about the fact we have time i meant so when you can see the yellow light it means you have ten minutes left in your argument and when the red light comes on please include a sex addition slee as possible unless you're answering a question from the court we limited time that we have i propose to focus on three points one is the important role in special challenges that our elected prosecutors face and in particular this da da rodriguez then i'd like to move to the issue of whether a showing of potential for disruption is sufficient and then the third point is whether or not the law was clearly established as it applies to these terminations in tw starting with the first point the twenty seventeen twenty seventeen decision of the fourth chord in bohr's e really the most moseby cited in our brief is particularly instructive in describing the special role of our elected prosecutors they say that the prosecutors have a broader public responsibility because they represent and safeguard the public at large their repertoire responsibilities are laden with ideological content for example how much of a prosecutor's resources will be devoted towards fighting different types of crime public corruption or white collar crime or should it be focused on bile and crime or drug trafficking questions like these prosecutorial campaigns across the country leaving much room for political disagreement in carrying out priorities let me ask you a couple preliminary questions as i understand it there were about one hundred fifty employees  in the d a s office yes your honor and these seven were how many were fired the seven filed a lawsuit but how many did he fire the record says that over ninety percent were retained i don't have the exact number of how many were fired but the record does say over ninety percent were retained ok and what about the other is where they all fired because he wanted his on crew so to speak and the only ones that were let go that were terminated were those that had high level positions that he considered key to his success high level positions close advisors what he would describe as his inner circle those were the only ones that he let go there were some other attorneys who left on their own accord but those are the only ones that the record indicates that were terminated and so in the fourth quarter goes on to say in this court in this case that of course elections mean something majority's bestow mandates and these elected prosecutors have to translate the mandates into policies it is therefore entirely proper for a newly elected da to assess whether he or she has the trust confidence in those who are around them to carry out these priorities and help them achieve their goals the mandate that they received when they were elected some candidates like da rodriguez gain office by promising change in current policy and it may often be the case that those who served in the past regime are entrenched and resistant to change and so to entrench former policy makers in their positions before the court says may deprive democratic politics of necessary change so taking into account the environment our d n a rodrigues found when he took office on january one thousand and fifteen the citizens of a dago county issues of material fact with respect to those individuals you are contending that a lot of them were policy makers if they had serious responsibilities but would agree that this court does not have jurisdiction to reweigh the disputed evidence from the court below certainly that but what i'm here on is on the qualified immunity i'd like in this court certainly has jurisdiction on the interlock tory appeal i just don't see how you can what is the basis of qualified immunity what is the clearly established right well then the clearly established right is number one in order for the da rodriguez to qualify for or to be protected by qualified immunity obviously and not be subject to personal liability is we is is they have got to show the police had to show that there was number one  to the one who prevailed in the election right in general that is true however the record demonstrates that each of the seven fall on this spectrum on this side towards the employer because they were all either either policy makers or they were they occupied confidential positions they say well i understand there is there is there is certainly they also say that they did in when we look at the job descriptions for example for the hide a commander and for the first assistant they both in their affidavit say that attached is a copy of my job description and door and when you also in particular the commander of haida says that job description accurately describes my responsibilities when you look at the job description she had very broad authority and sweeping and sweeping discretion want you to make the same respect off yet well in descending order your honor yes the number two mr chris yates he was the second in command of haida in if you look at his job responsibilities which again are not entirely dispositive but you look at his affidavit as well when the commander was out which was often he served as the commander again had very very broad responsibility and decision making authority the next one in line you have   had in your honor i would i would agree that they have submitted evidence that they also had some ministerial duties but this doesn't have to be an either or case this can be both end they both they had both policy making if if there's a reasonable doubt who gets a benefit for purposes qualified and of qualified immunity but that's the balancing test right and i would submit to your honor that the that the reasonable doubt lies with the employer in this case i mean each of these agree victims are going to get their day in court so to speak but the question is whether or not this da should be subjected to personal responsibility right for for the alleged actions in this court has made very clear including very recently that if there's any sort of doubt that it ought to fall in favor of the public official in fact i think it was this court just recently i mean three weeks ago in val v anderson number two says says that unless the the law is clearly established when existing precedent has placed the statutory