it please the court my name is mike janssen i'm with the attorney general's office in the state of nevada i represent the three individually named defendants in this case all of which are former law enforcement administrators for the partment of public  safety who are being sued by the plaintiff for money damages and were seeking this court to find that they are entitled to qualified immunity under the facts case the core issue in this case i would submit is whether  taking the light the facts in the light most favorable to mr mcclelland whether a reasonable law enforcement official would know that terminating mr mcclellan's employment would violate the  amendment and that my understanding is is supposed to be done in taking all of the facts and circumstances into consideration and making a determination whether the law was clearly established such that with that that an individual official would know that in fact they were violating that right as opposed to what we believe occurred in this case and that's why we've appealed this particular decision of the district court we believe the district court erred in not doing the qualified immunity analysis but instead by taking some of the facts in isolation outside of what were the totality of the circumstances and applying those in a way that i don't believe would have been reasonable for these particular law enforcement administrators to have engaged and i ask a question about that there's if you have the dahlia test you have a prompt part one of qualified immunity as to whether or not there was a been fired anyway and we could talk about that i suppose but when i put myself in the shoes of the supervising police officers i wonder about prong two of qualified immunity and specifically is it is it uncontested in this case that pursuant to brady had this person gone forward with this draw that the department would have had to produce these this history of misstatements under oath any time this individual c that when you say is it a contested i believe it's clear in this case that those incidents would have to be disclosed in every case i'm just wondering what happens then is it really the government doesn't have an opportunity to give him a different top and i just it strikes me that i'm not sure how he could go forward and do this job that's essentially the point that we're making in our brief to you is that in this particular case these law enforcement it ministre there's none of which had had any kind of a claim of corruption or illegal conduct leveled at them they were just doing their job trying to figure out if mr mcclellan should keep his job or not and what they were confronted with was a series of clearly concerned that there may be there had been some wrongdoing maybe there was some involvement or concern about the union maybe there was some monkey business going on there and i guess what i'm my my point is if we step over all of that then get to the point where it's uncontested there were miss problem with this case so you bought pop and an opportunity to respond you know i i would agree your honor that is definitely our position that even if you agree that at its inception the statement at least had some sort of suspicion backing  trucks isn't that correct that that's how the whole event started as started out what i was referring to is the specific statements that the district court was focused in on which was the statements that were made at the round table meeting where he said that he had spoken to two individuals a grand a constructionist roundtable of the nd if ever the st round table meeting where he said in that meeting after being told that there was there was no order not to stop granted construction trucks that there was no policy that was in place that they had asked for permission after he was told that the information came through step ins wife about concerns that granite had about the enforcement activity that happened it was only at that point that mr mcclellan made this statement where he said that he had called granite construction talked to two high level granite construction executives and that he was told there was no complaint that didn't happen there was  so he subsequently conceded that he had spoken to them he did but he didn't concede that at the time of the round table he went to a nd meeting with high level and h p law enforcement officials his chief  regional commander and his captain in this region and he adamantly maintain that that telephone call occurred and then he added facts to the telephone call saying it lasted this long and it occurred in my house and he still even after that he didn't clear it up it this went on for two and a half months and then he went into an opium our interview an internal affairs interview where he was represented by counsel he was admonished that if he didn't tell the truth that he could be fired in that particular interview he doubled down on the dishonesty essentially got he feigned outrage that this individual he called him this villian would lie about something like this he indicated that he thought something should happen to that individual for lying about it and then he added to that a number of facts to embellish this incident where he indicated where he was standing in the yard when this occurred the time of day bad cell phone reception that was that was happening at the time that he had to get a call back at home that he then went in his house and then he described as conversation the content of which he says that there was actual discussion and he puts words to that discussion in this so p r interview and all of that was false it all had been fabricated well so what i was talking about earlier says this is the september one discussion the september nd round table and that's the period of time during which it seems to me that they're they're opposing counsel will have some ammunition with that there have been some missed going on or some directions given that were perhaps not of pure motive but then when you get to the september t september sixteen incident it seems to me to be uncontested and that's why i guess you don't need a whole lot of time on it this is an officer who's testifying falsely under oath repeatedly and in fact when he was asked about those doesn't it right so we don't  another words in other words and i want you to correct me if i'm wrong but i don't think we have to look too hard on september one of september two i would agree with that in fact that's the hearing officer who heard the appeal on this case that's exactly what he said in the record you'll find his decision he said even if even if you disregard the the for the st round table the meeting with his command officers he was clearly in an employee capacity in that opi our interview they had made statements or in correct or in accurate i don't think there's anything in the talks about appeared jorja statement but an accurate statement and that those folks had not been terminated so my question is whether there's any especially in light of my concern about brady and the ramifications is there any other incident in the record of any other officer who has who had been found to lie under oath who was kept on the record has some limited information  something under oath that would later did seem to determined to be no in fact that's in our in our response to those particular instance we provided the affidavit of jackie