morning may please the court counsel my name is j c pleaded on behalf of the appellate randy henry and henry is with me here in the courtroom today this is a case about protected st amendment speech from randy henry that caused a highway trooper to be charged related to the death of a twenty year old child and later plead guilty all because of what he did and what he said his speech outed cover up of the drowning and government corruption we asked that this court reversed and remanded because the district court improperly granted summary judgment because there were genuine issues of material fact qualified immunity wasn't proper because there was no evidence of disruption and pickering was improperly applied last we think that it should be reversed as well because henry created or put forth an up evidence to create a factual issue as to whether or not their decision to demote transfer and send him to an e p was based on his speech the st issue that i'd like to address is that genuine issues of material fact existed in this case st they've used police interviews which aren't permissible under the walker case which this court has decided another example and we've we've put forth a lot  proof but i'd like to at least highlight a few is exhibit f f f f f f is a one page document that isn't dated no one has attested to its authenticity and it's supposedly from can see a prosecutor who finally entered into this case and obtained a guilty plea from pearcey nobody could i don't identify who created it when it was created why it was created or where it appeared from that's not proper evidence that would be like me coming in here and saying well this document wound up on my desk and it says there's a big conspiracy and corruption and therefore proves my case this court would allow it the district court relied on that document to say that the statements that mr henry made were unsupported that's not true even if that document is allowed to be considered on the summary judgment record the court weighed the evidence the court said that because of this letter there was henry was not a whistleblower his speech wasn't protected and there was no coverup or wrongdoing but here's our evidence if any stacey mosher came in and said in a deposition that the lack of inappropriate investigation by the highway patrol was designed to limit their liability a federal judge found that the missouri state highway patrol intentionally did not disclose documents that related to this drowning in addition we presented many facts about this investigation not the least of which is mr pierce the on the very day being told that his job was safe that he needed to write a statement even though a kid had just drowned in his custody and it would be changed to fit the facts he was allowed to manipulate a key piece of evidence the person who investigated mr pierce he was a man by the name of stack his friend for eighteen years who had never done a boat investigation supervisors would later say that his investigation was so inadequate that he should have been disciplined that didn't happen we later move on in adequate investigation i think was addressed in  investigating mr pearcey said you take this d n a evidence and make that garrett realm or rape investigation go away that's what happened and as it turns out there was one piece of d n a that was never tested and the highway patrol exonerated garrick grounder the inquest was wildly inadequate his grandmother knew that piers he was lying during the inquest and did nothing about it she allowed his own attorneys to ask mr pierce the questions the old terms of the interest involved in the disruption to the pirate patrol i don't think that you reach pickering in this case because i don't think that there's any evidence of disruption so st the only evidence relied on by the district court was the conclusion of the highway patrol and out of court statement offered for the truth of the matter that's hearsay so there was no evidence no one came in and testified that there was disruption no one said we thought there was going to be disruption there was no affidavit saying we thought there was disruption or could be disruption so i think that what the courts have said is that there needs to be a showing especially when you have speech that's a matter of public concern which is what we have here both the waters supreme court  the i'm sorry conic court have said that if you need if you want to predict future disruption the government needs to have a strong showing and in this case there is none and so i believe that at that point you never get to pickeri wasn't there at least one prosecutor who said he wouldn't take cases anymore because of this and i think there's a disputed fact it is well for that judge so there was ground there in dunkley who said they wouldn't take randy henry's cases but said she wouldn't take piers these cases he was never disciplined mr dunkley said that he would never take motors cases she was never disciplined so i don't think that that then creates an issue of disruption but wasn't your client a different rank than those other officers and wasn't my recollection is the district court said well look these present in other words cases from line officers would go up through your client and that was a different factual setting related to those other other other officers you just mentioned he was a different rank but the demotion would bump him back down to corpus so he would be at the exact same rank as all the other people so the training would transfer then would be exactly the same as what mosher