coursing a police officer into relinquishing a constitutional guarantee under threat of losing employment gardner vs ryder rick tells us there was no doubt of a police officer or the other it is and i'm quoting from the kicks it is always for the interest of a party under duress and who's not dealing with my question i asked how there is any blame here given the fact that your client does not appear to have suffered any injury from his decision not to take the boisterous you are i respectfully disagree with my client was suspended my client honor in this case the the issue was my client was put in a position where he was told you relinquish your previously received guarantee warnings or you will lose your job reputational damage as that you haven't even proved the reputational damage because it's not like he applied for a position with another police department you know he had that other side job that was like a theory job so that's not like the whole stigma plus argument you're making that i don't see that either i don't think you have the facts here well you are it's certainly difficult to prove that he did suffer  damage however i think there is evidence that perhaps a jury should consider as to whether or not the allegations against officer homma keep would cause a reasonable person to perceive  light in the negative i pleaded guilty i'm sorry on how does how does your client say i suffered a reputational injury from not having a stress test and a proposal being made to fire me when he was later criminally prosecuted and pleaded guilty you that's a guilty plea you know i don't i wouldn't consider a p d p of pretrial diversion is not a guilty plea might be the supreme court has held that a plea producing a diversionary sentence is a guilty plea for purposes of federal law that's important for things like gun disability that's the supreme court's holding it's certainly my client's understanding your honor that when he took the pretrial diversion that it would not be considered a guilty plea and that the record is is now sealed if i may just for the record just point to garriock age for ninety nine yet although that although in the end he kept his job the fact that he had to choose right still represents that there was directs and that therefore there are damages and garrity also points us to answer so the position of officer homik he is he in fact did suffer a material adverse action as well he suffered damages because he was put in a position where he had to choose between keeping his gary rights or relinquishing his gary rights that's a pretty creative theory on your part in terms of this material adverse action because there is no you don't really have any authority that says well my i'm looking to listen bob and i at page two forty one i'm looking to guarantee it for ninety nine and my interpretation of those two cases is that the damage was done in that room when there was an effort to cause mr homage to give up his involuntary yes he was put between a rock and a hard place and i also would refer to the court to boy already spoken that they had already given testimony and when the officers showed up and said hey listen we should not have been forced to give testimony the nutley new jersey supreme court's essentially said we don't care and this would voice stress test room and that what happened afterwards although at some point both the police chief and the police board said ok but that there wasn't an apology but essentially stopped the process and several going to put you back good morning your honors me please the court accused position with regard to the fifth amendment claim obviously he says he's trying to apply the fifth amendment through the fourteenth amendment and the fifth amendment provides that no person shall be compelled in any criminal proceeding or criminal case to be a witness against himself the absence of any statements by mr howe mckee and the absence of any criminal case defeats homik east core fifth amendment arguments the fact that criminal charges were later brought against him does not deserve after the completion of the internal investigation does not change the fact that comic he was being afforded the protections under the guarantee role officer comic he was advised of the obvious protections under garrity during the internal investigation he signed a statement of right on november fifteenth indicating that he understood the right afforded him under verity and subject of a belief that at some point in the future these statements if he had made them would be used against him does not create an issue of genuine genuine material fact for this court i think it's important at no time did would could not be used against him and he could any subsequent criminal proceeding not only any statements but any fruit of those statements and again not to reiterate this point too much but it's important that homik he chose not to make any statements but rather chose not to participate in the voice stress test as the district court noted garrity doesn't stand for the proposition that comma key has the right not to be investigated it just means that the statements he chooses to make in that investigation can't be used against  if we look at the analysis then under the fourteenth amendment with regard to due process obviously no person shall be deprived life liberty or property without due process of law as noted by the supreme court in l deprivation of liberty can be caused by agree just official conduct that shocks the conscience but nothing then nothing of the actions of white ogden or suzuki would shock the conscious of consciousness of the of society and cannot be deemed a due process violation and again homik he doesn't have a right to a constitutional right not to be subject to investigation and the fact that comic he chooses to introduce facts regarding an expert opinion in his in his initial brief to this court for the first time on appeal is inappropriate and we would ask the court to not consider that because it infringes on the right of the district court and the longstanding rules of this court that all faction be presented to the district court and all legal arguments should be made so that a proper terminations can be made in the district court comic you then turns to a stigma plus analysis and again stigma as this court has held stigma alone cannot constitute deprivation of a protected by the procedural guarantees of the fourteenth amendment and clearly as this court has already noted how mickey suffered no property or liberty deprivation with regard without due process he suffered no loss of rank and no loss of pay he was placed on administrative leave subject to the received all the process that he was due under the indiana statute and i have indicated again that for the first time on appeal the stigma plus arguments are made on behalf of  again those were not made at the district court level and should be in the way i believe that the court's holding in swick is directive and miss case and instruct as judge posner said speaking for this property claims under the fourteenth amendment do not extend to purely dignitary or otherwise not peculiar to culinary dimensions of employment the actionable event is destruction and that hasn't happened in this case therefore we would ask the court to affirm the district once again three fourteen us two nineteen at page two forty one should i understand defendants to say that you caused how mickey did not answer questions there is not a question i am saying that there is a fifth amendment question because of what happened and that is what happened in the room that what happened subsequently subsequently there was an adverse action i understand the municipality fix things at some point with regard to the stigma plus point i point to rape i think rape makes crystal clear that a complaint need not specify legal theories i used terms such as reputational damage but i think reputational damage would fit nicely into stigma plus and vice versa granted judge williams if the facts aren't there the facts aren't there but i think that raid certainly provides officer hamann key an opportunity to assert the stigma plus he had to choose between a rock and a hard place and again i point to boycott forces the united states ok thank you thank you