purposes not to amuse because first the plaintiff has not met his burden of identifying clearly established law which demonstrates that the defendant's particular conduct violated those rights asserted by the plaintiff also he was acting in the scope of his employment and further to the extent the court found a dispute a fact dispute is not material to the claim of qualified immunity and therefore you acting within the scope of his employment i mean his initial encounter was when he was functioning as an off duty and i guess and this lead in just to be clear although there were two interactions or two different lawsuits the first lawsuit is resolved the incident back in two thousand and nine at the bar is not part of this case this case the three vermont state law tort claims are based entirely yes you want to so in order to be outside the scope of employment it needs to be manifestly beyond the officer's line of duty and entirely outside the scope of any employment duty in cases discussed this is not being a difficult burden to show because  mel performance of an act that otherwise falls within the scope of an officer's duty doesn't place it outside the scope of the duty even if it even if it is determined to violate rules and procedures even if it's a mal performance of the duty even if it's performed with malice you can still fall within the scope of the employment if you know if it is not manifestly on the officer's line of duty and in this case the facts memo it describes information that the officer obtained while being sued as a member of the boston police department for acts that occurred while he was a member the boston police department information he would receive from his counsel regarding what the plaintiff had said during depositions in that case in which he was being sued as a member of the boston police department the memo is an official boston police department form it's called a form twenty six it's used to communicate with agencies that we to communicate to the boston police because he was afraid of going to his deposition or or without police support that's why he did that memo so that they protect him it is deposition because he heard these other things from the other depositions in the case so that may be true that that's in the course of his emp but how is then sending that a copy of that memo to divert the o c part of his employment or his authority but the content of the memo not only says i'm afraid because of the things i've been told about the behavior the point of but it also says in the memo i request that this information be sent he sends it up the chain of command to the vermont department corrections because i'm concerned about the behavior the point of and i'm now aware that he's made suicidal and homicidal statements and i'm told by my attorney that she's concerned about his mental stability and also some other issues about checking the officer's face book on a daily basis recently having purchased firearms and he's told by his counsel he works that are part of corrections so it is not that wasn't just the purpose was to be safe it was also to identify to a fellow law enforcement agency that you have an employee an officer i mean he this person is not you know he doesn't work at target he said correctional officer and it's a communication suitability anybody who is the object of this kind if you change i would agree with that your honor i guess my point was just that this would have to do with that he worked for the department of corrections but i think you want to that it  further along form as a law enforcement interest he's not just getting this information up the chain of command he's also sending it to and asking that the information be sent to another long which means you look at it that way and the other way you can look at it is an act of spite with respect to good faith the answer is no and i think that is a main point of our brief good faith has nothing to do with subjective mode of when dealt with in the context of qualified immunity the words good faith when typically uttered you think well pure motive but that is not relevant in the in the qualified immunity context of good faith qualified immunity talk about good faith being purely objective it's whether or not the law is clearly established that the officers actions would have violated the rights of sort of by the point of so motive is irrelevant to good faith and i know the court focused on that that there's always going to be disputed issue of fact with regard to subjective motive if that you know qualified immunity for then no one would ever be entitled to qualify i mean any good faith isn't reliant upon the pure mode of of the officer it's just whether or not it's essentially a clearly established i mean intent only becomes an issue if you've case it's a disputed issue is not relevant to the qualified immunity determination because it's specifically not relevant to good faith and it's also not relevant to the scope of employment you can perform an act that would otherwise be within the scope of your employment for the wrong reasons and doesn't place it outside the scope of your employment i mean there are cases of excessive force cases where offices mean they may be disciplined by the department for excessive force the excessive force may have been there may have been subjectively motivated by the wrong with the wrong purpose but that doesn't deny them qualified immunity nor does it take it outside the scope of their employment and i guess i'd say i understand the course point i do i mean our point of employment is not only that it was on a form that he rode on duty  the chain of command he faxed from the station while on duty but he also i mean i it furthers a law enforcement interest in the vermont department of corrections a fellow law enforcement agency agreed they reviewed the memorandum they didn't take a great deal of steps but they did they did reach out to the boston police department attorneys obtain the deposition transcripts read what the point of had actually said at those depositions as well as that transcript of the depositions of the plaintiff family members who talked about things that he had said to them about having suicidal ideations being suicidal stating to them that he wanted to kill a police officer and the vermont department corrections took that information and said we are going to happen require you to undergo finisterre do evaluation before you return from your voluntary leave of absence and i guess i would you know it was sure but the chronology here the memo was to his superiors and january night that he does  later set up to vermont he didn't do them so why did he do it the next day but his captain was not there first of all he the captain wasn't assigned the captain was deposed in this case he was visiting the officer was aware that it had been sent and he wanted to be sent and you know perhaps he should have had his perhaps he should have had his commanding officer send it but i don't think again i would that place the action of the commanding officer