preserve two claims for the future we generally don't reply to this is final judgment but i think that those were reserved by the district court for the specific reason that we could take the final best way to do that would be through a supplemental letter with or after argument is going back to the matters at hand with the summary judgment this was a case of viewing the record in the light most favorable to us where you have two officers who over the course of a year witnessed their superior officer become increasingly aggressive to other officers of citizens a life they repeatedly complain the including chief caldwell but nothing was done and that was when another officer came to them said that lieutenant roach a committed excessive force against early so they were viewed the pictures of perfectly the showing marks on his body consistent with but they harbored serious doubts about whether anything will be done and they weren't the only officer wonder katz thought you went to berkeley the next day after the incident what was the question your honor i thought about what had happened because they believed nothing would grow up what i'm asking you is don't they would it be too much to expect that they would you know the internal process ease of the department some and and yet the court found that absent real proof of disruption the first amendment allows officers to do this because it serves as a curative role and provides information that the public complaints seriously and then you have chief caldwell who when asked whether or not the reason he never disciplined lieutenant roach was because roche could expose his affair he invoked his fifth amendment right over forty times of speech that normally takes place in these in these sorts of circumstances whether it's a police case or whether it's endemic well i'd have to response to that first is they did speak to berkeley th temperature's had problems in the past but these are superior officers so we have officers that may support you but you need to come forward first the file whack and then if you have been abused here's how you complain and they handed him or but to your other point this court's cases have never distinguished for first amendment purposes twenty private public speech i think we signed to those cases in our library page well that shouldn't matter for the first and i'm an analysis here and in some respects the speech here was more targeted than if they had gone to the press as far as causing disruption within the  police department handed out citizens complaints so that was not a part of their job they also went out to berkeley on their off time the chief testified that when an officer had an unpaid lunch break they were allowed to run personal errands pick up kids from school and there's no proof here that this had anything to do with the normal police duties of months or waste of music that's correct but they were still on their off time doing speech that was not within their normal job if they had it and this you know what they are yes that's true if these two officers had gone to the same thing they did here and gone in this car with their badge and guns on their off time and paid lunch break and went pick how it could fail to be disruptive when you have  later revealed that they never wanted him to know i don't know that it did they wear gloves so that by the presence would be on on the form well it's clear here that this was not done what they were fired for was being disloyal for their speech and that can be seen and and know hurt by facts in the record i don't think you can chop it up in that way it was because they were fired only after after the was treated unfairly something needed to be done this is consistent with what officer crouse the said all along that the disruption here was the chief caldwell did nothing about this lieutenant who was committing a series of defendants had gone to the newspapers with all of the complaints about their colleagues and the newspaper printed i it didn't give the process chance to work but you do have you do go make a public record and you're in your let's also change it so that they're in their civilian clothes yeah i don't i mean say they know on that point to then go out to the suspects house surreptitiously and secretly tell him you know don't don't tell anybody we were here if you do go facts that the chief had at the time he made the decision and there's no dispute as to what those facts for we have we have the transcript in the record of what the suspect told to fields who went was asked about the disruption to the department he pled the fifth amendment that's absolutely untrue where he pled the fifth amendment in his deposition when he was when he was asked repeatedly about whether he adultery which had nothing to do with it third with the brother that he didn't know about because the tenant wrote self reported and in that case the chief did say that in essence this guy's brother is has special needs and he lives with his sister and his sister was having trouble getting him to take a bath and clean his room i believe was the testament and so she said and he helped my brother and he went over there and he helped and they apparently came i would think you would acknowledge that it's part of your deal that they were going out on a tune on their own i mean yeah i certainly see where you're going with this they were certainly going to put it this way they were certainly not supposed to go out there you know they certainly took the imprimatur of their office with them when they showed up with with badges and guns have it out official and handed out official forms and talked about matters that you know criminal me that the rug is with respect whether they act private citizen but if you tell me yes you don't think they were that they were acting this police officer you know they showed they showed up i understand i think starkest give me an answer to fit into that case they didn't act as private i understand that i don't know that we have to wrestle with that for very long in order to well that's what i was trying to get you onto the other issues right i mean i wanted to be arguing i don't know this one's  e is what i'm trying to say all right that if you sound and you can see that this is a matter of public concern i would concede that police misconduct is a matter of public concern and if that's what they're talking about and that may be a matter of public concern but again the record what the chief knew was what they told lieutenant fields and what lead to the fields told she and what they said what they both said was that they went and did this because they were tired of working under with janet roach not as they want to blow the lid on any sort of police misconduct but because they were tired of working for the  the reason they did it it was stupid they admit it was the wrong thing to do and what they tell them is that they're there they're tired of the way that they've been treated by by lieutenant roach and neither of them said we're getting beat up by the well and but there's a difference between you look at some of the cases that they're talking about for example where you've got a you you've got an individual who is out who was basically told by this by a  huge serious thing if you've got a fatal shooting in the believe that was in versus june where you know you've got you've got a commander who's on scene and says i don't think you had to shoot the guy that's that's a big deal where you're talking about you know a police officer and a high school reunion gets into a scuffle with a guy who touched  d a very very least from the question we've been asking discussion very useful discussion we've had it very least wasn't the chief title here to qualified immunity i mean there's no of clearly established law it was certainly a reasonable perception on his part that officers were going behind his back trying to stir up litigation against the supervisor of that they didn't  kind of authority that i'm lying and lieutenants under my command my hope to assert and we're not even going to give him qualified immunity for that kind of judgment that's a violation of clearing very day after the accident that very day after the incident that well it was very clear and they knew it was very clear that burton and you know they were acting police offices that they were live in our favor and see that he's saying the same things he's been saying all along i told you about this guy you did not think and because it happened in the end i want out of this and i think the court's reluctance here is we don't want concert you had a series of events with lieutenant roach this is a small police department everyone knew and i'm not sitting here saying that every case like this has to be protected speech if this chief would have put some evidence as th pictures of excessive force lieutenant roach admitted to me in berkeley after he was in and that to me a speech about serious laziness on and i take it your point about the qualified immunity but all of us have you have to shows that he put no evidence and about disruption if he had this would be a much different case but when there is a serious place misconduct he has to put in something of this rupture and the basis disruption here is lieutenant roach and the chief not