may please the court reasonable police chief in the position of sheriff jones would not have understood that it violated the first amendment for him to terminate a subordinate officer forde unauthorized disclosure of confidential information and false accusations of misconduct leveled at the chain of command of the office indeed this court's precedents and presence of other courts hold the opposite this court's decision  that where a police chief terminates an officer for an admitted or found violation of a general order prohibiting disclosure of confidential internal documents that is the term a nation of the officer does not the first amendment and indeed that independent reason for terminating the officer eliminates the amount healthy but for causation test and whether or not the speech is a matter of public concern but in this case away also the force of the eleventh circuit has held that a police chief reasonably refuses to tolerate false accusations of misconduct levelled at the chain of command those are detrimental to  they damage the reputations of the individual officers and they impair the mission of the organization so reasonable are fine general principles unfortunately you have to deal with the record in this case the facts of this case and the jury verdict yes your honor and moving directly to the jury verdict the jury verdict does not bear on the question of qualified immunity the question that what the jury was asked to determine was whether disclosure of the speech and issue was a contributing factor or substantial factor in the terminations of the officer and as i just said the this sort of that you want to segregate and i have a lot of sympathy i have to tell you represent a state around a long time of a lot of sympathy with state here but i'm not sure about the way the state handled this case because what we have here according to the plaintiffs was corruption in the police in the police offices and it was that corruption that he was making public so the cases you're relying on aren't that and you have to take what the tree said about the corruption but the jury didn't make at least in the absence of some claim instruction or right but no your honor the jury didn't make a finding very of found for him otherwise yes a jury could have your honor under the instructions of the court because what the court instructed the jury was that pages one two three of this document were protected speech but what the question of law for this court to determine to determine is were they protected speech and the facts of this case show that they were not protected speech and the reason is that this was a three this was three or four pages of an internal memorandum that  the deputy prepared as part of an internal grievance and the allegations of corruption in the document were based soley on his own incorrect views of maryland law that's the component w no your honor said it wasn't true he testified that he was required to reduce his report three times he test and he has three earlier reports or two earlier reports he testified at trial your honor that his total allegation of p was based on the fact that he had to move the information from one report to another created if you lose information to where it is is hurtful i mean i think that the state could have made the case but never did that the agency was trying to pull the sheriff was trying to protect the officer here by not having a cause of action running against him but they never made that argument and i don't know that that would succeeded with the jury but the deputy durham testified at trial and that's a joint appendix to forty nine that is that all that the claim of falsity was simply that he moved it from one report to another but it wasn't deleted from the record and that the reason that the deputy objected to moving it was because he wanted it to cover him that the he objected the follow up report which just dealt with his own reporting activities he wanted to keep a paper trail to protect himself and this was all part of his grievance against the officer and that there was no information deleted from the official record if you compare both reports which are always maintained in the in the record of the sheriff's department they were not deleted from the official records are the of the details from the original police report is now in a report labeled use of course and the deputy walked right into the reveal to the person that had been apprehended well there are all part of the they would have all been disclosed to him so all three versions would be revealed to the person who was apprehended there were only two in the traffic accident yes your honor they're all of them were revealed to him one of what was actually revealed him they were what was available to play were available yes your honor ok and yet no evidence in this record that those other earlier versions were not no your honor not at all they are available and the defense the deputy was actually advised in writing that he was directed in writing i j a for sixty five years directed in writing to properly document your use of force on the proper form and to include your use of chemical spray and all physical force to j a four sixty five in writing he was advised to make a complete record of it and he was advised of it's on the wrong report put it on the correct report and so there's no factual basis for his allegations of misconduct the record is undisputed that it was all to secur identical activities of the arrestee resisting arrest and assault there's probable cause for and so his claims are just incorrect there is no evidence of them in this case the evidence is undisputed that he wanted to do it his way and the only you can say no but i persist in my view that this sounds like a jury art but that doesn't mean it's wrong or ineffective but i would like to try to understand yes your ip what is the issue of fact that the district court never should have submitted to the jury for which there is are either insufficient evidence or for which only