city of chandler he was the president clearly the chamar law enforcement association he was also a secretary of the arizona police association these are labor police organizations and the facts of free speech in this case are that he wrote a letter going to stereoscopic public concern matters dealing with police officer safety to the city manager of the city of chandler it was written shortly after the fiery death of his squad mate in a ford crown victoria automobile and the safety of ford crown vics is one of the things that's applicable here and then their rear end collision is that what it caused the puncture of the gas tank it was either  now he wrote the letter when he did because he had just found out in a meeting with the fleet manager of the city that the city had not sent a representative to this meeting put on by the arizona police association other another had another city in the valley of the phoenix area and he felt that the police did ministration because of this incident and other incidents that he wrote about in his letter did not take safety of police it's on the letterhead of the unit it's not an official but it's a it's an organization he wrote it as the organization president for the members yes his yes so now he's participating in this as were continuing on and you were saying he's been continuing on to see what happens when that happen you don't take your things someone dies correct correct and it's not a it's not his own personal concern that's the big difference between this and the los angeles there's a little problem here you can step over here is the president the president's out on it he can he can write all kinds of things about reeve's but in the same time he's a police officer and he has a relationship with them the paramedic unit pair carol the paramilitary unit and the discipline within their unit i think that's where i think the city is talking about is his function and is the police officer how can he think off the hat and all the sudden escape the fact that he's a police officer and his actions reflect on his in reaction with the unit well he yes he's the police officer he's not a management police officer he's not up there with the police chief he's a police officer who's the president of a union really not a union and  a collective bargaining sense but it's like a union and they call it a labor organization in arizona but he's acting for the members he's not acting for himself it's not a personal issue that's what makes it a core first amendment issue yeah but i share organization but also police officer so how do we do the balance correct ok so that's right that's where we disagree with the district judge we agree that you have a have a pickering balance and a pick are invalid so the courts has to consider facts make a factual decision the ninth circuit here will be doing that also we say the courts and the district court made a significant error and mistake when it found this first amendment concern only limits it first amendment concerns and we say it's not like the los angeles of the cochran case which i think was limited because in that case had a guy concerned about  himself and being what was the exact words in the cochran case the speech involved complaints against his supervisor for unfair conduct and favoritism all so in the cochran case that involved internal office matters that involved conduct that was direct insubordination to a superior officer and in the cochran case to cause disharmony among the co workers because it had racial and gender negative overtones with the first letter it starts out about is understandable grief and distress about the death of his that regard that he didn't have a fire extinguisher and if you read through what's going on here there were no fire extinguishers there the record shows that there were fire extinguishers but these little fairish things are not going to put out the fire from that point then he goes into the litany of things this wrong with the police department which are internal matters so he's bouncing off the fact that he's distressed because this his fellow officer was bernard and i certainly came from the  only history they were working on that he knew about everybody knew it but this letter did according to the city inflame folks upset folks within the department now why is that so different than the case you just cited i mean  i'm talking about what i perceive their position is from their briefs well this is a whistle blowing letter this is so this is a letter where he is concerned about the death of his friend and he is concerned that they didn't go to this meeting where they were going to talk about fuel bladders as pretty as a possible fix for it and he said in the letter that the city of phoenix was going to be putting fuel bladders on theirs and he said they want to use the ford crown victoria automobile because police departments like these vehicles  got a lot of power in the stuff but whistleblowing speech management has to put up with some of that i contend you know it's it's making management look bad and that's why they're upset but they retaliate against him not issued with fire extinguishers appears from the record that they really are although some of them don't have them and there may be a bit of an obstacle from time to time of chavez doesn't have won or he can't respond to email right away or probably for a while they were under lock and key because he's an inventory shrinkage problem but and there may be some dispute about how often the new there were issued there may be some dispute as to whether jerry rule and where it was really the said exactly to him what he said now to investigators later they meet me some dispute about the holsters does it matter as the city commands really does matter a lot doesn't matter that he might have said things aside from his talk about the kind victoria that weren't true well there was a hearing before them of america where there was a finding of no statements were made after a three day evidentiary hearing that we cited a lot of that in your record that there was no knowingly false statements and regarding the fire extinguisher he did just say i mean that was he and a bunch of other officers had trouble getting them they were not there  actual injury to the department and what you have to you know free speech has to have some breathing room it may not be exactly correct but it's a lease not a knowing falsehood and he has a legitimate reason for his belief because he can't get fire extinguishers jerome couldn't get or the other officer a rome couldn't get fire extinguishers but to answer your question he's going into the history he's talking about this because