muth who was the deputy director of the department  at the time attached to her attached as her affidavit where she explains that none of those incidents were anywhere on the scale of this particular case and in fact provided a matrix dishonesty was an alleged part of the misconduct where the where the agency had fired or term a the individual based on the dishonesty and explain these couple of aberration type cases  t the that mr mcclelland provided as situations where things happened that at the regional level didn't make it up to the higher level of the highway patrol there were there were differences not only in the so so your honors what what i'd like to do is reserve a little bit of time but with regard to this case i would agree that when you look at the level of dishonesty in this case clearly this would be a case where where mr mcclellan's dishonesty would have to be disclosed every time he was a witness as as a trooper it's critical for peace officers to have a level of integrity where they can appears witnesses and be credible witnesses and because of his actions in this case these long foresman officials were left with a very difficult decision to make and that was to terminate his employment because he can no longer do his job and because they had lost confidence in him based on the way that he had come forward and provided what was not only a long line of dishonesty and fabrication but allowed it to go over a duration of over two and a half months before it was ever cleared up and so i'll reserve a couple of minutes thank you may it was judges adam levine on behalf of rick mcclellan i would like to st start with something that was never really raised until the reply brief by the state which is the brady issue st and foremost the false statement was only the source of the what was otherwise correct information which was that there was no complaint filed by granite construction and in fact that was a true statement the district court in denying a summary judgment said i'm not sure whether it's true or not there's a genuine issue of fact both major sanchez who was the person who spoke with clarke and cooper actually spoke with them and defendant perry acknowledge in their depositions that yes the statement is correct that there was no complaint by grant of construction five so it's a little tricky because this sort of almost coincidentally turned out to have been in least in your briefing you described it as a true statement which is which is which is as you just did but when you mention brady coming up only in the reply just want to give you every opportunity to response or because the st thing i thought of while reading the blue brief is brady and the reason for that is we see these cases all the yes and so my my my definite understanding please correct me if i'm wrong is that this is absolutely brady material that would have to be disclosed so might my question i ask myself when i want to give you an opportunity to answer it is how could they not fire   st i would but would respectfully disagree that it is brady material for the following reason brady material arises where you tell a false statement in the course of your duties as a peace officer it is undisputed that the statement made by rick mcclelland regarding the source of his information was not made as a highway patrol trooper it was not in connection with his job it was undisputed and acknowledged by the defendants made in his capacity as a union president all of them so when he was talking to internal investigation as a professional responsibility there didn't seem to it is that he was speaking as an officer i do disagree because rick mcclelland took the position you have no right to use effect of garrity versus new jersey to bring me in and force me to answer questions that are not related to my duties as a peace officer that are not related to my activities as an employee the entire coercive mechanism of utilizing the disciplinary process for what he was told and was of knowledge ahead of time at the round table you're going to be in uniform but we acknowledge you are here as president of the union and there will be no discipline  women that that is that the september when you need yes the roundtable yes september to september to your position is on september to he appeared there as the union person and it was undisputed he was told that it would be considered as such and he was there in a unit capacity as he was when he met with colonel elmer as on the st point about the nd round table on september ten still in his capacity as a union president in other words you cannot charge somebody with being dishonest on a brady cop or something unrelated to their duties if somebody is dishonest with their spouse and has an affair that does not make them operating top it has to be related to them talking about somebody having an affair and i'm talking about somebody testifying falsely under oath well he was a very different matter you know we don't see police officers i'm happy to say very often when the situation let's be clear about something i've heard i heard the words under oath i keep hearing the words under oath when you are in front of internal affairs you are not statement made as a private citizen on a matter of public concern was in another self of violation of please correct me i want to make sure i understand this on november th that he taken oh no you when you're in front of internal affairs do you are not sworn under oath no did he sign something indicating that he verified the authenticity of what they do is they tell you you are aware of the policy that you're required to answer questions truthfully in other words they are  that they are being compelled under penalty of insubordination to answer questions and if they don't they will be subject to discipline up to and including term an asian and they are reminded of their obligation under policy to tell the truth but that policy ok what is not enough known about the policy itself that they're warned about says that they must be tell the truth in connection with their official duties the actual policy that they are warned of specifically states that you must be truthful in connection with the performance of your official duties this entire case does not involve his official duties though i do want to clarify something with regard to the evidence before the district court below which it wasn't raised in the briefings but i heard the question asked of my colleague about the other instances of dishonesty and were any of them under oath yes some of those were actually underwrote ones bonnie kendall sergeant kendall got a two day suspension for testifying falsely before the parole board that is testimony under oath awfully or incorrectly falsely let me let me save you time is ticking so there's a question here about prong two because the district court a private citizen which is under spirit he was speaking as a union president and the president is well established when you speak on behalf of the union you're a private citizen that's september nd it's a matter of public concern which is that robert stepien is using his position as acting lieutenant to basically benefit his wife's employer and instruct he wasn't acting in that capacity as to who to clarified in front of what about th have the right to question me here based on my speech as a union president you have a right to question me for what