please the court my name is randy ruff i represent you net a tony the point if appellant as you know the facts he was a scamp a supervisor at bear creek high school on april twenty fourth two thousand and fourteen when there was a melee after school it ended in the school parking lot some people had come on the property and started to multiple fights she was injured in trying to stop those fights the police were called the stockton police were called and after the fights were stopped she witnessed what she believed was abuse in her testimony she said she saw the police officer take ninety pound african american students head three times to the concrete creating blood coming out of her head shockingly that was shocking to her so she said this is police brutality to anyone who is president take out your phones and record this and shortly thereafter let me go back from minute and he asking her top job title was a campus security supervisor supervisor yes but does that mean well basically her duties were patrolling the campus monitoring and maintaining order security assuring student compliance with schools and regulations that's a d o r eight hundred ninety and but my position is appropriate i understand that but if they were saying she was violating her job duties not that this was out signed in some fashion i thought well i violation of her job function it would be outside the scope of her duties if she was if it was appropriate for her to say take out the your phones this is police abuse take out your phones and videotape this then they should have applauded that and said she's doing her job very well instead in both the reprimand by a recommendation terminations recommendation by young they said that was inappropriate kyle you just make a gentle suggestion let's put aside the judicial stop argument because you have limited time maybe if you have time at the end you can come back to that but assume that we're not going to be persuaded on that ok school as now kind of jump back into the johnson versus powell school but let me let me address that first of all it can to be you have a coach is kneeling on the fifty yard line he admitted that was part of his job function he says i have to teach these kids how to be good sports and doing this is teaching them how to be a good sport we don't have that admission here secondarily the opinion in canada adopts the a vet language from certainly has implicit in it controlled by the school district the school district controlled the football field the candidate and that was clear and they said that in their opinion they said nobody people or the public couldn't go on to the field even the say panic worshipers wanted to go on the field and they were prevented from doing it the coach got to do it because he was a coke anyone in the public gets to see a police abuse and say hey this is abuse to get they get your phone to record this so it's there's a third in the issue of control here the school district in canada control the football field but once the police come on to your school and they start arresting students the school district has lost control that's not a school event that's a police event so once the police come on the campus of bear creek high school and they say they take this student whose initials are e t and they brutalize her and mike the school has lost control over that student you cannot interfere what point was actually charged with winching which is interfering with a police officer so once the school has lost control my client now has stepped outside her job and she has tried to physically take a student away from other campus security personnel who are performing their duties in restraining the student who had pushed the teacher and then you continued when the police came you continued to be argumentative  don't see how you make that into a first amendment retaliation claim first of all we are what is our burden here the supreme court says our burn is shows a motivating or substantial factor how do you find motivating factor it can be one of multiple factors it doesn't have to be the sole factor so their own paperwork shows that her speech was one of several factors secondarily just as we showed in our summary judgment opposition and it's in the yard that those other items were just a pretext she did not try to grab a student from officers a campus supervisor so far away we got the students declaration to say i didn't do that that's untrue we got mr so far to say she didn't cause a problem pelleas say it lasted for five seconds she said give her to me we said we're taking her to the police she said ok and backed away so that was pretext that's our proposition is that is pretext to to the actual first amendment violation here the same thing education no no no but they we know that from the written statement and what they said before the board that she did these things that just were true and we have trial lawyers now not a not a union representative that had a substantial experience a during our discover we show that's just not true that's pretext and that's what we said in our summary judgment opposition those other items trying to take a student from a campus supervisors hands trying to take a student from an off the chance that's just false and if it's false justice roeder is it that pretext that's what we maintain the other statement that ms basinger had to calm her down we proved that was false so you have four items that you cited justice roeder and of of those four three of them we prove for or also that left the speech so our position is those other items were just pretext to cover for their for their of violation of  of the board was that your behavior significantly escalated a precarious situation danger the well being of district students and staff one of your primary duties is to maintain order and ship your safety and security so your actions were in complete arbitration proceedings that do not have collateral estoppel effect so that has no effect here we get to go where we have ruled lawyers not a union representative representing my client but i got a union represent that hearing that representative really did not do a good job if you look at the transcript he failed to even ask de janeiro easter did my client try to take you from a police officer saying but once what my coin is represented by trial lawyers with over forty years of experience we proved those were false so that's why i think the supreme court in mcdonald said this has no collateral stoppel effect race judicata effect an arbitration decision because you're not really represented by lawyers