and constitutional question beyond debate and and this court also said qualified immunity protects all but the plainly incompetent and intentional by a later in when we look at the law is that not the case when it comes to d a s particularly districted district attorneys who are charged with protecting the public a ministry of assistant how could she be confidential employee well it's certainly she was not a policy maker and we're not taking the position that she is but she did on occupy a confidential position because of the nature of her work in working with the forfeitures and accepting in dealing with the with the federal agent law enforcement agencies in seizures and forfeitures but she stands unique in the sense that she was there for eight for almost for more than seven months before she was terminated it wasn't like the da took office and then just fired her she was in that position for over just a little over seven months and the reason why she was terminated is in the records in that memo because she was so disruptive that she caused another valued employee to be terminated i mean to quit and so that h r director they did replace mr casa this wrote a letter wrote her up and recommended discipline to termination death yeah i mean with respect to her i don't think it matters and certainly of the seven plaintiffs she is the one that would be lowest in that totem pole of lowest in the spectrum in that mcgee balancing test why would these two yes your honor and i think there were i think the record is there were a total of seven these two in these two and i don't know if there were seven when he was first hired the record says that at the time he was deposed i believe he had seven and that's where that's why i started this argument with the context in which in which the d a was was elected shortly before he was elected there were two criminal investigators that had been charged and convicted with criminal misconduct in connection with a unit called the panama unit the panama unit scandal and this is in the record and those two criminal investigators were heading were part of it narcotics unit that ended up working with cartel stealing i mean busting drugs and then reselling them in that particular panama unit scandal resulted in multiple civil lawsuits being filed against a dago county and against the elected officials and many of the criminal cases pending had to be dismissed those that had been because of the panama unit scandal and so the da is coming in with this mandate to restore public trust in law enforcement and he wants to be sure that the criminal investigators that are going to be representing him and representing the office and representing the county are those he can trust and have confidence in this court and by the way this court has in one thousand nine hundred five in the ghana decision said that criminal investigators fall that spectrum of policymaker and and confidential positions worthy of protection and more most recently this court in james verses found that it was ok for a district attorney to fire a criminal investigator simply because he said he was going to be he announced that he was going to run against the sheriff and so it was important this court found that good working relationships it's important for the d a to have good working relationships and so qualified immunity applied in that case to criminal investigators so from a public from a real standpoint you have a new d a coming in into office and trying to get one who again the titles don't matter by themselves but when we look at the facts he was not just regarded as the c f o and the office manager and human resource manager of the office he had broad responsibilities and the evidence shows that when we got into office he they found that he was he didn't get fired right away they gave him a month and during that month they found that he was extremely disorganized they found evidence he was in charge of the evidence they found evidence scattered all over the place including marijuana including photographs of naked children that had been just laying around for a long time they found checks in negotiable instruments that just laying around and so the da said this is not somebody who i can trust because he's going to get my office in trouble the individuals are charged with this particular conduct  d a actually he was and he certainly was and in my point about that is mr rene garo who is the former d a who got soundly beat by d a rodrigues he came forward with this affidavit basically denying everything but his testimony is largely irrelevant because it doesn't in other words he came forward and said well it's not true none of these people that i consider close confidence none of these people  rely on for creating and implementing policy and none of these people are i did it all by myself that's what the d a says the old da but that's largely irrelevant because what matters is what this d a was going to do and who he wanted to have in his leadership team and who he wanted to be in his inner circle he was going to regard the cost of his position as one of his key positions certainly the commander of haida high intensity drug trafficking area task force and his and the second in command to be part of his inner circle and his criminal investigators and so what would mr guera had to say and how he had a working relationship with those people is largely irrelevant i believe to this analysis look it says that governmental employees shall not be fired because of their political affiliation or their political support of another candidate in list what they did did is clearly established when all are to do this disputed issue of fact and you got a matter of balance one people can one person can balance differently from the other so high is the district attorney evidence what is clearly established and what he can do and what he can't do what is clearly wrong out of judgement what is clearly established is they cannot be fired for their political activity unless there is evidence obstruction of the operations as a result of their political activity that is a burden that is on mr rodriguez and he absolutely failed to interviews any evidence well i'm not sure what the evidence should be a burden is in the  test because