all come to the fourth circuit judge floyd are glad to have a judge give me with us today from the eastern district of virginia and we're ready to hear our first case  soley because he made the speech would that be a violation of his first amendment rights if you accept that that what he was and i'll concede for purposes of the appeal today that he was  talking on a matter of public concern and that he was speaking as he wasn't charged with investigating this thing if you if you accept that then you might be able to get to the to the conclusion that he couldn't be fired for that but what well not happening what he was fired for and i understand that there is a question below as to what the ultimate motive was but the fact is that on this record we have both a lawful motive which is i mean i don't think there's any question that you can fire somebody for lying and we have an unlawful nobody nobody in that position is go been the case that they said we're firing you for violating confidentiality and left it at that had that been all that happened but that's not the record we have to do what we have on record is that we went to this press reporter who was at the t v station to which the story was leaked can't you infer from that that the motive was because the guy leaked the story to the press i don't think you can but i don't think that's what the courts here designed today well it's on some aren't they entitled to a jury trial on the mode they are entitled to a jury trial on a motive if qualified immunity doesn't require but the fact is that that that on qualified immunity is raised it is the plaintiff's burden not only to establish that there is there is a violation of the first amendment but also to show that the case law was clearly  high level of generality but under the facts that were available to the sheriff at the time which was that this officer had gone and had spoken to his wife about what he saw on a on a video and involved in this saying he didn't if he had any concerns about it he didn't run him up the chain of command he didn't talk with anybody about it he went was wife who was living with that law is clearly established that he could not fire the guy simply for going to the press that question right i don't know that i would agree with that what i will say yes but let's just assume for a second that he can't fire the guy for exercising this first amendment rights and isn't the guy entitled in that a despite the factual dispute that needs to be resolved at some level it and isn't the law pretty clear as well qualified immunity that if there is a factual question on on regarding the bases the immunity the dischord la jurisdiction no that's not true what the case is in this court has said repeatedly that a question of fact on motive does not rob the court of appeals of jurisdiction but you've got to assume that he's right i don't have to assume that he's right i have to assume exactly what the district court assumed the district court did not say you win the district court said on this record they are both and there is evidence of a lawful motive and an unlawful move and so what the job here today is determined to determine whether it is clearly established or was clearly established in october of two thousand and thirteen that in the presence of of the facts that support both of those this sheriff could have known that it would violate his officers rights to fire him for lying about a protected gun i think your task here is to take the political case law that will h two police departments and show qualified immunity is a political based on that case law tying that case law to the facts that you have and i'll get to the case law in a moment certainly that the that the plants rely on but i would submit that the burden is the plaintiffs to show once qualified immunity has has been raised to show not only a violation of the first amendment but the fact that the the level of specificity on this record that it was clearly established at the time the decision you've got lots of cases that say that police departments are treated differently from other employers that sings like to me that that's where you would want to be going to try to implicate qualified immunity  law enforcement departments have more leeway in restricting the speech of their employees then and then other public employers do and i don't mean that's not in dispute so what do you do core which would appear to give you some degree of running around when officers rushed to have a superior officer far for excessive use of force without giving the apartment a chance to conduct its on review or investigation it is not clearly established law that their interest in telling private citizens to take action against their shearers even others as a public entity outweighs from the partisan interest in preventing disruption that was twenty seventeen four years after the events mean he didn't have that pronouncement at the time obviously but but what that case does show is that at least help show that it's not clearly established that he could not restrict his officers speech certainly about an ongoing investigation in that he could also expect that if his officer had some concerns that he would run them up the chain of command first which he did not do i think it's important for us that a is that a basis for qualified immunity here how do you me well the fact that the plaintiff in this case didn't follow that course of action i think it is a basis for qualified immunity yes your honor in you know in particular for lying to his superiors in the course of an investigation into the information that had come out o me ask you about the district court's determination with respect point is that the appropriate standard is that the appropriate standard for qualified immunity for under the first amendment is certainly  showing of disruption you don't have to show actual disruption what you have to show is that this russian was reasonably to be apprehended in what we had here of course was we had a reporter and this is undisputed in the record  and had had details timestamp on the video when actions it happened by the officers who had their names in their right as a but does that mean the district court applied the wrong standard it does your are sure well in addition to all of these factual details we also have one factual detail which is an allegation that the in me was hit several times in the head well ok but how does that disrupt or will it disrupts the department because now you've got a reporter potentially is going to run a story about something that as far as the sheriff's office knows didn't happen well ok that there's all kinds of false stuff in the papers well there may be but but i don't think anybody would dispute him plenty of didn't dispute when he was asked in this case that that having accurate information come out particularly about him in custody death is crucial to the public's confidence in their elected certainly was a disruption particularly when this comes the day after the death itself which is still under investigation by the state law enforcement division which is south carolina's version of the the f b i our deputy of issues that may be a tribal issue a fact today the job of the court is to determine if a plaintiff has established under first amendment precedent in the circuit from the supreme court that in the record you could you could find support for a jury verdict both showing retaliatory motive and