morrow to actually illustrate for example times and places of meetings the three we've gotten together the contents of those meetings the contents of the riemann or anything along these lines that you're wired to at least state plausible facts and not legal regarding budgets and so on and that mayor dobbs was threatened that if in the event that level wasn't fired resources be redirected away from the city of quitman least or but at no point does he specifically allege that judge  anything whatsoever much less does he actually provide the contents of such a threat as just a statement of x threatened y is again an unadorned legal more importantly and this is the most critical failure now mr bubbles complaint plainly states were holes a large portion of a memorandum for when police chief kelly cole explained the reasons for why bevel was being fired for call d the devil had intervened on his own motion into a criminal case after his friend seeking a venue transfer without seeking approval from his appear is the police department and police chief kelly cole issued a memorandum stating that level of violated two policies one against helping individuals in the criminal justice system essentially state the each of these three bases is an independent reason we're dismissing the retaliatory terminations claim against judge fletcher but even if this court put all three of them aside and just sort of overlook all d these failings none the less level can't quote whether a non final decision maker meeting someone other than he actually had the authority to fire individual plaintiff could be liable for st amendment retaliation this court used exactly that formulation several times and went back through a somewhat confused history of prior precedent before stating that a specific case jet control an ordinary principles of causation now previous cases previous cases have had that similar problem name that similar causation individual action i read that paragraph thirty five as a statement from a police chief told to the texas work work and were forced commission stating that in part district attorney wheeler's statement that he would not take cases from  router and and had terry bevel actually pleaded in paragraph thirty five that kelley cole said one district attorney wheeler said he was going to take any cases and to judge fletcher said he was going to liberally slow law cases from whitman or  and this court can't just insert that for him to cure is may please accord counsel the st thing that i think is probably the most important aspect of this case is that the law was not clearly established at the time that this occurred this happened in june of two thousand and seventeen when the claims are made the basis of this case actually occurred and the law was not clearly established that any decision made could could be liable for st amendment retaliates or germination that was not decided until sam's versus city of madison the kid in the weaver case is the exact opposite every player in that case was the ultimate and all to money and final decision maker lying on sam's versus city of madison we believe that the law in this instance clearly was not clearly established at the time and as a result of that this entire case fails additionally your honor i would note that in this case as to the conspiracy climes plaintiff simply has not alleged cursory they don't allege facts that are even sufficient under mourinho to establish any type of conspiratorial way of the only fact that they actually allege is a close professional and personal relationship between of city council which is certainly within their right and i would note that clip one is the county seat and that the city hall is approximately twenty five yards away from the county courthouse  the actions of the police agencies can have an effect on those police agencies is certainly a matter of public concern and certainly within their right to do you have to do within their rights as well and mayor need to get rid of this assertion it's a vague assertion and there's no assertion that cast loovens self if you're looking for individual causation which is mandatory in this case there is no actual individual assertion of causation or matter or about thirty but i don't believe that that allegation in and of itself gets anyone where they need to be there has to have been an agreement in advance and that agreement had to been acted on and it has to be by at the time a final decision maker under the clearly established law so i think under the clearly established was at the time prior to sims that all three actors are attended the classes they were the final decision makers in terms of whether or not they were going to use that establishment in that professor d and they made that final determination themselves this is a different it's part of kilgore junior college but it got a free standing entity gun on its own but i think the major distinction your honor is the fact that they were the final decision makers about who would who would not attend the classes they made the determination they d were not going to use east texas police academy this is a different situation your honor in this particular situation the final decision maker about the employment  bevil is without any question the city and then i think also your honor you have to look at the underlying factor involved in this case which is whether or not mr bevil is a citizen who spoke out on a his capacity as the captain of the largest municipal police agency in the county and makes the statement for admittedly his best friend that the sheriff and the judge and the da are all corrupt and that this been is not going to get a fair trial and that the case should be moot now is that i mean as a private yes yes your honor what do you do with wayne and the your friends on the other