appealing because there was a denial of summary judgment correct correct so we have very limited jurisdiction here our jurisdiction to this is to see if we take the facts as the plaintiffs would like us to take the facts should qualified in making that analysis don't we take the facts as the plaintiffs would like us to have them because otherwise i don't see how we have jurisdiction to take this appeal this is again this is denial summary judgment correct right now to deny the motion to dismi reaction to their saying that two thousand and eight article that was written by mr addison the little twist to the case is that some of the adverse action contended speech so we ha this interplay between the first amendment speech right of the chief that goes that makes into account any adverse reaction of the first amendment so so so basically we have two situations with the speech we know what the standard is set for that we set forth in bill again and we know what the standard where public officials allege retaliation is in the nature of speech in the a coersion or intimidation intimidating that punishment sanctions or adverse regulatory action will immediately follow the regular rules of defamation do not apply and even if those the speech does not  imply punishment or saying sions or adverse reaction or taking away a federal benefit or a state benefit even if the statements are false that is not enough to  and the case is referred to it as a high bar they always say there's a high bar when you have a speech being contended as a retaliation i think a case that's interesting to look at is the way he versus hill and that cited in our brief it was a two thousand seven hundred case it is a district court case but what makes that case interesting is it was an investigative reporter who was in a conflict with the mr hill who was a supervisor for the city of san those as though and if you take a look at what hill did in that case you know he basically made threats against her said she was mentally ill and he did he went on this campaign against her and they contended retaliation for things that she said about him he threatened people that she went on talk shows and even went to her advertisers she was a new not allege that defendant threatened use any punishment saying sions or ebers regulatory action and the court found that they didn't reach the high bar there that's necessary so we think that the standards easy there are two many boards together he had a conversation with her about background checks he told her they didn't get information on anybody from public records at the sheriff's department he said that there is had been an incident with a prior employer and mr addison that did not go well and he said mr addison had mood swings it's our position that none of that raises to the level of the high bar necessary the second conversation actually was the first conversation was with carr mcquiston carry my question was the current employer at the time the comments of mr addison now what had happened back in two thousand and eight and you can see it in the incident report from the fact file addison had been terminated by the record courier and he lost it he called him names he threw him broke a camera against the wall and several incidences and at that time could carry kristie was also an employee of record happened at the traffic stop she at that time explained to the chief that she would watch mistress and cycle through emotionally after she received the information from chief mourner she continued to hire mr  hatice and then quit her employment and went to were printed erections after new directions fired fired him he went back to work for kerry mcchrystal so our position is that this speech does not reach the high level the second to ones  more of a physical accusation of adverse reaction so the plaintiff is contending the plaintiff was dark was two thousand and eight the plaintiff was stopped twice in two thousand and ten i think three or four times in two thousand and thirteen and one time in two thousand and fourteen traffic stops they contend that the traffic stops were part of the retaliation for the two thousand and eight newspaper article only one of the traffic stops took place within the statute of traffic stop of the plane to the third one is the so called fact file there is baker county dispatcher records and this is the baker county sheriff's department keeps records of stops of traffic  fractions of incidents that happen and record in this fact dispatch memo says stuff from a search from the officers as they're in the field so the player said we retaliated against him by providing the fact file to the plaintiff i mean two new directions we did not provide the fact two directions if you look in the heading of the fact file it's by the baker county sheriff's department they run the dispatch the consul and let me just jump in again to get back to the question i asked at the beginning because as i understand it this was the your appeal in the denial of summary judgment correct correct which means we have a very limited role in this case to take the facts i guess we can say as of this report found them and determine whether qualified immunity should have been granted and i disagree you think we can do more than that if the facts are undisputed for the let me let me just use the example in this case ok so we have the fact file that judge simon said maybe of delivered by the baker's that we can't we hold on we can't get into whether judge simon was correct to find certain facts or not we have to take the facts as he found them at this i'm not saying down the road you may not have other issues but for us to have jurisdiction in