the lawful motive sure bryant repeatedly asked this court to review a qualified immunity claim with mixed motives but this is not a next motive case and in fact the court will unlikely ever review a case for mixed motives on qualified immunity prior to trial the only claim that's properly before the court of jurisdiction that's not a trial issue as a claim that often the sheriff bryant fire baloney for the speech and not for some other reason this court has said in several different lying was want of two possible motives and that that's off the table for qualified immunity purposes because you have the other possible motive then it's not so much an issue of causation it's a question of in this public speech category it's just not the fact there's public speech otherwise there are volumes of cases that would be useless because it can be public speech but it can be public speech that can still be disciplined we have particularly in the police department category lots of cases that deal with and they're their most recent was the difference would that make if qualified immunity apply as it applied because the qualified immunity claimants before the court is not whether sheriff fired him for lying or a violation of confidentiality it's whether he fired him for the speech and whether the sheriff has untile the qualified immunity given the material factual dispute as looked at in our favor well what's the tell me the material factual the speed causation why did sheriff bryant fire now the other side said in the district court that it was lying and that it was a violation of confidentiality but the district court found that that was disputed and that a reasonable juror could find that the sheriff fire baloney for the speech and for not right  and you've got just speech that comes up all the time in qualified immunity cases it does your honor but all of those cases do not have a material factual dispute on a cause ation that the court then looked at because if it's speech and it's only speech ok it's only speech but if that's the case then there's no reason to look at all of the factors that go into speech in a public employee setting to determine whether qualified immunity apply i understand what you're saying now i agree with you i agree with you the difference here as my opponents asking you to bring and material factual disputes and look at it in  favorable to him and what i'm saying is the court can't look at weiner confidentiality policy violation the only violation here was he fired him because of the speech because that this was of material factual dispute in the and there are any number of cases in the four circuit among others that say that's a factor in the qualified immunity analysis and the police departments are treated differently i agree with you saw two responses to that one the court has jurisdiction here to review a claim for qualified immunity that sheriff bryant fired aloni because of the speech and reviewing that claimant can look at all of those cases on saying in support of them have jurisdiction the side claim that he wants you to review which is the claim that he was fired because of lying confidentiality policy and the only thing that's popular before the court is the speech now looking at that claim assuming they haven't waived it because they've never presented that claim to the court in any of their briefs it's always been about mixed motives so i mean the court excuse as waiver it was clearly established and the circuit in two thousand and nine that where you have speech about a serious police misconduct it requires an equally serious showing of disruption here there's no doubt but what case says that both cromer andrew and then you have durham and hunter remarks down well i think the standard is that disruption has to be reasonably apprehend i'm not aware of a case that says there has to be a actual showing of disruption i don't really cite that  there doesn't have to be an actual showing of disruption but the the defendant has to claim some level of disruption the only disruption here involved a violation of confidentiality policy that's the only thing sheriff ryan ever claimed both  andrew and both involve violations confidentiality policy and in fact that happens in almost all of these cases right but those cases it was futile based on the complaint to  that now but that is not the end all be all for the qualified immunity analysis cromer which is a one thousand nine hundred sixty decision from this case sav that where speech involves serious police misconduct a failure to run a up the chain of command in a complaint up the chain of command is not serious enough disruption to outweigh the public's interest in having this information there's no question that this was what that's all fact dependent i mean that's not the rule well it crome misconduct it requires a much greater showing on the disruption and before that speech is protected here the sheriff knows this the speech about serious police misconduct because when the reporter calls him his response to hearing about the has to review the record in the light most favorable to us which means no line no confidentiality policy it's simple a sheriff bryant fire baloney because of the speech and here sheriff bryant knew that this was showing of actual disruption i don't think that requires a showing of actual disruption in one case it shows a greater level of disruption in a case involving serious police misconduct if it's speech about  engine when the other side of the balance is serious police misconduct i think that's what andrew and durham and hunter all say we're at serious place misconduct on this side it's going to require a greater showing of disruption on the other side of the balance now if it's speech about employee grievance like and crowds it doesn't require actual proof of disruption it can be apprehended or just allege that this was going to cause disruption but where that speech about serious place misconduct like it was here sheriff bryant knew that because he was worried that went to his staff it committed a crime he has to know under this court's case law that it requires a greater showing of disruption before he can fire officer so your view an argument is that as an exception to ordinary rules police departments are held to a actual disruption standard not a reasonable apprehension standard only w misconduct and where it's those kinds of speech it doesn't require actual disruption well i think you could argue and that in this case what we do with with the disruption is the is required to balance that against the importance of the speech of value of speech with the interest and speech and hear the interest from speeches that essentially i murder occurred to jail and whatever disruption may have been caused even if and i think it does i think that your opponent is correct that all has to be is an apprehension  fear of israel but a fear of disruption as just doesn't outweigh reporting a murder in jail that's correct when it involves speech with serious placements pond if  speech that doesn't involve that it doesn't require a greater showing of disruption but both it's not just you don't have to have you know other people walking around with placards complaining about the sheriff what you've got to have disruption he may have anticipated is outweighed by the value and importance of his being that's correct and that's what their own manhunter both say and those cases although they did occur after