i believe in the conic in the conic case i think the supreme court said it can be the potential for disruption and also what it what do you do about the conoco case that  it's you know but that is that is the broad right and then of course you do look at the individuals your honor yes and there's absolutely no evidence in this case of that being that kind of close personal relationship there's no evidence of any disruption there's no evidence own counsel asked the court to take judicial notice of facts that are not even in  never said he fired any of these people because he feared that they would cause disruption mr v a because when he was testifying said that no they hadn't caused any disruption now the person who was staying until march now there was no evidence that he was going to congress let me just ask you i put that i mean if if the purpose of if if what he says is accurate about the way in which the office functions you have this high intensity drug task force and surely the da has to be clear has to have total confidence in the people who are running their operation and if he mean what he went in there to drain the swamp so to speak and if par part of this had to do with corruption doesn't he have to quite often the theory is that that starts with the tone at the top and you have to show that you're in charge in those no not that tone and more bet that might be in some hypothetical case your honor but that is not that is not what this particular record shows he did not testify that he was trying to drain the swamp he did not testify that there were problems with any employees or any criminal misconduct that he had to clean house dorm room you he gave no explanation he just said he wanted his own person period me was his right just like when he'd been elected judge he could pick his own coordinator or he could pick his own employees and he used that excuse over and over again composition of the department it's a record reference page forty three i think it's maybe the first page of their medication to dismiss or alternatively answer to the defendants say they were lawyers who lost their jobs and the seven plaintiffs in all those several months so that's it one of the lawyers is mike garcia and he actually had been a supporter of mr rodriguez so he got his job back right away said whether we believe mr rodriguez say he didn't know who mr schreiber supported that's a question of credibility for the jury and schreiber to you is a lawyer and i needed this just for has his has held that that lawyers are put in a separate category is he not of these people are our lawyers i wanted to go back and also an answer you know a couple of questions that you presented to counsel if i disclaims responsibility and even knowledge of why four people were terminated he attributes all of that to delgado and he doesn't know why don't gotta made that decision show he's just in the shape of i don't know and i don't know is not a good enough answer well excuse me but if you did what i mean that is an answer if there is a be sure but that can you are motivation it is an answer and a jury could find it there mr rodriguez is innocent but he can't say that he fired these people because they were in the inner circle that is not what he said contrary to administrative assistant and we see that in fact she didn't cause any disruption in fact she stayed until august because she was working on a very important project the sooner she cut that done she was out of there as judge crane says she was no longer essential but she didn't do anything disruptive she got her worked out in fact what one of the cars one of the allegations in  this letter that she never even heard about until discovery in this case is that people were talking loudly near where she sits to work and she says people are trying to work here  the criticisms was just amazing she took off the name plate from the door of a person who had moved out and put on the nameplate of a person who was moving in and she was thought it was important to point out is as judge crane did get if they can't they can't have it both ways they can't say this is why we did it and argue that they have some kind of fear of potential disruption theories no evidence in the record in which mr rodriguez said as he feared these seven people would  disruption and there's no evidence that they did right or well again i don't think that the evidence of disruption is the most important thing and in fact in the good not that case they do say the fellow was not an employee for eighty purposes although he was a criminal investigator in the d a s office in el paso be cause he had to consult with the da very frequently on some very sensitive matters and as that saying that it's a clearly established interest what is clearly established is by january nine hundred ninety two a public employer cannot act against an employee because of his support of a rival candidate unless the employees activities in some way adversely affect the government's ability to provide services now it's not a question of factor a question of law right now it's a question of fa because there's no evidence in the record that any of my clients did anything destructive there's no evidence in the record that anyone feared that my client's d'sevyn human beings did anything disruptive or that they fear that they would well it's not just disruptive it's in you're talking about pickering in a way or comic but this is grantee and it says in some way adversely affects the government's ability to provide services and if you know you've got the head of the drug of the enforce the task force and why doesn't that person have to be very closely aligned with the da and that's what we've got a very important you  the head of that unit and so she carries apple what they're supposed to do it she reports it directly to the district attorney but if you had an organizational task force organizational chart of the d a s office wouldn't she be one of the department head says like the head of h r but it's interesting because they offered as an organizational chart and they spits what they do you is there is there evidence dat their job requires political affiliation with nearly affected official and there is no evidence in the record in fact