one reasonable conclusion can be drawn so that your client is entitle to qualified immunity whether the internal grievance memorandum which was that issue in this case the that he says that this court's decision in jurgensen the disclosure of confidential internal documents is an independent reason for terminations and that even if it is protected speech the employer is intitled to terminate an employee for disclosing confidential information because no employee has a right to do so so even if the sheriff acted under a mix motive the employee disclosed a confidential document to washington post reporter and that about pervasive corruption in the department no your honor what was it about it hopefully well that's not going back confidential information the corruption piece is analyzed under the fact that as i was saying before that there's actually no evidence of corruption because the allegations were false employees allegations that when you fall into your jury your jury argument well there's let me rephrase there's no evidence they were true because the employee admitted that as far as the suppression of information he was really only objecting to moving from one report to another and as far as charging an innocent person mr pitts he was just incorrect under maryland law so the undisputed evidence in this case there's just no evidence of corruption in the trial record it's very sure the problem is that he said there was corruption and people sort of juries and  court ultimately people have found that there's something to do with this but can i just go back to something you just said i thought that you said disclosure of this because this was confidential information is disclosure of it was violet of american law so right it violated the general orders and i thought you told me just a few minutes ago that the information wasn't confidential that anybody could see it was right there in the file no it would have been disclosable to a person interest public information act if the authorised like the sheriff had disclosed it but it was not what is the traffic victim had wanted that's what i asked you earlier he said oh no it was right there in  said what i meant was it wasn't suppressed that it was that it was it it was just his disclose it was that had been on the original report i guess is what i was trying to say your honor is that that it wasn't made more secret by being moved to a different report it was just that any time there's use of force it's required to be on the use of force report rather than on the police report and that's all that they were requiring well christopher there's an issue of fact about that but there's no evidence that says that that's not the case that he was told to put it on the report he put it on he put the accurate report on the report he put it on and then his supervisors got angry because they thought they were going to be sued and they told him to redo the report and then put it on another piece of the other report well that he would his testimony is but the document you have to kind of take it now because you have a jury verdict in the best light for him but the jury i guess when the jury was asked to make that determination or all that evidence was in front of them he testified in it but that wasn't the issue before the jury well that was all about his feeling that this was corruption but the thought that this business about putting it on the correct report was just phony baloney that they were making that up because they were worried about the while generally speaking corruption's a matter of public concern when you look at the basis for the employee the undisputed evidence on the basis of the employee's allegation it dealt with the fact that information was moved from one report to  another and he had he's view that the mr pitts was innocent of the crimes that the employer wanted to him to charge him with but under her now there's no basis for concluding that he was innocent the facts reported by deputy durham showed that there was probable cause for each of those charges under maryland law the facts of her now are on all fours with that so in order for it to be a matter of public concern it you know it and following to her has to be  i don't know where you get that well the question is whether it was false or not i mean if there really is no corruption and it's really just the employees this day or true then you are arguing the door should be a matter of public concern the your witness the sheriff said there'd been no interference you couldn't point to anything that happened so he hasn't put anything on the balancing scale his way but your honor under under under waters versus churchill under this  president it's not whether there was actually just ruptured it's whether at the time of the termination the employer could have reason included there was a potential for disruption this he testified that he thought at the time there was potential but he now says that there wasn't  violators trust and and he later testified that it hurt around the office and that you know it was a lot of us hone in on that and he really didn't have anything to say the record is startling i in the lack yes your honor the but again this court's precedents and the supreme court have made it clear that it's the potential that court views as a matter of law make it up which is what your brief tries to do we can't just say as a matter of law you can't just talk about general principles about what could be just you could be the disturbance we need some evidence and we don't have any of this right issue out of it i mean that's the all the dendrite case pointed out which is cited in the brief that when you have false allegations of misconduct against officers that a reasonable police chief can conclude that there's a potential for disruption in which you can damage is a three to four allegations were full army or on what court has concluded that the allegations were false no court your honor but again you look at the reasonable he did his own investigation as waters