of the death of his friend that's the emergency issue at the time he goes into the history of where clearly he has had difficulty with the administration in other issues the protective vest the holsters the death of us that helps you now this is this seems to be more than anything else makes it much more of an employee employer situation not not a first amendment kind of situation i could see this letter being written by an employee of the board or somebody in the board of directors of a corporation it's it sounds and purely internal well it's purely internal that gilbert case and this court is the most on point of all the cases in this court it's the fire department case but it's very similar and if you look at that this this goes to the core values of what the first amendment is all about i start i am with you a little bit but i get into a fuzzy area as we've discussed here the way he wrote the lid on the letterhead inside of his prison he finishes it off virtues the list get together and work all these problems out it's obvious that your problems that that the if he truly represents it will have to for the purposes of this letter the concerns of the organization the labor union operations of the organization now what bothers me is is they reacted to him as he can lease officer when in fact he was speaking over here as the president of the union now you said well but it's a whistleblower is the is the acting in the letter in your mind as a union president having a communication with the city manager about matters affecting union members or is he a police officer who says forget about the union over here i'm just i'm just distressed my my my fellow officers been burned out you're not doing anything and i'm going to whistleblowing what is he doing in your mind how you argue he's acting as the hats off i think you can start to figure out which caddies we're in at the time a letter goes out i think either that or you merge him on one ball and say well he's a president a union he's a whistleblower he's a police officer he's a he's acting for the union what is he acting here for how how can you act i guess how can you act as a whistleblower if that's your position when he does have a little bit of both because that's his personal friend who has just died and he talks about that course he does but he keep this letter is the key to the whole thing if we don't have the larry would have a case right now that's the speech ok it's the only speech we're in toss written on on the labor organizations heading it's signed by the president and he's appealing to the to the organizational top if you will of the police department the city manager speak with me talk with us work these problems out words the whistleblower the whistle blowing is he's he's complaining about the way the department has or she is the of the school i guess miss made me question how does the city manager supposed to react to this when they get the letter from the president of the of the legalization how they're supposed to react is i think she did the right thing she gave it to the police chief i want your response he did the wrong thing then he attacked the person the messenger for writing the letter and it's and assume some statements or were false and then he fired him because of a letter he didn't even get a response back right we don't need that but you could throw him off the table as a whistleblower because you can't you can't put me off and again in this thread here and i start back in whistleblower well he's bringing forward matters of great public concern dealing with police officer safety that's what the first amendment is involved with i did i use the word whistleblower because i think ross versus the administration of the veterans administration to use the word whistle blowing speech i think somebody else used it in one of the court cases but  officers that your question again well he's doing it as the as the president of the association for his members he's also doing it i think for himself because he's concerned too and he has problems too enough to make it a matter of public concern well he's doing that because the other police officers who are members of his organization have same concerns they're afraid to drive these ford crown victoria automobiles they've had concerns about the holsters and the ve individually they're worried more about retaliation and not being bullied but if they're organized then they think they're going to have a better belief but this is these are bringing forward matters dealing with police officer safety serious matters dealing with police officer safety and that's why under the gillberg case they go to the core values of public concern so far we've been talking about the three or four stars how to characterize these matters of public concern how loses even though these may well be matters of public concern well we believe the judge the district judge erred it just in this because this was one of his reasons for balancing the rights against us from the other part of the right this garrett because he didn't consider the law from this circuit that when you have a matter that goes to the core values of public concern like this one police officer values then you have to take more disruption in the police department let you know more disruption is required before you can you can retaliate against the speech i understand what you're saying but it seems as though he's complaining about internal matters of the police department versus something that the public might be interested for instance if the crown vics i can't think of a good example but the crown vics that mean explode the police department the public might be concerned about that but it's more concerned of the police concerns that are turning to him and internal to the to the individuals the nasa necessarily directly imposing a public interest but have police officers can't be safe and therefore cars are going to blow up and the public can't feel vehicles but and it could be an argument you know with those who have some inefficiency with regard to farming if that's your best case if you're worried about the fact that these are will be are going to blow up in the public's concern about you know the public's concern about it and th ere are cases than this court got him in my brief that say any matters having to do with police officer safety or law enforcement matters or matters dealing with public concern where you have to go back to those cases and these are all  end impact is the kind of impact that could have wrecked your gas tank in any car and not one that there's any proof that a fuel tank bladder would have aided the officer or allowed him to get out