a defendant cannot write that their political affiliation had anything to do with it mr rodriguez said no nobody has to be a supporter of me in order and in a different it's testimony but he also points out the lack of evidence i mean this this reference to panama unit that some unit went rogue judge crane was very familiar with to the law that says just because somebody has engage in political support of your opponent doesn't mean you can just automatically assume that they're going to be poor performers which is what the supreme court said in eldorado two you can't make these assumptions and to the extent that there was any speculation that there after referring to brandy and vova did you both and having described the duties of this criminal investigator at great length the court says that the right he asserts was not clearly established at the time a spars a violated it because neither the fifth circuit nor the supreme court had addressed the issue of political patronage in the hiring or firing of investigators and d offices and ice and that and they give they give immunity here and i don't see that as a holding that it's unconstitutional to fire a criminal investigator well i would  paid before that we're looking at the first prong because it's page four seventy four of the opinion before seventy three four seventy four phrase ology again referring to the allegations of a complaint and have someone come back at me twenty years later and say course i will be here twenty years from now but someone come into two thousand years like allegation means that it's a violation a violation i mean but all it says all mean it says has at least alleged well i mean you can allege anything that's all i'm saying they're not her kind of alleged that he was fired for being right handed and you could say went to the next question which is whether it was clearly established court says we must first determine whether gore doctor has alleged a violation of his constitutional right they you would who would answer who would answer the question which you say is disputed as to whether i mean we'd have to do this fight for each plaintiff but who would it answer who would answer the question in the court of the jury as to whether each plaintiff was a confidential or an employee as to whom political loyalty was necessary there are sometimes occasions when that question has to be presented to the jury because the evidence is so consumers union that wants all the feel if the facts had been laid out that this court would have the ability to review that that  understanding is yes sufficiency of the evidence certainly i mean you always have that jurisdiction i think we have more plenary review and first amendment cases here yeah you do have to look at the evidence the jury considered and  see whether it's supported by the record and whether all tamale it will be great we don't know yet but we're anxious to find out yes ok thank you ok mr  involvement but i think reasonably you don't argue that on appeal so what do you do about all these factual problems well i think your honor and and again we're not asking this court to reweigh the factual determination as the judge crane preliminarily made but i do have two concerns with judge crane's opinion that i think this court absolutely has jurisdiction on and should correct number one is that the law was not clearly established with regard to the criminal investigation in fact that i take it back he says that lois was clearly established the opposite way with regard to the criminal investigators and based on this court's one thousand nine hundred five decision in guyana and then  thousand and eight in this court's decision james versus mullen i think the criminal investigators a da clearly has authority to let them go when when he needs their political allegiance and their trust and their confidence with regard to the haida commander and the second in command and the intelligence analyst who had top series top secret clearance there the law is not so clearly established and there is no analogous precedent with regard to them so i think judge crane got both of those wrong the other thing that i and the other issue i have with jed with judge crane's opinion and i hope this court will correct it is that just like opposing counsel he focuses on the volvo dick versus  decision and that decision his interpretation of this court's decision is problematical because he seems to suggest that there must be evidence only of actual disruption and seems to ignore the long precedent going back to the supreme court's decision u s supreme court's decision in conic in reaffirmed by this court multiple times that potential for disruption can also get  in that in that balancing test four in favor of qualified immunity and when counsel says there was no evidence of this disruption i would like to have a couple of citations to the record for the court for example when i said that the h r guy in the c f o that he left marijuana laying around and photos of naked children and money in that the da was worried that this was going to heart hurt the office you're the court can find that at the record on appeal page in his official capacity can have liability but with regard to his personal liability or qualified immunity would protect him i believe that the record is absolutely clear that either the law was established clearly established that he could terminate the criminal investigators or the law is not so clearly established that he couldn't terminate the haida commander and the second in command in the intelligence analyst with that top secret clearance  and just the very fact that we are i want to quote from from justice jones is in my view wise decision and bob as versus anderson one debatable constitutional violations demand  qualified immunity for public officials even when this court is bound to find that a violation occurred and since we're having this debate and the courts and advocates continue to struggle with this delicate balance with all due depositions and things like that but i presume they're going to have their day in court against the dago county and against the d a in his official capacity what i'm asking this court to do is eliminate the v a s personal liability for based on qualified