issues that we're arguing about here as well it arises out of the plaintiff's terminations as police officers from the village baldhead island the end sensitive issue took place in september of two thousand and fourteen for believe trying to fourteen or fifteen in any event the plaintiffs had fifteen i apologize august fifteenth and early september of fifteen the plaintiffs had engaged in a text message exchange and the text message exchanges is in the record so there's no dispute about what was actually said that to make sure that we cover this i want to skip the defamation issue yes tell us your basis for our jurisdiction to hear that or the case why do we have federal is one that's immediately appealable under north carolina law it's a sin what is it what does that have to do with federal jurisdiction it's a it's a a state law kind just as if say for example this world public official munity ninety one just like you know qualified immunity would be because it's essentially deprives them of a right the right not to stand trial on that issue and i don't know that it's been specifically litigated in federal court although we did cite i believe but those court versus consumers union that you know that it's reviewed underoath didn't have a standard and anderson versus libby liberty lobby i believe also is one of those cases where it  was that that question was raised but most of the time it does come up the defamation cases it comes up later it does and i'm not shaking my hand about that i just am having i do not see briefing you discuss the the headings deal with actual malice so there has to first be a problem facing a case of defamation before you get to actual malice but your actual brief argument doesn't deal with the actual words it goes to the elements of defamation is as false as anion and it just there seems to be a disconnect there that may or may not be related to the jurisdictional question but it is something of a puzzle i'll tell you were unfortunately i covered that in more depth in the reply brief because remember actual malice you have to show that subjectively the defendant who the the alleged defamation knew that it wasn't true or subjectively had strong reason to believe it wasn't true the issue in that one the reason that actual malice isn't shown here for peck for example is that everybody agrees that the evidence what came to him was dr mitchell coming to him saying i got this complaint i got this compliant so i got this compliant and that i've talked with my command staff and they all agree that these guys you know were were being disrespectful were being abusive in that they need to be charming native so packed didn't know that there wasn't a complaint now allegedly dr mitchell did according to the plan of seven instructor mitchell knew that there wasn't a true complainant but that evidence never got so he wouldn't have known that nobody complained about it the only thing he knew was that somebody did complain about it  their contention is that he didn't investigate that any further but should have but we know as as a pointed out in the brief a failure to investigate before you publish is an actual malice under under four circuit laws or under u s supreme they have to make a den of independent review of whether there's sufficient evidence to survive summary judgment and even go to trial now that also is what the desmond verse is in a no publishing company case that i cited you know in in our in our brief from the north carolina court of appeal says that it becomes a legal issue as to whether it goes to the to the jury or not it's a legal and i know that that's strange because you look at it like you said in the qualified immunity lance organ about specially the evidence argues me out of court on appeal but it doesn't when it comes to defamation climbs so it's a conflict in the evidence that's not factor well you still have to take the evidence in the light most favorable to the plaintiff but the question then and if again if i want to analogize it to qualified immunity would be if the evidence that they've shown here that pack didn't investigate it would that survive summary judgment or should it survive summary judgment would it make out an actual mouse case to go to the jury and our contention is no it wouldn't so and that's the odd part we're not we're not arguing an alternative view of the facts here on our argument is even under their view of the facts there's it's not actual malice i'm using his the the plaintiffs evidence on that to to say that what they claim happened wouldn't amount  your evidence is a conflict it would appear to be because you have claims of that are made in the dismissal letters and e mails to the employee about sexual harassment harassment inappropriate conduct under the the villages code but the two officers who supposedly were the victims of harassment say that never happened so we're left with with a conflict in your own evidence well they say we weren't offended and you're correct about that your own of that's exactly what the testimony is the point that we're making is to show actual malice not only would they have to say that the climate's would have to show they said it and peck knew it and that's the bright down here peck didn't know it there's no evidence that he knows it in fact their evidence their contention is that he didn't investigate that's why he didn't know that now dr mitchell on the other hand is slightly different with respect to the defamation she's alleged to have known it but there's no indication and there's no allegation she shared  i do represent both back in mitchell and it's that issue didn't come up until later in the case but remember for that particular those letters mitchell dr mitchell didn't write them is the thing pack wrote them he's the one who's attributed with them but that's again that's an element of the clime that's that's really not the the issue that i'm getting into here entitled to qualified immunity you know under the test first you've got to ask was or an actual constitutional violation second was the law clearly established for them we contend that it wasn't public concern speech it wasn't protected i should say because one it was a public concern speech and two reasonable officials could