to give their attention for the court is nasty god save the united states and this awful c district court's ruling below is allowed to stand in this case no whistleblower will ever speak out again about the most serious form of government misconduct and that is excessive use of  police out of plain sight and the attempt to cover it up however that ruling cannot stand luckily for the st amendment it cannot stand because the district court improperly gave to little value to mr bailey only speech which this court described and i'm quoting this court from the prior opinion in this case described mr billy only speeches pertaining to quote the role of an speeds that come from your own versus jones police misconduct involving excessive use of force and subsequent coverup is exactly what durham versus jones speech to and said that it's protected speech that mistake by the district court judge threw off the entire balancing process the entire balancing process was thrown off by miscount relating the value of mr bill yoni speech and led to the ruling because of that mistake that is especially so because the only disruption that the share of appeal to the district were found was the internal investigation and a violation of a confidentiality order covering things up and and shutting off whistleblowers just a question of timing and and it's just a matter of allowing an internal investigation to to wrap up and complete i mean i know there's a lot of suspicion of internal investigations but they're not there were something  the sheriff had announced that for all practical purposes that the investigation had been completed and he had arrived at a conclusion that was just all and in the light most favorable to mr bill y sheriff's spokesperson speaks he lives when he says that she the correctional officer more than everybody else acted appropriately so when mr billy only hears that i think he's justified in thinking well  the investigation is complete and now that seen this video and if i had only three words for my argument it's watch the video when he sees the video contrasted to what mr verus says at the press conference he has no choice but to it was there ever a time that mr billy only attempted to raise a question in the sheriff's department and go up the chain of command he did not because doing so would have been futile would be well how potter we know how do we know that i mean it's easy to say that but i think in this case you had a vest a geisha it's not all about the sheriff's office but the  state solicitor or the federal the part of justice and the south carolina of what law enforcement division and none of those were allowed to play out mr billy only he preempted all of those by acting so quickly yes or my st response is the futility comes from mr pearce a statement that that everybody acted appropriately that's my st response my nd response as to for example this lead investigation mr billy only can be held responsible for that operates as a matter of law by statute and those other criminal investigations were focusing on a completely different matter they were looking to see whether or not anybody acted criminally what mr farris says is everybody acted appropriately and i think mr billy only was well within his rights after having viewed the video to say i need to set the record straight you know nobody made this your whole bet all right why did why didn't he set the record straight by going up the chain of command in the sheriff's department because the sheriff had already spoken on the matter when he holds that press conference this year seems to me can't have it both ways he can't invite public discourse by telling something that's false invite public discourse but at the same time want to shut it down until until it's until it pleases him for someone to speak out about it now if if i f if they had not feel that press conference and had mr ferris not miss characterized not only the behavior of their officers but the behavior mr gross the inmate who dies blaming him for his because videotapes can disappear evidence can disappear and it's not it's not wrong to be somewhat suspicious when you've already seen evidence of a cover up to think you know how many more times by the way we have to let the fact that an inmate died in our custody is itself evidence that not everybody did what they were supposed to did but though does he is there evidence where mr billy only comes out and says i was afraid evidence was going to disappear no but i think it's fair to say that time was of the essence and that he didn't have to wait for these other independent investigations which which occur in our own in other cases to and have not overridden over in the value of the speech we have to keep in mind that the speech in this case is of the highest level of protection in the end the the disruption as alleged is that of this of the lowest level and that other mistake that the court of appeal the district court made was the district court instead of seeing the evidence in the light most favorable to mr bill yoni sought and used in the light most favorable to the sheriff and i think that was another mistake to assume to just assume from the fact that there's an internal investigation that's disrupted not i was under the impression that the internal investigation had not friend completed it had put it that the time that mr billy his perception based upon what mr farris said is that it had been completed when mr farris said well there there i mean maybe it's you know a lot of times people can issue a statement and everything but was complete i thought would have been a public employee or an elected official issued a statement like that that he doesn't have