sending it outside of that commanding officers scope of employment i don't think you would i an example i would give is a police officer police officers respond to an incident within their town and there's an officer from another department involved and they don't make an arrest but maybe there's you know extraordinary levels of intoxication or maybe a domestic incident something like that that raises concerns and they reach out to that officers department and inform the department that it may be an issue with one of their officers perhaps you know we didn't make an arrest it doesn't and i can and you know use our police powers to deal with this but you should be aware of it and you can investigate it and deal with whether a supervisor orders or approves it is not required for it being within the officer's scope of employment no police officer whatever be entitled a qualified immunity an excessive force claim if the force they used was you know if be specifically authorized approved ordered by a superior officer so what i think those facts and i do think it's worth saying that the district court didn't actually identify a dispute a factual dispute or dispute that  if you trance posed on this into a more soup between an investor and broker and then they went into it and they hated each other and and deposition one a separate mier duty to respond to those types of incidents if there's any if there is a law enforcement agent that is demonstrating signs suicidal homicidal ideation and an officer becomes aware that information providing that information to another law enforcement agency guess i would argue that hitting each other is not relevant to whether the the the act falls within the scope of employment or satisfies the good faith requirement in the context of qualified  within the scope of his employment which is one of the factors for qualified immunity and there are questions of fact all over that our argument their argument is well gee he was concerned about the good folks up at that in vermont and he thought he ought to warn them that really isn't a police officer of boston's function but assuming that that could be the to a proper function assuming that there's a question of fact as to why he did it was that his real reason or was it to  malign a young man who had who he had beaten the beating was caught on videotape before anybody knew about the videotape the officer had sworn out a complaint and testified in a preliminary hearing that this young man had beaten him this young man was indicted and then three days before the trial a video surfaced showing that what officer said was absolutely not true is the other way around then the prosecution dropped the case completely dismissed it and thereafter this young man sued the officer in that context the officer sent this memo and the memo is not just a warning it contains a fal  he made suicidal and homicidal threats towards me that never happened to me suicidal friend that's true but as i understand it the  deposition because the case settled before trial so there was no trial in his deposition he said i have homicidal thoughts but i but good people don't act on bad thoughts that's what he said he did not threaten karami now perhaps karami can take the stand in a jury trial and say i read that as a threat and therefore i thought i was threatened and therefore i thought it was in my police duties to warn the people where he works you think it's disturbing to hear that somebody would like to kill you but they're going to restrain themselves i don't think he said he wanted to kill him he said he had homicidal thoughts because of what the man it done to him the beating in the false charges but he wasn't going to act on it but whether he has bad thoughts whether whether it's disturbing to the officer that that jacob said which upset about the officer makes it less likely that it was a police function and more likely it was part of the enemy's between that and there is a genuine question of fact your honor as to why this memo was sent if it was sent as khurana he says because he was concerned about everybody up there then our argument at trial would be that's not his business as a police officer so therefore it wasn't within his function but our argument goes beyond that we're saying that's not why he sent it at all he sent it because he didn't like this little punk who had done  and got him sued in gotten him in trouble and exposed him as a liar and he was going to get it and that's why he sent the memo and that's why the memo contained a falsehood that's argument that is just and on the basis of the the only resolved issues of his state of mind in terms of why he sent to the district court correct what is a false would have to i mean the false it has a great deal to do with the merits but what does it have to do with qualified immunity because if it was a false statement it is liable and that is a clearly defined wrong for which qualified immunity cannot be determined cannot be found in a the words everybody knows this is not subject to reasonable debate this isn't some law out on the fringe if you lie about somebody to their employer you are subjecting yourself to a libel claim or slander claim depending on the context and this is what we contend that he did he lie and it was a lie that was very dangerous because he threatened to kill me he has homicidal threats against me this is in the words of substance what his lawyer told him which caused him to consider showing up his deposition yes your honor and he can say that he believed that what he put in this memo is true and if he did believe it that may have some impact on whether it's libelous but the jury has to credit that but i believe the court below made the determination that you can't determine the qualified community as a matter of law because if our contention based upon our set of facts is correct then it wasn't within the scope of his and it couldn't have been reasonably believed to him to have been something he could have done in other words it violated a relative very settled right of the plaintiff which was not to be liable to his employer that's that's  and in order for it to be a good faith on the part of this officer not only does it have to be within the scope of his employment but it has to be where there is no clearly established right that he was violating you cannot make false hoods to somebody employer as you said in questioning my opponent that could get him fired and even khurana in his deposition was forced to admit your honor that this could get him in trouble with his would be within the scope of the first officer whose job description to contact the other police department and say you want to worry about this because if yes if if he believes it well i think own was because he couldn't find a captain to send it for him or whatever that the deposition had happened before this was this was something that had been ongoing between the two of them for a long time again those are questions  fact that go to why he sent the memo it reasonable jurors could believe based