home charles campbell with the firm of angle murphy and campbell from new york nebraska i represent michael robinson the sheriff of washington county which is located in blair nebraska a town about located about twenty five miles northwest of omaha mr robinson appeals from the nihil of his motion for summary judgment based on qualified immunity donald morgan is a deputy sheriff employed in the sheriff's office who was  promoted to sergeant last year mr morgan sued robinson on a freedom of speech retaliation claim after robinson terminated morgan following a primary an election in which  morgan unsuccessfully challenged robinson for the position of county sheriff robinson terminated morgan because he believed that morgan made statements during the campaign that were false and that those statements tended to create public mistrust of the office damaged working relationships and created morale problems for the people who worked in the office morgan admitted that sheriff robinson believe statements that he made to be false based on the information possessed by robinson so there was no issue of fact on that matter robinson's claim of qualified immunity required that the court determine whether the law was clearly established at the time of morgan's determination that would have made it obvious to a reasonable share of with the information possessed by sheriff robinson that morgan's  terminations violated his first amendment rights in the context of this case this required that the district court to determine whether there was clearly established case law that held that a sh of a small county could not lawfully terminate an employee who had made highly critical statements about his management his operation of the office and his relationship with his fellow employees that the sheriff reasonably believed to be false based on information the share possessed at the time of the terminations does does robinson concede that the comments of the statements are matters of public concern the subjects of the comments yes were matters of public concern and i don't think that's in dispute instead of conducting that type of a qualified immunity analysis the district court failed  do that perform that type of analysis as required by both this court and numerous recent decisions by the united states supreme court first of all the court adopted mr morgan's general phrasing of the qualified immunity inquiry by stating that the right of a deputy sheriff to speak out against the sheriff's policies is clearly established that's the type of general inquiry that the supreme court has repeatedly criticized the district court made no attempt to phrase the analysis in light of this particular statements made by morgan and their assessment by robinson based on the information that robinson possessed at the time of  the district court failed to even mention the most disparaging statements that morgan made that were considered by robinson in the terminations those were that  morale of the office was poor that the employees didn't feel respected that all of the employees in the office were waiting for the day that robinson lost to see him walk out of the office robinson believe these statements were false based on information he was provided by other employees by his knowledge of the office and he reasonably concluded that the statements were divisive that they cast him as a poor leader who was disliked by all the members of his office and that they gave the impression to the public that the office had poor morale and that no one wanted to work for it and weren't there i mean what you what you've described as the facts in the light most favorable to robin on but is that where we are right now when we're talking about whether or not there is disruption i mean it the district court needs to look at it in the light most favorable to the nonmoving party certainly and that is why this court in north versus walsh county and the u s supreme court in conic which the court quoted from in nord emphasized that it is not necessary that the public official wait until the office becomes disruptive disrupted before making that determination but the off the officer can assess at the time of the decision whether or not he believes it's reasonably likely that there is going to be disharmony division public mistrust that is going to occur in the future and certainly at the time that sheriff robinson made this decision he didn't have the benefit of hindsight of what would happen from that point on he simply had to make the assessment based on the information who possessed at that time now now i'm behind you a little bit isn't the isn't the i know it's brief but  judge battalions point that there's a factual dispute about the clearly established isn't that when he really says morgan has raised a sufficient factual dispute on the second prong the clearly established wrong right he did he did yes you're correct judge ok yes so now you need to address that all right judge battalion ruled that qualified immunity should be denied because he said reasonable fact finder could determine that some of the statements by morgan were truthful well the analysis is not what a jury might find as you know under qualified immunity the analysis that the court has to conduct is whether or not the law was clearly established at the time of the terminations that would have made it apparent to a reasonable official in the position of sheriff robinson that his determination of morgan violated morgan's first memory rights that's an issue that has to be determined as a matter of law it's not a jury determination so the district court simply failed to apply the wrong simply failed to apply the correct standard of analysis on morgan on robinson's qualifies as you know as judge kelly i think was saying don't we assume the facts contrary to you and then see if the laws clearly establish is that what we should do the facts that are stablished by the record yes but the facts that are established by the record under a qualified immunity analysis requires that the court clerk siddur under andersen versus creating the information possessed by sheriff robinson at the time of the trial giving judge giving the district court the benefit of the doubt morgan statement pose little or no threat of disruption and some of them were truthful right so worsening that or kind of disruptive i think what he says is that a reasonable fact finder could get i know but i'm trying to give the district court the benefit here right because it is true there can be cases where so factually messed up we can talk about qualified immunity it's pathetic to talk about ok that's we have decisions that say that it's a rough and ready summary but it's close so tell me why this isn't so factual that the district court may be right all right even if this were made out of expressed ok i don't know if i can explain this clearly but but it's our position that the district court really didn't make any factual determinations what the court did was it said that a reasonable jury could conclude now that's not a factual determination by the district court that's binding on this court instead what you have in the record is that morgan has admitted that robinson believe that the statements made by morgan were false and we have in the record evidence showing the basis for robinson's conclusions that those statements were false we have no evidence in the record disputing the information that robinson based his determinations on in other words there is no evidence in the