to make i think he invites public discourse on that matter that's exactly what the person in minutes for is the marketplace of ideas where there are competing viewpoints but nobody's saying nobody's nobody saying that they're competing the competing viewpoints couldn't be aired it's just a question of of of when they're when they're aired and you know you want to the department is a paramilitary organization that has some interest in internal order and and internal discipline and it has a right to complete its own work and then if somebody disagrees with all they've got and they have two options one is as a judge a g pointed out to go up the chain of command and then the other option is if it wants to investigate then they can blow the whistle to their heart's content this is one of the question that i have and that is a part of this was if the mister really only is said to have it why is that necessarily a matter of a rd prong why isn't it a matter of the the balance between the public and the  so that would be before the press made  judge lloyd but i think that's right but so you're just just to be sure following your answer your representation of which opposing counsel answer is judge floyd indicated the same question is that the sled investigation head begun before the press contacted the sheriff's office yes yes that's right that's right be sure yes and if i did want to speak to the paramilitary showed up i don't have the knowledge as i don't have a timeline in front of me or the dates but they mr mr gross in may the struggle in his passing occurred in the wee hours of the morning you know from you know one am to three am i think or maybe even longer but but it was it was early in the morning and sled was called in early that morning and  investor investigatory process ali could a slave's investigation at that point so what was going on at that time was there were there were two investigations one was obviously  the state law enforcement division sled investigating the death in there was also an internal affairs internal investigation into what happened so that you know to see if there were any policies that were violated or or any lessons that needed to be learned from the from the incident and so that we believe their internal investigation was in the sheriff's department is that correct or not video of a just the contents of a video that was really it was a video itself or what no your honor it was it was detailed information about what was in the video  in his deposition numerous times that he did not tell the truth why is that purely a matter of causation always the fact that he lied repeatedly figure into the conic pickering balance we honor i think it goes to both and on the conic pickering balance that i mean again the sheriff i mean the sheriff can't can't be expected to think forward you know sixty seven years now and he's got to deal with what he's got at the time and you know what what he had was a both a breach of his confidentiality policy and a breach of the policy that requires his officers to cooperate in internal investigations and to tell the truth  o i think that certainly would would weigh in the balance of the relative value of plaintive speech and i think the other thing to keep in mind is that this court has said  previously that you can't you can't try to to to parse the speech into different into different little buckets and say well this is protected and this is not protected you have to look at it as a whole i think the strong case  balance the interests of the sheriff's office in not only maintaining order and discipline but making sure accurate information gets delivered to the public you know public confidence in the sheriff's office and in being able to bring these investigations to a close in an orderly manner without trying to chase down inaccurate information which is what wound up happening then i think it's pretty clear that the sheriff's interests strongly excuse me that that the reporter had a an inside source who said that the inmate had been beaten twelve towns in the head he was obligated to go and run that down because what the plaintiffs doesn't know at this point is see anything wrong and so that's the basis of trent ferris this statement so and i apologize i'm a lost my train of thought you did ask me  biassed lead that there's not anything wrong with with what his or how his officers responded to this situation and now he's got a reporter ellen him something that he's not heard or seen which is that the inmate was was beaten twelve times in the head which would be a big difference from from simply a struggle to restrain him and so now he's got to go and he's got to track down where that information came from and whether or not that there is somebody saw something that his folks didn't see and so that's the you know i think that's part of the apprehension in the other part of it is in this area testified at length about this is that is that he's now got an officer he can't trust because the officer law had when when the when asked about you know whether he is spoken with i mean that's just your st of all the testimony from the sheriff was that he had seen it but but the fact is i mean saying he knows the truth you know again he's got a reporter calling him and say and he's got an inside source that that indicates that the inmate was was hit in the head you can't just ignore that because because then he's going to have media reports in the press that his officers have murdered this inmate when that's not what happened and the other say your honor that i would point out is not lying on both sides going on straight ferrous the public information officer did not tell a lot of the information