disagree as to whether the plaintiff's entrance in the speech  the court went to great lengths and by the way bertie is a very recent case published case two thousand and sixteen from this court where the court held this court held it was clearly established in two thousand and twelve t police officials are entitled to impose more restriction on speech than other public employers because police forces a paramilitary discipline is demanded and freedom must be correspondingly denied there's a heightened need for discipline and police officials have greater latitude in dealing with dissention in the ranks one of the interesting things about this the plaintiffs contention on this is that the speech was not disruptive because they were offended by it the qualifications of leadership and statements that it may be made in the press which might or might not have been accurate about certain twelve days that you're yes judge duncan that's correct about the public concern argument when we step into the second part and i apologize i hadn't thought about whether you want to think that is a picnic on abs yes well and also if you look at it when i'm talking about clearly established law we're talking about that the reason the big reason they're entitled to qualified immunity is because no police official after they looked at breaking her says hall and kraus would look and say the pickering conic balancing undoubtedly would come out in favor of the climate's in this one the comments that they were making the bricky was that it was established as of two thousand and twelve that what they what what the the police officials could do in the britney district court opinion was before obviously  officials can put great weight on the fact that these comments that were being made directly impugn the superiors this is a small department just like berkeley and in krauss twenty officers in total and there's no way that an ordinary police official could distinguish the difference between the holding what ends up hey every reasonable fisher would a none as of two thousand and twelve they could fire people under these circumstances and that's not fair notice to my clients this is a lightning bolt to them because remember under you know as we pointed out in our brief the clearly established and for qualified immunity is the same standard as for criminal liability the fair notice standard that comes from hope versus when an us versus when they are explains that the law has to be so clear and it has to put you on such clear notice that you could be court criminally prosecuted for a civil rights violations and in light of the existing case law that just didn't happen here  assume you're speaking to the first amendment yes not a liberty interest right and now the liberty interest claim is a little bit different you know in the liberty interest claim they were given pre free domination of the process one of the officers can never asked for a hearing in fact skip disparate germination what about the others were they asked for it and it was denied and that's where we get into the qualified immunity argument on this card  that's that's the reason why hasn't it's i mean i don't know that that makes a difference the actual allegation is was there this string of text messages yes or no but the point is whether or not the conclusions that the employer came to classified in these derogatory way was there a dispute over that well that ever came up and it didn't it didn't there were that be the purpose of the name clearing here to two and then as we pointed out in our brief argument was while they were arguing about was whether or not the speech that they admitted making fell into one of these categories or not and peg didn't know that at the time that's all they wanted to argue about he thought  of their jobs back and that was you know again well mistaken how would you know that now you're on one of the other bases he wouldn't have he wouldn't have you didn't get he didn't get that far but one of the other bases  was there is a circuit split on whether compelled disclosures implicating liberty interest or not this court hasn't yet addressed that issue we sided publish six circuit opinions saying they don't that if you want to talk about qualified immunity on that there's no case law out there that we're aware of at the plaintiff's side that that's a that's a public disclosure for the purpose it's an internal disclosure certainly and may may support definite defamation liability but the case law hasn't clearly established that that would have have made out a liberty interest violation again although all we have to show to get qualified immunity is that there's an unsettled case law on one of the elements of the climb and we've shown that here well fed immunity is a pretty high bar for the plaintiffs to get over there's no dispute that there's a circuit split about that one issue about the compelled disclosure  so you know we contend they're entitled to qualified immunity there were other reasons that they had they did have some alternative remedies they could have for example place the statement were they in their in their personnel file under the policy or they could have  tested just the contents of what was in their personnel file under the villages policy but none of them ever asked for that again i do have two clients here one of mine mitchell that was the issue about qualified immunity for her she didn't have any involvement in their posts germination process she was out of the picture by that by the way thank you and i think you have reserved time for yes looking at the matter from mr blanchard and their point of view we thought that there was at least an argument that it would be appealable and we thought the better course strategically was frankly to just go ahead and let's make the argument sort of that issues not would dismiss it which would be your plans fail then we go back down to the district court case we have to try it and then might have to come back well that's what's i mean that's what you want to happen isn't it and that may be a bad strategic call but that's what we did argument is mr peck lied about why he terminated on any admitted that he lied about why terminated the minute in his deposition that he fired him for