whether an official violated a constitutional right and whether that right was clearly established here with regard to the id and the interdisciplinary note the district court found that met her burden of showing that the law was the court than the district court judge hatter then shipped to the burden to the defendant to show that reasonable officials in their position would have believed their actions were lawful concluded that the defendants met their burden found qualified immunity applied and on partial summary judgment dismissed this aspect of the case this was  faulty analysis i saw c a a the u s supreme court explained the relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted we explained it in opening brief whether the law is clearly established encompasses the question of whether a reasonable official would have known that his or her acts were  were that you would have to show that a reasonable official would know that the plaintiff was not speaking as a public employee but as a private citizen i right that's right so you have you're a clinical social worker are these patients who writes various things what case establishes other than a high level of generality that ms granfer was speaking here such that a reasonable public official should have known that she was speaking as a private citizen given that the pattern however we are not required to come up with a you know analogous cases are sufficient because otherwise implying that sort of an analysis you would never you would always find that qualified immunity applies unless it cases on all fours but in the circumstances of this case you're looking at whether a reasonable defendant could have believed that these notes that were written by cranford fell within  supervisor noted that they were not part of grants for its duties friend also noted that once a person has been discharged from a facility these notes don't fall with  but certainly private citizens aren't able to engage in that form of speech are they so well that's what i mean you could have been talking speaking in our capacity as a private citizen because no private citizen would have been able to create that form of note and send it through the channels sure but that's going to be true for any whistleblower type situation i mean a person is exposed to certain information based upon their position and i mean just the fact that she was an employee at  and so i was saying if she goes outside and holds a press conference and reveals what it was she was trying to reveal in those notes obviously that's different about i'm saying the form of the speech that she engaged in writing up something that i don't know only a person employed at the hospital could could do and then sending it through the internal chain it seems to me that's definitely not the speech that a private citizen would and but i but i disagree with it your honor because st of all she may have come to this information because she was a percipient witness to a crime and a certain understanding of the circumstances but not because she could not because of the course and scope of her responsibilities as a social  worker at tesco darrow and to the contrary she wasn't acting within the chain of command because she was communicating this note effectively to the police who are doing an investigation not not to her supervisors yes no went to a woman by the name of dog who was at the health information management and she was not in run for chain of command with this is that if you chart i'm sorry go ahead but if you if you look at the no at the discharge no it doesn't look like a classic whistleblower complaint saying i've witnessed the legal activities i mean you look at looks pretty factual recitation of what happened what she saw perhaps her supervisors didn't like it but it doesn't look like your classic whistleblower complaint it did to me it suggests mis gone for believe she was doing her job  and reciting the fact that she knew she was trying to be helpful and in that case then isn't aren't her employers the reason we thought that she was acting in her but evidence to is exactly to the contrary her supervisors expres acknowledged that they didn't understand why she prepared that note and in fact they've been a part of that is they didn't maybe like to know because included some facts so they were saying that but i mean it it doesn't there isn't any statement  can you point to anything in the statement in the destruction out that you would say suggest this is intended as a private citizen and raising red flags or not alarm i mean look at it it seems a pretty just a regular factual recitation but that's exactly my point that she the interaction that she's had with a patient who unfortunately killed another one of the other pay attention i guess the problem the problem that i'm having is not your client's subjective intent might have been or even that she was intending this theoretically as something to go out of the police were to bring terrible conditions were terrible treatment to the attention of the police or others it's the very strict limits the supreme court has established for qualified immunity in in these kinds of actions where we have to be able to point to a case it doesn't have to be on all four factually but that would basically put every reasonable public employee on notice that what you're doing violates the constitution and here that would include everything reasonable public employee in these types of supervisory positions and know that your client was speaking as a private citizen not a public employee well well let me address i mean you've said quite a bit in that one short period of time for example judge o'connell who was the  district court judge on the matter made the determination that run for it had identified that officials violated her constitutional rights the only question that was before judge hatter was whether that right was clearly established and we feel that indeed the right to speak was clearly established because what was being set forth in run for its note was not of the patients and so i do think this does fall within the ambit of a whistleblower type circumstance so i disagree with with your premise both as to the fact that there is indeed a finding by a district court judge a prior summary judgment motion because again we have to remember the context within which this rose that that finding at least there was a disputed issue of material fact as to whether a constitutional violation arose and so i think that that same would be true here i think also addressing the other two bases upon which the district court relied were clearly an error where the court said you know