you don't have discovery i think you're right about that yeah but just coming back to whether your client was speaking in the capacity of a private citizen versus a public official i guess i just i have a hard time accepting your argument because she was on duty right in uniform on campus and in the context of actually exercising the very duty she was employed by the school district to off campus incident on a saturday that she had witnessed and she had said what she had said that's that is speaking in your capacity as a private citizen if i might add to your let's let's take this example let's say that say the student is driving in her car outside the parking lot onto the street and is now off property the police stop or poor out of the car and pull the rodney king and beat the tar out of and my client says look to anyone who's president that's police brutality take out your phones a videotape that would that be part of her job duties the student is now outside the control or outside the control of the school yeah maybe not but that's not with us now what happened here but there's no difference because the police had control hang on hang up and just i mean i'm sure i don't want you to try to help me because i'm not with you at this point and i would need some help to get there you might be right that even a short distance off campus let's say especially after school was over five o'clock six o'clock and she said what she said that might be one thing but were during the school day during the period in which she's employed to help maintain order on the campus she's in uniform on duty in the middle of trying to assist the police officers right i gather that your position is not that in that capacity she could say whatever she wanted and she would be deemed to to speak in the capacity of a private citizen right if she did urge the crowd to basically rise up and turn on the police and the crowd had in fact done that i assume you would say maybe the school district would punish her for that right because she would be speaking in the capacity of as a public a sense of effect in an adverse member because it's not a matter of public concern you're causing a riot and that would be protect all i'm ok fine i'm not talking about something that rises to that level were just totally unproductive i'm just saying well if i might respond by one word one word answers your question and that's control is what i'm trying to tell you if the students on the street there outside of the control the school right if the student the student in question that the speech related to was outside the control of the school at the time this was happening she was in control of the police officer the police officers had her arrested they were  head on the ground ok but we're focused on your client it's the capacity in which your client is speaking has nothing to do with control the kid was in but she's she's under the she's representative of the school district right that's zero control over the stews over the student that's in custody that is the police back at that student is in custody of the police officer and the school has no control over that student otherwise you're going to get in trouble for a lynching if you try to take that the reasons given by the school board for what action it took which i hope is a list of things one of which refers to something that she said and just what do we do with that and with the fact that the that there was a hearing do we just ignore it all and say no we now are going to we're now going to have a trial as to what happened on that and then extrapolate to what their motive might have been it's just that is that is that's exactly what happens in every important case i handle almost in home most exactly i have to show that the reasons given by the employer were pretext and so i put evidence on this is this is wrong this is protection so the reasons given that you cited we put in our summary judgment obviously those are pretext the only thing that was true that they cited was the fact you gave him protected speech but it was a part of our job function because she if a employee voluntarily engages in conduct not speech but conduct that the employer believes is inappropriate and warrants termination can the employer make that or can recommend ation and can the employer terminate that person even if the employee says while i was engaged in inappropriate conduct i make comments that i claim are protected and i think the case law is clear that the action taken by these defendants was a pro but what is the closest case to this i think actually if you look at all the cases cited by the district court the johnson case pickering case that in case when you analyze situations like this and i think they've been  johnson case did involve speech yes it was in the classroom and you were driving a distinction between speech and conduct and i'm just wondering what case if we had some case that that makes that distinction hopefully there's no dispute that if there is an inappropriate conduct and you do something completely inconsistent with what you're expected to do that the employer has discretion to take action if you want to look at the immunities government twenty point two you have discretion twenty one point six you have the ability to do what's necessary in connection with an investigative matter and you have an immunity and we haven't if i get time to get the qualified immunity that i think is a but i think what happened here is you have and it should be noted that what these two people did wasn't to actually terminate this person i understand the argument that they got the ball rolling but what mr adam berry did was when he was confronted with a complaint about what this person had done and the complaint came from many people employees and police officers this was a massive melee multiple cars came from lodi police department little cars came from stockton police to w this is a pretty big deal at a high school so it was a very big deal he gets complaints from police officers and in fact this is acknowledged the plaintiff's conduct was such that the police officers not only criticized the plaintiff they arrested  her those charges were dropped but that's what they thought of her conduct all mr added barry did was look into this and write a letter of reprimand saying i'm going to pass this on to the district office and i think if you get into qualified immunity how could that possibly be violating a well established constitutional right the next level up is the other defendant neil young who did work in the district office he did a