trial on her claim that the county deprived her of a property interest by engaging in alleged in allegedly pretextual reduction in force the district court has ruled that she can proceed to trial on her claim that she was denied her property interest in being reinstate this is not an appeal of those issues this is an appeal of the district court's denial of qualified immunity to the individual defendants its an appeal of the denial of the individual attendance motion to dismiss the personal liability claims we're to where he started and judged this question if we are to determine that they aren't titled qualified immunity what are the remaining claims the remaining claims are that the county deny the plaintiff of the property interesting continued employment by engaging in a pretextual riff reduction in force and that the county denied plaintiff her property interest in being rehired is really the remaining defendant exactly qualified immunity is granted the claim proceeds only against the county the personal liability claims are off the table but the claims against the county proceed ken ken claims against the county in this case possibly succeed  if there are no claims against the individuals well under the district court's ruling yes i don't agree with everything the judge court's ruling but the district court said that those claims can go to trial and theoretically depending on the instruction spending on the evidence there could be a verdict against the county in which case the county would have a right to appeal the legal rulings of the district court which led to that verdict what is the case that you would cite to us that most clearly satisfies the the second prong of qualified immunity or in other words to show that this right was clearly established and that each of these individuals should have clearly known when they acted that they were violating a clear constitutional right my position is that there was the ball was not clear and that they should not include we know that they were violating any constitutional right i'm representing the individual defendants and keep their two cases i think that are really a political here first is crawford vs ratana or britain is the u s supreme court case in which the supreme court held and i'm trying to quote precisely a defense of qualified immunity may not be rebutted by evidence that the defendants conduct was malicious or otherwise improperly motivated evidence concerning the defendant's objective intent is simply irrelevant to that defense and that's the case the plaintiff is trying to make here they are the pla is trying to say that the defendant subjective defense the individual's defendant's objective intent was to terminate the plaintiff in retaliation for the bats in the belfry email and that's where the magistrate judge said it was not willing to go that far yet if yes measure a judge did say that and i can understand his ruling as to the claims against the county but under the crawford case you got to take subjective intent completely out of the equation qualified immunity so you can't consider the alleged subjective intent to engage in protection already when deciding whether the individual defendants are entitled to qualified immunity whether the individual defendants are entitled to qualified immunity is an objective determination based on the undisputed facts which existed at the time of the rift those facts do you believe we should then reverse the district court on the basis that there was no clear established law yes and there's another key point in addition to the crawford case i've cited that's alan vs city of beverly hills alan involved in allegedly pretextual ref just like this case involves and allegedly the plaintiff allen claim that he was not really a rift instead he was let go because he opposed alleged illegal conduct by the city and the court in that case said given the broad discretion vested in the city in the context of a ref he didn't even have a property interest in continued employment if you look at the employee handbook in this case the discretion vested in the county officials was at least as broad as the discretion vested in city officials in the allen case so given that the allen case exists given that in the alex allen case the court held night circuit help that there was not a property interest in the context of an allegedly a rule either in the alternative or to pick a problem that qualified immunity if we were to determine there was no established law that would lead to the district court to determine whether in fact the the county there had been a constitutional violation correct yes is there a doubt about whether we have jurisdiction for have for this and that walk you tory appeal it looked to me as though the magistrate judge not really focus on qualified immunity and it's not clear whether he ruled on it but to me the way i read the opinion it is clear that he ruled that the individual defendants w decision and so you must construe the facts the light most favorable to the plaintiff you must assume her version of the facts are true to the extent they are supported by the record but my point is that even when you follow that standard even when you assume the facts plaintiff sets forth are true the defense are entitled to qualified immunity because the law on that pretextual rest claim was not clear under the allen case the law is not clear you may not like the allen case you distinguish or believe it should be distinguished from this case you may want to overturn the allen vs beverly hills case but the fact we can't do that anyway but the fact is the allen case is out there given that the allen cases out there a case which involved in allegedly pretextual rift and the court held that there was no property interest no right to pre or post deprivation process the law was not clearly established you know reserve your remaining time sure these or the starting point for the analysis of this case is the assumption that the defendants deliberately targeted the playin their term a nation and they did so deliberately and in a mean mean spirited way tried to make the terminations look like a legitimate reduction in force and this caused significant consequences to the playing of it caused her to lose her government employment benefit and when you're over sixty years old and you live a county idaho which the population is ten thousand people in this the county seat populations one hundred fifty there are very few jobs available that provide for a government retirement and points out is very close on the facts that's one of our cases how how can you say that the law in this issue was clear and that each of the defendants who allegedly did what you knew for certain what they were doing was a violation of your client's constitutional rights well i disagree that allen supports the defendant's claim ellen was a twelve b six motion  and along cited by district judge bush in his opinion and these cases stand for the idea that you can not subvert employee's right to d process by hiding the terminations you know ralph otherwise this judge bush pointed out footnote for in his opinion otherwise you swallow up the