this case and there's a case of things called johnson versus john supreme court case that says we only have jurisdiction and i will summary judgment to review whether or not qualified immunity should have been granted that's it and we and we learn more than that you look at the undisputed facts right for example the fact that the district court took them you know the facts that aren't disputed ok if the judge makes an air of the judge if everybody will know we know we can't that we can't do you know but if the judge cases when they look at what the undisputed facts are i don't know any qualified immunity case that is not looked at what the what the facts are i've had i don't know how many qualified immunity cases i've had front of the circuit three four  five and we've always taken undisputed facts and if the fact is undisputed that is the one you evaluate ok so what are the undisputed facts in this case where do we look to the record to say ok here's the he or the undisputed facts on page  and we determine from that those facts whether qualified immunity should regret ok so let me just take the one where they were the judge said that the police department may have given new directions t undisputed the chief learner was not even at work that day but again what you're asking us to do as your ass is to say that judge simon got the facts wrong correct if you take the undisputed fact what you're asking us to dispute what judge simon did his conclusion as the fact that we can't do that we can't do that at this stage of the show me the cases we can do that for us to have jurisdiction normally look where you would agree that normally we do not have jurisdiction to review the nile summary judgment correct correct and the only reason why we've been here today is because you are asserting qualified immunity correct correct ok so where is the case that says when we're in this posture we can say yeah i know do judge simon said this despite fact was undisputed he's wrong and great thing to take the undisputed facts and i think if you take a look at any qualified immunity case and you can even take a look at the qualified to meet a case state versus harris supreme court united states where there is qualified immunity for a high speed pursuit case the supreme court said you cannot take an affidavit from a person that contradicts a video there is that one i will grant you there is that one case where the supreme court did it so so where is the high speed cam video in this case that we can do that with the fact so the standard of review here is circumscribed if you look at george v morris which is seven twenty four f third eleven ninety one which is a two thousand and thirteen case from the circuit and that case furthermore states that any decision by the district court that the parties evidence presents genuine issues of material fact is categorically unreviewable  so let's let's assume that i agree with you that that's what we should be doing here yes kind of walk us through why a qualified immunity should not be granted in this situation if we take the facts as judge simon took them certainly so to address what i think my colleague was referring to about sort of the speech versus speech issue which is what this court confronted in mulligan versus nichols i think a good way to illustrate it would be to explain how that could have played  this case but did not so as we discussed in the supplemental excerpts of record chief loner who by the way is no longer the police chief but chief loner had a call on in the same paper where mr addison wrote his editorial that was critical of the police and i asked chief lunar at his deposition did you write any kind of response to mr addison's call and he said no and i said is there any reason you couldn't have and he said not that i know of a paraphrasing slightly if what had happened in this case was that chief loner had responded to the editorial at that time by writing a column of his own attacking mr addison and saying he got this wrong his analysis is wrong his integrity as a journalist is fallible any of those things and he had written that in response to a public conversation about the police force and the baker city herald decided you know what chief loaners right maybe we should terminate him that would look like mulligan versus nichols the situation here was a six year long campaign of harassment and retaliation that culminated in our client being fired from two jobs there was no public conversation and i'll get to what mulligan versus nichols says about that  moment but there was no public conversation concerning mr addison that the chief loner was participating in rather what happened was a private conversation or actually it began with an e mail that she flown or sent to new directions mr addison's employer asking hey who does your background checks i see you have this new hire and he admitted in his deposition that the new hire was  and new directions writes back and says oh we do the typical d h s background checks why is there a problem is there something we should know and he said give me a call dot dot dot and then they spoke twice and then our client was fired and then our client was fired again by ms mcquiston newspaper that is different from a situation in which there is a public accusation against the los angeles police department in connection with an arrest which was the situation involving inverses nichols where the police exercise their own first amendment rights to speak out in their own defense against an ongoing controversy about their arrest of a fairly high profile individual who work for a bank and also work for a movie studio and this court under those circumstances now