or stop the fire i also find it interesting that discussion is fascinating in just to go where you've been talking about is what was the actual purpose of the letter some of your comments suggest that you think that it really was aimed at the comic tory and in fact i think it wasn't aimed at the crown victoria at all i think that the accident was of course emotional to office carbone and to everyone in the department but i think this was a personal dispute that carbone thought aha you know what everyone's going to be upset about the death of an officer i want them to look at me me personally for information in this department and so i want to bring to paris down and so what he did is he sent this letter and we have always treated him as an employee not as the president of clear even though in some ways just sounds inconsistent with your let's i want to talk to you i'm communicating with you but it's he's trying to at least that part of what it seems to be trying to promote the organization in dealing with the city manager it does in a way one could say it might be considered typical union organizing rhetoric the problem is that the union had a board to authorize correspondent such as this and didn't do that and then we have testimony in the record from other members of the board of clear who said you know what we never saw this beforehand we would not approve the tone the content the manner of the speech which of course is what the city reacted to and we have the mare ports finding that it was not a clear letter it was a personal letter by john karr back but it doesn't matter that it was a personal letter in the sense of signed by him yes he is raising matters of public concern so which we say he was mad he used it to wait a minute are you saying you're saying you're saying these were not matters of public concern because yes we don't care about public safety officer safety officer safety the problem was in that sense he's not telling the city anything that it didn't already know and he there's nothing that can be done about the currently tory in fact before they got the letter they had out already authorized fuel tank bladders but the problem is  city of phoenix and they both agreed that the two municipalities would move forward together or at the same time and approve fuel tank bladders for their cars or actually that may have been on the twelfth on the thirteenth there was a city council meeting a swearing in of new members and they agreed to appropriate signs for filtering planners at that time on the eighteenth however which is what you have in the record i'm not sure the boy done information was cited in the record on the eighteenth the city manager if they did the fifteenth year and so the approval by the city by the mayor was actually before the letter was even written how does how does how does this help you seems to me that they're taking this action so quickly in response or react shows that he is absolutely right that this is a matter of public concern and when he writes the letter and i'm looking at the deposition testimony of the city manager he's talking about and did you have a meeting on that day th you have internal matters regarding interests of officers themselves and then you have matters of public interest officer carbone wrote his letter because he wanted to use fire extinguishers which had nothing to do with you know it's an accident to inflame the informational meeting that i believe would have provided the department of the national information pertaining to this issue is that true yeah absolutely so and so in other words up until the time of this accident he has a legitimate ground to say you know what you know enough attention to that's not true at all example of it but i see nothing in here that says you killed the officer and city manager dress code read it she's the recipient of the letter she said that's exactly what she took it to mean because he said all i could do was stand there but for the want of  in the nation has been able to solve it is not a problem we created we didn't just about we were not inattentive to it and he basically says you killed this officer any use those facts that are knowingly fast to create that impression and that is the impression created in don a dress code that's relevant the one person whom we sent the letter by the way he wasn't speaking out to the public in a way to inform the public so that the public could make a rational decision about what was going on he sent it merely to don a pickering balance i think the district court was absolutely right that in this case the speech if any it's only limited protection and then as we go through the pickering balance and we look at all of these factors the fact that he's raising stale personal preference holsters personal preference they didn't want to be archy you want to disappear land s l s the beyond he was never proven to be unsafe it was never stopped issuance by the city chandler he's raising still issues that have already been resolved he's raising issues to wrote a fair amount of record about these holsters and i gather that there was some ground there some are some reason to believe from the record that there was some safety concern about the holsters because i gather that there was some possibility that suspects could take the guns out of  evidence is that any mechanical piece of equipment can fail so in other words if i say that once or twice or even what they found ultimately is i think they found fifteen to seventeen in spencers through the two hundred fifty to three hundred fifty holsters that had been issued where snaps may have stock and what you do is you take the holster of the quartermaster and you get another you can't find of a piece of equipment that has a better performance than that so the say it's an officer safety issue isn't accurate it was a preference issue but even so what the city of chandler had done was for almost a full year before that they had been analyzing the holsters before the letter they put the holster he wanted on the voucher program and then when the class changed they issued it to him it's not at all like the cases he cites for example the case of the fire fighter that he cites where he says that he's with the firefighter complaints about the city being inattentive to staffing issues and therefore there was a  they had a death that hit them close to home and then they said ok we've done everything we can we don't even know if it would have prevented this accident we don't know if it's going to prevent any other similar accidents in fact at the time they did it they didn't even know from scott fuel tank fire so i said we're just going to do it why clearly