says he's entitled to do and he looked officers were false and i knew under waters that the court is you know employers entitled to make that determination he's entitled to reasonably rely on his investigation and he did so and so from his perspective which is what the court state's principal argument seems to me that all these allegations were false and so do we have what you say with respect to that they were true well who who says what your client's is the true their client sister false well what we do know about the let's start if we could with the statement the statement that forms the basis of the speech was that mr durham had requested an immediate full investigation that that the sorry that the detective sergeant myles had ordered mr durham to change his report and delete follow up reports or or mr durham would be charged or suspended all of this is not has not been contested the sheriff put on no case whatsoever so these claims of fals r kind of made up from understand it their argument is is a matter of law what your client was suggesting was bad activity by the sheriff was in fact wrong he was just wrong on that and therefore all his speech about that activity is not protected well he has quite a bit of speech including speech about the grievance his grievance being returned from the county commissioners back to the sheriff himself to investigate that's not wrong but the with respect to i think the meat of this here is that mr durham complained that he was being told to put an assault charge or one mr pitts the the traffic offender and in fact mr durham testified at trial they told me that they're going to either arrest me unless i do and mr pitts unless so i either do him or they're going to do may i'm sorry was it assault or resisting arrest or both actually both because they have a tough miss mr durham what's wrong with their mr well if you go back to the facts of the case what mr derm did was there was a speeding motorcyclist named mr john pitts i believe it was who was fleeing a maryland state trooper mr jerm who was at the time a deputy sheriff for the somerset county sheriff's office just happened to be at the right place at the right time motorcycle sped by mr durham join the chase mr germ got to the motorcycle the motorcyclist ends up trying to cross a lawn and ditches bike or whatever character pushing his bike along mr durham actually happens to get to the motorcyclist first before the two before the trooper the troopers running across the lawn mr durham gets to the motorcyclist the motorcyclist is literally trying to push motors as i understand it trying to push his motorcycle away mr durham then tries to detain to stop this gentleman who's trying to still flee and this gentleman does not want to as i understand it there was a certain like he certainly he just simply wouldn't physically resisted and he wouldn't comply with requests for example to put both of his hands behind his back and it be good to get to what mr pitts ever what your client did do yeah what what mr germ did do was in order to hold to the suspect he administered of belief to that's exactly what he did he put it all in his and first investigative report and then what happened and that was if i could say per his sergeant's instruction sergeant williams testified at trial that that use of force should go in the investigative report then the one of mr durham supervisors comes in and urges him to go see to go seek medical help and  hospital absolutely mentary absolutely and we add you to revise your report absolutely it on this forum where it should have been to begin with absolutely and you go no no no you just keep it up is that the point is this it seems to me in this case  but if you did this to this level he must of been doing something that violated the law or there wasn't struction of justice resisting arrest so base what they're saying to him is that ok you said that happened but you tell me there's nothing that he did that violated the law well that's what they were sam that what they're saying is takes take your use of force out of your first investigative report and delete your followup reports which included discussions between mr derm and his supervisors about oh you might want to go get yourself checked out and other sorts of things they were offended there what they were trying to do was trying to posture in order to avoid a potential claim brought by this by this motorist mr durham explained the trial and the obviously the jury took stock in this it couldn't be the case because there were trump is right that is the what he did it was like he was by himself and if it didn't exist in his report then it could be it would go away except for the suspect the trooper saw what happened so in about i would say yes rightly or wrongly those blows were administered by this officer right so he could so he wouldn't go away just because he didn't put in this incident report on these back what what mr durham he said what mr durham  what he was asked to do was not just to lead an alter his initial reports but also to charge the suspect exactly because he ought to be in charge of the band looks like that if he looks like this going to the hospital then he'd better have been doing something natural police follow up to this incident well the first call mr pitts never made ultimately made any kind of complaints i'm so i understand because you answered judge gregory's last question why isn't it appropriate for a police supervisor who reads a report and draws the inference that surely the defendant must have done something and my office or my deputy has left something out of his report complete report mr deputy right and you don't continue that that's inappropriate right well let me back up is i do think we're missing something mr germ when he first got back from the station from this alter cation with mr pitts did speak with propriety of a supervisory officer who instructs his or her subordinate you left something out of your report and indeed bigger than that you have failed to place  