honorable the judges of the united states court of appeals for the four circuit oh yeah oh yeah i only have her since having any manner or form of business before the honorable the united states court of appeals for the four circuit are my children i give their attention for the court is raising issues of qualified immunity in this specific issues before the court or whether it was clearly established that mr bricky was speaking as a citizen on the matter of public concern and if so whether his interest in that speech was clearly established to  outweigh the interests of the town and having effective and efficient operations of its police department before delving into those issues i did want to comment however first on the recent supreme court case meal annex vs luna well that case is fourth amendment use of force case it does have some instructive comments with regard to the application of qualified immunity that we believe we respectfully submit would apply even to a first amendment retaliation case  the court first reiterated the longstanding principle that it it really is a difficult a high bar to overcome a qualified immunity defense your honor but the court reiterated that the clearly established right must be sufficiently clear that every reasonable official would have understood what he was doing violated the right and that existing precedent must put the constitutional question beyond debate and respectfully as addressing the issues that standard is not met here but perhaps more importantly the m police officer he was asleep but when he was when was he a police officer when he was running yes sure he was he was an active member of sworn law enforcement officer of the police department could you elaborate just a little bit on the nature of your concern it with some degree of specificity about the safe and effective functioning of the police force yes there are as the case law at the stablish is the police department is a paramilitary organization and discipline is is paramount in that organization the cases recognize that where discipline is demanded officers in the police department necessarily give up some degree of freedom in this case you have a police officer who is going out in saying that the police department of which he is a sworn officer needs to be more professional that was already in that i mean that was in the public record there were no surprises about that so i'm not sure what his comments us when chief hall in the squad room says we need to go out and be more professional to his officers that's that's a paramilitary organization that's a command or when one of those officers goes out in the public in question is the professionalism of the department that in the chief i don't believe is saying it that publicly in the newspaper he's talking about it to his officers in the squad but that wasn't evidence in the record that that was a problem of public that was known in the public arena there certainly was some officer misconduct predated chief hall and there certainly was some financial misconduct but that created a chief fault and those issues the district court respectfully saw as just they were already in the public domain and so therefore speech on those issues didn't matter we said that particularly in light of  new annex your honor that the court needs to consider those factors as part of the specific context of this case not that this information was already in the public domain but rather the context of this case is yes he's speaking during a campaign as a town council candidate but he's also speaking as an i'll sworn law enforcement officer of a police department he's speaking with regard to a police department that is trying striving and judge conrad even finds this in his opinion to overcome its tarnished reputation and when when his speech sets back those efforts to improve that right now richard i really couldn't you know i mean to say that it needs to be more aggressive on an investigation sets up it's a it's a generality it's  not even exactly saying that they're not aggressive it's simply saying that it did a better job could be done i'm having a little trouble seeing how it sets back the efforts effort to encourage a greater degree of it professionalism which i thought was a common interest actually it is a common interest to be professional absolutely your honor but when the effort is being made to improve the professionalism the reputation of the department these types of comments and of the plaintiff refers to them as as innocuous these types of comments excuse me do do set that back because you have a police officer a line officer saying that you know the flipside of that comment is we are not being professional enough we're not aggressively investigating crimes and in particular we're not investigating drug crimes which we know we have a drug problem but that's different respectfully than say we're not investigating drug crimes and our city has an interesting line that touches on this issue when it's discussing balancing it speaks in terms of certain public officials are going to have a particular place where their comments are going to be given weight and that can undermine or impair the effective and efficiency of the of the operations of colorado i think del it seems to me sufficiently with that the comments regarding professionalism and the need for additional emphasis on drug crime prevention that comment that concerns me and i think maybe your strongest argument in favor of qualified immunity is this issue with respect to the serious misconduct issues and so the question is how do you care categorize what bricky allege happened here was it serious misconduct or was simply an attack on the chief's handling of the public fisc was certainly false to begin with and because this the record reflects the supplies have been ordered and paid for approximately a month before this article is published so it's reckless and false statement it is not serious misconduct because it does not refer to seri misconduct because again it wasn't true that the materials have been ordered materials have been paid for and so it doesn't fall within the