or pierce he should face because they all would have been the same rank and i think that even to address that further the the likelihood that mr henry would have brought a case to either dunkley or ground there is slim to none as a supervisor because there's no evidence either that either of those two people prosecuted any of his cases in furthermore if that's true right and they had a big concern about not prosecuting cases after the recommendation for him to transfer was made the same supervisor who made that recommendation said well hold on a  henry that gave rise to this action it was undisputed at the district court level that there adverse employment actions the st was sending him to an e p the nd was demoted him in the rd was transferred and part of the issue with the transfers he had school age kids and so he wasn't able to actually uproot them and transfer so it wound up in a constructive discharge or him and the interesting thing about that judges the superintendent that time knew that if you transfer somebody it's likely that they would retire there were four other troopers who spoke out against the highway patrol who were all transfer right after their speech and they all retired that was something that was known at the time  and we believe that it was a further evidence of what they did to be intentional the the disruption is well if i could sort of talk about that a little bit more you know what we've got here is a case that the highway patrol constantly talked about it's the drowning they constantly talked about that they constantly talk about the new stores ellingson lawsuit the inquest in grown up there is no distinction by the defendants to say that if even if there is disruption it was caused by the speech in fact the exact opposite is true that there was no disruption everything was operating same after the whistleblowing kendall said whistleblowing did not change a thing about his job turner also said that mr pierce he caused turmoil in henry's troop from the date of the drowning through the date that he was deposed the stever case says that if they can establish what has caused the disruption in their then summary judgment is in inappropriate and we believe it is here what about the i don't recall a lot of discussion in this case about the on the on the qualified immunity inquiry on the clearly established prong what's your best what's your best case i think you want to show that this was clearly a clearly established writer clearly established violation saxton which was from two thousand which says that it's clearly established that you can't retaliate against a police officer for reporting potentially illegal activity i think this case follows it directly and then that case is also further emphasized by the lindsey case in two thousand and seven that says it's clearly established that a public employee may not discharge an employee for the disclosing potentially illegal conduct of public officials and i think the rd judge is lane versus franks and that's a supreme court case from two thousand and fourteen because we've got to remember that mr henry had legislative hearing testimony and deposition testimony and it was undisputed that those were protected and then he has this other group of speech that he made to the media and the ellingson family that the district court found was unprotected well the waters case says that if there's  dispute about his terminations being because of unprotected speech assuming that is unprotected and just assuming it for argument's sake and protected speech that's a fact issue for the jury to decide well are those cases that you mention are they factually similar you know we're supposed to and the clearly established prong we're supposed to look at the authority supposed to avoid a general a general level of similarity are those cases factually similar i believe stocks that involve the same kind of alleged misconduct by the plaintiff yeah i believe saxton is a police officer reporting potentially illegal activity and although you can't generalize it it doesn't have to be identical so i think those are the same and then wayne would be the same and you can't retaliated against someone for giving sworn testimony so i think those two make clearly established law that you can't retaliate against mr henry and i think it creates a fact issue as well that should be resolved by the jury and not the district court and i've asked that i reserve the rest of my time for rebuttal in this there are more questions here well thank you ready yes good morning your honor and may it please the court my name is chris rae and i'm going to system attorney general for the state of missouri i represent several state officials including highway patrol members and this case the district court correctly held on the facts taken in a light most favorable to plaintiff randy hillary the defendant did not violate any clearly established constitutional right belonging to miss mr henry accordingly the district court properly established right aspect of the case in this case has a long actual record the record is very clear and despite appellants protestations it remains uncontroverted more importantly the issues of whether or not there was a constitutional violation is a pure matter of law for this court to decide the district court correctly found that henry's non legislative and non testimonial speech did not amount to a protected activity is by arguably addressing matters of public concern because the missouri state highway patrol's interest outweigh those of henry and this goes to the disruption