because there is an absolute there's an absolute absence of any evidence that mr pitts actually assaulted mr derm or one two but the judge gregory's point is he just the inference drawn from the use of force might reasonably suggest to a supervisory law enforcement officer that her subordinate has failed to place a charge that is reasonably a bailable to be placed ok what mr ok he met explained how mr germ testified at trial i think i can answer your question he said he did not charge him with resisting arrest because it wasn't his arrest trooper morton and it up putting ten charges against mr pitts that's what that's how we explain to the trial that's in the record to how he explained with respect and with respect to not charging mr pitts with an assault he explained at trial that mr pitts did not assault him mr pitts tried to resist mr pitts tried to get up off the ground and he wouldn't allow himself to be stopped and detained in order for missed for a trooper morton two to arrested morton charged pitts with assaulting morton or assaulting during that that's not in the record your honor that is not something that conceded that as as a general matter it would be all right for a supervisor to say to an again a deputy or an underling that you get let's make your report accurate let's do the charges so why wasn't that ok here i understand he thought it wasn't ok and he parenting has persuaded jury it wasn't ok because this dispute simply is not about a supervisor trying to get  officer to correct their forms and yes it is he says that that's all fraud and that that's the fraud that he exposed and he and that's right in a forms the basis of tell us what we have here is an underling saying his judgment is better than his supervisors and he can go tell the press about it and therefore make a first amendment climb just when he disagrees and one of my last acts decides to disagree with me and they think that their view is better  it to the washington post and make a first amendment crime well then you'd have to evaluate the public concern and and the disruption that might that might bring to the court but the problem is not a case where there is not a whole cloth they want him to charge  something that didn't exist at all you must concede that that's a natural follow up to say you can't have this level of it's of force being exhibited and not have a counterbalance of  charge so he in a sense that's what counsel said it's almost like using leverage i disagree with you so i'm going to make your request which seems to be reasonable and to a smoking gun a fraud you want me to put in a report  has no factual basis as to just actually bring the charge but it's clearly it was a just a charge unless you're saying i'm a rogue police officer which we know is not the case nobody has ever suggested this case that's why i presume the highest level of the office involve your client therefore that's why it begs the question is that i know to must have done so because he would be presented to the hospital like this and that's that seemed to be reasonable as does boston just because he disagreed with that need you now can go out and turn otherwise would be a grievance matter into a cause celeb for your benefit and then a jury believe that's what we have to look at reasonable under the circumstances to get from under the protection of qualified immunity well there's there's two things that form kind of the basis of the speech one is the falsifying or altering of the of the police reports and the demanding that mr pitts be charged with assault or durham be charged that's right because if you don't have any basis for doing this then that's excessive force and maybe criminal ok so that's one that's one secondly your honour's the grievance that was filed which is a join appendix three ninety is different than the actual speech the internal grievance is that three ninety the speech is at three ninety eight and what that speech included was that after he filed the internal grievance somerset county suspended him yeah and sent the end of the investigation his grievance against the sheriff back to the sheriff himself to investigate which is a public that is a great public concern based on a conflict of interest and a problem is that the risk is that it really has to be something that's a problem disclosed otherwise it doesn't go to the trustworthiness of the office so then testified that at two ninety three lines fourteen to seventeen he admitted that he didn't know what confidential information was allegedly sent out by durham that's a joint panix tonight three lines four two three seventeen he you know i clearly at two ninety joint appendix two ninety three that he didn't know what confidential information that dermod sent out and that he admitted that the information was accessible at three nineteen the sheriff admitted that some of the materials that there are disseminated work sessile to citizens if they asked for them he also admitted that there was no confidential police techniques or any confidential information given out by durham that's a three eight hundred three nineteen and along i think that if we get to the balancing he went right so now we have to focus on the protected activity right and i think that's where we were right ok so you win on balance  we get if you get by the protected ok now there's been the suggestion that all we have here is a disagreement by your client with a personal action i mean he decided his judgment about what happened he was better than his supervisors that's that's simply because he sent that disagreement to a paper ok and charge fraud in your view it turns into a matter of public concern well i mean the the sheriff himself admitted that the public would be concerned about the possible filing of trumped up criminal charges that's one of the things that mr derm states that he thought that the assault charges on were not there was not sufficient evidence of that mr derm testified that mr pitts did not strike him or do it or harm him in a where harm is uniform