side say they  in in just a regular case and have a david that is emitted without the factual details d that we have here might be a matter of public concern but in this particular case it is clearly a matter of private concern because of the relationship between the captain mr bevel and his friend who he clearly admitted he filed because the man was his friend so you have to balance out and there is a form factor t in terms of balancing out of which one is more heavily the governmental interest or the person and in this particular case there's no doubt that it's a personal interest and the governmental interest so imagine imagine trying to conduct business as a law enforcement officer is that the sheriff or the district court judge or the district attorney and you have a captain of the largest police agency who's trying not just to interfere clearly establishes that this was a matter of his personal concern and not a matter of public concern so all these people i mean what you say it is is ought all these people are quote public people you know in a very small circle yet you argue strenuously it's permeated by quintessentially private advocacy well hopefully it's both your honor thank you i think that it is part of the record as well that the relationships and i agree with you it's very strange and all i can say is welcome to a  i think that's one distinction but i think there is another for a day that let's say that somebody is is called as a witness they're called as a witness they're subject to cross examination one qualified immunity is an affirmative defense that requires two things st the official was acting in their official capacity and nd they were acting within the scope of their discretion all discretionary authority because not designed to protect unlawful acts outside the scope of an official the already simply because they cloak themselves their title i'm sorry it isn't the whole theory of why they should be liable that they pressured the mayor it is your honor it isn't and say if you don't fire mr battle we're going to withdraw our resources from you those threats are outside the discretionary authority of a judge and a county sheriff and and a search attorney did the three defendants have the power to do what they said they were going to do if if they had they would have been abusing their their our their office your honor i mean it seems like you may have just conceded away the theory because if i mean if they didn't have the power to do what they threaten to do that i don't understand how they could be liable for anything if they would have done that as that's what i've been awful your honor that seems like a big problem for the theory of the case doesn't know your honor it supports our theory on some political purpose and that's not in the record and i'm not sure your honor i mean if your theory is that they couldn't have done it then i don't see how they could have conspired to the could have conspired to exercise powers if you say they didn't have could you rephrase your question a little differently please i am answering at no an apartment i think i'm just i'm a little surprised by the by this line of argument because it strikes me that either the three defendants had the ability to go in and threaten the mayor to do a thing withhold funds if the mayor didn't get what they wanted which is one theory of how they conspired to violate the st many rights your client or they didn't have the power to do that and so they were just kind of blowing smoke which is what i take your argument to be and if the organiser the conspired to blow smoke i'm not sure i see how that's going to get you very far  ticket mean is your best case on this right it is your honor so here's i have to hang up on this one i don't understand you know just the sort of my words this long most of her explanation about why the testimony in the case isn't ses of a citizen a matter public concern is this enduring obligation of everyone who testifies in a criminal trial to tell the truth combined with the fact of the subpoena so in this case obviously you don't have a subpoena it's completely voluntary the nd thing is that i'm looking at the material parts of who this person is been saying in my opinion there's not going to be a fair trial here we need a venue change so i don't see how the sort of the either the facts of law or the motivating analysis of lane helps you experts they were expert witnesses yes runner so there they don't have the same obligation that motivates lee right that is this truthful obligations of a shared obligation to testify as true facts i disagree your honor i think i mean experts are under the witnesses whenever they're testifying in trial sorry i didn't mean that you mean that they didn't have an obligation to be perjury i just meant that it's a there's a difference between saying i saw one person give drugs to another person versus i think the distinction is that that the source of that obligation it comes from the same place there's a duty to the or into society at large heard any witnesses call to trial regardless of their purpose to  tell the truth and whether that some have actual basis or an expert opinion of a basis that obligation doesn't change you know doesn't affect whether or not a party's st amendment rights were violated whenever they were terminated d for giving us money not imagined just rushing is required and generalized concerns about harmony in the workplace or eliminating disruption or in their not sufficient real disruption as required discord and he reached the same conclusion disruption is al possible but to give deference to you and i founded prediction of harm would allow the government to arbitrarily punish any speech under the guise of preempting destruction if the court doesn't have i well i'm not sure don't the way t