in the workplace wrong on uncontroverted evidence the district court noted the henry was disciplined for lying instructing others to lie interfering with an investigation and spreading rumors none of no such speech is protected by the st minute and all of which caused or could have caused a disruption in the workplace the district court correctly greg not recognized that law enforcement agencies like the highway patrol more than any other public employers have a special organizational need that permits greater restrictions on employee speech further and this goes to prong two the highway patrol did not violate a clearly established right where as this court recently explained in bank in the morgan decision the right didn't exist and nothing put the constitutional question beyond debate now i'd like to discuss a couple of the points raised by plaintiff this morning st they say that you never get to the  test and that's clearly incorrect now they believe this if you read the briefs because they say that randy henry is a whistleblower but nothing in the record actually indicates in a lot of the speech that he has whistleblower status and relied to a prosecutor spread unsubstantiated rumors and various conspiracies and conspiracy theories this isn't protected speech under this court's decision in nord where it said that if statements run true they may be deserving of less protection under the st amendment plaintiff's claims of a cover up fall flat as they act as they lack supporting evidence in the record and that's what the district court explained and they said that much of the speech does not constitute whistleblowing speech though the speech could have vocal high public interest  of supporting facts the inappropriate matter of convenience and the insubordinate behavior lessen the concerns with mr henry speech so given that is not a whistleblower and given that the conic i'm picturing the task clearly do apply  key focus this morning is really on the potential harm to the workplace so this court has addressed this in at least two different cases and has recently taken the decision and bank so i would like to talk about the potential harm to the highway patrol's workplace a in the harm to actually did occur the missouri state highway patrol has an interest in maintaining morale discipline and efficiency in this and this acetates harmony and trust in the workplace the district court correctly found that plaintiff speech and the manner in which  affectionate did hurt working relationships negatively impacted morale disruptor the missouri state highway patrol's operations of the end of a and the peak of the ability of the planet to perform his job the supreme court has held that an employer does not have to wait until the extent of a disruption of the office and destruction of the working relationships takes place this court in nord and then again and robbins are in morgan recently held that you don't actually have to prove up disruption as plaintiffs insist that you do or rather that the destruction has to be reasonably foreseeable and the destruction here was easily foreseeable so i said earlier there were lies there were there was encouraging others to lie and there was a situation where there was a campaign insinuating that a prosecutor was engaging in improper behavior in an improper conspiracy with the highway patrol  that sort of speech is deeply disruptive and the law enforcement context it's deeply improper in this context there are two prosecutors in this case as plaintiffs said this morning that declined to take any more cases arising from mr henry and that is a fatal defect for a law enforcement officer if you can't actually get a prosecutor take your cases i can't imagine any disruption in the workplace that is more harmful  than that fact and we have that fact in this case turning to whether the leak case puts any constitutional question in debate henry must show that there isn't the political precedent that pushes the constitutional question beyond abate or show that a reasonable person would have known that the terminations was a violation of a clearly established right the court a state of the us in the morgan case and the court also stated this not necessary as i explained earlier the plaintiff this morning and then in their brief they could misquote morgan in an attempt to establish present and they improperly relied on a vacated panel decision there is no case with facts similar to this one that puts the constitutional question beyond debate and the reason for that is simple there is no case that i can find where you have the amount of disruption here we have a prosecutor refusing to take cases and you have an insubordinate employee it was lying in the workplace and encouraging others to lie so those facts make it where there is nothing under this under this court's sovereign immunity to part test that puts the constitutional question beyond debate counsel do we need to reach the clearly established issue in this case i think the cleanest way to handle the case is to reach the clearly established issue sort of like the court d in morgan and then actually given that the court can look at the record and and set that aside but really this court has had a lot of options because you can you can either decide the case on the grounds of the clearly established issue or you can decide on the case on the grounds of disruption in the workplace either one of those would be sufficient as the district court held to to sustain the judgment of the district court  henry the he was offered a motion that is actually