or damages vehicle or anything like that so so that that the have to say i'm really perplexed that maybe i shouldn't be but you're not here able to tell us about the actual charges filed by the trooper well what he said i'm really confused because clearly what happened here nothing's clear but but the deputy regarded this as a maryland state police matter  he did as you put it so aptly he was in the right place at the right time he helped out this trooper he said he hit the guy several times he sprayed him but it was the state police is matter and i ask you earlier of course was there an assault charge and who was the victim on that charge so what seems to be going on is the sheriff is concerned not with what's charges have been placed against pitts because he's been charge by the agency with responsibility for the investigation and prosecution of the case he the sheriff i thought what you were saying is the sheriff is trying to cover the sheriff's potential liability by asking the subordinate to do what the facts on the reports that the subordinate prepared seem to suggest and so how do you get a matter of public concern out of that well he's not just saying charge mr peds  saying delete your use of force if if your honour's compare the original investigative report to to what it became but it was delete your use of force or charge the man it's no it was delete your use of force built or altered your use of force put it on a different form delete the three follow up reports about them requesting mr durham to go seek medical help among other things and then thirdly charge mr pitts with a with an assault when you say delete the report you don't mean destroy the report so maybe you do know i do is that in the record that is  that it was as as i understand this record to be in the trial testimony it was a hunch or kate gone the follow up date already been printed out the follow that the only reason why they're even available in the joint appendix is because mr durham had printed them out before he deleted them off the somerset county sheriff's offices computers so you're saying the supervisor reviewed them while they were still  wanted them off the systems computers correct he wanted the follow up reports of all the back and forth between mr durham and the supervisors the history so be gone banish'd and fact mr derm acknowledged that he had printed out copies of those materials now as to whom when his supervisors that he had it at what point in time this would have been less i believe late august or early september of two thousand and eight and and his supervisors this would be  miles threatened to initiate criminal acts to me started initiate departmental charges against mr derm for printing out the reports the original follow up reports and simply drop it and simply keep providing his attorney a copy mr with judge matsch is permission could you just spend thirty seconds and tell us what effect the court of special appeals decision might or might not have on this case well for one the court of special appeals said that the sheriff's that is the thumbnail version i could spend another hour and a half about what happened after he returned on september seventh she or it's not a happy happy situation if anybody can hear it when he was on leave with pay for a whole year when this happened so he didn't even work and he got his pay then he's reinstated and he's got more than a million dollars in damages in state never asked for a minute or never said that we should count what we paid him against the verdict it's really the most extraordinary case i think i've ever seen now that i'm sorry the damages began from the the time when term was terminated his temper two thousand and nine when he went off their payroll supreme september two thousand and eight to september two thousand and nine he was suspended w during that this was too much damages for this this defense that would be the damage that's the argument about remits or in a condom is testified part of the problem is that the jury's verdict was in may of two thousand ment or not just one point two million dollars how many was one point two million dollars verdict that's a fact that's correct i mean for have people that are beat up they don't get that much money four hundred four hundred twelve thousand an economic seven hundred thousand and non economic and and that was based on the testimony by mr dermot as to what this did to his career and to his reputation and and that in the distress that it caused him ok he testified his supervisor told me i was going to change my original police report i was going to delete altogether my three prior reports and if i did not comply ok charge departmental e and i would be charged criminally which would mean arrested and charged that's wh said ok that so that's that's your best evidence isn't about what what was going on in other words we've been asking you and i'm not sure that we're all meeting but we're having a meeting of the minds here but we've been saying well what's wrong with what the his superiors did which i guess your alternate answer is that if all he has is a difference of opinion about what was involved in this arrest and what the appropriateness was putting stuff in his report then you've conceded sort of in the abstract world it would be ok for his supervisors to  right i would say this at trial you had two competing theories of this case one a disagreement among their own and his supervisors to a cover up an attempt to try to charge mr pitts before he sued the department at the time of that that this was going on there was a case known as it went to the fourth circuit henry versus per now a son he had already been charged not when they originally questioned it's not right when did you trooper charge him now but not right away because it's on the ginning conversations took place right away is that right the same day the conversations that occurred between durham and his supervisors occurred over a number of days but they began on august twenty first ok two thousand