prong of qualified immunity which is an issue of law qualified immunity protects government officials from civil liability when their conduct does not violate clearly established constitutional rights as this court held them remember says great by in april of this year qualified immunity represents the norm in courts to deny qualified immunity only in rare circumstances that is not what the district court below did to overcome qualified immunity you happily mr most alleges by a lesion of a clearly established constitutional right it is the plaintiffs that bear the burden of proof to demonstrate to the defendant government official is not entitled to qualified immunity happily mr mo did not meet that burden of proof here and the district court erred in the ninety five won't fall qualified immunity because there is no clearly established constitutional right based on clearly a split stablished law in the context of this case in fact if you look at the underlying summary joseph perceiving mr most did not cite one single case in the district court to demonstrate clearly established law for his purported first amendment wondering and so this is either a really good question or a really stupid question but i'm going to ask because it's been bugging me why are we not talking about garces eighty lane versus franks anderson versus valdez even janice that came out a few weeks ago speaks to some of this and we're not talking about any of those cases why why not well what i'm focusing on is the clearly established law and the content i put art isn't lane be frank's exactly about that it's a supreme court case that talks about whether the person was on notice of this particular constitutional violation in the first amendment context and why i just i'm just what we seem to be missing so many cases i'm used to in this context that makes me think perhaps i'm completely missing the issue so i just want to be sure i'm i'm something that on time of same speeches it's on the stand and that's and that and those are issues of law and there are cases that say that because of the public and private concerns involving first the minute speech that's in the gray areas matter of fact we cited the court to campbell versus galloway out of the four circuit that said this mixture of public private concerns and talking about a speech in that instance a police chief that far enough from asserting that mixed type of speech in the gray area of what that is  this whole area of whether you need a case on point is a complex in the called an immunity but it seems like you're basically saying you have no first amendment rights as a government employee unless you just the boss absolutely just takes a case and says i'm going to do it exactly like this guy did and then i'll get pounded well i think this clearly established law precedent is in place for sure i mean if you look at the case from last year of white v the supreme court's court in alaska five years this quarter's issue the number of opinions reversing federal courts and qualified immunity cases the court has found it necessary both because qualified immunity is important to society as a whole and because an immunity from suit qualified immunity affectively last of the cases runs when permitted to go to trial they go on to say this was last year today it is again necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality clearly established law that i think that case along with some of the other cases that the apple leap relies upon are distinguishable because in that case first of all those entities are not parties in this case the state national and local associations are not parties or all we have is a police officer that's a party here and in that case that case basically said these entities are union and so analogizes the law under a union w not agree that this local organization is a union in this case it cannot function as a union under texas law that pace case did not analyze the functioning of this organization a local association of the texas government because section six seventeen point  provided by the union though the union is the one that was providing the first amendment rights to the professors and here we're saying this local association is not a union and it cannot function as a union in again that the court the court said these are these are unions that provide first amendment rights to its members here if you look at the goals of this local association there's nine of them that are written those nine goals all deal or eight out of the nine deal with bargaining with the city to improve wages and benefits for the police officers and by law under six seventeen zero zero two the government code they cannot do that they have no right to give an example this organization and its members the members would have no right to come to the city council and have an agenda item placed on there to talk about the terms and conditions of the in benefits of the police because this organization whatever we were calling the did did not have the right to engage in collective bargaining that's your argument right that there's no case on point that says you have an organization here the law of texas doesn't follow it judge davis pointed us to the pace case here's a quote from the pace case and i want to hear your response of this quote the issue is not whether an in a public employer is required to deal with the union or other employees sociate but whether the state may set out to injure or destroy an association of public employees for the purpose of preventing the exercise of their first amendment rights now i understand your not covered by the first minute because the employer doesn't have to collectively bargain with them or engage with them under texas law and if that's your argument why doesn't the pace case sort of say well it doesn't really matter whether the employer has to engage with them we're looking at something different i think we think we now understand that they have clearly established law there has to be cases that are particular in the sense in the setting of which you come to in which the government keep that case doesn't sort of doesn't say that in your view it in my view that case doesn't deal with the prohibitions of what a local association can do in texas law under chapter six seventeen point zero two that is just the specific context of where we are for your case your rule is that there has to be a case about that exact association something very very similar not good enough has to be that exact association that sounds like a case exactly on point as opposed to not a high level of generality i don't know that that's not my position my position is there has to be there should be a case that clearly talks about a local association and what is in our view just local association is nothing more than a father one c three organization that is for socialization and benevolence like the like you know the p t a or something like that that gives no first amendment protection to members and you have to analyze the prohibitions of six seventeen point that's very fact found because what was presented to the chief was essentially a union with no collective bargaining and so we are going to be dealing with i mean she wasn't mad that they're all going to get together and drink beer she's mad that they're getting according to them that they're getting together in going to talk about issues pertaining to work work environment work issues complaints about bosses and so on hours pay all of that that's the problem so it's