very detailed investigation and before i move on from mr adie barry and i think the courts noted this this wasn't a situation where he took action because somebody made a comment if that the if the letter of reprimand or the recommendation of the terminations was based on the supervisor taking away a student then she did the same thing trying to take away a student from a police officer that's actually a criminal violation he does make it not go on acknowledgement about her comment but what's important here that if we want to turn this into instead of  issue about conduct what sure they're allowed to discipline her for i think everybody agrees with that and trying to hijack it and turn it over to a first amendment issue the first amendment protects content of speech well i take it if she had call at look at this look at look what's happening and i took that to mean that she was the reporters are in the middle of the melee she's perhaps off to a side i know i think to the reporters as opposed to being in the heart of it here for example let's say the content of the speech is look what's happening this is after this is bullshit this is apologize but it's all through the record this is police brutality take out your cell phones and record this mr adam barry and mr young both from their declaration that one their decision had nothing to do with that comment it was based on this other laundry list of conduct had nothing to do with the speech but they both said had she come in the next day and said you know i think this was ridiculous this was police brutality this shouldn't happen she's entitled to that opinion they both said nothing would happen converse like if the argument is this is always protected what if every day she went into the classroom and repeated these words went to every classroom in the high school you know in my opinion police brutality is bad it's after up it's b s anybody ever sees it it should be you take out your video your cameras and video the teacher in the classroom would say you know your campus supervisor you're disrupting activity here and she would say i've got a first amendment right to say it that's why i think the time in the manner in the place of what you say these when you say these comments is appropriate it's content that's protected not you have to look at the time manner and place but in the record that we have since the court agreed with you that it was not protected we don't have any finding concerning what happened in the melee and whether the reasons were pretext or non pretext so what are we to do even if we agree with you because it seems to me we don't have we don't have decisions from the court below about exactly the status of what was going on well that was briefed by both sides and i think the attachments to the  briefs set forth mr adversary's investigation and why he took the action he did mr young's very detailed investigation and why he took the action he did and again he didn't fire her the other person fired her mr young have is that this went through multiple levels with everybody agreeing that there was sufficient evidence to take the action they took and yours want to clarify one thing there's been a references to the  hearing before the board it actually was the i think the fourth level was the office of administrative hearings so what happened was mr adam barry's concerned about all the complaints he gets he writes a letter of reprimand he's the school principal it then goes to mr young at the district office he does a detailed investigation he recommends determination those the only two defendants it then goes to another level level three a skelly hearing that she's entitled to with mr make kill again system superintendent he listens to her story he looks at the video she says that presents or helps her case it doesn't in his opinion he affirms the decision to recommend termination she's then allowed to go to the next level the office of the ministry of hearings a neutral third party arbitrator who hears two days of testimony and that's the one i think it's in the page two thirty six where he talks about her conduct directly contrary to her duties and obligations in a conclusion he makes various findings this is the third party independent arbitrator one that she acted incompetently to there was an inexcusable neglect of duty three insubordinate for a willful or knowing violation of the district rules five inexcusable discourteous offense of abuse of conduct this is why the district court ruled the way that it school board was actually level five the plaintiff was represented by a union rep participated at level four the office of administrative hearings the o h confirmed the district's decision and then it went to level five the school board it's my understanding plaintiff didn't contest that at all the school board and school board adopted the decision to terminate the court did not go past step two in the pickering test but all the evidence before the court if i can just review what those other correct decision but i think there was four or five other reasons the court could have used to reach this isn't reached i guess maybe i have misunderstood the tenor of your argument so far but i haven't heard you say anything to support what the district court you've wanted to talk about other things and that's why i think you're getting the questions that you have from my colleagues so i think the gist records decision was correct it it focused on this not being a private statement but a statement from a public employee and some of the con comments from the court i think  picked up on that she's on duty she's on campus she's in uniform she has or radio she is instructing students what to do i think it was a bit of a red herring argument to say oh her comment was couldn't have been directed towards students it was directed toward the person that she couldn't even control because that person was under police custody now obviously that comment was not directed to that person the person was being handcuffed  no position to take out a cellphone and start videoing so the comment this is b s take out your cell phones and start videoing was not directed toward that student it was directed toward all the other students obviously so for all those reasons she is working and speaking while on the job the issue is when mr had to bury mr young or asked the boy to say some things be asked or aft up or take out your cell phones and start videoing is that part of your job they said well it's not part of the job description no but other things it's not part of your job description to get injured