good morning your honor is cast time as casper on behalf of one his st amendment retaliation can i want to begin by drawing on a hypothetical that my friends across the aisle made in the district court which clearly demonstrates the difference between this case and the davis vs city  chicago case if a circuit judge or any judge would ask a walk clerk to draft a decision for the for the judge but to put in the statement of facts something that is a fact and it is false would the law clerk have st amendment protection for refusing to do so contrast that hypothetical where a circuit judge asks a law clerk to do a draft decision and the walker can the judge agree upon the facts but they do not agree upon the out what those facts mean and would that walk clerk enjoy st amendment protection for refusing to follow the judge's requirements as to the outcome the latter case is the lorenzo davis vs city of chicago case which this court decided in two thousand and eighteen from involving the same  is not a case where the investigator was asked to insert a false statement of fact in the investigator davis is a case where mr davis was asked to change the ultimate outcome from sustained to not sustain or not sustained but even that this wasn't a change of the ultimate outcome it's hard for me to say let's different then davis because here what he was being asked to change ways allegedly was asked to change as a conclusion about what particular facts show that the gun was planted we disagree with that we'll ledge that mr what was asked to insert  lie in the report to support a conclusion it dirt to support a conclusion that a gun was planted were supporting were alleging that he was asked to insert that statement of fact in the report that there was nothing in the investigation that supported making it a lie that is a statement of fact not in all to make a conclusion as to how the investigation well that was said and presumably on the person and then the question is how that gun got there and that's an opinion and you draw an inference to make a decision about how the gun got there and that's that's one of the central errors in that the district court made in this case which is that we submit that that should be an issue for the discovery process did to what extent did ms fairly review the investigative file before directing led to insert this fact did she review it at all what did she say  group whatever this thing that it fairly was in charge of seemed to be very taxing on the against the cops it seems that that's the implication least that i got from this whatever the organization was it fairly was part of was investigating the cops that that's correct so open office a professional standards which later in about two thousand and fourteen became pepper and later became with investigating allegations of police misconduct and one of the thrusts of the complaint was that fairly was put in charge the chief administrator of aircraft after the look on macdonald scandal happened and she was as we infer in the complaint as he did leave the discovery would was would bear out she was charged with reviewing old police misconduct cases to make sure that they were properly investigated so this entire case comes in an environment as we  the nd to complain where they were already scrutinizing prior not sustained findings against that as to office so it comes in an environment where we believe there was  tacit encouragement to make findings against police officers no that would have to be borne out in discovery but that's the thrust of the complaint and again that's why we believe the district court because it put this case on all fours with davis you're talking about the difference in the macro conclusion on the outcome of the report versus the micro conclusions about particular facts within the report and you're talking about the good faith insofar as you say that discovery should be conducted to find out if her direction to that the gun had been planted was the result of a fulsome review or just she just said it without considering it those all things go to their davis and they also go to the fact that this was part of his job he wasn't speaking as a private citizen but we was not a part of kelvin let's job duties to lie in paragraph thirty seven we laid out ten different personnel rules of the city of chicago unfortunately they're not verbatim but were referencing them and some of those i submit to the court  chicago employees shall be truthful shall not walk so that makes it not a part of let's ward mary job responsibility to i so we submit that when he refused to insert a false with allegations that the plaintiff said that he was ordered to do something this is some misconduct right some misconduct on the part of the employer and like i said he says and what davis says is that if this is happening in the course of performing job duties then the government is not and then the employee is not functioning as a private citizen i don't see how this is different than our city or difference in davis in this respect he wasn't writing an op ed in the chicago tribune trying to expose misconduct it's different in those cases because  he was being asked to lie as we've planned and that's not a part of his job duties as a sit as an employee of the citizen of chicago in fact was he preparing this for fairly to  sign it out it would have gone through the command channel review that all he's he's doing this objecting to do it for something he's preparing for her and affection is going to end up saying i guess for publishing or doing something that she wants and insert something else he does want to but it really doesn't get down to his st amendment he gets known as something he doesn't want to do and it's fairly who's telling him this is what she wants to say  does come down to his st amendment rights because he's now at what because what he's being asked to do is to insert something that is false and that's the whole thrust of this case now alternately maybe at some point down the line fairly would reviewed the entire case file and would have come up with a different conclusion but what we're pleading is at the time that this happened that had not and there was no evidence to support let's insertion of this again statement of fact into his report he could not do it and that is where he is now acting as a private citizen and by the way these reports we all know where they're going to go it's likely that they're going to be using criminal litigation it's likely they'll going to going to be used in civil rights litigation it's likely they're going to be used possibly in police misconduct litigation and that brings me to the supreme court decision in lane versus franks which we submit also controls here because sooner or later lac is going to be called to testify under subpoena presumably like the so and in that situation that principle would control but that's not that's because that's not part of his job to testify he's being subpoenaed as any private citizen would in any private citizen and a person subpoena by the court is did it to supply evidence i think that's not now you're asking you know to i think ultimately we do have to consider that though because what are the consequences of insert a false statement of fact is that he's alternately going to be put in a position where he's on the witness stand under oath pursuant to subpoena and he's going to have to say i put a false statement in my report well i mean if he should have done it right if he thought it was false then he could have refused to do it and yes then the