durham and more recently as the judge knows the town of mocksville case which did involve serious misconduct one of those issues that predated chief paul was financial management and you have a false and reckless statement that is made in the media that undermines the effort to improve that statement is a little bit ambiguous because he seems to be attacking the city council as opposed to the chief he certainly comes around at the end of the state when you're certainly correct your honor and says this shows mismanagement of the council level but it's the other misuse of taxpayer funds that's earlier in that quote that reflects back on his comments about chief hall and if you read in the entirety he makes reference to funds their funds being spent on other matters when the record reflects it was a day or slash community relations and the money spent on community relations items and that there was money in the account and then you take that forward he calls it other misuse excuse but it's false and reckless and we know from lying for example where falsity was relevant we know from a number of cases that falsity is relevant in the balancing test respectfully the the falsity here undermines the interest he has speech and also impairs the effectiveness efficiency of the governmental operations of the police department i don't know if i'm fully responding to your question your honor but it is not to go back to the heart of your initial question this is not a durham oxford but this is a case where the speech is kind of in that dr reynolds convey that to be false so when she made the determination decision he knew it didn't rise to the level of serious misconduct he knew that it impaired the effective and efficient operations of police department but it didn't fall into the during or now the mocksvill somebody to disprove that is relevant to this balancing test and here we have those exact types of false accusations you could have had more speech and perhaps an educational or academic context that would be the answer but here are in the police department the paramilitary organization where you must demand discipline where you have to have harmony and where you have to have where you do have close working relationships particularly in this very small department and so it's i don't believe it does frankly with respect to whether it's on a matter of public concern or i think in the fourth circuit false speech can be protected rush out that will get my my point we get for purposes of our our analysis does it does it matter i think it matters when you get to the balancing test or and lame for example when lane allen sing of whether or not it is it impairs going to come into play there is much balancing the interests of the mr burke he had in his speech when it's when it's demonstrated to be false and reckless speech i think respectfully that reduces his interest versus the government's respectfully and the subject matter here about financial mismanagement falsities a very relevant and almost overriding with respect to the balancing test but i do agree with your honor that with regard to the public concern is to wreck falsity doesn't come into come into play there but it does diminish the role of the interest in the speech you i mean i suppose one can say that any time you have a balancing test as we have in this case you're not suggesting that that simply because of the existence of a balancing test the official seeking qualified immunity always wins because it i mean every cases so we generous  facts not always wins but i think this court has recognized now refer to the strictly case in two thousand and eleven which we've cited in our brief your honor that where there is no demonstrably all interest for the employer is when the employee wins it is a it is an outlier case was the language in that opinion where everyone kind of harkens back to an ex is well worth every reasonable official would know that the action violated the law is such a high standard that it's not every case but it tends to be the case like lane or like smith v gilchrist where the employer side of the ledger was empty and this is not one of those cases where the employer side of the ledger is empty respectful whether it's the bare comments and their impact on the efforts to improve the reputation or whether it's the professionalism comments with the investigative comments which we draw of this notion that in judge conrad said well drug problem but he knew that were drug problems yes but that's different than a police officer and i go back to that varsity quote about a person's role in the government giving way to the commons a police officer saying the police department is not adequately investigating drug crimes or police officer saying that the police department is not sufficiently professional respectfully i believe those do impair the effect of information operations of government and  first again i think it should be taken in context is what he said was i went to the chief hall and asked where the funds are to buy these supplies and chief paul said told him there they aren't there the record is clear that that dirt the record there is evidence on the record that that happened and that she fall never said hey i already bought these things and so that's when that is the entirety of chief hall's involvement in this little  ricky goes to the town clerk and tries to get the receipts things don't match up and that's why he that's why he says i think i think we need to have better management at the council level to make sure that everyone knows what's going on with the money it's at the very most or at the very least it's people aren't on the same page about money around well that's a little that somewhat sanitised the the council level at least  understood it didn't get implicated until the very end the focus was on his being shown in voices by the accounts payable clerk town and so nothing criticising the accounts payable clerk has could never possibly affect the efficient operation of the police department and i think that's the next point i want to turn to is you have to look at ok what was the effect of this comment