i agree with you so something or setting in snyder and while it's private speech it's constitutionally protected on the rank inversed mcpherson with regard to the pickering defense it's plain that this is premature on the pleadings milt's are set forth the standards the application in situations of the pickering defense here they're certainly insufficient showing that this private speech delivered in the form that it was would never have been known to school authorities that certainly comparable to the speech had nothing to do with the discharge of job duties was meltzer speech was about him being a pedophile and a teacher and his proclivity not to want to report sexual misconduct to to others because he didn't believe it was sexual delegation to the principal decision makers brian on the one hand and school superintendent hochman and on the other and those delegations are sufficient and depend back our make out liability with regard to the fourth and fourteenth acts to come to a conclusion as to whether they are protected acts or not i think that only flies in the face of snow and many other decisions which they that's not these are views he's expressing about the nation  homicidal notions that people use matters of speech every day i'd like to kill someone that has absolutely nothing to do with disqualifying the speech in my view the first member protection we can text courts characterization of the speech as delusional we have to be very careful about you see if he was a communist and you view his views as a communist as delusional in other words we don't believe a state will ever guarantee as communists believe we think that's a delusional way of thinking and we have a hundred years of experience now which says it's delusion and we're capitalists that has nothing to do with his right to engage in that speech privately and i depict the ring there has to be some demonstration  pedophile case you have an individual who believes that it's ok to engage in sexual contact with young children and since he would not report another person doing that a school district can make a reasonable argument that having a person with that mentality forgetting that whether he's ever even expressed that mentality is some sort of a threat you can't say the same thing about my client it's impossible because if you have a litmus test we're going back to the one nine hundred fifty s the supreme court got rid of those morning your honor so my name is richard cass i represent the bedford central school district from the school districts point of view the key issue here is causality that there is no causal chain even in the complaint even if you read the compl break that close chain so let's look at what happened january eighth the disco district finds out that he was making the statement the district didn't take any action at that point he remained employed he was still teaching for ten more days and even after ten more days the district didn't do anything what happened is that the police followed him home from school found that he was going to a gun store they stopped him they had a conversation this dispute what happened there but he was committed to a mental institution after that  almost two weeks history got nothing at all to do with any of the district still took no action while he was in the mental institution after he was in a mental institution the district one cent piece dr no saying ok now he's ok to district used its weight under section one thirteen of the new york education law to send him to a psychiatrist so we could find out what's going on to a neutral psychiatrist to get facts and it was very patient with how much time it took for mr howard to get his psychiatric examination number one had lied to the psychiatrist about many crucial facts and number two that as far as the psychiatrist can sell based on the examination has a very serious mental illness that's probably going to deteriorate very shortly so on the basis of that that's when the district took action and the district brought charges against them and even then of course there was no destroy it blood strict had to go to a neutral hearing officer under section medical witness on mr heller's side in that hearing and it was only after vets that mr heller was destroyed so there was no causal link between the speech and the district's action of discharging mr heller and we believe that that is really the key to this case and there are other issues as well and the case of course is right on point and has to do with position and situation that's really very similar to this one so i don't think that with regard to the district the court even needs to reach any of these other issues it's all based on causality but when it comes to the other issues of the pickering balancing is not premature you could say on the facts that are undisputed in the record that that if this information became public but mr heller was saying and words with friends and there's no reason to believe it could have stayed secret forever and given how  that but yes i suppose if if if if the district had lost three twenty eight hearing the point well ok well you're giving me an idea for a point that if the district had lost a thirty twenty eight hearing perhaps the district would have been obliged to tell the parents parents didn't know on their own a probably would have been a moral obligation by the district to inform parents that look we were forced to bring this guy back to school but here's what you should know about but in any event whether that's the case or not and of the pickering a balancing and i agree with mr sussman that it's a dangerous doctrine to decide what's delusional and what's not and i don't think this court needs to rely on that doctrine but under the pickering balancing test you need to balance the potential danger is claiming in this case that everyone would just but it said oh well you know we don't care that mr heller believes that he should be shooting guns out of the sky because the current hurricanes and blizzards and that martians are controlling everyone's minds and that the school was rested but still it's hard to believe that parents the students could have just sat by their as if everything was fine knowing that mr heller had these beliefs he said these things as buying guns at the same time that he was saying these things and tha school district and if you read the hearing of his decision you know what he's not a lawyer the hearing officer it's not the most elegant be crafted decision but one thing that's very clear about that hearing officers decision is that he seemed to believe may please the court steven stern for the town of pound ridge and chief david wright it's almost daily that i get an e mail or a text message from my children's school with a notification to all parents indicating that there's a suspicious vehicle at one school where there's  near another school and in