply brief are waived. Therefore, this case is readily distinguishable from the numerous precedents in this circuit upholding findings of waiver where arguments were not raised until the reply brief.”

Reversed and Remanded.

10-1440 Hernandez v. Cook County Sheriff’s Office

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Cudahy, J.

Full Text