what was the actual or reasonably apprehended effect of this comment and my friend on the other side keeps talking about comparing the effective is there is there is a theoretical problem possibility the point is that in the case law says that it has to be more than theoretical you have to have some basis that for it to be reasonably apprehended the the as to the comments about the da fund the only thing that i've heard and i heard him say about they put potential for harm was sort of an undermining the public trust you know concern this court said in durham v jones that that statements that might undermine the public trust that's not enough that undermining the public trust doesn't it doesn't get to affecting the way within the unit the unit operates so there's no there's what i've our position is there's no evidence that that anything that he said which as your honor it kind of led to his comments weren't critical his comments were aspirational they were they were it wasn't we're not doing any patrols it wasn't we are not professional it was we can do better we can do more and and as judge conrad said this was all out in the public sphere this was a big deal in saltville for the preceding couple of years chief hall had just come in he had been there for less than a year so it's no one's suggesting that all of the bills that he came in to cure that everyone agrees existed had already been cured and so there's nothing there's nothing disruptive or or critical of saying we can do more well i'm not sure this right with you that it's not necessarily disruptive it's a little hard to see it would be considered critical yes proof that it that it is change that it has changed the way the force works or could change the way the it works you have to prove that that's that's what this court says i said i believe it has to be reasonably happy yes that are that it could change and i agree it doesn't have to have already happened he but there has to be a reasonable basis to think that that this is going to effect the the inner workings of the force and not just de minimus that's the other point is this case the cases are clear that as the interest in the first minute as the first amendment interests go up the scale so too must the disruption so this de minimus disruption which at which we do not concede there's anything here about that but even that isn't enough it has to be something really tangible you know and it's trouble to put it into words when when the first amendment interests are so heavy in here there's no question the first amendment interests are at their heaviest political campaign speech is the very tip of the pyramid when it comes to first amendment protection let's make news your point would be back to that their comments if your argument with respect to implicate the chief in the misconduct can i have see all of the above as an answer your honor because it's a little bit of both it's it is i find it is that there's a paradox with this does it amount to an allegation of serious misconduct that's what was going on in durham no question they alleged even serious misconduct and but the point is is that when you would lead to serious misconduct then the the potential for disruption and problems within the force that's even higher what dirt what what this officer in durham accused not just the chief but the entire police for the entire force of engaging in in terms of telling him to falsify his report and all that stuff i mean that's some serious implications on the other side of the ledger the potential to disrupt the force don't make a star the star trek reference star wars reference here but but when it's less than that i think i'm not sure i'm not following you and i'm not saying it very well can i back up just to judge yes this question which goes back to my my question at the beginning of our discussion and that is when you look at the day the comments about the dare program i say i read it i read them as focusing as alleging that the police she was guilty arguably of some sort of misfeasance with respect to the dear fund it just sort of flows logically to me from the text i've told that i'm told that there was no money to place the day or order after checking with the accounts payable clerk to see where the five hundred dollars when and there's no indication that mr bricky asked the asked she call about that it comes to the accounts payable clerk and was shown the last sentence along with other misuse we have poor management at the council level task back into the office who is running yes so it does seem and i think acknowledging this that an allegation of serious misconduct that seems to be directed at the police officer does weigh in on the part of the police treat does weigh in the balance if that is is if that's not accurate well i think i saw it we goes back in my long winded question is it goes back to what are you saying that that there was no as an allegation of misconduct then you run straight into durham which says allegations of misconduct are protective a whole lot but the question with respect to qualified immunity is that we we protect protection extends to all but the most seriously incompetent of officers and if you're suggesting that there is a by distinction to be made here and in terms of reading the cases and bring them then we put the chief in that position i don't think there is a fine distinction on it because i think if you if if you characterize this as an allegation of misconduct or misuse or mismanagement what i want for on that scale you want to you want to put it then you run straight into durham versus jones and that lot of case law that says allegations of misconduct are there's a huge public interest in that and so to to justify so there's a huge first amendment interest that that weighs very heavily on the scale to justify retaliating against someone to bring in for bringing that to light or making an issue of it you have to have a you have to have proof either actual disruption or disruption being reasonably apprehended and i've got to put those in this don't do because you don't have to disruption could occur yes ma'am yes ma'am and