all of a summary judgment motion regarding presently the issue of qualified immunity in the context of a first amendment claim brought under forty two u he three the claim arises out of a transfer of a senior deputy district attorney and some others from one post to another within the district attorney's office fairly characterized the transfer was an unwanted transfer of by the plaintiff and it was done following a very contentious election one involving attorney by the plaintiffs and others within the office fairly characterized it was obviously a rancorous atmosphere leading up to that election following the election  da who was returned to office surveyed the landscape i decided that some changes had to be made to heal the climate within the office and he among other especially because there was an election result and that to me that's crucial in this case whether or not we have a political patronage case or whether we have a flexible or case it's crucial in my field to what how we analyze are we embarking on a new line of decisions that recognized for constitutional purposes and more importantly for qualified more importantly me for qualified immunity purposes that speech that can be characterized as whistle blowing speech is accorded different treatment then speech of a political nature for example here looking at the at the legal landscape that this decision the decision to transfer was made is a very interesting exercise and we try to do that in our  certainly by the supreme court it's interesting for me to note that in the guard setting which just came down there's no mention of the whistleblower issue well quite frankly clearly the speech in that case could be time drawing a line and the difficulty that i have is no one would ever argue seriously that exposure of corruption should not have limited support first amendment protection as just simply evil even when exposing political corruption exposes corruption that person can be fired with impunity that's basically what you're arguing it's it's an argument that is based upon the supreme court of the united states decision and this course decision in five zero a political patronage case and that's why i made the distinction originally because i understand completely in the political patronage scenario that the  holder has the right to have people who shares his or her philosophy that's a whole different situation than when you have someone who's trying to weed out people who are exposing corruption in the organization and the difficulty that th we're having and i'm having is that in the context of qualified immunity the way to go down the road of saying if it's a whistle blower speech that it's entitled to super strict least to have an opportunity to go to trial but the problem is that under the doctrine of qualified immunity that would be a presumption that there would be no qualified immunity if you characterize the speech as w dichotomy now the fact of the matter is that in this case we don't have terminations we have transfer but it's still an adverse employment decision didn't like transfer we wouldn't be here now and i have swum a disc attorney i can relate to the fact that when you go from being in the courtroom prosecuting felony cases to child support that's considered an adverse employer i would think so i would think so i try cases all the time and and i'm not in trial i think a little nervous about what i'm doing here but you don't have a whole bunch of volunteers for that position that's probably true that is probably true and  what we're left with is is this court prepared to say on the strength of as far as i can tell kaiser and gar setting which is what the district court relied upon an the district court maybe it should be but the fact of the matter is that and under the qualified immunity view there's no question i believe that the district court got one essence speaking for your organisation and self interest if you speak for the organisation you must speak with one voice on those matters regarding the organisation and those line of cases makes sense when you're talking about how many cases to prosecute or how the what the priority of the cases are they don't make sense when you're talking about someone who's exposing corruption i guess i guess what we're left with is frankly i think it's in a vacuum that that now the suggestion is that it's the nature of the speech and not the nature of the speaker that comes first and under that and i can't believe that you all the question is under the rubric of first amendment decisions that have come down in this country in the last fifty years is there any suggestion that if we characterize the speech as question that's exactly what i'm saying and i'm saying if you put yourself in mr a caucus issues he wakes up the day after the election he looks over the legal landscape and he says ok i've got x number of deputy da s that want to oust me from my terminate that he wanted to put an end to it why didn't he just terminate him that he would have been out of the organization why transfer him bob and that's a decision that as an executive that he made i i didn't make a decision i wasn't consulted and maybe i would have made a different decision but but the fact of the matter is that he wanted to put an end to it so if the goal was to put an end to it how we're transferring him where he moved them out of the central office and apparently and there's been a number of these cases have been tried and there's a more record on it i suppose that's well within the jury properly instructed determine whether he had any problems he making fun times in his first term of when he was treating people as trial attorneys he wasn't making decisions to legal if you get beyond all of that then you go to qualified immunity actual evil and if you get beyond all of that then the question for the jury is was retaliatory what the law was clearly not a stat was not clearly established with respect to whether or not his deputy district attorney especially one with twenty years experience and characterized himself as a senior deputy district attorney was a policy for the exercise of free speech that's that's the issue we're looking at involving corruption right but what we're looking at we're looking at a claim that a transfer from one post to another violated the first amendment  any criminal wrongdoing that's just testimony let me go to the attorney general he what he and two others went to the attorney general and it was his testimony that he never accused the district attorney of any criminal from our perspective the point is when this transfer was made was it clearly established that to do so would violate the first amendment rights of this point to this  plaintiff being a twenty two year deputy district attorney came when you look old when when mr a carcass looks over the legal landscape as i have said he sees decisions not only from the second third sixty eight seventh circu cases are fine as far as they go up but those are all in the context of political patronage one person ran against another they didn't support the election that's a whole different scenario  that any particular lawyer in the for but the firm itself was contract that i have to perform the job of city of terri and that's not unusual we have that you know all kinds of cities do is public criminal prosecutors but they also had a duty to protect the city coffers they had a duty to the city riverside and not to make the carious admissions that could result in civil liability their duties and two because they referenced a year they say that because he not just for da's or prosecutors but the whole notion of protect fazio wasn't at will employee under the charter of the city attorney in san francisco and they have a they had a contractual at will agreement in that county for whatever reason an insider or whether you're a manager it's whether or not political loyalty and political affiliation is necessary for the effect of the force of that position he's training all the deputies in the office and telling him how to try cases and what a cases worse than what you'd be charged those are all pretty high policy issues so put that to one side and then he goes to the target unit and he's prosecuting again crimes he's deciding how to allocate resources against certain gangs other gangs but pleased to take supervising plea agreements that's pretty good policy i agree with you kroft thirty six court is not but he's been demoted to proffer eighty six court from two possible policy positions has here's what's happened and he felt that it wasn't his place to say whether or not giving bad just to your friends that look exactly like police  that this was political speech that this was a speech where mr smith and his day off went the sacramento to complain about what he thought might be criminal conduct and unethical conduct to the attorney general of california i don't know if you call it political or not you might call it political if you want to torpedo so obvious political opes you might not call it political if it was just some some de of washington which is that one forty seven f thirty eight thirty nine they say that the high level policy making official exceptional rod frailty doesn't apply to what's a long speech and personnel relationships are defined as at will or not or that's a different issue the that issue will be resolved administratively whether or not there was a fire whether or not whenever an at will position and they make that they're saying that's the difference between whether or not you can you know the motor fire somebody or get rid of him or not i don't think that's can't go to the attorney general of california or can't go to the press and complain about conduct that could be characterized as a crime as a professional as not constituting the best the minister