why he made that stance and it's clear that he intended to have a workplace that was not hostile where people could heal and where he could get his job done mr moore decided to bring an action under the first amendment claiming that her terminations following her husband's resignation violated the first amendment a marital association privilege or whatever it's called by different courts and when respect from singleton one which had both parts of the fourteenth amendment subsumed due process but was instead decided on both grounds first men and also so you're only here dealing with the first amendment issues when i pleaded  e defense of qualified immunity and moved for summary judgment the magistrate judge adams decided that i was not entitled to it and i say he respectfully that i think judge adams was very very wrong let me point out to the court and i'm sure you know what the united states supreme court about twice a year for the past six or seven years has come out with qualified immunity cases attempting to clarify personal liability of the sure for having made the decision he did individually there's no why i believe then it would follow to me that despite no liability for him personally and with your caddie if there could  liability i still say it does not exist because the decision itself was not you know like that very yes or it was in my brief it was absolutely because they are coterminous the decision by this court reversing the district court that qualified immunity exist to exempt liability you know in my view and either dimension first or second step means that there is no constitutional liability of the county my point in the brief and you'll see it very quite clearly is that if there here is no notice of a deficient policy in there is not that here because the only time it's ever happened then the county itself the policy maker i e in his view yes yes it is i agree but a single good decision can read that case and it doesn't take a very careful reading you'll find that when the hiring authority fires the spouse of the worker spouse but there is good basis for believing that there is rational basis for doing so well there is no constitutional violation let me furthermore point out that single and makes clear that we're not talking about burden shifting analysis under mcdonnell douglas that case comes repl with the obligation of the plane to to prove a specific intent now i say to you this my opponent and i we swapped oppositions he had his chance to establish whatever he wanted to by the sheriff i had the chance to establish by the plaintiff that she had no reason factually to believe but the sheriff had fired her for the fact that she was married to the former sheriff for harasser she had no basis in fact to believe that she didn't believe it etc etc now i have negated a specific intent element and that means they can't prove the first amendment case that means i win constitutionally that means the case is over refer now to the recent supreme court case of west be decided in january of this year written by judge thomas it is a liberal hornbook of information about how the second step applies quite apart from singleton which says the action of my sheriff in firing this mural was constitutional westby at the second step goes about reciting all of the qualified immunity rules the second step this judge never applied what i am most surprised about is that the judge used the first amendment right so called clearly established right established in roberts v judge adams did we have gotten to the point where you don't have to mention anymore that when a judge decides a qualified immunity case the second step you've got to take a leap and try to particularize the and that's a first time i've seen that phrase use settled law in other words for a right to be clearly established so that every reasonable officer knows beyond debate that what he is doing is  legal has got to be in violation of the saddle law you know it and moreover the judge did not cite to any cases whatsoever that gave insight reply brief that's ok oh gentlemen you'll love that case that is an educational tour de force i say to you respectfully it is time please that the district court must be reversed on this record any further question gentleman thank you for reserve the rest of my time may please the court in this mirror my client reported to work every single day for almost twenty years as worked at the sheriff's department there's no issue in this case that she did anything wrong violated any rule failed to do any work assignment in fact mr boswell she was she was your own fact sh boswell admitted in his deposition that he had no problems with your work performance employment was terminated for one reason in one reason only the person to whom she is married cracked for marital association i believe well is their speech involved in here or not directly well he was she was let go because of comments her husband made in the workplace that's very similar to me to sink sexual harassment they hit was verbal well and your honor the first no one raised that issue one no one's raised the issue of whether or not the first amendment covers intimate associations this claim has been recognized has been your honor i i beg to differ it has been recognized not only by this circuit by by but by the cases from other circuits that we cited and we quoted in our brief with respect to first amendment pretax intimate associations and also expressive associations and we cited cases where the distinction was drawn between those two forms of associations but in all fairness to us if that was an issue with the pleadings that whether or not the first amendment covered that it was incumbent upon the defendant to well the fact with the singleton but your honor the court in singleton sad they pled the same set of facts is both a fourteenth amendment claim and a first amendment claim and what the court said in singleton is the analysis is the same and what i'd say with respect to singleton your honor they did and it's in our booth and i quoted it so why isn't if singleton controls why how do you meet the standard and signal to him this says the action has to be directed at the marriage and that it has to have a substantial impact on the marriage well your honor one single turn is part of the authority singleton hass be read in the contest of skull ski and also in the context of wingate and you have evolving law here the most recent case as was the first amendment in a retaliation claim was asserted under the first amendment and we cited in our brief i believe you did your honor from mistaken then i stand corrected but i believe in that case first amendment claims were raised with respect to that and i believe that's the one with the teacher who brought claims based on she was fired because of things her husband had said but you also have to prescribe she also says you have to be engaged in first amendment conduct and i don't i don't see the argument that sexual harassment first amendment god ok so a lot of first amendment here your right  because it's not her speech but it is expressive association but it's also intimate association because she is being linked to him because of his speech if you look at also in roberts it was not clear whether or not the first amendment was a limited to just expressive association cases it brought up and mentioned and discussed two forms of association cases expressive and intimate associations later cases have for the most part recognize the first amendment as applying to both there is a few cases that hint that only the fourteenth amendment applies and there are some scholarly literature on that as well but again your honor process and a fourteenth amendment claim and a liberty interest claim here where someone is fired simply because of whom they're married and it's not a policy and it's not like the county went in passed a rule cases cited in our brief from other the say the first of the eighth circuit has