multiple private lawyers hired by the city during this these events and the city council and on the other side you have crackhead with a local contractor who owns a company called h c i it's the i have a decades long history of public works projects for why sorts but in a way i don't think it matters because ultimately the court would be asked to consider under either test whether protected activity was the motivating factor in retaliation and that's a question that the district court ruled on in this case so you're not choosing instances of retaliation in contravention of the record and it ignored clear evidence of direct retaliation for speech also in the record i want to place a very bright point in the minds of the court today and that august twenty  conflict of interest in the situation removal proceedings for headbutts from the city council but again august twenty eighth the twenty thirteenth and the largest problem for the district court are going to be very clear about the timeline is that the retaliation the siege happened long before the instance on the job site in two thousand and twelve a tech with an ounce of presidency the city manager starts to ask the chief of police for information on had to use city police resources to search for information be aware of the city engineer and but i think perhaps the most troubling thing the retaliation that's that's really alarming that occurs before the month before this happened is that the the city manager after being told a year before that using police resources to search for information etc and there's a recorded phone call that patterson does not know that was recorded again occurring before the august incident where he said boy craighead christian raising hell and i'd like a more final solution of the problem what do you got and the chief of police also the idea that that's the only retaliation the timing directly contradicts that there is also direct evidence of the retaliation after that date for certain including the conflict of interest investigation which is anchored by the city's allegations that headless requesting the stop posting information would somehow lead to an advantage for his company when the city had done that approximately six months before important information ahead of public works had written a letter to paterson that said any citizen or council member should be able to request this information and we should have that letter was never provided to craig and the copy of that letter that was given to the investigator had the paragraph removed which is interesting there was also a twenty thirteen request to ins surveillance directly related to head west and city council chambers and coat room perhaps on the most troubling aspect of the record of the city managers inquiring of chief of police apple camp later on how they would deal with what he called the  problem the applicants who are some long time members of wyoming law enforcement found this audit unprofessional and quite concerning the city would withdraw an award of a sample completion given to h c i that's an unprecedented saying in the annals of city contracts and it triggered retroactive liquidated damages and forced h d i into a long drawn out mediation well the what the heck was problem is i mean this is about whether they're trying to wanted to deal with the head with a problem would not give you a first amendment claim would it i don't i think you're absolutely right and i think the fighting words question is probably a rabbit hole but the point being if it is not writing or no i mean that it's we have an alleged that it's protected speech in our appeal well because i don't believe the first minute retaliation but the point being that what he said happened after that incident is a part of the greater picture the retaliation occurred before and the bitch incident is is part of this picture and it's certainly not good behavior by my client but the allegation that everything that they're doing after this and all the retaliation is for that incident because of that  and twelve he kind of brings together a group of local contractors including his competitors to meet with patterson and other city officials so that they can talk to them about how the city bid works and what's efficient use of taxpayer dollars that's memorialize cases including minix out of the tenth circuit baron o'hare these were all actions and speech by a principal or owner of a company that was retaliated against essentially for third party  yes so the retaliation against h c i is really more of the p m s of all retaliation right if the deal a thing that ends up costing had quit over a million dollars in profit and costing the city of casper nearly a million dollars by going with low better and so it's it's a very real tangible thing the retaliation against mr hepworth is a lot more of these efforts to remove him from the city council and whatever to give him personally don't work the conflict of interest investigation the a vote to try to remove him and to discredit him in the community when that doesn't work then the pressure dials up against h c r we start with the financial corps and after this public reputational political corruption doesn't do the trick well one of the words used was public well some of the retaliation necessarily have to be known about my has to be able to chill speech right and he can still speak if i don't know that well under the world test which is for citizen and h c i if we're talking about  if you can see if we were not aware of how would they feel you know how do you deal with the head clips problem a call about can you getting information on this your head with those things were things that he was not necessarily where right well yes but i think with a case of the say is the more abstract question of whether using police resources to search for information on someone hiding information trying to get someone removed from their elected official position those would all absolutely meet the test of chilling a person of ordinary f when i'm sick trying to posit would need to have some connection with mr had with knowledge in order for it to have a chilling effect you disagree with the i'm telling you that ha that's a good enough it's going to be on the record he can have you can know about the ether in the era but the well he absolutely knew that the statements by mr patterson were made to the press those are in the record the investigations that were served on this are pattern honor good afternoon my name is john masterson along with my partner earliness delhi who's in the gallery we represent the city is kasper's and its former city manager john patterson in his official that's a great question because the only evidence of what took place at that meeting