being jerks he did not say that he fired him for harassment sexual harassment discourteous treatment inappropriate electronic communications like he put in his mass e mail and like he he will in like he and mitchell and went in took out of the personnel policy in order to that there was certainly evidence and to defeat any type of summary judgment argument regarding the mouse as far as the use of you tingling back saw us district  or that is that they were and he knew they were and he knew they were false the only thing he didn't know was what mitchell knew and we do contend that that mass e mail was made public it was sent to all of the employees in the village not just the public safety officials but everybody plus part timers who are consisting of part time folks volunteers and there was nothing in that e mail saying that it was confidential  innuendo that i had to ask for assistance ciphering oh no it just sounds like locker room talk to me so why why is it why were they speaking is well first of all this just because you have speech that is not a public concern does not waive your free speech constitutional protections for the matter that is public so the matters that are republican cern are the matters of public safety and they're not just a public concern they're of utmost public concern are the highest public concern based on the that's what the case in goldstein for versus chestnut ridge volunteer f the statements about safety were tense with some grief it's this there is if there is a mix if there is a dividing line i think i would give  one line about sexual harassment or one complaint about sexual harassment thirteen pages of what the court said these are all personal grievance i think if you look at these text messages a lot of it are even the jokes and certainly the public safety is not a personal grievance not i'm being affected because i you're not doing this for me this is you i'm not able to get the training and by the way they're lying to the public about what training i'm getting  that's that's not i didn't get a raise i got demoted or you're not helping my career that's a personal grievance this is much more broader than that this is on the public safety issue some of it is yes  side they don't have anything to balance and that's what produce cromer talked about in cromer you had a matter of highest public concern you had something that was made by significant number of officers like you have here you have it was not made public so there's no issue about undermining the department in the in the in the public in the public eyes you already had bad morale again that's what crome said and there was no direct working relationship with the leadership in this case we're talking about lieutenants and officers discussing these issues they didn't have a direct working with or daily working relationship with the chief and certainly not the town manager so the pickering test is so balanced on our side of it that it's clearly a stab and that's exactly what kramer said they said that they found that there that the defendants there did not meet their burden for for their qualified immunity offense so that is the the that's the best case but then you can also look at the  is a police department case a dirt the derm versus jones case these are both for circuit cases and these are both were circuit cases where there was complaints about misconduct in a law enforcement agency that the defendants were not allowed their defense of qualified immunity i've also cited for additional cases around the country and in four different circuits where you had an employee who was complaining about a public employee who was complaining about public safety and there was a lot of top did in fact i think the disproportionate amount of the talk did not address public service and even the exact the comments were phrased in terms of personal grievances against individuals so if i'm having difficulty making that call about the public private  doesn't that also speak to whether a reasonable whether a reasonable person in the position in this position would have known if they were speaking as public citizens i mean trouble you know what i do for a living making that call well i think that's one part of that's one part of the various factors that cromer put out that well was this what was the speech of matter of highest public concern did it affect the safety was it talking about public safety and again that the long established law is you look at all the speech all together i did yeah i read every painful right with which you know they put together i don't know you know we don't know how many checks were before after but they're the ones that brought this together  yes yes ron what i mean is we don't know what tex were before july twenty fifth or after august fifty because some of the specially the early was they were talking about public safety but when you get into it it's clear that the the it's clear to me that the manger point that they were all focused on was this article that came out in the state port pilot savage the elements the four elements placed the stigma made public main conjunction with the terminations or demotion and falls they will say anything about volunteer compelled yes sir but they're not allowed to would not even call that much of a split first of all second of all under ashcroft you don't get the benefit of control you're the clearly established law looks at the controlling authority in that jurisdiction in the  and reported district court case which cites to yet another unreported district case so it's not complete it's not controlling and it's not persuasive with this difference here since you've got this e mail to all the employees well i think the the difference there is that defendant peck was the one that sent the e mail out we don't have any evidence that the defendant mitchell had any respect to each i'm essentially yes there are some nuances regarding whether or not as was compelled regarding the form of five big he there are some who would and then which one of the them for the reasons that were either in the form f i b or in the mass e mail or the terminations they said they fired him for of for being jerks and talking defined in the personnel policy and it says something that