on the job but if you are it is part of your job and you get worker's compensation and if i can point out she she was injured at this time and she presented a worker's compensation claim she knew she was acting on behalf of her employer throughout this time and she presented a claim in it and received benefits for that so i think it's inconsistent to say she's not working on behalf of the district and her activity is not in connection with district activities as she's making these comments so the district court to address that second point pickering that was the basis of the court's decision pointed out can point out one of the thing there was an argument that shouldn't apply because she doesn't have the trust and authority of teachers i don't know if i need to spend any time on that but i think trying to limit the johnson case and all those other cases that we think support our position to teachers is faulty logic but the logic essentially is johnson applied to a teacher this person the plaintiff is not a teacher therefore johnson shouldn't apply i think that's faulty logic  what the district court said was because plaintiffs focus a public employee during the incident her speech during the incident is not protected under the first and then and so and you would agree with  yes when she's making that comment how's it going to be perceived by the student this is the campus supervisor that person does have authority that person can take you back in the class if you're out of class or bring you back in to campus if you're off campus can take you to the office where discipline can happen you can't just blow off the campus supervisor that person has authority so they are speaking with authority in an official capacity when they're yelling out instructions to students that are under her control and  on the trust issue hopefully all employees have trusts and we expect everyone there was an argument about only teachers pass on knowledge and wisdom i can tell you for this district and all the other districts i represent they expect all the employees to patch on knowledge and wisdom whether it's coaches administrators counselors campus supervisor so the cases that involve teachers should not be limited to just teachers and should be a political here i think the district court's decision was correct  just touch briefly if i almost wish it had gone on i totally agree of the decision pickering number two the second element but if you look at the other elements the plaintiff cannot show it the district  decide the district didn't decide that other factors would have warranted summary judgment i'm sorry was it a substantial factor in the decision or speech no look at the declarations that were submitted did the state have an adequate justification to treat her differently from the public yes she's the district's employee who's bound by certain rules and last with the district have taken similar action even without the speech yes that's  declaration mr young's declaration and should be noted this office of administrative hearing didn't even volved the first speech issue and yet they still confirmed the decision so clearly this is a decision that was proper and made independent of bought decision from this court called dahlia dahlia where a police officer with this is or are reports brutalization of citizens by police officers while he's on the job to his lieutenant while he's on the job too i ate while he's on the job during his workout and this court and aunt bar panel of this court said that's an issue of fact as to whether that was his job to do why does that not apply here that's an issue of fact because my client was commenting about police abuse because if she had waited until after the melee had ended and gone to the principal superintendent whoever the higher up person is and said exactly what she did after it ended while she's still in uniform while she's on duty i would agree with you dalia would help but the problem is that she was in the middle of this of trying to get the situation under control and at least from the school district standpoint her speech far from helping that it actually you know did just the opposite with all due respect the facts are quite the opposite the facts are that the fight it stopped at the time she made the speech the fight it stopped that's in the record it's in new york there were no longer any fights going on it was the police officer taking down this one student that with all due respect to that the overall i don't think the melee was over i don't think you can no reasonable jury on this record can say that all calm had been restored and everyone's going about their business that is definitely not what the record shows here on that is that what you're arguing true her suggestion to the crowd to get out your cameras would make no sense so i just don't think your argument that point is not credible but if you do understand the distinction i'm drawing i'm with you that if it had been after the fact she goes to the principal's office or some higher up and even while on duty makes the complaint but not when you're in the middle of what your job is supposed to be which is to help the police get under get things under control but i take strong exception with the idea that her job is calling out the police for for abuse when i didn't say that i said it her job is to help the police maintain control and but but they're abusing students while they're trying to maintain control right that's not right i agree and she pointed out something that was not right right but it's the time i mean i think your opponent fortunately is right that it's the time and the place in which she engages in that speech i'm not saying that the content of it is totally unprotected in all circumstances but i'm saying in this circumstance crowd around this student that was being arrested and that's what the record most favorable to my client said because that's what she testified to and that's part of the record she said vitamin is there you talked about a student that was thrown to the ground yes so at the time the student was thrown to the ground people were dispersing there were no longer any fights that's what my client testified to and that's in a record that's what the evidence most favorable to her shows is that the police were basically done it was it they were affecting an arrest of one student and doing it brutally which was inappropriate and so she did not have the authority to call out police when they were involved in a police action on campus ok thank you very much mr star you will be submitted and we are at recess for