consequences of that might have been that he would have been fired i mean that would have been true in davis that would have been true and i said he that if the whistleblower plaintiffs refused to do the unethical action that the government on player demanded then he that that comes at some cost right he did refuse to do it and that's right led to the barrage of retaliatory actions right but i'm saying like your hypothetical that you're spending out now is about him testifying in court so you're assuming you know that he if he lied in the report and then he got the projects up on the stand and i'm saying that no that hypothetical shouldn't play out because he shouldn't do it well but there's the problem is it's like the natural consequence of what he does in particular we have to consider the environment he work and he works in a police investigative agency we know that that report at some point is going to come up in some proceeding i mean wayne versus franks i admit it's a comes a little later in our timeline there radically he's alternately going to be put in a a position where they ultimately have to take the witness stand and admit yes i put that lie in but court that's why i think lane versus franks is a good it's exactly what it's expected to happen yes ok so what if people put in what she told him and then he goes the stand and he's going to do step to say she made me do this while that still reflects on his ultimate credibility and his reliability as an investigator because he did i'm going to keep his job or something well but but then that undermines his entire record and his integrity which we submit lane versus frankly should he quit while he shouldn't have to put a false statement of fact in a room in his report and we submit that that's that's outside is a job clearly he shouldn't have had to put a false statement of fact in the report and then we can it we can take out essence is true and say that there was this kind of but the question is whether there's a st amendment claim for it well we get we get stuck on this was he acting as a private citizen or was he acting pursued to his job duties and which is go back to the case law got a couple minutes left here you know davis was all about the conclusion sustained versus not sustained star sadi he was a calendar commanded by his superior superior officer to insert a false statement of fact and that doesn't go with his conscience it doesn't go with his view of the walk he thought it was wrong illegal and he refused to do it and suffer all this subsequent retaliation and judge hamilton picked up on this as i read his concurring opinion anyway as a key distinction for future cases he even says may come up again so i want to be clear i'm not putting him exactly that davis was not asked to make the false statement factor but it is reports and of course we cited the jacker case is a case out of the nd circuit i don't know that i need to revisit it here as authority for another another circuit court of appeals that is considered this issue and finally our own this court has got to go back to the gonzalez case and i just want to quote this one sentance well if gonzales were writing reports of police misconduct and his supervisors told him to rewrite the report so as not to disclose police jurisdiction for the thinking that the st amendment does provide some protection for public employees who are asked to well rewrite reports so as not to disclose police corruption in south and in our case because what when in to the independent police preview authorities investigative report and all mr let's conversations about it what would or would not go into that report was all speech made in the performance of mr let's in his port were being drafted for the ultimate approval of the chief administrator he was drafting a report that would ultimately be reviewed and signed by her he was not speaking as a private citizen he argues that he was ordered to lie about facts if you look at his complaint he he alleges over and over that he was asked to lie about findings and one specific finding a finding that a gun was planted in a case involving our and that does make this case just like davis because findings in this context have to be found by some and here the ultimate person with the responsibility to make that finding  that and it's free to evaluate the evidence on her own own and disagreed so and to overrule essentially that the view of a subordinate that does not make it a lie makes a different evaluation of what the evidence  jaclyn case and one in which the davis concurrence expressed concern about this is not about falsification of evidence there is no allegation that lead was ordered to falsify anything it was not asked to make a false statement about anything he had witnessed with his own eyes and that was a situation in jacqueline wright the police officer had made a statement about another police and that he had seen another police officer striking arrestee and he was being asked to change that statement there nothing like that here he's not being asked to change a statement about anything he witnessed he's not being he was not being asked to change a statement that any other witness had made during the course of the investigation or he was not asked to tinker with the evidence in any way shape or form he he didn't know that he said he no that is true he he refused to put that in the report he believed that was not supported by the evidence what he he knew on his own responsibility to review the investigation the investigative reports and make those judgment calls in any case even if it is even if the line investigators the st one to get you know accumulate all that evidence surely he's free to say what he believes as you know the evidence is to her but not to make the ultimate call on what the fine is going to be that is clearly put in there he did not he refused to put it in there and then he was taken off the case so and that also leads me to he is not he talks about like his his personal reputation be at stake that he was not does not even allege that he was asked to represent that the finding was his own it  we're talking about the guiding principle in davis for the majority and the concurrence was that davis and his boss the chief administrator at the time for minister disagreed about the evaluation that's and there is no difference here  do you buy lives they don't buy but what about the plaintiffs true attempt to distinguish an ultimate conclusion and the report from the you know the micro conclusions along the way like this finding of fact well i mean there is there is the ultimate conclusion sustained not sustained in that but that there are also other conclusions and they are similar under under as davis explains the important difference between lying about facts to falsify evidence and the conclusion is that to make a conclusion that entails evaluating the evidence and analyzing the evidence and making judgement calls and that's the same thing when you're talking about a finding of fact i mean to use the court example that my opposing counsel raise of course if a  just briefly what strikes me in hearing my my opponent so argument is that we're arguing about issues that ultimately need to be determined through the discovery process not on the face of the pleadings was it and a different evaluation of reports and witness statements that led to fairly to make this war as we pleaded was it her statement to let that she that what needed to have a more devious mind to she pleaded in terror of thirty three to do this job and he needed to