the record that they did it for those reasons and they were positive that this was a the fix yes and nobody at the time was positive that it was a fix if anybody had been it would have been put in already nobody knew whether it was a fix there was still a debate they knew that there was a problem yes everybody knew there was a problem now in the way they came out of the factory what we had already done is we had ground down the bolts so i guess you could say then if you didn't die on the bolts when it was recommended how did we know at the time that we got the car now i think we knew at the time that they recommended grinding down the bolts that that was something that could be done and therefore we did it immediately so there's no dispute we've never disputed that there is a problem at the current victoria what we dispute is that it's an example as soon as they have this horrible accident and they moved to put it very quickly leave the field where others thinking that it's going to improve matters even though you know nothing's perfectly safe and i gather you later they put in shields and so on that's not really the issue in the case the issue in the queue is whether this letter was a legitimate raising of matters of public concern and it seems to me that it was a raising of matters of public concern which then just but i understood your question to be the intent of the person who was who was speaking i'm not asking about intent i'm not asking about how disruptive it was i understand it your honor but then you went to does it isn't that a double edged sword when i asked answer the question about what carbone is intent is not to speak out on a matter of public concern it becomes known that creates disruption that does not tell us whether he intended to speak out on a matter of public concern or whether he intended it to be a w audience it just tells us that it became a wider audience that created disruption it contained the same type of misstatements and lies that he made in the briefing room in the briefing room each he accused the chief specifically of lying in the letter he says the administration nielsen died on impact implying that we're lying about what happened when in fact the testimony is even he didn't hear the chief say that nobody heard the chief say that so there was a disruption in that regard there's impairment of his ability to do his job in this goes into the pickering balancing test because it impairs the trust and confidence between him and his supervisors and their cases they just say that that's significant he i mean to my notes here he impairs discipline by telling him the letter basically saying the administration cannot be trusted not only have they been fast and misleading and this wasn't true when he s on never had any information about the spatter shooting and yet he raised it again another stale issue that in that impairs around him players discipline impairs his relationship of trust and confidence with his supervisors you know he was terminated in part for his history of being untruthful in this leading and he made false statements in this letter and he was reasonably perceived as an officer who couldn't be trusted to tell the truth and in fact in this letter many false and misleading statements that are inflammatory and he meant them to be inflammatory because really what he wanted was to further his argument with the chief of police and to get them to look to him john carbone as the oracle of what is safe and to give them he was angry that he didn't get to like  crown victoria was simply the hook it was the inflammatory hope to throw out there to get people upset so that they did they would do what he wanted faster and more quickly and that's why it's important that clear even found the letter to be you all right well i know that you're welcome here with the record obviously and it's been an interesting discussion i hope it's been helpful in some way in addition to the pickering balance of course we believe that there is qualified immunity feels there is disruption because they feel attacked you know you're you're blaming us for less than enthusiastic pursuit of safety concerns so of course they're going to feel that that way but other coal officers are are not there's no there's no evidence that there's any disruption with the coworkers like that go brooke case says regarding this brewster factor of whether you've got public knowledge by just giving your letter to the city manager that's different than just giving it to a coworker and he doesn't complain about coworkers so there's not going to be any disruption regarding the coworkers and that and the case talks about that if you if you're to be complaining about people causing disruption it should be against coworkers just a few facts that she mentioned regarding the bladders and what the city did the city mayor right after the accident talked to the phoenix mayor the phoenix mayor had the phoenix law enforcement association had been advocating bladders and they were part of the arizona police association carbone was the secretary of that he knew prior to the accident that bladders were where the thing to do so after after the accident with nielsen then the city of chandler mayor talked to the city of phoenix mayor and they decided to do bladders which is a good thing which we don't complain about of course car he sent the letter and wrote the letter he didn't know that but he did know because he had been with the a p a that this was a potential fix so that can't be held against him the fact that the city was doing that and i also heard you say are you saying that you to her are you saying he have a better case of the maid his complaint to the newspaper and i did cite one case from the tenth circuit i realize it's not years but said doing that and not dealing with it internally with the person who can do something would be a negative toward him because that may cause more disruption to be going to the newspaper rather than trying to get it done with the person at the top who can get it done and i point out that the police chief said that going to the person at the top the city manager in the first instance was not improper so there's no chain of command even argument here as there are sometimes in police departments  regarding the history of the protective pasts there was a lot of testimony that they put the vest on the bottom priority they put the holsters on the bottom priority there is testimony that there was problems with the holsters in the investigation of carbone there was some mistakes done by the investigator didn't even find all the all the problems and last but not least everything that mr baker just said about fal