and the judge in the district court failed to perform that test she was raised at the time of closing the plaintiff's case was raised against the time of closing of the trial and at the time of the jury verdict  and he just failed to do that as a result of his failure to balance his mystery we see the plaintiff in this case has rights to speak out in the county rights to run in the creation agency the sheriff's department other issues that have been presented our brief the issue on the balancing test the qualified immunity issue the whether or not the county is in fact liable based on the fact was that was there ever any evidence of any policy or regulation or rule that showed that somehow there was a o testimony whatsoever regarding the fact that she had shields transferred mr sergeant weeks from his position as head of the bomb squad so what happened as captain myron smith he analyze this and if this is really beginning terrible is very very disruptive i'm going to transfer you transferred him and then they sued the county sued shared shields and and sued captain smith also  jury that was before the jury was that sergeant wished after he was transferred from the bomb squad to the other position removed from his position as the head of the bomb squad what he did is he took it out through the civil service rules regulations and appealed his transfer and that went through the course of conduct through the civil service and found that it was a help and there were no or no violations i think is who was the safety officer and my i think i want to say robert yours and i'm not sure who work for the press kind of prosecution have to fit the follow up investigation but the terms of following up the civil service complaint of se they had not we wouldn't be here they didn't they didn't for that but i think there was evidence presented based on what we talked about the appeal to the civil service commission board that he obviously wasn't the final decision making policy maker that information say that's already been decided on but that was decided by declaration of several witnesses and the time of trial they were like four or five witnesses who testified as to the disruption caused by sergeant least within that and gives who's who in his immediate supervisor created a problem within that agency and that's where i think the tenor gives testified and in the trial that that's when he realized that he believed that sergeant weeks was maybe moving his ability to to control  his division so i agree with you but i think there was a lot of elements in there and isn't that part of the reason why we have as a matter of law that the balancing test set up and picked green and and connick and i guess we couldn't handle it and what he said was what was argued to him in those motions was that this was already a matter is decided by the night struck and therefore it's the law well that's not i don't think that's accurate because number one night circuited of holder's original perspective but in his original decision he said if there was testimony from the individuals and from the agency and from the sheriff's department that talk about destruction he would give that great can it's up to you to decide whether he was fired because of the disruption or removed because of the disruptive conduct and that because he was not managing the court properly the jury had a chance to decide whether that this corruption was the basis for the rule the simple answer i would say to your question no you can't take it like that because i think he has an obligation to do that wayne balance before we get as far as you want to go with that question and he didn't do that because of the additional testimony he just he just didn't he just never approached it never addressed it never never and just never answered it although it was raised on those three occasions so i get what you're saying i can understand what you're saying if you would of refute a fool that you just got off the speech number one is an issue and was potentially an issue and that is a speech of public concern and then you balance that against the county's right to have an efficient bomb squad and if you came out of on the side of the free speech versus the side of the county then then we would get exactly i think where you're right but what he didn't he never got there for he said that's already been ruled on therefore we don't have to rely on that now that's what i think and in looking at this i'm just saying it's simple we just need this answer one way or the other give us the answer then that would have eliminated the instruction fifteen if it came down the way we argue that he should come down the other issue that i i think we've i think it's quite issues and i think we've basically talked about for the last one is that punitive damages you and although the period of damages are not great for five hundred dollars there's nowhere i can see in the evidence that was presented that they show any ill will or malice or any callous disregard or any of the elements needed to put down or assess can punitive damages against the presupposing that we haven't tried to do all this before and we have i don't think it's a natural consequence go think it's a date over review and we review the file and you review the transcript i don't think you'll find any substantial evidence to warrant what has been found and i think it's a matter of law it falls that's why i'm asking that it be reversed and dismissed any of the questions like you do know that although i wanted to i made no mention of i ninety fo trial on damages because liability has been established all of the elements of been met the judge reinhard let's start with the questions that seem to be of interest to you with regard to the record here let's look at the record appellant seems to have an idea that they can view the evidence the way they want to view it and disregard what the jury got an opportunity to consider but of course that's not the standard here under c r fifty a de novo review could reasonable min when placed of rest at conclusion of the evidence that's where you'll find the more interesting part and that is at e u r one seventy four the only basis that the defendants used this motion to d was that there was no possible relationship excuse me at the fence verdict was appropriate for qualified immunity for sheriff john shields only  of disruption the court mentioned that in reference to this court's memorandum opinion from may two thousand and two that was the only reference to the pickering balancing test which was made in this transcript disruption within the unit or within the stress department the disruption also must not be something that's caused by the decision maker the policy maker the sheriff here the disruption came when sheriff had no close it was not based on anything else it wasn't based on the bomb squad or on the bomb suit issue because the bombs to the issue came up july twenty seventh the day after we  not have been a basis to take this case from the jury as a matter of law and the evidence is much more substantial on the record presented to this jury and the judge than your predecessor panel had to consider  that there was no disruption and if it was it was caused by the policy makers of the sheriff authority and there was no civil service commission hearing here counsel have misstated the record the only place where there was any reference to exhaustion of administrative remedies are eighty six page one twenty one and there's five lives did you take any action as a result of the removal from the bomb unit after yes i filed grievances through the up through the various levels it went through the last level of the department sheriff's department denied all the way up through to the next level was to file it with the county exec it disappeared never to be seen again and i never got resolution on it the civil service mission never got involved even though there is a civil service statute for sheriff's offices in washington there's about four things your honor there's ours to the thirty six points who are eight point zero zero one zero which makes the sheriff of each county the chief executive officer of the peace for preserving and protecting public safety health and welfare service because he didn't have to he could have there been no allegation of failure to exhaust that's an optional remedy the civil service commissions do not have authority to entertain first amendment whistleblower causes of action they look at filed he sought review from the pierce county executive and it was never responded to nothing ever happened so it was ratified by the county executive in effect pocket vetoed by the county executive who has the as the highest ranking person of the county had open that authority the striking county liability appropriate and there's plenty of cases from the night circuit finding sheriffs as policymakers  they did not hear from sheriff shields who for reasons unknown did not testify or from the kind of master who did not testify who was a key intermediary or from several other people  investigation he did of the formal written whistleblower complaint which came out three months after we had been removed so it was obviously not a consideration in the decision makers mind to find that there was no whistleblower conduct wh jury subsequently disagreed with and one of his recommendations was that the county sheriff may consider disbanding the unit otherwise they need to get in compliance with the federal requirements of equipment and training nothing about the county there was no exception to the county liability instruction given either by either side  and that the jury awards damages on this as they did the damages have a high potentiality of being distributed differently what i mean shields a smith each at one dollar of liability and each at forty five hundred dollars a fugitive damage liability but the county was nothing if you will for eleven thousand dollars which if the county had been excluded on a proper motion say instruction twelve had not been given because the county objected and said there's no basis in law or fact then maybe the jury would have aborted damages differently and a portion of fifty five hundred and one dollar to each individual defendant just opposed to a straight eleven thousand to the county and one one so it has great prejudice if the court finds it which brings me back to other deficiencies in this p r fifty proceeding that last point is i think that it would be appropriate for this panel to fully affirm and to reverse or excuse me to remain with the directions to the trial court to attorneys fees which it's pay because the defendants have filed a premature motion prior to the filing of a post trial petition for prevailing party attorney's fees there could have been post judgment much just briefly in the supplemental record on exhibit you it talks about the the executive director of the county and his appointments and his department in the shift is appointed under the executive director who was the  at that time it was doc said on this council said the other issue the council mentioned in the in the second motion to dismiss after the trial the judge said well the maidservants already ruled on that so we're going to