this goes to the high bar point that my colleague has referred to the court said retaliation claims involving government speech warrant a cautious approach by courts restricting the ability of government decision makers to engage in speech risks interfering with their ability to effectively perform their duties it also ignores the compelling the competing first amendment rights of the officials themselves the first amendment is intended to quote preserve an uninhibited marketplace of ideas in which truth will ultimately prevail and  that marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own that was this court's rationale for the high bar in that case but the court went on to say that there is no categorical approach to what is going to be adverse action be happy on the part of the government and the other cases that she flew in or cites concerning public statements or statements about plaintiffs who ultimately sue for section one thousand eight hundred three violations concerned in general statements released to the public at large so for example of the supreme court case that they cite on this point concerned the posting of this is paul versus davis the posting of essentially you know known shoplifters in a number of stores around the town and there are two reasons why the supreme court so that is not f is that was a general statement to the public it wasn't targeted at anyone in particular so for example it was not targeted to that plaintiff's employer contrary to the situation that we have in our case and  second the plaintiff couldn't demonstrate that he had actually suffered any harm from this all there was was an awkward conversation with his employer he wasn't terminated there was no particular adverse situation that he could point to now the strange thing about the adverse action component in the discussion of it versus nichols is that that doctrine stems from the public employment context which is where that term adverse action came from but as in the fritz case that we cited from the sixth circuit which was decided in two thousand and ten which in turn cited to a judge posner opinion from the seventh circuit he said well what we're really getting at is whether the action that's retaliatory would chill a person of ordinary firmness so while adverse action might make sense in the context of employment it might not make sense for example in the context of school related speech which this court address in o'brien versus welty which was the same year as milligan nichols and the court in that case formulated the test not so much as actually not even it's not so much but the but the court actually said it's not adverse action it's actions that would chill a person of ordinary firmness so that test that applies in our case and i have explanation i haven't found any for why in the same year this court characterized the test in two different ways but what i would offer is that the reason is mulligan b nichols involved police officers and the adverse action test seems to have been applied consistently in the police context whereas o'brian versus welty which was decided a few months before involved a school district which and that case in turn cited two other school related cases so it may be that the court should adopt a flexible approach to what is adverse in certain situations which is actually what the sixth  with the court like me to address the clearly established from me that for those cases you would point to cases like duran for edward correct correct that had been clearly established that the police cannot retaliate  and furthermore to the extent that hughes from this year the supreme court noted at page eleven fifty two that that specificity is especially important in the fourth amendment context we're talking about split second decisions that can evolve officer safety whether to arrest those kinds of situations here we do not have a situation like that we have a public official who in our view has undertaken a six year project of harassment in retaliation pulitzer which i guess is not as recent but in two thousand and two the supreme court said that officials can still be on notice that their conduct violates established law even in novel factual circumstances or you don't call up and imply i was or anything that governs any of these sorts of behaviors that occurred in this case almost like a code of conduct right now i'm considering it there's  no but there was a document considered below about which there's an issue of fact but the city manager disputed that a particular document was kind of diego police and there was actually the police department had a manual code of conduct where the things they said is you can wear your officer uniform in certain contexts and this person thank you to points there is a job description for the chief of police it's very detailed two pages long tells him he's a community partner he's to work with businessmen he's to keep them advised of everything that's a part of the the record and that's why this was within the scope of course of employment and that's why judge simon found that these everything he did was within the scope of course of his employment and under cover state law because he was complying with his job description now i'm going to a conditions let's take a look at what the judge simon found he said that he made changes he said that there would be something something happened with a prior employer that did not go well that does not rise to the high bar now remember paul versus davis is held a defamation case does not lie under section one hundred three even if it's falls so heat the judge ignored the high bar and went back down to straight defamation law that's