in the factual record and him oh did he was not actually because he retired before the disciplinary process was was complete so he  retired at the same rank he had been before these incidents started so it's so you're not really disputing that that he retired in the face of the employment action director are  turning to the evidence in this case and the admissibility of the evidence plaintiffs have put forth fifteen facts that they believe are in dispute but they're not actually disputed c a that concluded that there was no evidence that the highway patrol were pressed or hit in the evidence and the cause and if you look at these fifteen facts and then the exhibit what you have here is an unfortunate litigation situation that plaintiffs have given rise to in response to the statement of facts offered by the defendants they responded with hundreds of additional proposed facts and in what is clearly an abusive litigation strategy the district court found that it was an abuse of litigation strength strategy and had them redo it the facts that come up that are relied on pun by the district court  fully properly fully admissible and and plaintiffs arguments and there are contradictions do not make those facts any less proper for the district court to rely on and i am happy to go into any of the facts that this court would like to discuss this morning although i would also point you to our brief because we discussed each of them that we could identify in turn and explained why the district court's reliance on those facts was fully proper i would like to sum up my argument with two notions st it is undisputable there is no fact in the record they can dispute the henery speech i would like to reiterate what that speech involved henry speech of lying instructing others to lie interfering with an investigation spreading rumors there's no fact in the record that can contravene the fetter that can contradict the fact that would naturally cause a disruption and a law enforcement workplace and a law enforcement workplace as this court has repeatedly held and the us supreme court has held is a special kind of workplace that necessitates more order than a typical workplace and so given that play of speech was not a protected activity he fails under the conic and pickering tests also as i discussed earlier nothing in this case no precedent before this court would put the highway patrol on notice that this was a clear violation of rights and as this court recently decided and morgan that means that the district court's judgment should be affirmed in the full unless this court has any questions i will leave the rest of my time thank you your honor scott thank you very much also you you have just over three minutes thank you i think it's important to think about destruction and think about the facts that were presented there is no court that i have ever read that says you can come in at litigation and just claim disruption and not even doing that they haven't put forth an affidavit or anything or that proposition morgan doesn't even stand for that morgan cites to waters into conic which says if there is public concern speech the government needs to make a higher showing they haven't done that they say we can't controvert these other things that they claim the lies apparently that henry told piers he told lies at the coroner's inquest the perjured himself under oath the highway patrol knew about it and didn't discipline him which to me would mean that it's not disruptive that the rumor issue act or not was found to be guilty of spreading lies in rumors by the highway patrol the highway patrol did nothing about it that says to me that it's not disruptive he made randy henry made speech about prosecutors and he made speech about a prosecutor who had the implication of a conflict and ultimately she got out of the case everything that he said about that prosecutor was true that prosecutor agreed she had a conflict it's not a pleasant thing to hear that a prosecutor has a conflict it's not a pleasant thing to hear that there is corruption within a missouri state highway patrol there's no whistle blower case that is pleasant on its surface and i think that's the importance of what these cases say is that when you have speech that's of great public concern you can't throw the employee out by simple assertion that there's quote unquote disruption when you get to litigation the supreme court this circuit has always protected whistleblowers for speech and especially speech of high public concern which this was there's no doubt that his legislative speech in his deposition speech were of high public concern as well i would again point and i don't think i did this before but to sext and cites for other circuit cases that deal with this being clearly established and those are all set out in the briefing and also the section court goes through the pickering analysis and it says even though we're going through the this is clearly established and when it does that it cites seven other circuits as well that held that in fact after the pickering analysis on a whistleblower case like this it was clearly established ready henry was a whistle blower his speech was a great public concern it brought justice to the death of a twenty year old kid it brought a trooper before the court system that all would have happened without him and as a result he's out i don't think that any supports that i think that the district court should be reversed and remanded and all surrender the rest of my time unless there are any other questions i think not thank you very much