that he had that had come from ultimately from the state law enforcement division was th preliminarily nothing these officers had not done anything wrong so that's not a law that he's telling he's he's reporting the status as it is at that point normal process of accountability fails says the interest is far less compelling when a police department is not even given a chance to review or investigate and answer them says this is especially true when officers rush out to speak about an incident of which they have no personal knowledge so that that would seem to me to be relevant here because if we were trying to harsh up criticism of the department department should be given some time to collect the facts and make a considered judgment and internal investigations people rightly suspicious of them because sometimes they do sweep things under the rug but other times they're very helpful it's always better if the department assumes responsibility look into something if police offices just say oh well it's futile but they don't go up the chain of command when a particular incident is involved here as i understand it is undisputed he did not go up the chain of command is that right yes your honor that is correct and so i'm just puzzled as to how the internal investigation can press can proceed if somebody doesn't help in cooperating in giving the sheriff the kind of information to allow the sheriff to make some kind of considered judgment this this could happen on a very wide scale where internal investigations of all of all kinds are interrupted in midstream by someone saying well i have a different view and then yes you start e nobody's interested in hushing up criticism of the police the sheriff's office was not given an opportunity to bring the investigation into any sort of conclusion and instead wound up having to chase down you know these wild wild apprehension of disruption and balancing the interests pretty well i would again reiterate that the information that the plaintiff had was was very limited and he knew at the time that he went and spoke sled was investigating this death and didn't give didn't give the investigation any time to develop and most importantly as we've said he didn't he didn't run his concerns up the chain of command  certainly can rule on you know any ground that it appears in the record and i would argue that that i think it's clear that there is no st amendment violation but but if the court w to disagree as in it was certainly be a case where qualified immunity would lie because under the doctrine of qualified immunity we don't nd guess officials for bad guesses in unique cases  some facts that i want to clarify mr billy only did not lie repeatedly he lied once and he corrected it within a matter of hours to the extent that that matters and mr george full of your questions i did confirm that other correctional officers tell their wives including this year told his wife i'm glad you had wilson brought across mr billy only did not attack the department he told his wife who is a member of the who work for the press about a video involving an inmate in the facility where he worked it was his least intrusive as it could possibly be when he says there's a video of this if you  check it out and to say that he doesn't have personal knowledge i think that's just wrong but if you look at the concurring opinion which is very well read and i agree in kraut it says is clearly  established law and service that leads officers may speak about a department's efforts to cover up an incident of excessive force and i know mr johnson doesn't agree with me that it was an attempt to cover up and there was a lie but you have to remember you have to it in the light most favorable to mr billy only at this point i also have but if if if your fear is is covering up it would seem to me that having somebody go up the chain of command attics and explaining st to the sheriff everything they note and explaining any reservations about a different account of the incident or whatever other words having having someone go initially only  initial matter up the chain of command in law and laying bare this comes cern's st internally that's the very opposite of covering something up that's that's trying to make information and and so you lose a two step process here isn't there one you try out of make sure that the police department when it or  sheriff's office when it finally makes a judgment has a full array of information at its command that's the opposite of covering up something and then if you're still dissatisfied then at that point  you can go public with it but it's just you know concepts of exhaustion of administrative revenues or just exhaustion generally this is not better but that doesn't mean he's required to do so i don't know how a person is supposed to know when you turn and that's a geisha is completed especially when the spokes person from the sheriff's department says what he said but with respect to the cover up i have to make one thing clear when we want to talk about how people could have done things differently why doesn't the sheriff turn over the video now if you want to talk about evidence of a cover up and we know that not only is and i'm sorry in language favorable mr bill yoni trip fares is  i can watch that video and think otherwise and then he refused to turn over the video now he's also did everything appropriate and everything perfectly why not let the world see the video why not there's no reason not turn over that video if it's go exonerate his people and his department and that the voting public of your county will know how he runs his institution better than turn over that video and he doesn't do it to this day