but but that has to be based on some some fact it can't just be a theoretical fear there has to be a sub some some degree of particularity and here there degree of there particularly  cohesiveness and respect for authority and and i i agree with your honor to a point and so the question is where in the record is there is there anything that you can grab onto of saying that somehow his officers the deficit that this could affect the way he works with his officers and that's the point is that there's nothing in the record on that up to what they did is they went out and you know i think the timeline is is is relevant here the articles are published able to twenty fifth and twenty secs he gives bricky written notice on may fourth and then you go and then he hires dr reynolds in the meantime he goes and  gets the blessing from the town council the from the three town council members that ricky is running against to discipline this guy to discipline him bricky so he had already made the decision at that point that he was going down this road before he gets the reynolds report now than the reynolds report doesn't have anything about how this could affect how many officers said ok now i think the last of chief hall and now i now i am less willing to follow him in fact in my opinion the reynolds report was more disruptive because a sub several of the officers weren't even aware of the events he's doing this for me to yes ma'am i have the question sir if we were assume for a minute that we disagree with your position on the guns what happens to the rest of the case do you automatically lose no ma'am your honor because i think you're at a guess i think you have to look at it and the emotion here is that higher carry that forward for us if you would ok so so  it again you have to look at ok you have to look at the speech in its entirety i don't think you can pick it apart like this you have to look at it in its context in its entirety what are the first amendment interests and their speech now i'm talking about the articles i'm talking about the you know the entirety of what he said you know his responses to the articles i think have to look at that in its entirety what are the first amendment interests in that and the entirety of that speech they are unquestionably very high they are at their highest and so then you have to think you have to ask ok in light of that what was the what was was was the potential or actuality of disruption of  the operation of this police force sufficient to to overcome those incredibly weighty interests and my point my my my response would be no they have not there is not a single case from this that either side has cited from the circuit where someone in the context of their political speech where they were firing retaliating them against them for that has been justified has been found to to tip the scale and the employer's favor and so there's no no reasonable employer in this in this context no reasonable governmental employer would have any belief you know what would be able to would have any comfort level that's incorrect and so i can fire him for that rather than as just duncan suggested correcting the record i'm disagree with my friend on the other side that this was a that the dare issue was hard to to to unlawful and again i would point to all of the durham versus jones and the smith versus gilchrist case that say it's that it and the cases that they rely on to say political speech thermal to the district attorney's office it dealt with the efficacy of a driving school it wasn't challenging the functioning of the district attorney's office and it certainly department to be an agency in question is going to operate and that's my point here is there's nothing on the employer side of the ledger to suggest that what mr bricky said in these newspaper articles was going to change in a negative way the manner in which the police force operated there was there's this generalized can you know enough in my opinion substantiated concern about morale and i was i was giving an example your honor i think there has to be something other than just the chief's own belief that there is you have a good they do have a good example i thought the first one was apparently that  police chief and again there was none of this there was nothing in the record to suggest that there was that either there was a lack of ability to enforce externally or a lack of ability to operate internally indeed several of the officers had even heard of these are these these comments the first time they heard of them was when mr dr reynolds said hey did you hear about this and know ok well now that you've heard about it what do you think you know that that's a pretty untenable position to and so there's nothing our point your honour's is and there's nothing in the record to suggest that there was actual disruption or reasonable apprehension of disruption thank you the balancing required in this case is complicated and respectfully we submit that wired judgment in favor of chief paul as as judge duncan mentioned this is critical language but is it critical enough well that's a decision weigh and make and that's the type of balancing that you know qualified immunity analysis comes out in favor of the employer there's allegations of misuse of funds potentially here but at the time determination decision is made we know that those allegations are false so when chief hall has to weigh those issues that's the type of balancing that comes out that's the type of analysis that in a qualified immunity context we respectfully submit it comes out in favor of the employer  give and i used this phrase earlier sweet spot these types of complaint these types of comments don't rise to the derm level and that really hasn't been argued until today if you look through the briefs they used plaintiffs use terms like and documents and bonilla to describe  comments now today they're arguing that they're about misconduct and respectfully they're false and every they knew they knew they were false at the time of the terminations and so they don't they're not last with the type of protection that might come from durham