today's day and age it is commonplace and schools err on the side of caution in making sure that honour's this was the situation where and whether or not there was actually an actual danger posed by this individual it was certainly objective no your honor he was brought here he did consent i understand mr sussman makes the argument that it was a compelled concern but there is actual testimony from mr heller in this record at how easy it was to get what he said he sa to get checked at the hospital this is not a situation where an individual is speaking out about of about wrongdoing by the government this is this is speech that's reflect of not only delusion but dangerous delusional thoughts at the beginning early december mr heller buys a gun for the first time in the middle of december he buys  twenty seventh he's stealing in anger because the when the snow and hurricane sandy were created artificially he's angry he says he wants to kill people because the people behind it are evil he says to  this friend of his on on the scrabble game that he could give her a list of all the people who deserved to die he says someone could just shoot down the planes that spray chemicals through the through the sky and he talks about the shooters in these these tragedies being contract and to do do this as assets to the government but he really talks about it when he gets into it that this is really their minds being controlled or the government being controlled by aliens from outer space outer space  he talks about personally having to deprogram himself because apparently v l ians are controlling his mind and then when he discusses somebody making a list to remove them from power and she asks whether he would be the person to make that list he tells her it's not a wise topic of conversation it becomes a face it was imperative losing comment upon the law enforcement officers to make sure that this didn't end in another tragedy and whether or not he posed an actual danger and was really going to carry through with these things that's not the standard for probable cause  cause but even taking the lower standard and as your honour's know the fight immunity analysis is to be decided at the earliest possible opportunity there was at a minimum arguable probable cause  the entitlement of law enforcement officers to qualified immunity and narrow the degree of specificity with which taking mr heller to the hospital would be a violation of his constitutional rights the standard under substantive due process is a lower standard even under the fourth amendment and i submit that given the record and it's a record that your honor that the judge forrest considered because it was incorporated into the complaint by reference you consider that in connection with the complaint  for could easily and should easily conclude that the district court was correct that this was not conscience shocking to detain this individual to make sure that he was others and argues that mr heller was engaging in urban hyperbole is obvious an intentional exaggeration this was not exaggeration speech that was indicative of mental illness this was speech that was arguably dangerous and this was speech as a result that constituted a true threat in the cases that be able to read right now this person's right there smoking that's a goal but in this case there was a far right there was a may not have been directed at a specific individual but it was a threat i mean the sandy hook shooter may not have spoken that he was going to directly threaten a particular individual or school but might that is the question that a shooter was crazy and dangerous the question is with what there is here that amounts to a true threat under the the definition that we taking precautions to make sure that an individual present bringing an edge of the charges against an individual to give him due process to prove whether or not he is fits returned to duty in a criminal case you're talking about punishing somebody criminally for their speech this is not punishment we're talking about this is to preserve the safety and security of a in the school setting there's a lot to say so i try to be fast first of all the district here was in this from the very beginning council gets up and says they weren't that's not true what happened is very clear there were meeting between it's a small set forth in our complaint there were meetings between the police chief discussed a qualified immunity also the f b i mr hockey in the schools and at those meetings the f b i was asked to do an arrest the state police were also there arrest this one version of events the other version of events is that the police chief what your clients were to the police chief stated to mr hell you're either going with me before that where you're going anyway that was the context there were ninety lease officers in his room that was the context we're dealing so it was a highly course of situation but i'm trying to get to the point before that which is qualified immunity here the reasoning the basis you heard earlier that there was at least a ten day  offering under section thirty respectfully not true they didn't do one thing this is what half the school district got a report from the facility which everyone agreed he would go to for the psychiatric evaluation he goes with psychiatric evaluation he spends center the doctor in charge of the unit after the panel meant to clear him sends a letter saying he's fit to resume work they don't except that they don't contact the doctor and in most critically and no way in the world we were letting that man back into school whether he was cleared or not and the reason for that was the content of his speech and the fact that he purchased guns with which to lawful activities that's at the heart of the case and that's why the complaint it is perfectly plausible given what happened here to understand the school district from the very beginning has never going to allow ella back into that building and the reason for that is not is mentally unfit as you see was clear  right wing views which is you know i don't after they don't trust the government and they have got it and it teaches some of them and their accountants and their lawyers and the doctors and they're all over our society and one of the persons frankly is running for president is running based on their anger and we can't have a society i don't agree with any of i don't agree i don't think we should have guns in our society frankly we do i don't agree with any of their rhetoric but the facts i was just there and i'm trying to answer you because i think it's an important question i think it's the reason this case is so  teaching that day he was a perfectly right now but i mean it's important to get the picture he's a perfectly rational person who has views maybe he has views he says he explained that he explores a lot of you so he explores a lot of things which is