established right under the first amendment to speak on the sergeant's misuse of the ija justice computer system and the second issue is whether the plaintiff articulated a cause of action for a family association discrimination i'll get to that after i talk about the first amendment yeah but isn't there a question as to whether mr werman this report that the abuse of the e justice system  in this court has said repeatedly that there will always be some personal motive when somebody speaks on a matter of public concern but that doesn't predominate the issue the main question is whether objectively the plaintiff still spoke on any matter of concern to the public and tell us anything about whether an officer in this department has an obligation to make to sit here here's what is actually or perceived to be use or abuse of taxpayer funded resources no that's sort of the guard study question whether it was planned its job that issue does not appear that somebody in law enforcement would have as those of us who hold public trust have a particular obligation to speak out as a part of our job obligations on something on a on this misuse or expenditure of resources that the person has no have a fellow officer has no business using let me answer the couple of responses to that number one i don't think that issue was developed in discovery so far as i can tell about the precise nature of plaintiffs duties and what he was supposed to do and if you would agree that if it was his duty you wouldn't be here right correct ok but i don't see anything on the record with dealing with the plaintiffs job responsibilities of these patches celie was a senior officer the question would prefer if the answer to your question is yes then when would a police officer have a first amendment right to discuss anything going on in the police department well perhaps that's what one takes on that is the not the abrogation the loss of that right about problems and had a problems in the part like matthews and jackal or so i guess my point is that that could be an issue that could be developed on remand because i don't see anything in the reg was it just the misuse of funds in other words asking the police officer to run the certified people are allowed to use and this violation was serious enough that patches celie was suspended and he was he was a reasonable judgments question which is is there something more to it than just having a police officer do private work for check for a person that's what he did but why was it wrong to do it because it's an abuse of the system he was doing if a personal reasons he wasn't doing it for a legitimate law enforcement purpose he did it because his ex girlfriend was dating somebody that patrick helly didn't like nature of the misdemeanor conviction it was a it was described as a computer crime that he pled guilty to so that privacy breach it's a privacy breach would be of interest to the public because it's  misconduct and waiting to a police department and this court has been holding since i think the ninety's or even the eighty's that's abusive practices by law enforcement agencies do represent of public concern and this case falls squarely within that it doesn't sound that remarkable to me what the district court did was it took two cases jacqueline nagel and it compared our case to those two and it said this case  closer to natal but this case is nothing like naval and naval it wasn't a police department and it was a signature forgery that nobody would care about because it didn't affect anybody and who cares that a teacher's evaluation was signed by somebody else and i'm not saying it's quite like jack either because it's not a police beating but you don't need a police beating to engage in protected speech when you're working for a police department the question is is this to involve abusive practices or misconduct by law enforcement agency and considering patches so he pled guilty to a crime i would say the answer to that is yes and that's a law is clearly established and that's the long and short of it on the first amendment claim it's not much more complicated than that i saw it's been an officer does have an obligation geisha and i realize it was argued  but maybe it needs to go back to the further development officer does have an obligation to report a crime or to ferret out and report a crime and obviously that's what happened here so right obviously what he reported as you've so well explained what turned out to be a crime which the perpetrator pled guilty to right correct ok so we've got a police officer reporting on something that is a crime that's what cops do as part of their job and thank happens they do that and he was essentially doing his job as a police officer reporting a crime which also happens to be a matter of public interest of course it does but every time an officer reports a crime out here  spoke up about misconduct in the department and it was found to be citizen speech you know it's i understand easy i understand the question it wasn't developed i don't see anything in the record on  and i don't think the garci issue was really fully developed on appeal so to that extent it's weighed so for now the question the very narrow question is was it clearly established that he spoke on a matter of public concern i think the answer is yes of course what he spoke on was the fact that he had seen you a few police department and run a background check on a person who turned out who was in the neighborhood internet to be the hillside burglar that sounds to me a lot like what police do nabi should do except for the overlay of these personal relationships because patrick said he was doing it for purely personal reasons you can't abuse police department's computer infrastructure simply because you don't like it's somebody on the street and you want to get back at them and you're nosy and you want to know what's going on in their life that's not the purpose of each as a system that might be an argument pacha cell you can raise a trial supposing i suppose you know well i was just being a good citizen but the response is you had no authorization even used program in the first place and it was for strictly personal reasons i think he admitted to that well you pointed out earlier that the  gorman reported it arguably according to defendant's for personal reasons i would say no he did it because it was wrong but the question of whether gorman was soley motivated by personal reasons to report to misconduct is for the jury is this court has said and suits some other cases there's always going to be some personal motive when it you know the public employee speaks up on a matter of public concern it doesn't mean he has no case who speaks purely at a matter of complete public spiritedness some people do but we see cases where it's not one hundred percent and they department essentially there are two issues in the case the first issue is whether plaintive