not specifically said that the first amendment applies to just pure intimate association cases i agree with that it and applied in elsa's here but you again singleton cannot be read in isolation it has to be read with respect to the other in wingate the court looked at it from the first amendment standpoint  expression and then also intimate association it applied the public concern requirement to the intimate association aspect didn't apply it to the i'm sorry to the expressive aspect didn't apply it to the intimate association case aspect of her claims and they were the claims based on the same facts about a first amendment claim and she also brought a public concern didn't apply because it's an intimate association and they by their very nature are not public and then we cited a couple district court decisions i left my associations are intimate ok and i and of course i'm up here supporting this accord so i disagree with that your honor i think the law is clearly a step judge adams pointed out that the right to intimate association was recognized and in the roberts case and then she said it was right also recognized with respect to two eight circuit decisions the right to intimate association both based on marit association and i believe it's wingate and then she put other cases five to six cases from other jurisdictions saying the same thing any reasonable person any reasonable sheriff would understand at that point that one is muir has a constitutional protection her marriage is constitutionally protected every reason was based and i probed him in his during his deposition on we went through the reasons you believe she is going to retaliate why she's married to form assure me or you believe that she is she ever retaliated before now you believe she is going you're going to have communication issues why he's married situation in decatur county you couldn't fire the person who practiced the muslim religion because the workers were concerned that she might have been involved in this terrorist saying or that this might make them think about this terrorist incident or anything the conduct the marriage is protected either by the first amendment or by the fourteenth liberty interest and any reasonable officer would known that you can't fire person for that reason in one i asked him in each case i will prevail and they were upset now because anything with me or my god they had worked with her for twenty years they were upset because of whom she was married and when you look at anti nepotism policies and the like that's a situation where to marry people are still in the workplace here he's gone well why it is i guess maybe i will fixate on this but why is this not exactly the situation the judge arnold described as in his dissent and singleton which he said should be unconstitutional but the two judge majority said it isn't i mean this is exactly what happened in singleton you have a police officer who are you have some reason gays and bad conduct that person gets fired and they fire the spouse and that that's singleton and judge arnold as his dissent says you know this should be right  but the majority says it was well why isn't the singlet this case is different because in this instance single turn singleton he was fired because his wife and daughter certain things within telephone that here there's she's fired not because of anything her husband sat or anything but because she is married to him it's her status is being married and they are afraid because she is married he's going to be disloyal their frayed because she's married she's going to going to relay information back to him so it's focus exactly on the merits not upon any of the language and i would suggest that sense singleton the law has evolved and if you read wing gate and skull ski in those decisions the court made it very clear you can't fire a person based upon their marriage if that if the marriage is a substantial motivating factor in your decision you are violating their first amendment rights and said in those cases there wasn't sufficient evidence didn't say that's not a claim or didn't say even if he had done that there's no evidence of neither of those plaintiff one because they didn't have any evidence of what happened but the court was clear that had they had evidence that marriage was and i see my time's out so let me complete my thought a substantial motivating factor they would have won but there was not enough evidence assuming  is here in that case take about alternative reasons why the fire performance issues whatever it would be is it really just the marriage i mean isn't this one of those cases because of the unique structure of law enforcement agencies that esprit de corps and the ability to work together is much more paramount than it's not really the marriage it's the idea that we have seven people who say they're not sure they can work with this other person and they're not sure that there's not going to be retaliation and they're not sure that there's not going to be a problem and doesn't the sheriff because of the paramilitary nature of the organization isn't that different than a school say i don't know if it's different in a school but i understand what you're saying cases suggest that but here it would be no different than we have concerns about this person because of the religion they practice they don't really fit in marital associations are protected status and the only thing they're pointing to his mirror is not they're not afraid of his mirror because she would participate in the harassment they're not afraid of her because of anything other than the fact where they don't have these concerns i don't know if anyone said they were afraid of or they don't have these concerns other than the fact of who she is married to who she is married and to me that's a big distinction if the county had at some point in time decided we really don't think it's a good idea to have married people working together for all the reasons you articulated the last clearly they can do that that's not what they did and you still you don't even have to people married they focused just to get rid of one of them that would be where you give me a hypothetical your honor one last thing we may mention i did reference and mentioned the inextricably intertwined issue with respect to the county it's at page one of my great thank you thank you sir i wish to make two quick points it does not take an industrial or an organizational psychologist to figure out that a workplace beset by sexual harassing conduct is one that needs workplace for eighteen years but leaving that missed me or could heal along with everybody else she was viewed as the problem by those coworkers it is not about the marriage the marriage is a fact it is about what the a marriage left behind in terms of the difficulties personal difficulties and dealings with emotional people after being harassed in this manner that is what the share or spoke to that is why he fired her end of story now i wish to make one last point i do this kind of work i've done it for a long period of time what i have not seen me is what i see here in judge adams decision it concerns me the issue of qualified immunity ever since  she looked at the merits believing this was going to be a what do you call it the mcdonnell douglas burden shifting paradigm type of wood in a fair and wall into that the issue of qualified immunity qualified immunity itself was never sassed independently but woven into what the judge thought the law was going to be work to be tried to issues arise from that number one you never get a fair clear shot at qualified immunity if it's going to be mixed up with the merits and i underscore what the supreme court says it is an immunity not just from liability but from trial if you indeed that are governed by qualified immunity at a legal level for judges to decide that is another error in itself i hope you'll take the a moment or two to write into judges that you can't do it