upon the evidence the prior motive was the court relied upon and the falsity in the memo that he did this not warn anybody but to get the young man who had caused him so much trouble and that's something that in and tell that is resolved your honor one cannot determine the qualified immunity the judge correctly stated the qualified immunity elements in her opinion she will correctly if this court affirms she will instruct the jury and then the jury will weigh what you've been asking about and those are good arguments and i'm sure my brother will make very very cogent way but our counter arguments will be that it was for a different reason and that is plausible it was for a different reason and there's evidentiary facts that it was for a different reason and it would be for the jury to decide what his motive was oh somebody does the right thing for the wrong reason you do good thing for a bad reason well then it and threw it in the scope of employment but it was but that that begs the question of whether it was a good thing this was a false this was a false statement he did not threaten officer karami and the record doesn't show that at all the it if you if you look at the memo the question is generally why was it sent that is a question fact your honor has given perhaps even give my post some arguments for the trial as the argument she can make to the jury but unless it can be said this is for this court's jurisdictional purposes in less it can be said that there is no disputed fact that is either not stipulated to by the plaintiffs or agreed to by the plaintiff this court has no jurisdiction to decide this because it's not being done on a matter of law based upon stipulated facts these facts are disputed and therefore this court should simply we respectfully say we don't have power to decide to qualified immunity because it is so intertwined with the claim as this court's prior cases have said that thank you ron as the these steps the scope of employment issue was not specifically decided by the district court it was determined that there was a dispute a fact and therefore couldn't be reached however there is no fact identified that would undermine the resolution of that issue if the fact that we're talking about is the subject of motivation that he send the memo for a bad reason that is not a dispute of fact that is relevant to the determination of scope of employment you can do the you can do the right thing for the wrong reason but as long as it falls as long as or not manifestly outside of your employment duties it's still within the scope of your employment and there are many cases that we cited mal performance i mean intentional torts these things can be when inside the scope of employment subject a motivation is irrelevant i guess the point i'm trying to make is that the court needed to make a determination as to scald employment it didn't it didn't because it said that there were facts in dispute but there were the facts that relied upon we we accept and were saying where we are entitled scope of employment and determinations called employment based on the plaintiff's facts including that the officer wasn't specifically ordered to were proved to send the memo and i guess i just would i would just respond by saying that torts of libel and slander are subject to qualified immunity under under vermont law i think we've said in a number of cases the talk about vermont state law granting qualified immunity to lower level public officials for basic torts and i just would also state that the district court did not conduct a qualified immunity al as it was required to specific to the actual torts alleged it's qualified i mean alice was essentially limited to the garnett case and it said well the garnett case stands for the proposition that there's a right to a fair trial under the constitution and in that case there was a defendant who fabricated inculpatory evidence which was used to arrest and falsely prosecute an individual while those not only did that he's not deal with any of the claims that are being dealt with here state law tort claims and it was actually decided after this incident occurred so it couldn't be precedent but it also dealt with facts that were entirely in applicable to this case and that was the law that was the limit of the court's qualified immunity analysis on these three tort claims and that case garnett with the case which is not nearly identical would not have placed on clear notice that his particular as actions violated the state laws that are being asserted by the plaintiff so the qualified immunity analysis with regard to good faith and again good faith doesn't mean good faith good faith means clearly established law demonstrating that the particularized conduct violates the right sort of by the plaintiff in this case it's three vermont tort claims not a claim for a fair trial and i guess i would just with respect to is this a law enforcement function doing the right thing  a pretty extraordinary i mean not waiting for your supervisor if you become aware of counsel your counsel telling you you know the point of his going to be here tomorrow i know the memo says that the point of made homicidal threats towards me but it's undisputed as testified to by counsel and again the officer wasn't at the depositions all the information he's obtained is from his counsel counsel was deposed and she stated she didn't deny what off the carney testified to but her memory was that she said that the point of had expressed homicidal thoughts toward you and that's what she's telling me and in the context of everything else she told him that she was personally concerned about his mental health that the depositions can be held at city stressful job where they are responsible for the safety and welfare of other individuals i mean the timing of the memo it was written because the plaintiff was coming to massachusetts to attend the deposition however its request in the memo you know not that the information be passed on at some point to the information we passed on because it's important and it was important vermont department of corrections got the memo said we should look at what this person actually said they got copies of the plaintiff's deposition transcripts and at that point by the way the and i didn't really get into the elements of the torts but the memo loses all employed at that point because the memo just says this is what my attorney said the point of said his depositions now the employer has actual copies of the depositions and can read them and they have copies of the depositions given by the plaintiff's brother and his father and they look at those and we have tempest we have testimony from the rule thirty six representative of the employer and the employer said yes i found the pla actual statements not what i was told by carney in the memo but in the actual you know review of the statements i found it threatening we have we have your arguments we have the briefs thank you both i thank you yours in reserve decision the case of william versus the city of new york