what so you know what your response they say yes they plead this but the got us there was in visual causation and they don't so i'm just gonna always want to know what the other view is so what your the last well established their hell their spelling which is also followed by that and the other case that conspiracy is the legal mechanism through which liability can be imposed on all members of a conspiracy without regard eighty three violation it is for their role as coconspirators with the final decision maker who had the authority in actually committed and constitutional act of terminating him for his affidavit testimony is it your position that the defendants had the power to do the things that you allege they threaten or was that they had no power to do that ever thought they had the power to do right the fact they just made the threat consistent with what the that the threats to retaliate against  making these threats and exerting enough pressure on the mayor to get the mayor to do the dirty work for them because use only one use the only final decision maker had the authority to terminate that will that there are participating in furtherance of the conspiracy a reasonable expectation that discovery will reveal evidence of an illegal imprisonment and that's our burden at this stage and we more than met it with i haven't even finished frankly the other facts am in the record but i'm just playing sheets to page two he may be judicially i mean for it in the context of the entire pleading in the entire complaint it's sufficient evidence to raise a reasonable expectation the discovery will reveal the evidence than a legal agreement and that's our burden at this point a sort of said in curious you know everybody hears public person but you know their argument was that this is personally driven because it's his best friend it's cetera et cetera and all that and so the us you know not speaking he don't own a matter of public concern but speaking personally not withstanding the uniform or other best means that might suggest some public nature of  relationship that was well known within the county that that the share of the d n a in the judge all were very very high and he had concerns as a peace officer someone who swore to uphold and defend the constitution but this man was not going to have a right to a fair trial and speak out on official misconduct is protected right so the language tracks the language in the  policy makers or the employment they had discretion over sending their police officers and that was what the work focused on they could use their ability as public officials to do with phone and retaliate carry a witness's employer to fire them because of speech that they don't like and that's exactly what happened here and part of their point if i may and your honors with respect to the my friends on the other side painted themselves into a corner they they try and tell this court for purposes of qualified immunity that judge the judge fletcher was unable wasn't within his this fresh very thorny to make any say make any threat that could have possibly on the other side what they would say in response to my argument that they had stated anything about an agreement and stated anything about individual causation they give you nothing because there's nothing here to give as they say in paragraph sixty one dollars if you're a legal assertion the dates and times of secret meetings you know where individuals got together what was said these sorts of things obviously it's a case by case situational analysis these are the kinds of things that with you towards possibility none of them are in this complaint a all that so i had to go bill last few so in the interests of fair play i will give you a concluding sentence a declarative statement no semi colons no clauses if my friends on the other side ar rarely do i get it done that way but you good all right mr davis take your cue thank your honor i would just like to point out again and i probably shouldn't have to but this is a plan of nd chance to amend their compliance this is our nd motion to dismiss it we're here on today they have a heightened pleading standard and heightened pleading requirement once we bring up the issue of qualified immunity the period in their complaint anywhere that there was an agreement between the three defendants and anyone at the city of quit and there would have to be an agreement all they have to dish is make the allegation that even make the allegation if they don't have a lot of the action evidence to come up with that allegation and they shouldn't be filing their lawsuit i mean that they've got to have the evidence or at least be able to make the for this is a quotation the seven law enforcement officials collectively the police officials asserting qualified and immunity in this case are police chiefs or sheriffs who possess final authority over the training of the employed by their respective agents as that was the final authority that was addressed in kenney from which it does address final authority and that's what's on porton under the clearly established law didn't get him there it didn't happen until simms and simms was after the factual occurrences in this case ya'll have also just very briefly wanted to point out that i think that they're under the whether or not the statements that were made caused any disruption and were a matter of public whether the statements were more matters that would be of concern to the governmental entities and i believe the plaintiff stated that there has been no disruption caused as a result d of the statements made by her client i think there's been a great deal of being in your arguments and especially the responsiveness to the questions that the court has the qualified immunity cases always begin a lot of questions and so you've helped us