serious crime serious crimes among the most heinous that we punish and then knowingly and falsely claimed that echols was and under indictment for those crimes he engaged in a serious abuse of government power against such an infringement of eccles rights now we have alleged that there are three areas in which constitutional rights were violated here a substitute for due process violation a first play and decency or interferes with those rights fundamental rights implicit in order to liberty it covers the right not to be injured by unlawful exercise of government power and it shocks the conscience when the government contract is intended to injure without justification of a legitimate government interest or is used as an instrument of oppression that exists when government authority demonstrates a deliberate indifference to the truth while speaking from a position of public trust and euclid's within its reach conduct the polls at the extreme end of the tort of tort law and as th said existence more than mere negligence was objectively unreasonable and one way we know that it was objective leon reasonable is that a violates the rules of conduct that apply to come prosecutors  at tinker which was a clue which this court called a close case in which they found that the uk police officers when they lied to the individual in custody about being abandoned by her attorney they said it was a close case but it was justified in the only reason it was justified was because it was in the service of trying to solve a bank robbery and murder here it had no prosecutorial purpose you would agree they can do that we said in our reply brief that there would be no problem if that's all he did yet i understand so so if you know that's the context and if one thing he says and that is a lie that shocks the john under johnson versus mississippi the state and his representatives that he's acting as a state actor is obligated to acknowledge that he's got a presumption of innocence at that point and so fundamental right right yes different claim a separate claim that the first amendment retaliation quite right well you know due process in this context and subset of due process context like equal protection takes on a different character when there's also  official counters that with a lie in an effort to retaliate against the exercise is that a violation yes because well then there's three violations here as i understand the putting it was a subset of due process simply by lying to the legislature the second one is by retaliated against his exercising speech and the third by a time or it retaliated against him for exercising by shocking the conscience conduct or by violating somebodies fundamental rights recognized by work and so either way just like you know equal protection takes into account fundamental rights and puts on a compelling interest test  substitute process also can do that as well and so what we're saying is that both rights here were violated and that these were well established rights and that the rights included the ri and that the case law makes clear cannot be done it makes clear that the reasonable prosecutor knows that his out of court remarks about somebody cannot bring oppression or opprobrium against them and cannot be false he has an obligation of candor in those remarks those are those are standards imposed by georgia rules of professional conduct and we know that those kinds of rules help you define what the reasonable prosecutor should know in those situations see my time is up with reserve time for because neither substantive due process nor a first amendment tally ation claim will recognize a falso even a deliberate false and a libel as a constitutional claim historically the courts have been fabricating the thing about he can he's under indictment and he did it for the purpose of interfering with countering the speech that's i understand that's the that's putting aside the shocking the conscience when i understanding is that's the claim that to claim correct your honor exactly as judge pryor pointed out the shocking the conscience relates to his substantive yes one yes yes i've got your question why i think it was like ok he does not he does not state a claim for retaliation because there are three prongs to retaliation claim there has to be a constitutionally protected conduct there has to be retaliatory action sufficient to deter a person of reasonable friendliness and there has to be causation in this case that second element is missing retaliatory action sufficient to do deter personal reason if you don't think what the prosecutor did with the turf somebody from exercising those right it's not a sufficient chill and this court has not had an opportunity yet to address a case such as this where the retaliatory action is merely speech government speech even defamatory or libelous speech and not actual that you're that's your ledge but of your argument not sufficient not a ship to create a kill correct your honor exactly although it's not yet been addressed by this court numerous other circuits at least seven by our count have addressed this issue and they have found it universally that where we are talking about a government officials own speech there's got to be more than speech there has to be advocated for his position with the legislature that is exactly right if you're engaged in the free speech and gaged in the petitioning so the question is when when a government official opposes that even with defamation even with lives the question is when does it when does that government speech rise to the level and all the other circuits have said it has to eat coercion threats or intimidation that is exactly correct your hon the d c circuit the first the second the third the fourth the fifth and the tenth all have case law along these lines and i cite my own circuit maddux versus city of forest park quote analysis of retaliation claims under the first amendment as distinct and the effect of public disclosure of damaging information about an individual baby enough to trigger constitutional protection and again there's no requirement about this coercion threat and face i'm not familiar with that case and i will recognize that perhaps there may be some circuits that do not follow this reasoning but i think the reason any case in the eleventh circuit that's adopted one way and the others and questioners not that where it's an open question in this circuit on however i will cite as an example i think  and the police chief retaliated against her speaking up against his budget request by making numerous false unfounded and very public accusations of criminal conduct accusations that he knew categorically were completely false because he had presented in the da in the da had rejected them as being prosecutable crimes nonetheless he put a memo in the public library for anyone to read saying this city council person is guilty of crimes the fifth circuit in that case how out that even though that speech may have been libelous defamatory intentional and that is a lot of the mr eccles content contention here that his his main area of distinction is you know these were intentional lies these were intentional false hoods the fifth circuit held in that case even though they're lower and they were intentional it still is not enough of a chill even though it's not protected first amended speech if it's libelous it's still