thank you good morning ladies please the court linda friedman and behalf of the appalachians there are two issues before the court this morning first whether this appeal is moot and second whether the district court properly dismissed this first amendment case with prejudice following the motion to saul what do you want what are your clients more of our clients would like to return to the district court a trial on the issue of whether the policy equitable would be an injunction which we concede is moot well wait a second junction is not that much of a spot on monetary damages for the deprivation of your first amendment rights this court's precedent would provide are how much written and amateurish you asking for the range of damages could be any part of a nominal award all the way to one hundred thousand dollars supported by this case precedent what's not what would what would justify a hundred thousand dollars communicating this memorial to people who see his tattoo the symbol is one that is recognized in the military as you know i know but how will some person in people in chicago know if you see a halo and wings it's about people killed in iraq or what have you i think that people who see the tattoo would know that it was a tribute to the fallen and the issue dismiss so that particular record was not developed and it was not a factor in the in the court's decision because the city admitted below and it meets here that it does not challenge those tattoos on the basis that they were not pure misspoke i think but nominal damages may be a dollar that flows for the deprivation of the first amendment rights but the cases that have come out in similar circumstances have been a dollar have been five thousand dollars maybe ten thousand dollars and then at the determination as to the emotional distress in this circuit it's not uncommon to take a look at other cases to create some kind of a bell and to make a determination for example in the context of a termination deem just a much lower chance that's all it says and that was found to be sufficient and kilian and that was important about this particular case is how short it was pending the case was filed in july  within twenty days of service of summons there was a motion to dismiss and by the end of september the motion was fully briefed and the case was dismissed with prejudice in october when there was no fairly looking at this costs and such other relief as the court deems just so the court understood that that meant something to the plaintiff had the case proceeded even to the first initial status call there would have been a rule twenty six disclosure which would have set the materials that they were hired to place on their skin to cover the tattoos some of the class members had been disciplined those discipline actions were rescinded the major damage that remains is in emotional distress damage cost of the skins or the plastic that they had to put over cheap over the tattoos seven people were given that money which i think is about three dollars a package to cover up the cha q or yes the question of whether the policy violated a contract is a different policy question than whether it deprived these plaintiffs of their constitutional right to speech so with respect to the first amendment violation there are additional damages that kick in the damages that are available include a damage for having to endure the loss of their first amendment rights and i we  presumption is that these are intentional rights and therefore there is no remedy at last such as damages that would be available to compensate the insufficient and so injunctive relief is necessary and then also ask for compensatory damages up to one hundred thousand dollars for pain and suffering we did not ask for injunctive relief we asked for a declar judgment the final sentence said legal and equitable relief which could have allowed for in a junction appropriate or could allow for monetary damages i think that's a critical distinction the city is willing to read into that and we have cited in our brief a number of first amendment cases where the damages were nominal maybe five thousand dollars maybe ten thousand dollars the very fact that the loss is intangible doesn't mean that it can't be compensated when the person suffered emotional distress no different than if a person was fired from a job and then turned around and got a job the next day that paid more money and that person would have no losses because they earned more at their next job but they certainly would have a right to appear in front of a in that case there was a second amended complaint that was filed there was a two day trial and then there were post trial motions during which the person that the plaintiff never mention and that they sought damages and the other case that you cite is a good example where the court said it was only three months into the case and therefore it would be appropriate to allow even amendment because there was no preferably for damages in this case what the city tries to do is say it's like arizona because it's fifteen months but in the fifteen months they're counting the time that the case has been in the court of appeals the time during which they saw as state so that they could decide whether or not the city wanted to follow the arbitration award the we would say that you can we were at a phenomenal damages under twenty three feet too but also in this kind of a case that the declaratory judgment becomes the springboard by which all class members can recover their damages whether or not that would be in  it was put into place about a month before the lawsuit was filed and then the arbitration award i believe came out in march but it wasn't till the following september that the city publicly announced that it would no longer follow it so it was in force during one of the hottest summers on record for how long it was in place from june all the way at least till the following march then the arbitrations award came out and then it took until september for the city to publicly announce although i don't believe they enforced it during that time period so it's no time for total penetration how at least nine months and it was