is an e mail an internal e mail from city staff to the city manager at the time summarizing what that city staff member i believe there was a group of local contractors in the city of top of casper who wanted to be easy representative rates yes yes your honor mr head quist was president it's an in again it's an internal the city of casper where there was a problem it was called the fairgrounds road project and there was a problem in a dispute between the city of aspen mr ed was and i believe in their email as we interpret it the only thing that came up what that e mail reflects is a discussion among contractors and city management about how to make the performance of those city contracts better more efficient they are controlling their workforce i mean is there a car study pickering framework even though i know that was argued lho button and the court relied on it but what is that right is that what we're dealing with here your honor him in our opinion we think the better test is we're all just because it seems it as i understand it we're all applies to non employing situations so that seems like a better fit for this particular set of facts i wouldn't comment that as for purposes of what we are discussing here today sufficiency of evidence the motivation for the speech i think we end up in the same place no matter what test we take one of the elements of war  deals with whether or not the speech was substantial moving motivation yes and then but if i'm sorry but let me does it matter because you would have to define the universe of speech that could be cause for motivation right in other words i mean if you're saying that the speech doesn't have to be a public concern warrell then you'd have a broader universe of speech that theoretically could be the basis for cause right that could which is not so famous public concern those are two different things public speech or speech about a public concern would be a constitutionally protected activity so i see it as fitting under arrest first moral but probably couldn't the protected activity deep broader than public concern is what i'm saying it could the government cannot punish an individual for engaging who is not an employee for engaging in first amendment activity even if it's about their personal grievance right the government can't punish you for  facts in this case and what they mean are could not be more diametrically opposed and that's why i mean obviously we know the court and is very diligent in reviewing the record but i'd like to under exist in this record that the district court found and we believe you will find do not match up with six with the characters ages of those assets that the plaintiffs have given them they need you to reach that conclusion in order to for you to reverse summary judgment i believe a reading of the record close reading of it will show you that things like  mention rick harrow was asked to provide cost information to mr had chris what it cost to do this particular process that happened in february thirteen request was made in march mr had quest and this is in the record as well if my note is correct it's volume twenty six about page five thousand there was a public hearing where mr harris spoke and this topic came up and if you look at the transcript of that hearing you will see that mr harris said it took his staff mr mr had quist asked for three years and cost information it took mr harris staff for four weeks to gather it he provided that information to mr had west and the problem that is bramlett refers to was not with the waste of money it wasn't that money was was falling out of the city's pockets or was accounted for the grant of summary judgment on qualified immunity grounds i feel in some ways like i'm continuing the second argument that was made here this morning but let me let me do it anyway  constitutional right and two that the law was clearly established at the time of the alleged deprivation in the supreme court has made clear mostly in recent cases that the focus of the second prong of the qualified immunity analysis is on the conduct of the defendant the question that the court needs to ask is whether the violence of nature of particular conduct is clearly established not whether the right is clearly established that's a quote from more next that you judge holmes cited to this morning law is clearly established here is based upon supreme court cases cases from this court or from the weight of authority from other jurisdiction instances of retaliation listed at pages forty one through forty three point of greeks the question that the court needs to ask with respect to each of those items of retaliation or alleged retaliation is simply whether the plaintiffs at the district court cited the judge to law which clearly established the violence  a couple of points i'd like to make one in regards to judge list arrow's question about the memorandum from the twenty twelve meeting with the contractors that's in the record thirty one fifty eight through thirty one sixty former contracts actually ongoing contracts was being handled so all that and or all that the record shows that andrew knew about that contractors meeting is what's in those pages i just cited you which shows very minimal commentary department was involved in the recommendation on whether the contract the future contract should be given to the strike was so those two years prior to that that he got that memo the other comment that i wanted to talk about very briefly was judge holmes this question about blubber just two weeks ago this court specifically held that glover could not be used to establish violative conduct in the canopus versus williams case came down just on march fifth the other issues for why glover is not controlling is because it was determined at a different stage in the proceedings however it was done on a motion to dismiss not after two years of discovery clever which is different because glover involved a situation where they recommend the written recommendations an issue said that we are doing this because of the speech  and in the contrary these recommendations refer only to non speech events the other primary difference from our perspective for glover in that in this case andrew beamer had direction from that characterization first there's two different memorialization from the record there's an e mail from john patterson which is the one i think they're talking about and there is a on the record at three one six two yes about participants is actually noted in  handwriting in a document produced by the city who was participating there in that meeting but there was also an e mail from a city employee who was there at mr meyers and that i believe that one three five mr patterson also coming in at three one t