will can be easily accessible only internet bullies are text messages and they can't but they didn't care about and certainly they didn't care about the sexual harass they couldn't tell me it was they couldn't point to anything that's on the record let me just move on with with the with my last three minutes here regarding the issue of the what argument is is that it under seal lino quoting the armstrong supreme court case is that there has to be a meaningful opportunity to respond to these false and stigmatizing charges in a meaningful and again we're talking a qualified immunity we don't have to worry about well what was the process was the pre terminations process or opportunity was that meaningful or was it meaningful there was no opportunity these guys had no idea what was going on they got to work that day and they said you need to come talk to us they were given even five minutes notice they were told you're terminated the only question i asked was do you recall being in some e mail or text messages in august from july to august and twenty forty that's the only thing that they asked and then it said your terminated is that there is no right of appeal turn in your badge and gun escorted off the i know these that is not any type of meaningful opportunity that zero up to argue it to have anything to protect their reputation hours after that after mr peck said oh we release this to the public don't worry hours after that he says that he mailed everybody on the island and then twenty four hours for and then puts it right in the personnel file and twenty four forty eight hours later it's in the newspapers so  and they they call tom cannon on the phone because he wasn't there and they said can you come in to maurice's no this is ok when you're terminated you'll get your letter in the mail that's not an opportunity much less any kind of meaningful opportunity so we're not again we're not trying to say that there has to be a full adversarial hearing but there has to be some sort of meaningful opportunity it we don't even have to decide what we don't have i'm not asking the court to sort of check off the boxes and say this is this is the test head in this one when you made the comment about this being mix ph and been seventy percent trash talking a century and thirty percent of things that may have have have touched on matter of public concern did and if they did then it's not protected or at least they get qualified immunity because campbell a brief campbell you know i was involved in that one campbell conic versus myers tells us what do you do in a mix peach situation right you look at the form content and context so it's not just the content that's what they're talking about it's also the context and you talked about the context it's trust talking between these employees in campbell versus galloway for example yes you know the plaintiff's argument was essentially the same as it is here the plaintiff in that one said amy campbell said well i i was complaining about discrimination and that's public concern speech and this court held no no it's not necessarily public concern speech you have you can't have a categorical rule like that because you take each case on its own and where it's mixed if a reasonable official if it's close to that grey hazy line they get qualified immunity that's what you're seeing and all these mix speech cases the two cases that we talked about earlier breaky and kraus both mic speech some parts of arguably republican son and they dealt with serious allegations of misconduct this there's no allegation the things they're talking about is you know the screw jokes about their genitalia and things like that i mean this is chalk talk i think we i think we take your point and my my only reason for raising here is that i think it absolutely ultimately turned on qualified immunity but in this instance it seems to me it was a little more the cottage media analysis was at least informed by the nature of the mix you're you're exactly right you're on and the compelled disclosure arguments that we talked about earlier we asked about you asked judge one about a circuit split and the point we were making is that it hasn't been directly addressed in the fourth circuit by the fourth circuit but two district court cases have accept didn't directly address that issue and the two district it didn't include the element i think it's a subsequent element is another thing that i don't know if it if it's more viewed as an affirmative defense or if it's a situation where that element is not present when it's a compelled disclosure but the the point we're trying to make is t elaina district courts including one in the western district of north carolina jensen and the louis case from baltimore both held that that that a compelled disclosure of didn't implicate of liberty interest they both came after that's the law in this circuit i agree sealing those law what the point we made is a ceiling no didn't discuss that particular issue it didn't directly address that nobody raises it if it is it decided it without including that and i think partly because nobody raised it as an issue in the two cases where it was raised again they're both unpublished opinions but louis and jensen the fourth circuit affirmed the district court's dismissal and it did include these were again one of us and you know i agree that low and i'll go even further than that your honor to tell you that the fourth circuit didn't reach those issues and we're jensen but the point that i'm making is that trying judges come to the conclusion that a compelled disclosure doesn't implicate a liberty interest and mcveigh versus stacy wilson versus line all of those other cases from this circuit and the u s supreme court say if we judges just say about the issue to cases we could rewrite know well let me ask the question that sort of i've been thinking about this case in general and that is and in this village policy and someone  such a breakdown ask that this is the way we viewed it here if i want to now just if they said these things to their boss the chief mitchell to the fights when they expect to be fired that's a simple way to look at it and undoubtedly what they would breakdown in the relationship between them in their boss yes yes