not the same thing is the friday night beer blast group because frankly i don't think she cared about that as long as they weren't on i think it was you know uniform they have to look at the circumstances that were presented to her she had two conversations with mr that's it and those conversations were hey i'm thinking about starting an association that dealt with a multiple multiple variety of things socialization that there is not a case that i know of that deals with these specific rights in a mixed union association context and i would i guess i would cite you to a case that just came out on june fifteenth of this year  district of texas judge rodriguez united steel versus andersen twenty eighteen west law three zero one seven three six six in that case he dealt with recently a couple of weeks ago he dealt with analyzing a first amendment case just like this case that deals with claim retaliation by what he calls a union we don't agree there's a union this case involving speech and association a mixed plame speech like this and if you look at how  association is unclear he uses the word unclear and then he goes on to say there's a lot of other issues in that case but it goes on the quote the court is not located in ether circuit cases with mixed union speech and so speech association pla to provide guidance on the proper analysis and so if this federal judge says this is a gray area we have no idea what the law involving just mixed speech in association is how can we expect the police chief to do the site i don't think it's fair i think it's a gray area in the law especially with the again with the statute that prohibits all of the action by this local organization and we think that's exactly is one blob speech and association and get confused by that rather than looking at association and whether there's guidance on that and then looking at speech and whether there's guns on that but that's what the underlying district court did he looked at them sep combine the two become so confusing that we get qualified immunity saying if you plead in the gun if you look at he pled them to keep lead them together in one sentence then what's a what's a police chief supposed to do when there's a mixture like that there's not clear bright line standards here this is just meet the demanding standards of qualified immunity so we believe the district court analyze this is too high of a level look at all of the speech of the organization and not mr moat the qualified him you should protect the police chi pace was in texas texas does not allow collective bargaining and yet the court as it should have specifically stated that there is a protected right of association for persons to join together and petition the government now whether the government has to listen or not which i think is mr mess irrelevant to the first amendment issue you are us you are associating together the first amendment doesn't care about whether the government has to listen to and that's why i'm not going about listening let me ask you got the speech i'm a little bit confused usually in these cases the person said something they went out and campaigned for a political you know the opponent to the sheriff or they went out and said the chief is an idiot don't know what they're doing or something like that so they've said something that they then supposedly got fired for what is that something should be is it just we are going to form this entity whatever it may be or was there anything else that was said that is the reason that mr moat was far ok so now i think we're going on to the speech issues yes we are so we were talking about associations you're trying to hearing i really can't hear an association ok can see one but i can hear speech so i'm just trying to understand what the speech is that the chief heard because or fire mr mugg the speech was both verbal in writing it was in meetings that mr moat officer mohd had with the chief in which he expressed the goals and mission of the associates what was that i mean just give me the core bottom line said basically that he wanted to have among the officers to engage the community to reach out to the community that were written statements made prepared by him in connection with the association where he wanted to have community activities where the community would would play games with police officers and have charitable donations organized by police officers anything that he and the association wanted to business to further the cause of people trusting police officers and working more with police officers or the police officers could better do their job if that was one of them is a then why does that not fill in with our said he that it's not a matter of private concern but rather a matter of him as an employee wanting to just be a better employee because the the the way he did it not only public concern him as a private citizen that's the word i'm in this this is a public concern the pit is a public concern but what i'm saying is why wasn't his speech then one of a private citizen rather than as an employee wanting to do a better job by like in my neighborhood sometimes  up just have visits with the community to kind of get so you know your officer and theoretically i guess it would make you more trusting of the officer tell them things feel more comfortable calling them so and so forth why isn't that what he's doing which would be a matter not as a private citizen but as an employee well it's a mixture it's both and there are cases that specifically say that in the speech contest in the to concerns overall and that was in it and that was protected and what we have here is not just those types of comments that i describe it also reached further in terms of the goals and mission of the association to get better benefits get better of a chaplain  as in our brief distinguish between a person that just complain if you're if you're an officer and you have a grievance and it's about how you were treated specifically in connection with some kind of discipline and it doesn't allege any kind of broader broader things then that is clearly not protected that's an internal matter now what we have here is an association and mode is the organizer of the socit ssion and he is talking about very broad issues of pay of what is your response to it it seems like your opponent is arguing that we have to construe this is kind of one big messy blob and it's very confusing how the association the speech intersect and solutions have to throw up our hands what force escort twenty three sixty nine so that was the case about the guy that testified at the corruption trial and then was fired and they the supreme court found that you have a first amendment right to testify truthfully at a corruption trial and you can't be fired for that however after going through a long list of eleventh circuit cases because this came out of the eleventh circuit they said and the president of the community college in question would not have been on notice of that and gave qualified immunity to that president why doesn't that cover this that maybe you're right on the first prong maybe this really is a violation the constitution on the speech and some of the speech but given the lack of to me in other words here the president of the community college was aware that this guy or gal i can't i don't remember the gender had testified at epic corruption trial against the of office official being charged with the corruption and the assumption by the supreme court is this person was fired for so