record showing that robinson was wrong in concluding that not all of the members of the office disliked him and wanted him to leave the office there is no evidence the record showing his conclusion was wrong that he felt disrespected by members of the office there is no evidence in the record showing that he was wrong in concluding that morgan statement was false that the fire departments couldn't communicate with each other when you had specific evidence in the record from each of the fire chiefs in the county directly refuting that statement there is no evidence in the record showing that robinson's conclusion that morgan's statement was untrue that someone would die because of lack of communication between the agencies but that really matter what he is whether he thought it was true or not the difference does it make isn't the question disruption well that was an accident and so my what i would ask is what did what did the appellant put into the record here  in the district court tending to show disruption in the operations of the sheriff's department as a result of these campaign the campaign  speech of the deputy what you have in the record there is sheriff robinson statement that he believed that these statements were divisive that they created morale problems and that they created public mistrust of his office the same sort of evidence that existed in nord that this court determined justified the sheriff's terminations even though it's beyond what we had here in north there was evidence that well actually a nord the individual was terminated at the time so there was no subsequent  disruption of the office because he was terminated and nor as you know the court determined that it wasn't necessary to wait for the disruption of the office or morale problems to occur the sheriff was entitle to make that determination at the approach a little bit differently other than other than the sheriff's own statements as to what he believed was going on and what he believed the impact was is there it did he put anything else in the record yes disruption objective objective evidence of disruption of the operations of the office yes in the record there is evidence that a number of members of his office came to him before he made the decision to terminate morgan and told to him that morgan statements were divisive that they were creating problems within the office and they recommended to him that he terminate mr morgan he did not act until those individuals came to him with those representations and made that recommendation to him so that was based primarily upon information statements made to him by other members of the department and so if there is if there was a objective evidence in the record that there was some amount of disruption then that then don't we go forward in the analysis and conduct a balancing between the the societal interests in the public statements being allowed and disruption exactly yes and that's the pickering conner so you say that you say the district court didn't didn't do that here it didn't do it no in fact nor did the court outline the four factors under i'm getting into my rebuttal i with your permission i district court failed take to even mention the first two factors and those are that the court look at the nature of the governmental entity involved in this case you've got a small law enforcement agency same sort of agency nord the second factor is that you look at the specific relationship between the employee and the employer the need for harmony and the need for a close working relationship and nord the court extensively discussed the importance of loyalty and obedience that is required in a long force an agency no mention of those factors was made by the district court the third factor in order under under pickering is whether or not is the nature of the speech and that requires that you look at whether or not sheriff robinson had reasonable grounds to believe that at least one or more of the statements were untrue as i've discussed he did have reasonable grounds based on the mr morning ok please coridon thomas white with me as benjamin light my associate this matter we represent the apple e donald morgan your honor the opinion written by judge battalion is starkly different as as i read it from what is described by counsel for washington county well well let me begin with the clearly established law yes or it's not starkly different than what he and i discussed  right there just a pager her rehab out there right well your honor the clearly established law is under nord which the relies on nord wasn't decided but counsel who had who has the burden to vote oh no i didn't mean it that way i meant aren't the facts and nord the same as this case not at all ok completely different ok first of all in nord the deputy sheriff is an at will employee here in washington county the deputy sheriff is controlled by a contract and the contract was actually negotiated by the sheriff on behalf of his men that contract specifically protects first amendment rights specifically protects the right to participate in politics under the contract completely different situation in north he's at will sakit in nord the size of the department was quite small this was a forty nine person department that one was approximately fifteen there's a major difference or third the court in nord found that the deputy sheriff was a pot was a representative of the sheriff and a policy maker in this case the sheriff is the sole policy maker under state law the deputy sheriff does not make policy on behalf of the sheriff fourth nord was fired right away here ironically these comments were made a year before your honor and he and robinson was fired after the primary in violation of the contracts his contract said that if he did something wrong if he said something that was inappropriate he had every right to be told promptly to have a billet e to go through a disciplinary hearing and then grieve the hearing if he thought he was wrongly that was not complied with at all by sheriff morgan under any circumstances not dahmer i'm sorry sheriff robinson so what i would urge you yonder is though it has to be clearly established by the law the supreme court united states supreme court has been very clear that it must be established by law under the facts and circumstances of the particular case nord was dramatically different the factual circumstances  that sheriff's behavior than this sheriff's behavior in this situation so if you want to say that it is clearly established a share of can fire any deputy and if that's the proposition that the court says any  can be fired for whatever he said under whatever context and if that's what nord stands for then in fact there is no first member protections but here if there is no other way the sheriff himself in the contract he negotiate clearly stated yeah you have a first amendment right mr morgan you have a contractual right to fully participate and we will protect that now that has to be weighed as to whether this sheriff reasonably believed that this would be a violation along now there are other concerns your honor as we go through this that i would like to address but i want to that record evidence strongly disputes that if these were clear violations that were clearly going to cause disruption you don't wait a year in violation of the contract when it's politically convenient after the primary to disappointment that tells you or at least it should advise you under the standard summary judgment that this had nothing