in effect during one of the hottest summers in the city's history and these officers were required to wear  long sleeves and overheat which is allege in the complaint where they were required to get up in the morning and cover their tattoos on their skin and then pull the tapes off so that the complaint in the prayer for relief would have case because it had only been pending for a short period of time even if this court found that the person leave did not include the damages that the case should be remanded and allowed to have an amendment filed to specifically request those damage facts unlike this one the the row case involves a person gauging and in lewd acts and videotaping himself craig involves a high school guidance teacher firing for publishing sexually charged for  reversed by this court on a motion to dismiss and then ultimately the judgment favor planers was sustained with the court finding that the first amendment rights could not be trampled on based on hypothetical concerns of the government lawyer never f scarier argument suppose the police officer wanted to wear something that says criminals should be x that is you know and i know because we only saw relief for the subset of tattoos that were military and tattoos that were religion why and why do you wish to curtail first amendment rights that much consistent with the way the military the navy air force one is a continuum so on the one side of the continuum is hate speech is offensive speech everybody agreed that that speech can be regulated the navy regulates it the air force regulates it the marines regulate it what's offensive about saying criminal should be something a lot of people believe that would be probably in the middle territory expressing a view that would have to go through a pickering analysis we did not have any class members who had those kinds of claims of people who hired us hired to challenge in the context of the military and in the context of religion and not in any other context we don't have any class members and not we're out of any of those situations ok well obviously pursued a challenge the policy in arbitration and prevailed in that action and the other trader ordered us to rescind the policy in light of that ruling the appears likely that any new policy would have to come as the result of plaintiffs yeah but there are there are arguing that they were harmed by this policy in the nine months or whenever it was force so well why don't they have a right to a you know judicial analysis the arbitrator ordered the policy withdrawn about nine months after it took effect so but plaintiffs actually after the opening grief was filed i think yes and after the open file and nothing was said in the opening brief about a claim for compensatory damages that's right your letter and also nothing was said about a claim for compensatory damages in the plaintiff's opposition to a motion to dismiss in the district court so it was in and it wasn't until plaintiffs or intil the city moved has been waived on on the merits that the city's interest in promoting uniformity and professionalism among its officers plainly outweighed the police officer's interest in showing their tattoos while they were on duty as they just your court properly decided and the district court also decided that the nature of those injuries is so straightforward that they can be balanced without requiring discovery  is speaking on his or her own time on a matter unrelated to the employment and that's not what we have here we have is officers who wish to speak through their attaches while they're working and recognized over and over again that uniformity is an important interest in any police force and visible tattoos plainly disrupted or the need to police force less uniform the city's interest uniformity outweighed the plaintiff's interest in showing their tattoos say the uniform or being professional which that's all don't you have to say a little bit more about why they're he's going to show when they're on duty well your honor i think that the value of uniformity is a more weighty buzzword is used then at some other justifications the sometimes seen first amendment cases like general disruption to government operations because here with respect to uniformity in many cases it recognize that a uniformed police force is a valuable thing for many reasons because it makes officers more identifiable it promotes cohesion within the ranks and it avoids any potential miscommunication with members of the citizenry and for all those reasons the city was justified in asking officers uniformity concern it seems to me would justify regulation prohibiting officers to alter their motive to dress or you know alter their uniform in personal ways this doesn't really have anything to do with the uniform right well is that the allowance allowing visible tattoos does make the police force i mean it does it doesn't alter the uniform they're all wearing  correct but to the extent officers do show visible tattoos that make that appearance makes them appear less like each other and therefore less uniform so these years when really concerns are very much during  nervous feeling that you know he's got these and didn't just jaywalk or turn left without a signal or something but that he somehow has maybe violated some religious norm problem you have if you wanted to ban the tattoos it was very important for you to do it the first time someone noticed that a police officer had but the but the but having them covered can also be very or can look as if the person you know has some injury or can be too hot in the summer and so on i mean if you it would be awkward all of a sudden to say you've got a cover over move your tattoos when they've had no warning whereas if the first time you guys saw the a police officer  something they thought was completely harmless no turns out there they have to do something well your honor in r v this is a very reasonable request that was that was put on these officers because they were asked three have their tattoos removed officers who were hired or not are from getting new tattoos and the policy did not affect officers ability to show their tattoos while they were off duty