the events here i think this panel is bound by those and how they view andrew and what was clearly established both of those cases say in the circuit in two thousand and nine where it's speech that involves serious place misconduct it's clearly established that it's going to require a greater showing of disruption of confidentiality policy is not enough that was at issue and andrew when andrew went public at violated the confidentiality policy most police departments and jails have confidentiality policies and if that disruption were enough to prevent serious speech about serious misconduct to be unprotected you're not going to have officers go public with any speech involving police massage based on that theory judge  case that was speech not involving first hand knowledge here bologna looked at the tape himself that paves so you know the court found that some of the statements of the officers may in that case run truthful and here the speech that was given to bologna his wife talked about the things that happened on that videotape where officers had responded and appropriately and restraining mr gross when the sheriff realizes that this is a speech about serious misconduct and again that i think is undisputed j hundred eight zero one he says i'm worried when i get this call that one of my staff may have committed a crime he has to know at that point based on this court's cases that it's going to disruption correct i think it did because this involves a speech of the most serious nature and when it involves serious misconduct this court said it requires a greater showing of disruption if this was a speech about employee and the sheriff comes out and says hey violation of confidentiality does front of my office that would be enough but where the speech and balls misconduct and serious misconduct that requires a greater showing here the investigation there was no claim the speech disrupted the investigation at the jail because the jail wasn't conducting that's i guess interact i don't think the sheriff specifically justified that there was disruption because he had to divert officers from the investigation to do a separate investigation of your client and a separate investigation of confidentiality and the park separate and that's close to what the sheriff said i think what the sheriff said was we had to do an investigation on who gave the leak there was no question about who was doing the investigation of the death it was not the jail it was not the sheriff it was flat slab was going to conduct that investigation and so the sheriff can't say that this speech bothered the investigation of the death of mr gross because the jail wasn't conducting that investigation sled was the only disruption here is a violation of confidentiality laws that you contest that now but what was your evidence of the district court to contest those sheriff's own own testimony in his deposition saying that sled was conducting the investigation and not h what officer trent ferris said at the press release where he says we're not going to do an investigation we think our officers acted appropriately this investigation's going to slash lead is that that's right and sheriff's office well you know but they had officers that would have been doing something else that weren't doing this and i agree that there is some disruption but under this court's cases where involved speech involved in serious police misconduct that's not enough andrew and durham both involved where officers violated confidentiality policy by bringing their speech to the public and this court then fined and either one of those cases but that matter because of the importance tha put to the public on having speech about serious police misconduct confidentiality policy with enough to preclude protection you'll have no officer come forward with a speech about serious place misconduct because  disruption will always outweigh it but that's again i think durham and hunter both say clearly established in two thousand and nine and two thousand and eleven that the speech was protected and the claim that case because either the jury is going to the side what was the causation why did the plaintiff get terminated or you're going to have a case like this where there is a material factual dispute in the district court but if they were to meet it could be two mode and if they decide that it's too motives then they're probably he's probably correct that they went on i agree but i think what my side would ask for is for the jury decide what's the but for causation  there could be a million different motives but the big question is what was but for cause ation for why the sheriff fired my client thank you for your time thank you mr hopwood mr johnson you have a little time left but you are addressing the issue of disruption actually in imagine what would be more disruptive than having you already got sled in doing the investigation and at least they've told us after interviewing everybody and after viewing the same videos and probably others that he saw that they don't as a preliminary matter see anything wrong and now you get this allegation in that as his wife was that he told me everybody knew there'd been a death but he told her he said he told her the names in the ranks of the officers involved and he told her that he had a specific concern that officer moore who had been involved in a scuffle with an inmate previously and had been sent away as a result of that scuffle to get counseling before he was allowed to come back that he had been in the struggle to end the hit the inmates islay to the attorney general's office to the governor of south carolina to somebody who can do something about it but what he did was he didn't take it to the people of south carolina he took it to his wife and what he told the share the chief of the  detention center was that he did not know his wife would take it to the media he told him that so that's the information that the sheriff has before him the sheriff can't know what his secret motives are that he didn't decide until his deposition that he secretly hope she would take it so on that basis alone i think he's entitled to qualified immunity the to clarify the issue that came up earlier  the sled was investigating the criminal matter testified that they conducted an internal review of the death sled was investigating the death for criminal purposes they conducted their own internal review of it to see if any policies had been violated and then of course they also had to conduct this is hunting down the issue of whether he was hit head getting back quickly to do this this is the mixed motive issue  the law is the elephant in the room and the reason it's the elephant in the room is because they know that they can't get around there's not a case that privilege is somebody to lie and we don't have to decide we're what qualified immunity is going to be the rule unless the plaintiff shows a case that says on these facts under these circumstances that he is entitled to win so and they haven't produced that case to you  and quickly as far as mixed motives go for circuit williams versus hansen there were that was a qualified immunity case and there was a dispute over the motive of the sheriff for asking all of the african american officers questions as opposed to about scream anation as opposed to asking everybody they were still able to design the issue qualified immunity despite those mixed motives in this court here can do that today i