corpsman spoke as a citizen on a matter of public concern and the supreme court has said in pickering that a matter of public concern is something of public importance and we submit that what was done in this case with respect to the aegis system is not a matter of public appearance prosecuted well he was prosecuted but there was no there is no crime and as we said in our brief there is no crime in and on the reply brief no one is able to point to a law that says it's a crime to use the e justice testim it's against workplace rules you can be a public whistleblower without reporting an abuse that is a crime it's a crime that that sort of suggest strongly that there's a and he also had a claim against him because he called mr gorman on february fifteenth and he threatened to break gorman's job was that so and he pled guilty to the misuse of a computer the computer that's true but the reason that he settled the case with the prosecution was that he had two different claims against him one a rose out of this each justice issue there was no crime for that the other issue when he called gorman and he threatened to break his job so in the town of scout a co he had been charged criminally there was order protection against him for threatening borman and that case was consolidated with the e justice case those two criminal cases were pled out for the misdemeanor misuse of a computer while my client was trying to get custody of his child with warm don't understand the misuse of the computer is is the use of the is directing somebody to use it to abuse the each asked if he didn't hit somebody over the head with his computer he compromised the two claims for that misdemeanor he never used the computer himself there is no specific crime for use in the e justice system there's no difference between using the e justice system and taking the sheriff's car and going on vacation with it crime but it's against workplace rules just like driving the sheriff's car out on your weeklong vacation can't do that either that's against marketplace for no position that it has to be a crime in order to be a matter of public interest well you know we were talking about that we wouldn't go that far i think our position would be is what happened in this case is no different than stealing pencils from the sheriff's a park or taking the sheriff's car out to buy groceries taxpayer in a small town which i am i would be interested in whether my constable which is what we've got i way of law enforcement taking property that the town taxpayers are paid for and i don't care what it is i mean as you know also be interested in somebody would he do with the computer would he do hit somebody with it or was it the justice system he compromised the assault claim and the ija justice claim all together so if you review the record on appeal it's not that simple it's not that he got charged with two felonies and it was pled down to a misdemeanor just for the justice no what happened was the two cases were consolidated the thomas catacomb and the city of troy they were put together he compromised them down to that mr million a year are you in the jury trial is needed to get to the bottom of this i don't think so judge as i said he was convicted of abusing a computer so and you're saying that really is not the  which he pled guilty even that's the offense for which he pled guilty and all of this is becoming very you know you really getting mired in in facts and you're conceding in implicitly that the immaterial of it the facts are undisputed he did ask someone else to go and look up peter cullen tonio publicly available records i want my lots and when dr faced with the number of charges he and his attorney decided he would plead guilty to having misused a computer which was exactly what you just described that's correct and right and so we were then if those are undisputed facts it was it's not as simple as as that he pled to that that's not in dispute it's also not in dispute but you're saying but but the facts are all wishy washy and he chose a lesser which obviously some smart well here's what happened the e justice system you could go on to w w w dot want check dot com w w w dot arrest warrant dot au r g a public website arrest warrant records dot com all the warrants dot com this is all publicly available information anybody can do it on their home computer the fact that he used the justice system he shouldn't do that he should order as christmas gifts on amazon on this and the company computer either those are workplace issues minor workplace issues minutes for twenty nine dollars or stand american elections though that that was prohibited by law enforcement you couldn't use that for your own personal purposes and everybody knew it right now namely my runabout no the same way that you can't use the sheriff's car to go on vacation that's why it's not a matter of public concern it's just simply not important enough sir my sheriff was was letting his car be used for her car use so some one of his deputies could go on vacation that's true which you shouldn't do that and it's a workplace violation for which you should be punished their concern that it's my dollars that are paying for that car and probably that gas and i don't want some officer out using it when she's not on duty running radar or whatever but it doesn't rise to the level that this court has found previously where there's a moral misconduct we're not precluded from from saying this is a matter of public concern or is there a case that says this is not a matter of public and it be inconsistent with the court's prior decisions because it doesn't rise to the level of what we've said previously right it's the same thing as stealing pencils from the sheriff's department shouldn't do it it's a violation of workplace rules but it is not the only of pencils really does not involve the invasion of privacy i mean he looked up this person's record and found that his former girlfriend is now cohabiting with the hillside burglar but it couldn't be he could have been he found out that this is perfectly an upstanding fellow who's a car mechanic and i would submit your honor there is no right to of public interest i think that you would have feeling a pencil's the abuse of a computer for your personal transactions or to look up dirt on the person whose cohabiting with your former girlfriend which is the case we have when we go to find that if the if the report is an internal workplace report of a petty kind that it is not of public interest why it's important i think the prior decisions of this court have looked at whether or not there are widespread abuses i would look at the quantity of what happened if somebody stole something significantly more than pencils and does old hundred thousand dollars or took evidence from the evidence room cocaine and sold it on the street those kinds of things result real  misconduct which has a large impact on the public that would be