the only request that was made of that was that they cover up the statues while they were on duty and interacting with members of the public and given the importance of uniformity in among police officers that was a worthwhile and reasonable request so this is  a no jury policy you mention that you think there's a no jewelry policy in effect and some articles of jewelry happen expressive content to pen well and so this would be swept up within that sort of a ban it's not i think it's not merely that pieces of jewelry could could have an expressive content they might also interfere with an officer's ability to use his or her hands so there might be other reasons for that particular prohibition but certainly with rights but to the extent that there were an objection by an officer on religious grounds or some other first amendment expressive  conduct ground you know i can't wear my crucifix for example because of this policy and so you're depriving me of my right to engage in religious expression it would be akin to that sort of an analysis yeah it sounds like that case would be more like every exercise case in nash pickering case well usually those kinds of claims are analyzed under under first amendment principles because that's expressive close inspection well in here that the plaintiffs claim does not withstand such acts inspection and with respect to chicago united they claim there was this breach of contract and the  quintessential remedy for breach of contract is damages and that was the reason why the plaintiffs there were allowed to go forward on a damages claim that wasn't otherwise stated in the complaint here however we have a policy that the general claim for relief that was in the complaint there the court decided that there was a solid damages claim in the case and dicta observed in additional potential claim based on the generic for the plate claim another minute your time thank you judge your phone response to your question the regulations only bar an officer from having no more than three rings without any off the officers who are dressed casually could have a t shirt of wings and a halo and allowed to wear that but yet not have the wings and a halo on their skin on duty on duty they can wear that t shirt yes if the the uniform if they are designated casual duty the casual duty allows them to wear t shirts that have messages on them so long as they're not offensive so mr mitchy if he had been on casual duty of his chest to place it on a t shirt wear the t shirt and would have to cover up the tattoo that is why we are kit was under inclusive with respect to chicago united it is on all fours this court found this case is different because  particular in the context of this particular account for it was raised in the context of movements in chicago united industry and the claim came for the first time on appeal and the court allowed an amendment because the case had only been pending the prayer for relief sets forth the claims and then the question isn't how much time passed but how wed to the position to the person get so in arizona and there was a second amended complaint a two day trial post trial motions and then well after i'd like damages in this case nothing had happened under the old federal rules we would have been allowed to amend without even having we've a court to do so we certainly would have filed a rule twenty six statement happen but to indulge the court to conduct an entire trial and then raise the issue that you'd like damages is a little too late the last point is that i don't remember of the public complaining about that it's a very good question guess what there was no complaints whatsoever and what happened was in this case the the phrase professionalism and uniformity is a buzzword and it caused the judge below to have to create and hypothesize about reasons that that might create a problem and we set forth in our brief that he that the court found that the tattoo would negatively impact the apartment's ability to ensure safety and order and that we know that there was not a single complaint millions of interactions with the citizenry who regularly that makes this a factual test as opposed to a legal can i have always understood it as a legal balancing test the this court we did psych nurse briefs cases for the proposition of the fact intensive  finding but i think there's a distinction between it being fact intensive in that you must develop the record and have the facts in front of you versus the ultimate call being a legal question as to who wins the ballots so who wins the balance was the legal question but it's dependent upon the facts of the case and here the judge had to create the reasons and we know that when the case actually went to an arbitration those reasons were deemed to be false and we put in our complaint that there were  explanation of quote uniformity and professionalism and the judge made findings he even said that they found that the the court said that they found that that the tattoos would cause members of the public to question whether allegiance to their welfare or safety is paramount and what the arbitrator actually found after listening to all the evidence was that the band was the result of an idiosyncratic preference by the chief of police not to have that he did not like the tattoos and he found no evidence all to support our educator didn't have a first amendment question to decide it was just a matter of whether this had to be collectively bargained right you know the arbitrator made a finding on the merits that the policy was arthur cherry and heard evidence the same kind of evidence we would bring forth but it wasn't a first amendment analysis it easily many aspects of the factual findings are relevant is what the arbitrator found there's never been a complaint these men had worn these tattoos for years that that the citizens really never made a statement about it and also made that express finding that the real reason the idiosyncratic preference of the superintendent so there's two ways you can win on the pickering ballots one is you can say the proffered reason is just false and that's what we argued in the brief below and that's what we argued here