whole right well let's say or let's say you're right the reality is we have this case law we've got allan we ships and versus hanif and we've got crawford that suggests that the opposite is true if that's the case even if what you say about these other two cases is correct it shows there is confusion or at least a disagreement in our case law about the proposition that you are articulate if that's the case how can the second prong of sosie a be satisfied you know i don't see where there is really a disagreement if you step back from it and i mean you either agree with judge bush or you don't that if you that if you allow if you allow government employees to do this the no one has a protected property interesting can always hide it in a really good that's the that may be the ultimate answer that there could be a constitutional violation but at this stage it's not one that was clearly established so you know that's sort of the win the battle of the war proposition but that's what qualified immunity dunston well well i don't know what more to say i think you need to read levine which you know is cited by the defendants ironically in their very loving was a civil service case  defendant and i would concede that the defendant in question in levine all he did was deferred another official to ensure that due process was provided this is a layoff case come if i have something right here i found the case a little confusing i guess partly because the magistrate judge did not discuss qualified immunity is the basis for his decision  if we were verse i don't understand quite why that means you lose it looks like you just go back with a case against the municipality for wrongful termination  and the only difference is that the individuals are not exposed to judgment for money damages for constitutional violation do i have that right i think so that's what everybody in the case  say it seems it seems like you have a really hard row to hoe on the constitutional violation because of the absence of a clear violation of law and there are just and when you do have a hard row to hoe because of difficulty showing a clear violation of a stablished law that means there is qualified immunity but i don't understand why it matters that much here well it matters not have enough money to pay a judgment if it loses look at it it matters because government officials who do this should be forced to stand up and and sell it to a jury that's number one all right well you get you get a chance to do that in the wrongful termination case saying she had a right to or a reinstatement and the county did not really perform its assumed duties under the employment manual and whatever other property or contractual rights she has you can still do that what i don't city is where there's no clear concept of constitutional violation by the individuals what they're doing in the case well they can they can be wrong they can be in violation of their duties under the manual and i'm a contract but still not be violating the constitution and  qualified immunity has it's place i don't understand why it's appropriate for this case because the defendants are still going to have to go through the same burdens of litigation but professor you must advocate for this in your classrooms you may not present at teaching on this aspect and it's within that professor subject matter it's legitimate scholarly differences of opinion at that that kind of personnel case might come up as a constitutional case a magine or if some students disciplined for expressing an opinion that the university administration disagrees with that might come up i don't understand what the constitutional claim of this lady is well let me try to explain it or goes all the way back to lauder male if you have a protected interest in your employment which she clearly did if they had allege some cause sending the bad e mail clearly she would have had a right to a hearing they didn't want to give her a herring because they had no basis to terminate her for cause instead it wasn't just a mistake here this is deliberate this is your flawed she was fired for the bat's the e mail and that's clearly a matter of informing the public on a matter of public concern well yeah judge bush didn't agree it was a first amendment you know protected speech issue but that's behind behind us now but that's what's it's the difference i'm trying to qualify to mint immunity is designed to protect officials who make a reasonable mistake this is much more than a reasonable mistake this is a target in this is malicious  and for any court to sanction this i'm having trouble with that idea because you're going to end up exactly where judge bush stated in footnote four you swallow up the whole right to property now this qualified immunity issue comes up late in the day it comes up in a reply brief on motion for summary judgment it wasn't seriously pursued well but if it's here now is here now what does that tell you and if you look at louder milingo on all the way down for decades now employs have a right to due process if they have a cost based  relationship shrewder did that was deprived that was deprived by this conspiracy to hide at all and to avoid due process with this phony in pretextual and in response to just like to emphasize again that qualified immunity is an objective inquiry under the crawford case the defendant's alleged subjective intent doesn't matter if we look at the facts objectively so this alleged dire qualified immunity was raised below was then released in the with it raised by a separate motion was it raised by the memorandum in chief on the motion for summary judgment house how and when was it raised there was one motion for s can i ask you a question downfall of about the second part of this case and that is the rehire correct your posting counsel cites the case of fluky versus town of camden from the first circuit to the effect that in the town  r was and was entitled a priority rehiring which arguably was the case in this situation was constitutionally entitled to notice when a new position became available is that distinguishable and if so why it's certainly distinguishable the we have conflicting language in the handbook in this case we have a i'm a hiring repeat may have a hiring preference and there's a shall have a preference for one year we have a conflicting ambiguous employee handbook we also have a provision which says rehiring show apply only in the case of workforce rebuilding which is nowhere defined in the handbook what has worked for us rebuilding is it is it reinstating the same position that was rift is it adding to the workforce as a whole is it hiring people in different departments altogether is it just filling vacancies so we have a very ambiguous employee handbook in this case and we have a term workforce rebuilding which was not to find anywhere which is not defined in any precedent there's no clearly established law that this was in fact workforce rebuilding you should look lee was two years after this case right yes so it would be hard to be clearly established law  the case just argued shooter versus bambery in this submitted thank you both for coming from idaho