testified ok so no fact dispute and they said that is wrong a very very wrong however the president of the community college was not on notice of that in advance and we find qualified immunity i don't know why that doesn't even if we find all of this speech in your favor why that doesn't mean the qualified immunity for the chief at least on the speech and in those cases basically the impacted workers were complaining about certain things and in those cases since they went beyond the chain of command which here was this is clearly going beyond the chain of command the the courts ruled that qualified immunity was not applicable and that there was a first amendment freedom of speech claim in both of those cases in terms of the issue of was moat actually complaining or was he saying he wanted to have an organization of officers who would be in a position to complain should they have a complaint or an position to do something positive like interact with the community was there any indication he actually come playing ok the the simple answer to that is no however the first amendment doesn't doesn't contemplate it has to be a complaint it has to be speech it can be about anything as long as it's protected and we're arguing that it is protected and so when you go in and you say something like we want to have a survey of salaries to see if if saw corinthians is paying their officers equal to similar suburbs of dallas fort worth what was the pulse of the employees and that's the type of thing that we would submit that is protected in the course of in the course of your first amendment right to to speak so what is your best case that put the chief on notice that this kind of speech is protected and falls within the car city protections many at sec and in this is related to ninety and the fifth circuit recognize that the plain speech went beyond the personal concerns talking about own political favoritism and misbehavior in the department and then davis versus mckinney this was both citizen speech within the college but outside or chain of command that was the key part there was also a ninth circuit case free of command about inmate make misconduct but reports about the same problem to state officials outside of the chain of command were protected know let me just jump in with as a new judge i'm entirely as dumb question so what what what you're discussing with judge haynes is whether the speech in this case falls on the protected or unprotected  side of these cases like darcy are you saying that that there's a factual dispute in the summary judgment record about whether the particular speech that we're talking about falls on one side or the other is that what we're saying mean the net of quality of his speeches sounds like it would what judge change is talking about is the quality of the speech that we're talking about here and whether it falls in a protected and protected side in these public employee first cases right or are we saying are you saying that there's a factual dispute about the nature about what was actually said or are we simply saying we all agree on what was said and we're just arguing legally about what side of the one falls i think that's what exactly what we're doing where are the second legally just talking about these constitutional significance of the right those old speech about matters that relate to pay and benefits but then speech reaching out to the community and also relating to students safety in this is this is a few years ago before it got really bad but he was a student resource officer and he had ideas ideas that he wanted with the association to to increase student safety and those were were in the end that relates to the community as a whole and if it relates to the community of the whole it's protected speech on a great deal of speech related to  well i think in the initial stages yes but then when the association was phoned in then it it became lives and and and and what was it was it was beach related to soliciting member for overlap sure because as part of getting together the people that were interested in forming a association they were exchanging ideas and and putting out mission statements so so that was part of it there is an overlap there yes thank you thank you very much there had no one to and it says this right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to petition government on their behalf to say this the first amendment is violated by state action his purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs a union or kurt elling against those who do such first protect the first  rights flow to unions as well as their members and organizers and so that's key in our case and i believe the court just then jumps off and some of the courts that cite pace jump off and say well this is a union so these are the rights that you get with that an ability to do collective bargaining something can't be a union and that's so obvious that we have to treat this entity as some completely different thing than a union it's not i'm saying there's no like a duck yeah i'm want i would like this court to make an analysis for the very first time on what this entity is and what its functioning can be and under texas law it cannot function as a union as a matter of law and this is a case of first m public employee we'd have the right to form unions but you do not have a right to collectively bargain right and but there's a there's a distinction here and if you look at the goals of this organization all they want to do there's nine goals all they want to do is present to the city council on behalf of the police officers all these in negotiation terms and benefits on behalf of the officers eight out of the nine things they want to do that and by law they're prohibited from doing that saying we're the c e o p v a or whatever their name is and we think we're getting underpaid we can't bargain with ya but we're just making you aware that we'd like the public that's all sitting here to know in the local newspaper to know how we're being underpaid attacked that's my point they can come to the city council and speak under public comments as a citizen sure they timed it but they can't i walk in and say i katherina hands and being underpaid no one cares but if i walk in as representing all of the police officers or all of the whoever in the in the city then maybe people listen so that's the whole idea of a collective association is your voice is louder when all of you are you shouting together than one one person shows up and says oh i'm not being paid enough but if you look at the statute six seventeen to see that says an official of the state or political subdivision of the state may not recognize labor organization as a bargaining agent for a group of the public employees so i don't think they can work any i don't think i can words if if i walked in and say i represent all three hundred police officers and we would like to be paid you know x dollars an hour more and if you would agree to that then we won't do this or that we won't strike we won't pretend to be sick when we're not or whatever you do ok can't do that but you can walk in and say we are being underpaid and we're going to go tell the local newspaper we're go city secretary or the mayor and say we want an agenda to talk to you about our terms of benefits of these officers i don't think the city legally could do that they may want to do that i don't think they can buy the wall  but thank you for that and your case is under submission and we will take a ten minute break