something of public concern not something that's just an every day vanilla workplace violation which happens every day that you go you correct that is it wrong for to me to infer that the conduct essentially was oh this is just a public records instead it say i'm upset with my former girlfriend  ex girlfriend because she has left me and i'm going to i'm going to figure out who she's hanging out with which seems to me certainly in today's climate having developed over the past three months or two months or whatever it is probably something that the public has a concern about the that question's presupposes the kind of thing that was argued by the plaintiff in their brief that  setting out to figure out who the hillside burglar was it was setting out to check on his ex girlfriends current boyfriend and he was worried that if his son was in the car with a hillside burglar and he got stopped he would run and then get into a high speed thing and his his kid was in the car with me didn't like that and that came out during the testimony but he could have simply gone to his home computer to w w w out more check dot com instead of doing that he used the company computer sister to control and therefore she who didn't seem to mind cohabiting with the hillside burglar got angry with her  and very recently in twenty fourteen and sharp versus city of new york five sixty federal appendix seventy eight twenty fourteen case the court kind of reviewed the decisions in the circuit and said that we have not decided whether a plaintiff most allege that a state actor intended to interfere with an intimate association to state a claim most of the circuit and the district courts within this circuit have found that intent to interfere is a necessary part of an intimate as it is just as it could split the barn if the circuits that's on that is correct and  the court went on to say that didn't we don't have to decide in this shark case whether or not we have to decide it here i don't think so i don't think so there isn't enough it's not a what you did in sharp was you said this is not a plausible claim we don't have to go that far you think it's not over there with pencils and over here it's it's not enough for another reason but i don't i don't know where we get to these thresholds at bottom what happened in this case is mr gorman tattletale anthony patra celie and a pepsi he was mad about that and the two of them allegedly had some sort of conflict at work i don't think that's what james madison had in mind when he wrote the first member in this case just doesn't rise to constitutional dimension and that's it's not enough it's it's basically a little workplace dispute between two people over in looking at all of the district court cases and some of the other circuits that the intent to interfere and to the requirement that you burden the association that wasn't shown in this case so  you judge jacobs asked where do we find where do we look to see if this speech is a matter of public concern and lane v franks the supreme court said speech is a matter of public concern when it is of subject of legitimate news interest as judge paul said an issue like this in a small town would certainly be on the front page of a local newspaper if the newspaper found out about it police officer you know spies with the town is small enough then and something finds its way into even a mid size newspaper little town in the with a report when there's a squirrel in a post but even a mid sized newspaper you're a privacy breach of privacy breach right with that somebody is abusing the computer in this day and age we're all worried about computer breaches privacy where does this officer get off snooping around on somebody he has no business looking into it cept for personal reasons that's an abuse of police authority it's not the same as going on to amazon from a company computer because there's no privacy problem you know intruding on anybody's privacy concerns it's not comparable to stealing pencils it's comparable to takes like the only news interest here is that he was he was checking in to have a warrant for burglary well that's one angle but the other angle is the news interests is that it's an abuse of public acquit meant it's a privacy breach by a public official by a police officer i don't want to be living in a community where the police officer that's the angle if it was joe smith working in the housing department i don't know but a police officer is different because we all worry about privacy breaches in this day and age  familial association adler is really the place to look it's really the only case published case this court really addressed the contours of a claim whiteness and it doesn't say anything about intruding intentionally intruding on the family relationship it just doesn't add it was a straight retaliation but several circus have said that that's that that's a component or even an element and if that is sound and why would there be qualified immunity because our circuit we haven't said anything but the holding in adler rejects that analysis because in adler it was simply vindictive retaliation because we don't like your wife and we're going to retaliate against you and that was it nothing about intruding on the relationship or ending the marriage so if the eighth circuit says one thing but the second circuit has impliedly or strongly rejected that analysis then we go by what the second circuit does and in adler you know you have patter selly is threatening violence against this guy for interfering with his personal relationship that's retaliation because of plaintiff's relationship with his sister and there is evidence that he did interfere with the relationship i think plaintiff testified that the relationship with his sister deteriorated they don't talk anymore and patter so he drove them apart you know again it sounds like a fact issue what was pacha celie's intent when he made these physical threats right which led to a workplace violence and you know this whole argument sounds like summary judgment  summation at trial but did somebody intend to do what was the motive what really happened that's not a basis for summary judgment what do you say to the impression that what's going on here is  some fairly ugly family disputes that is simply being we cast in terms of constitutional issues because they are constitutional issues it began as a personal dispute but it turned into a constitutional issue did it ever stop being  and that's something for the jury the plaintiff is going to say look i don't like to see people abusing the public trustee abusing the public's computers and you know it started out as a dispute but i blow the whistle because i'm a public spirited police officer and who cares how it originated look what happened he violated the public trust and that's all that matters and he pled guilty to a computer crime so it was not a frivolous act of speech by the plaintiff thank you