conversation the first conversation is fill out on this improper report they say he says they told him to fill it out what when is the next conversation the next that there's additional like three or four days later and hadn't pitts been charged by then he was in charge the day he was detained and arrested as i understand it mr pitts faced ten different charges and i would have been mad when they which claiming injuries because he had had a problem with the so shoulder and i understand that you know you know economic loss calculus was based on is not having his job over a period of time in the future right front pay included it included it included that's right moving into the future while you may tell me that the state allowed that to happen with that are going that way if we lose this case the very least we will put it back to work right they did  was this about just getting the right form completed which mr derm testified it was not about or is it about a cover up is this about something else and mr germ reported that information reported his version reported his opinion to different government agencies and to members of the press as well as politicians and this is an issue of public concern whether or not  a motorist who gets injured by in a police encounter who indicates he's going to the hospital whether a department departments posturing to protect itself from liability by then charging that your client takes position i just happened to be there i was in my rest but from an institutional standpoint always more than that you're the one going to be responsible for what you did on that scene and therefore why is it not reasonable to follow the to make sure what seems to be a reasonable circumstance of bringing the charge why is it not done you just don't have the cavalier to say well what i'm stopping i don't well when this command say no you have to follow through with what he did i hope it's clear enough mr durham did do what his supervisors told him to do he did and he told the papers the balance said it was corruption yeah but the we do have all of his testimony about thank supervisors accused me of committing a crime and they strong armed him and they put him in the room and name when let him talk to a lawyer is that what you were trying to say to my question that the real problem here is that that this is not a matter of public concern as a matter of law because when it's subjectively examined your point is that as a matter of law it is no more than a garden variety workplace dispute that has been elevated and magnified through some rather hyperbolic language about what was actually going on  criticism in fact if anything i for one tend to criticize these interlocutory appeals more than most i think so you rested on your laurels in the sense that i don't mean that as criticism but basically you said we didn't get it on a twelve b si grievance but his first her testimony was that the lawyer was threatening him and that strikes me you know would let him talk to a lawyer and told him that if he didn't do this w shoved him in a room and one let him and what are we to make of all that well i think again we step back a reasonable employers viewpoint at the time and he did conduct an investigation and the sheriff if you remember the sheriff was not personally involved in any activities and he did conduct an investigation joint appendix or twenty two as the result of his investigation and he recently concluded from investigating what his chain of command with the chain of command in the that if you will i mean that's were i was trying decide whether that what do you know your honor was in exposing it he used confidential documents and the sheriff a reasonable person the sheriff position what he knows is that he's just close confidential documents and that the sheriff's investigation has revealed that the allegations of corruption was on her fall and so as under disposable to the media or to outside agencies by the noncustodial i mean confidential records under the public information act of this point insurance and the employer who gets to decide whether disclose i'm not an suspect oversensitive force himself yes your honor and basically were and he was found to have violated the disclosure requirements in the in the law enforcement office bill of rights for sitting in his mid that he a stablish is that what he knew at the time a reasonable employer would have concluded that he could terminate an employee for disclosing confidential information in violation of the general orders when he'd been found of done so in  wasn't much of a hearing i think you're weak yes grounds when you get to the shut but but it looking at his perspective at the time he certainly wouldn't have recently concluded that it was clearly established that he was violating the first amendment in merely increasing a penalty for admitted and found misconduct and particularly when based on his own investigation the allegations of corruption and placing false charges on his person  unfounded and from his perspective i mean you know no precedent establishes that it that it you know clearly established that an employer in that situation violates the first amendment confidential information has been disclosed and false allegations have been made against the chain of command that's well but if true allegations are made against the chain of command no there is no precedent says that this isn't a matter of public concern that is the problem yes but there's no end to his testimon about his allegations but if you examine his testimony and look at why he believed they were false you see that it's just based on his mistake of law and colonel establishes that that pushing against an officer and resisting is resisting arrest it doesn't matter if which officer was trying to make the arrest that you know anything about the charges placed by the trooper i understand we're outside the record of her if we are outside the record your honor and i don't know what to charges are but i can tell that the record establishes that it