so they have this allegation about raising a hazard about safety and i think as i understand it your argument is it's not detailed enough to know that it really is a public concern but in theory there could have been and maybe depending on what the real facts are much more elaborate allegations about raising concerns about safety and how people were going to be injured in this part i wouldn't you acknowledge if that had been what the complaint looked like there would be a public concern and knowledge that if this speech to simply spoke to broader point not only is there a lack of detail about allegations relating to anything in the nature of actual safety speech even if there had been some safety speech there's no question here when you look at especially the foreman context in which that would have risen  that would have been only some kind of incidental part of what is plainly an internal grievance about costs about the sonar i don't sure that we know that necessarily like what i wonder is if we agree with you that this complaint is inadequate should it be given leave to amend because i'm not sure how we can know that it's not possible that they could allege the things that you're saying they should they would need to well it's always possible that an appellant can come up with new facts that aren't in any way back for proceedings that would develop the record any it with the express recognition that qualified immunity could be u the court the court does not does not hold this sort of case for discovery or for the procedural developments because qualified immunity is an immunity from suit and it's an immunity from having to go through the burdens o to go through but the problem i'm having is how do we know that without some record being made for example do we have any law if if the complaint was to then establish maybe that there was other reasons for its decision or that it would have made that decision notwithstanding the protected speech but here we don't have to do that because there is no protected speech nothing resembling protected speech alleged in the complaint that should justify making these city employees have to undergo the process of discovery and the burdens of litigation that's truly is exactly the purpose i would submit your honor judge cool or qualified immunity this case exemplifie you when you have a complaint that has just kind of threadbare conclusory claims of public concern speech that throws around this is about efficiency this is about safety much like the court had much like has happened in multiple other cases where the court has on the pleadings disposed of a case weeks weeks as an example of this the turner turner decision that judges on the court today were involved and those were on the pleading and because of the pleading stage there is a burden on the plaintiff to say here's this particular speech and here's why if you look at the content form and context of that speech it shows that in fact i engaged in speech on a matter of public concern pleading and you know if you put yourself back in the district courts or district judges issues you when you're faced with a motion to dismiss based on pot immunity or really under any circumstance you are required to look at the pleadings you're not looking at facts or not looking at anything more decide that issue of law and instead kind of said let's just see where the facts take us as time goes on that's that's not a proper analysis on a motion to dismiss much less a motion that is based on qualified immunity at least in part the district judge was obliged to say anticipated my one of my arguments here about amending the pleading we feel the pleading is sufficient as it stands it you know alleges matters of public concern th has held that threats to public safety are matters of public concern mismanagement of public projects is a matter of public concern craig texas pleading alleges both of these a departure from the plans and great track urgent but maybe to review the design as built to ensure the safety of that of that project before it was opened to the public so how do you know i didn't see  the city's argument the defense argument was these are just labels these are just conclusions there aren't enough details in there so our this is our st opportunity to say well told one of the defendants that he would inform the city council how wrong this very public project has gone so taking the issue to the city council would certainly be a matter of public concern would allege the grave tech urged the city to install fencing around the perimeter of this by part to prevent an authorized use of the attractive but dangerous facility  what would you agree that the issue of qualified immunity could be raised again after discovery and proceedings when parties marshal affidavits and arguments so i'm right just yes i would agree with that your honor i think the cases are very clear that a party who fails to demonstrate qualified in my mind would say that there was a lot of  about safety and they were clarified to be public safety but in the discovery process the city of san jose was able to find somebody who that we really don't think this is a real issue we're just bringing had to get some some leverage to get some more money on our contract or a change cases indicate that including cases from this court that when a contractor speaks on both matters of private concern and public concern the st amendment is implicated so the fact that great tech focused on issues of interest to itself it's interesting getting paid for the project well certainly that was part of the discussion but  highland case from this court and others say the st amendment protects speech that combines both public and private concerns that's our case we have a contractor who was interested in getting paid protection your honor i'm not aware of a case that quantified the balance between public and private concerns i believe the cases are fairly generous and liberal and incredible being a public concern even if it's not the predominant topic of the discussion and i'd be happy to provide supplemental citations of the courts interested but i believe the  in any case where they have a claim against a public enemy as city know that may be a different case but if it's part of the speech and there's a basis for it i would think that would be sufficient to trigger the st amendment ok thank you  understanding correctly that you agree with the premise that we do need to decide whether this complaint states a claim for the moment retaliation at this point and you're just arguing about concept of ordered liberty that sort of thing you know your honor pritchard one rebuttal and we put three minutes on the clock thank you for that your honor i'm let me start just with a quick i want to read something from