the information wasn't publicly or widely disseminated well that's just not a requirement to count that the u s supreme court in given stated that it does not need to be also because granfer forwarded the interdisciplinary note the i d n to dot h h i m d which again is health information management for inclusion in kerry's file and they file had already been confiscated by the police that really the intended audience was the police and not not  darrow itself and finally the fact that she was a probationary employee that has again also by the u s supreme court been identified as not a factor whether you're an employee full time employed or probationary employ irrelevant and i think on these bases that were relied upon by the district court judge and focusing upon the summary judgment that was before judge hatter there is no well it is a disputed issue of material fact as to whether qualified immunity applies turning then to you or below the amount of time you want to save or for both your choice i just didn't didn't get very far but i'd like to then just to to go ahead briefly with regard to the disclosures made with to the police officer a very similar analysis applies i mean judge o'connell found that it was thought they were at the very least they were asked to talk to the police they were availed of the opportunity to do so and that is that is a disputed issue a disputed factual issue that was before the court social responsibilities in fact she was not run for it was not directed by her supervisors to assist in the police investigation durfy is not the police officer in question was not  in in run for its chain of command then when she did speak she was taken to task for in fact doing so since provencio her immediate supervisor became angry with her directed her to see speaking to everyone gave her an  and employment assistant put on employment assistant program which again that's disputed but that is has been argued as being a question of discipline notifier heard that merit increases were now going for refused to talk to the police could her employer fire her under your reasoning since it was not within her job responsibility within this course of course no she couldn't and that was not not required of her but doesn't that seem odd if someone is not a witness to a homicide that and she refuses to cooperate employer the employer can't fire an employee for that you would hope that a public an employee in a public and public service position would would assist the employer but i don't know that terminations would be the proper remedy if if an employee who is not required grant of defendant parcel motion for summary judgment and judgment as a matter of law whether then go through my prepared notes i would like to start to address directly some of the issues that the justice fought for  now justice is benefit in water for really hit the nail on the head as to the true issue in this case is that there is no a level of specificity specificity that the contours of their st amendment right were not clearly defined let me let me focus on that we said in dalia versus rodriguez i believe that there are basically three guiding principles  on did the employee limit the communication to her chain of command was the subject matter part of their typical job duties and did the employees speak in direct contravention of their supervisors orders and it seems to me that there are disputed issues of fact on all three of those that the plaintiff demonstrated on all three of those that arguably all three are in her favor why isn't that enough that  is going through those three factors number one was it limited to the chain of command they were the individuals in which the alleged speed was supposedly given to where i needed dial who was in h they in her chain of command specifically the fact that they work for the institution isn't the same thing you know they were not directly within her chain of command however this was discussed in both t j and at the trial and it goes beyond just those that particular that particular question i'm sorry that particular factor there's also two additional factors right you mentioned about was this statement made to contradict some orders of her supervisors there was the argument that was bought up by by appellant that saying that there was no requirement that speak to the internal state hospital police officer in the course of an investigation i mean some question talking about if you could address the note here ok yes specifically referring to the note that no one if you look at the content is really key you read the note there is there is no criticism of the hospital institution in the in the st place that's the st thing about the no but established but i don't i don't think that's what the right has to be i think the right has to be not on those details but to speak on a matter of public concern but you were talking about direct contravention of her orders i mean it's clear that there are at least disputed issues the fact that they were unhappy about the note they asked her to change it and she refused and then that the note in some way got shredded right is not enough to establish at least for summary judgment purposes th direct contravention of the supervisor's orders your honor we feel that it is not it is not sufficient and the reasons why if you look at the particular issues that you raise number one the the note in the supervisor's being upset about it we have to look at really the context this note was written fifteen months after mrs run for it started and the problems with the note is that still after being on two different training two different performance planes in a training plane addressing the content the incorrect constant the note she still did not understand the correct i guess no i understand that that's the state's position as to what their problem with the note was but it strikes me that there's more than enough facts to suggest that the real problem with the note was that they didn't like the content of the speech criticizing the hospital yes and when we look at that no itself in the know itself the there is no criticism of the hospital itself the only thing that it says is that there is it's something dealing with staffing now looking at the looking at the note she didn't say that there was not sufficient staff in the on the unit at that time when this into all of it happened she just not mention that and then and then also in the deposition testimony that was presented for the summary judgment motion there is no indication of the proper amount of staff that needed to be present on the unit and when she was further axed about it there was no