not enough of a chill for it to be well your honor in this particular was anything that had to do with his punching of his office well let's look at the facts of this in the alleged facts of this case your honor in that objective reasonable missing reasonable whether what he did as heinous it was that i can't think of the worst in terms of ethical behavior just add it all up together just yes your honor i let out lies you know i went whether or not that that would send a message to the average citizen who might have some interaction with the prosecutor's office you better not say anything or do it in the process man or he's liable to calabria in the press or someplace well your honor you know we will concede you know was the behavior as alleged model honorable no i do not deter people of what what concerns me case when we look at the facts as alleged would deter a person you know because in this case unlike a lot of these other cases where it was a simple allegation of criminal conduct in a complete vacuum without any backing information or any sub previous not know he says he's under indictment right now but that is an objective lee disprovable fact it's a if someone can combat the lie and in this case it would be inferior point is that in the first amendment context if if they were alleged retaliation is speech correct then it does have to amount to something more than just a lot that is correct your honor has to be a threat coercion or intimidation the threat of imposing government will have about the exercising his right of petition your honor two responses to that first that argument's been abandoned on appeal it was not briefed i don't believe that it was clearly and succinctly braves that are what i do and yes i do your honor and secondly if that is still alive argument there is no way to state a claim for that because he did in amendment i was prevented from petitioning the government well dress only question is whether or not there's a reasonable inference from the complaint and i think there is that anybody that crosses this prosecutor is going to be faced with hell to pay your honor there may be you may be able to raise an inference there for you therefore you better not exercise any of these fourth amendment rights or you're in trouble well i think the question though isn't whether or not the prosecutor communicating in this fashion could cause some kind of show the question is is it enough of a chill for it to be actionable there's a difference between there being some chill circuits that you did is that because what the retaliate here is speak correct and we've got to be careful in that context when the alleged retaliation itself is it has to rise to something a little higher it has to be threats coercion and intimidation that is absolute and not that it be defamatory or that it be false that's what our sister circuits have said right because it speaks that is absolutely correct your honor and in fact this court has recognized that line of case law in the dixon versus burke county case in a footnote that was  equal protection case but in a footnote it did say and i'm quoting an official's own first amendment rights warrant consideration in a section one thousand nine hundred three retaliation case where the official is being sued for speaking which is exactly what we have here right but that that is that is the chill effect but the question is not whether or not there is a chill effect the question is whether or not are we attempting to impose liability for mere speech as opposed to  will i will concede that the justice the speech itself may not have been advisable as alleged and i will also concede that perhaps it did have some effect but there is a difference between that and it being no point here is this is the one thing maybe three sit right correct  is being said in his individual capacity right yes he has first amendment rights to write correct and there's a lot of supreme court case law that says people have first amendment rights to a lot that is correct lying to destroy someone to hurt them yet physically and that is exactly what we have in this case and all of those cases the second fourth and fifth circuits held that merely speech even if it's a lie even if it's an absolutely yeah i think that your honor you know if the constitutionally protected up to activities was what it was at stake in those cases that were those were cases where they similarly were petitioning the government and speech was waived our first amendment claim we certainly did not and their brief made that accusation by saying that we didn't sufficiently argue it as we pointed out what we argued against was not that we had  cannot deter the question is whether you've deterred a person of ordinary firmness in the circumstances that we're talking about from exercising those rights and so many of them use the shorthand  someone who was falsely prosecuted spent seven years in prison he gets out after the innocence project shows by d n a evidence that could not have been ham there's no way prosequi entered he thinks he's under indictment now we know that this prosecutor went ahead even after the d n a evidence was in he refused to amend anything he opposed the action that dismissed the charges against  and we know that he had this apparent animus against echols so echols now is in a situation where the prosecutor who has the ability to prosecute him again even if even if it's improper and that he'd have to get defense counsel and fight th again and he had a bad experience already feeling intimidated from pursuing any further rights because this guy if he doesn't prosecuted him on the whole charges could still prosecute him and new charges that are made up because as we say in our brief quoting chief judge of new york you know a prosecutor can indict a ham sandwich so so therefore the but question of threats and intimidation all paired it's just like when a mobster goes up to somebody says nice family you have there he's not commenting on how nice your family is he's basically making a threat it doesn't have to be overt so so that's why it's there now my friend mentioned the dixon vs burke county case and there it was pure approach pinion this court found that there was no problem all he did was express pure opinion but we know that this wasn't your opinion this made an allegation about facts and we know that when you make certain allegations about facts it's not opinion anymore as the milk of each case in the united states supreme court teaches  so so this is not that situation and this is a situation where it was designed to be threatening it was put into the legislative process and and they were surprised but just that's why i asked earlier  adversary was that a threat and it seems to me that's your best argument and i think the reasonable person of ordinary firmness would read about that as as a and that's why we favor for looking at this just do it in that context where that what the defendant was engaged in was speech itself and remember of course when we look at that question we also look at the authority that the person has for example in harlem in the case involving the student with  silent protest where the principal verbal only castigated him we know that because it was the principal in this position of authority over that student in the same way that a prosecutor over a potential defendant has that kind of