i did or what i do as a trooper i'm sure i understand your argument so he conceded that he lied life shouldn't count against him absolutely because he they had no right in other words it was a constitutional violation to haul him before the disciplinary apparatus forget the ultimate sanction of terminations for a moment by bringing him before a coercive disciplinary apparatus based upon speech made as a private citizen on a matter of public concern that is a constitutional violation and in and of itself good so so we one of the pro that you raise that judge because it is well established that the truth or falsity of a statement is to be of value weighted in the context of the pickering balancing test he can see that he lied so there's no there's no issue there  the fact that they use this coercive mechanism improperly does not change the fact that he was always acting and speaking in his capacity as a union president and as i pointed out in the briefing that he was at the last interview he said he was acting and that he was all what he was there because of speech made in other words you can't somehow change his status when the state improperly uses its coercive mechanism under threat of terminations to make talking about that you cannot use this course of internal affairs mechanism improperly it is in the state's motion for summary judgment itself it did not place the pickering balancing test into evidence it presented no evidence in its actual motion remember the burden under the pickering balancing test is for the state to come forward with evidence of actual disruption not injury is actually on the defendant well the the there's a not obvious and the say to indicate there's an obvious interest in the state not to have a officer who lies to their internal investigation and so the burden we've set is on the plane to just show that his st amendment interests outweigh the state's legitimate interests i would certainly assert that mcclellan's st amendment interest in not in his capacity as union president to point out the lieutenant stepien was giving instructions to the trooper protein and by extension himself to showing him the memo that was drafted by the sergeant that they're not to stop trucks without the permission of a supervisor you cannot escape the fact that he would not have been in front of our but for the fact that there was a constitutional violation and i keep coming back in this this is where i start with pronk to which the district court didn't reach and there's different ways to slice and dice and allies prong one of the qualified immunity analysis but i haven't heard you respond how it is possible of these defendants were in a position where is clearly established that this wouldn't have required or certainly at least allowed them to terminate an officer who testified falsely case what what case would make it clear that they couldn't terminate an officer who had lied to a p r i don't know if i can cite to a case that said terminate but i think it would be clear to every state official post individual testifies why doesn't that disqualify him from holding the da or it is because it is the fruit of the poisonous tree and because other officers at the department of public safety who did speak falsely including one under oath sergeant bonnie kendall including then investigator robert step in before he promoted to lieutenant where he made he made he basically fabricated charges against trooper eric that year and coerced false testimony out of that was some of the underlying materials that were presented to the district court yet they weren't fired you agree that his supervisors could be wrong about the constitutional violation and still be entitled to qualified immunity they can't be unreasonable but they could be wrong i don't believe that i don't believe that any supervisor could believe that taking a statement that attribution is to source there was no complaint you know because he got the information from the secretary as opposed to cooper i don't believe any reasonable supervisor could believe that they could then utilize that to take somebody through the coercive process of o p r and that is a constitutional violation in and of itself i think we have your act thank you  how do you respond to the argument that he was speaking as a private citizen and a better public concern the brady would apply to a situation like that similar to the trooper who has an affair and learns about it something like that sure and i think if you started and and just looked at the st time he said something i think you might be able to make that argument although i've never seen a case where in a circumstance like this where an officer even though he's wearing an association  t lies to his supervisors that if that's the stain that it's not a brady issue in fact if that came to me as counsel for the department we tried to err on the side of being conservative about brady material not to try to hold stuff back and that would be evidence to us that that individual had engaged even for an eternal investigation so say we're someone's stealing the coffee money in the break room and they do investigation if someone lied about who was stealing it that would be so material or a disclosure that you'd have to turn that over we had he lied about this in the past right i think it's important in this case to put into perspective how this occurred the lies in this case  given at the and i'm not sure this matters but i want to actually have the facts right on the rd occasion was an oath given and present counsel said no and then failing that there's a transcript i don't know if you have to sign a transcript like you would in a deposition for example could you clarify that for us please yeah you want what you find in the record and i don't have the cite right off and there are there are two admonitions that were signed by mr mcclelland in which he had to sign indicating that he understood that if he was dishonest in this particular interview that he would be terminated so in essence he was he was told you're in a in an interview it's important to be  critical that sure you're honest he signed an admonition to that effect and went ahead and lied and double down on his lies ok but that wasn't a deposition right the deposition transcript of our reading of the deposition after the fact that's would be terminated right and i have i appreciate that that argument's been made i don't think it was fully argued below in terms of what garrity would require however and in this particular situation and we have an officer who has started this investigation by a lie follows up with a lie he wasn't somehow transformed into being an association president and not an employee when he was in that situation he was talking to his command officers about that and it's important that he tells the truth in those circumstances i think what the what mr mcclellan would have is a rule that says anytime you're in association capacity you have the right to lie you can you can line you're protected and there is no case that i could find on that believe me i looked hard when we were looking at what to do in this case and what protection if any there was for intentionally dishonest statements even in the in a association capacity and i couldn't find any case that supported that so i would ask that you find that these defendants are entitled to qualified immunity and thank you