there was there were also questions she had no idea as to what the proper amount of staff would be now the note interdisciplinary note we were looking at it for the motions for summary judgment but we also must realize that this also went to trial and the itself was brought in as an exhibit to trial and there was quite a bit of testimony that dealt with the no itself limited to the summary judgment record with regard to the summary judgment a summary judgment portion of it you spend a lot of time in your brief arguing the contrary that by writing this note the way she did this wasn't a part of her job and in fact she was outside her job duties in the note and the way she wrote the note that was her job however it was not within her job to write in her disciplinary notes poorly and by her writing her notes poorly and writing them late it does not automatically change this poorly  written now into protected st and well i mean i mean council your characterization of the note is a poorly written note the plaintiff's characterization of the note is i am writing this to point out that this murder never should have happened because of the hospital had done its job these two people would never have been together unsupervised in a way that allowed one to murder the other i mean is and isn't that what their view of the facts is your honor note the note as as a ray it simply is a simple resuscitate of the facts that happened on that day there is no criticism of what happened in the hospital or the probate staffing levels are one of these two individuals should have been placed together well i mean again in perhaps in the light most favorable to the state there's no criticism but it strikes me that in the light most favorable to the pla f this could easily be read as criticizing what the state did without saying i'm criticizing what the state did i mean it sounds to me like i don't see it's a stretch to take that inference in the light yet another training plan where one hundred percent of her notes had to be reviewed before they were submitted it was not only that it was poorly written it was also that the note was not properly did it go to the proper the proper mechanisms in ensuring that the was properly b feud before it was submitted that was also a factor that was taken into consideration and and as the district court pointed out that it was reasonable for the rely upon this no as yet another example after months and months of training that that mrs run for still didn't understand her job she still was not able to adequately perform her job and because of that that at the end of the review in looking at the entire fifteen months of performance they found that her work was still in adequate and that at that time because of the statutory deadline that was put in place a one year timeline that they had to review everything and say that mrs run for was not appropriately able to perform her job her duties as a as a social worker could you shift to the statements of the police officer  and just focus on that for a minute i'm trying to get straight do you know or does the record show when exactly that occurred in relation to the incident yes the discussion with officer durfy took place that same day part the part of the hospital policy to meet with the internal officers that were conducting the investigation on that day and so is she still i don't know how clinical social workers are paid but is she still like on the general area as a record reflects and they went one by one to meet with officer durfy to speak about what what happened that day and the content of what happened she says in her drought testimony i discussed the same exact items that were in the know well so your opponent says that there the thing i'm trying to get straight is that i think you say in your brief that she was required like given an order to speak to this police officer and of course your opponent says that that never occurred help me understand where or where things stand on that front as was stated in their trial testimony terror state hospital past policy is that all employees are required are required to participated in the investigation and are able to that they must follow the  not picked out soley or especially she did not do this on her own she did not make any disclosures to any outside individual she didn't make any disclosures to the police herself she simply spoke to the internal internal police officer durfy did not provide any trial testimony or any other any other statements that he spoke to the appellant at all about any statements that miscreant for made so just their internal speaking to one another does not mean that the appellant's had any knowledge or it's not reasonable to or infer that there was any knowledge about  pretrial rulings often based on incomplete information don't bind district judges for the remainder of the case and in finally the st amendment does not prevent appellate supervisors from assessing the entirety of her performance during her probationary period including the a legit protected speech and then to reaching the conclusion that she was able to perform the job by telling her own population to the contrary assessing job before me is a very reason to have a probationary period and appellant interdisciplinary note and her speech to officer durfy was not protected by the st amendment because it was  oh i don't really have that much to say and then response we never did argue that this was law of the case but we did or q is that simply there are very limited issues before the court here today with regard to both the the the note and with regard to the conversation the interview between the officer and ms grown for and the basis for immunity the court seems to recognize that we're not arguing that there may not have been trivial inadequacies in the note but these trivial inadequacies had been overlooked for all other employees problems that that were for were ignored in other notes by other employees and what we're looking at is simply the fact that almost immediately after this grown for in gauges in the interview writes this the note after she's been performing very well she's taken off any programs she's gotten great reviews from independent individuals mr light and has been found to be operating at a very high level of performance then she she comes off with these two documents well the note and the interview and she's she's terminated and told you know within short order you're not getting the raise that we had discussed two weeks before now you're getting fired and we believe that's entirely based upon her communications thank you thank you very much counsel kister star you submitted