process equal protection and state law claims which i feel that we've demonstrated are fairly defective as a matter of law so i must enter the panel have the questions and those areas and i would focus on the first man retaliation claim plaintiff clearly demonstrates that they cannot stand aside and have not set aside the elements of the first amendment which allegation claim primarily they cannot establish that ms arnone was engaged in protected speech because at the hub this is a situation where ms arnone admittedly directed threatening language at a police officer in a private context we don't have public speech we don't have a public employee we don't have any herring i mean i understand the cases and stand players position that police officers are supposed to be immune from that type of obscenity but that's not where this case was that's nath the only thing disclosed she was late for work and a nearby hospital where a patient was waiting for her so he is concern was that knowing that officers and other loggers are personnel that treated at the hospital he was concerned that this was something other than his anger at her you know her out ugly outburst with some fear of other people and yeah i guess it was said that he would fear that any police officer would get treated the same way even though it was not say that stopped her or ticketed her and made her late for work the general  ticket in three days and she was late for work it was already after seven thirty she's going to be there some forty five just so disagree with the basis of the ticket and she went on and on and that but i mean the point here is it was  testified under oath and it's in her not since in her summaries that it wasn't just what mr nonny said it was the tone in which she said it and the fact that any reasonable person would feel that it was plausible for her recently by this panel i believe in a similar case that is long as the question is one of law and application of qualified immunity to a record presented questions of law application of the issue of clearly again our position is do that very thing they still don't satisfy the elements that are required to establish the first night retaliation kind because there is not protected speech even if you accept the by the way is me get back case scenario her version is i said i hope i never see you again and i never see your friends again at my place of employment ok so we that's her that's giving her the best spin on what she said she also admitted that she told the officer you better never come across my table she admitted that to her employer she admitted it repeatedly to the  if and when he gets injured whatever that might be years hence or the next day the next they'd be more but issue here is whether or not it was a true threat attenuation between her angry outburst ugly outburst at being ticketed and being weird that translates to of what deserving point is that if you want to look at whether this is to threaten then you don't look and miss arnone subjective and or explanations the time is a matter of law is whether under these circumstances it was reasonable for best spin for all work on this case at this stage of the game we must credit the best spin that the arrest he puts on it in her investigation and so and i know my time's up but just for my final point there except that it's true except there might be a question of fact as to whether or not there's a two track they still can't overcome the hurdle whether or not this right this clearly established inconsistent with what officer loserville complaint claims that she said a traffic stop and the language we quote on page eight of our brief now it was not very nice language it was nasty language but it was certainly not threatening language and it's totally different than what those those claiming that she said and for purposes of this appeal on qualified immunity you have to accept the best version of the folks here in determining whether it's threatening your base that on reasonable belief and her version of the facts there's no comment about i hope i never see across my table gets a nasty language it's protecting free speech clearly going to the first amendment and he had no business going to her place  citizen of the united states just like everybody else on the first amendment he doesn't have a right to go and express himself he's he's working as a police officer as a state actor in full uniform and according to an aviator of the human resource representative she believes he's there on official police this if that was your customer and even though in deposition he testified when i asked him about this at the time when this offer cation occurred based upon what he claims that she said he said i did not know it was a threat that was his testimony it's in the brief so he says to me in deposition i did not know was a threat yet he goes off the grid doesn't notify dispatch that be retaliation it's retaliation p cuz given what he said the true intent of these the motive was to obviously get her into trouble and he because he goes there and he says that she threatened me now in deposition he told me i didn't know it was a threat but he goes there and says that she threatened me and then he expands it beyond what he originally claimed that she said it initially in his notes he said that she said i better not see you across my table year that she said i better not see you or my family or your family across my table so now he's expanded to include expanding and then he says my wife's a nurse and i'm concerned about how this treatment is going to affect me and other police officers so the motivation which is a question of there for the jury our position is was a he wanted to get her in trouble because he was not happy with the language and so that's the retaliatory conduct just like in page versus corner where there was an individual from a mr paluxy that reported to an individual's employer that she made some public comments that he didn't like and subsequently she was terminated so it's a it's a very similar situation with regard to that so her comments are protected free speech and at the time it is our position that retaliation for making comments are protected by free speech is protected by the constitution and it was clearly indicated at that time and as a result that's a viable claim and certainly with regard to our quantum unity if you're assuming the best evidence for us with regard to that claim then how would it be reversible at follow up on this he should have reported to the detective bureau cortical return was that he didn't do that he just paraded over there and made this complaint claiming that she had threatened him which the natural forseeable consequence of that was that she was subsequently terminated sanity but beyond that there was a threat so motivation a part of after the start was to proceed to the hospital to conduct an investigation because he acknowledged that her threat as issued many or may not says that the proper procedure would have been or be for us sir we felt to report this to the detective bureau and perhaps have a not interested party as a matter of record as a matter of record sergeant was not was a vote supervisor for that day and according to director jensen the chief of police who is everybody's supervisor including lieutenant rose added it was absolutely was she in fact in a position to harm him was it was a full if it's possible then he goes to detective bureau and then they follow up from there but there is the protocol was for him to first investigate  matter and that there is no contradiction in the record in that regard which in fact he did and that's all he did is that he went and asked what is this woman's position here because this happened today and i'm worried i'm worried about myself and worry about my colleagues and by the way i'm worried about my family because i'm a resident of girls point firearms and we stick treatment here is a few off legitimate concerns and again even if we get i guess my point there was no protected speech or even assuming there is they still have not established that owning nat to be investigated for whether you want to call it a blatant or subtle threat was clearly established doesn't exist there is no case law at all and as the supreme court has made it very clear we have investigation by the police the plans action by a private employer and by the way in this case the action by the private employer was separate and distinct from the investigation lewis if we if we conclude going back to whether or not this investigation was properly with them scope with them or not if we conclude that at the time of the investigation that he was acting outside of the if we credit the testimony that we just heard or the evidentiary matter that we just heard from counsel about that the officer wanted to protect his family is that position that comes from his deposition his in his deposition i think in his deposition he indicated yeah i mean he was worried he was worried about himself and his response colleagues so i'm trying to  obscenities that question is whether that was the question i think i understand the question is whether or not the first amendment protects her from retaliation by a state actor for being a surly this woman for him the point was she just in scrubs and she's link between to be understood that argument so you just told us that mike i appreciate that thank you thank you thank you the matter with thank you for your argument