to do with disruption in the workplace there was no evidence of any disruption in the workplace during that whole period of time but there is plenty of evidence it was retaliatory the sheriff in violation of contract weights intel you can't have a political blow back and then he fires the guy that stepped forward now one of the things that needs to be weighed in this and i'd submit to you that the court did weigh these throughout in the pickering balance is what was actually said first of all the share of claimed that my client deputy morgan was lying that the rare radio system wasn't complete but the facts are absolute clear part of the system was a computer driven map the directed emergency responses to a rural county to find places in a hurry and that wasn't completed until after the primary further than that the sheriff's own people agreed that the radio system they had didn't work in the schools and hospitals is the arbitrator decision part of our record yes thank you yes it is christmas and the what if if there's anything that's of public concern right now are active shooters in schools deputy morgan was absolutely correct they had swat exercises that he testified to where they couldn't affectively communicate with the officers on the inside to officers on the outside from inside concrete concrete buildings and more than that he testified that the vast majority of the basements in washington county were often if you have a domestic violence dispute people will retreat to the radios won't communicate out of now those are clearly desperately important public issues and the arbitrator found in fact that everything deputy morgan said was true that was all disputed in the arbitration and the arbitrator said hey every statement he has been accused of speaking falsely he was telling the truth and how these statements were made unlike norah he didn't go around telling people off the record trashing the sheriff he made statements in debates he made statements on the in newspapers in campaigns functionally your honor what he deputy morgan raised was not personal attacks on sheriff robinson in any way which nord was and what he said was true which nord found that there was no really public interest in it because the statement the deputy made nord were false here what will happen is a horrible crippling of the political process where the first amendment should be at its most vigorous and extensive  respectfully raised them in the political process now if a deputy can't do that under this circumstances the long term cancer's of facts on our public institutions will be then we'd be at nord but it didn't now the contract can't say you can't run on the other party against me right again i don't know your honor i don't know you did the brief that you brief that line of cases well yes if it's for a part judges yet are not for sale so what i would submit to you is your honor the sheriff i mean that's another issue i'll need to get to about the sheriff being the policy maker but here the statute specifically provides for collective bargaining among the deputy sheriffs this sheriff in representing his people in front of the commission on industrial relations advocated for the very contract that said he had every right to participate in the election we'd be in a different situation i would agree if it was for a partisan reason but it wasn't and this position in nebraska we protect that right to participate and to speak freely because we believe that is will lead to the healthiest public administration and governmental subdivisions when you tell someone who works inside of a sheriff's department they can speak out about respectfully about real what they perceive real failings then we have a license for a corrupt government well we've got a balancing test to get to  is this is deep importance of public that there is no evidence of any disruption at all for a year the need for harmony in the workplace the other aspects of closely working the records clear the hear not a complaint and then when they do when the arbitrator does order sheriff morgan to be returned the sheriff says he's been excellent there's been no problem he's done a very good job i can't resist returning to where we start i've heard you distinguish nord what do you think is the closest case that the sheriff should have known this was wrong well i think the case that was in effect prior to nord because again it's kind of ironic to be claiming you were  three nine twenty six a circa two thousand and seven that was what i believe was and i think still is the governing authority that nord was a situation very limited to its facts the key one is well two key ones is one he didn't tell the truth you know there shouldn't be as the court in connacht has said i mean you know nonpublic interest and if somebody is not telling the truth there's not a whole lot of  reason for the first amendment to offer them protection that's not the case or so i would say lemon is the controlling precedent and more than that it's what did this into the circumstances what would a reasonable sheriff known when you have a sheriff that negotiated the contract and the contract says you have every first amendment right to participate fully in the political process it cannot get from the from the right you cannot context be further away i would like to address the issue before my time is up regarding the county's effort to get qualified immunity on the grounds that the sheriff wasn't a policy maker first of all under nebraska statute he is a policymaker second he acted like a policymaker he stated in testified in his deposition he made the decisions on what the rules were under which m r robinson was to be terminated as disciplined yeah you need to help me counsel i thought it was only the sheriff that was appealing qualified immunity no i didn't think the counties issues were before us but i well i i if if make the policy in question in this case which is what were the terms under which mr robinson could be disciplined and your honor i would submit respectfully to the court that if it looks at nord as being determinative there is no first amendment protection for any deputy if if we don't look at in the context of the facts of norden limited to those facts then the first amendment in the eighth circuit no longer protects any deputy and i don't think that is a rational result i thank you for your courtesy i'd answer any other questions seeing none thank you for that thank you sir he didn't want to interfere with mr morgan's campaign didn't want to retaliate against him for the statements that he made during the campaign nord facts in fact are remarkably similar to the facts presented here i discussed that in my brief go through it extensively i don't have time to comment on that but certainly if the court compares the natures of the office the situations that occur both campaigns both termination following the campaign you can see the similarity is simply not appropriate to cast the right in issue here in absolutes as counsel has done counsel makes the comment that if you follow nord then you are denying freedom of speech in the eighth circuit words to that effect that's simply not the case you need to look at the specific statements that were made in this case and evaluate those statements under picke g conic there is no answer you've reached the end of your time all right thank you i thank you for the argument back fully request that you find that sheriff robinson is entitle to qualified immunity reverse a judgment th