the session today i just want to give our facts to the catholic university for providing us with this beautiful courtroom for today as some of you may know we are a circuit court and in the good old days the circuit judges used to write circuit if you could just hold on one second we're having a minor technological worry this doesn't count against your argument t court is called upon to balance my client's right to convey actual facts through a police radio recording exposed the potential unnecessary use of deadly force in an effort to promote both officer safety and public safety versus the metropolitan police department's interest in the boarding being discredited by the truth the facts of this case involve an in your brief that page try do you start by saying the two thousand and nine investigation was undertaken purely as retaliation for chairman ballons criticisms of the police actions and understand that but it's the focus that as a result of what your client said there was an investigation in two thousand and nine i the internal affairs division court that is your challenge  and the district argument is that because we spend so little time on the retaliation component we forfeit it in the middle east we did spend little time on it because we don't believe it is the central issue the district through the investigative packet conceded that discipline was the recommended because of the release of the recording to the media so in terms of a causation analysis it's  those in your opening brief so your argument the first amendment speech we're talking about here today is the release of the information that is the release of the tape and the the police department can have a policy under which individuals who want to release documents need to at least alert them or check with found in advance and i don't think you dispute that if i document that in the police department or you propose to release did in fact checker guys an ongoing investigation that under our first amendment precedence the police department would have and the title me clarify i believe that you're not saying that the police department has no entitle men to look at documents that employees propose to release in advance in order to serve the department interest in protecting and in protecting ongoing investigations against being jeopardized by release of documents they should be released they could create a constitution paul so yes ok so your challenge here is that this isn't such a policy and or that this release was not something the release of which would jeopardize an ongoing investigation it's both so he focused first on the second about why nonetheless the department had no entitle meant to prevent the release of the transcript where foremost the year two transcript had nothing to do with either of those investigations there were there there were two reasons articulated by the lower court for why the release jeopardized the amputee's operations first the report determined that the release of the information contained tactical and barricade incident that led to the two investigations judge religious tension actually no your honor this is a completely separate incident the first investigate one of the investigations was a fit investigation a use of force investigation that involved exchange of gunfire between the suspect before he took over the barricade situation first began with the gun recovery unit exchanging gunfire with this member of the member became holed up in a home your cheezy responded because a barricade was declared when he or she responded they took over the scene taking over the scene they communicate on in your t v radio only but is it your position that there could necessarily be nothing on the tape that would be relevant to either harm and actual interference this court has held such this is in your case it's not enough for the court to reasonably infer which is what the lower court did that investigation could be jeopardized the court is required to determine the investigation was actually jeopardised about how would it know if just begun the investigation they have a tape of an incident it's being investigated they may not know the significance of that tape on telly investigation c but that's the government's burden under pickering i mean you can't star even an investigation until you already know the result universities said argument you you you said that you didn't think there was something in the tape that was real no one could possibly know that until they investigate you're saying it's beginning all we have is a released tape when she think there has been this investigation to determine whether the released tape releases anything confidential into this there was a gave the tape to the state's attorney's office to particular united states attorney for a criminal investigation right correct isn't it appropriate to first at least look at that tape that level of investigation but everything inappropriate destination and our contention is that that was done by the office of unified communications they they reached out to both the u s attorney's office the it least the investigator working with the u s attorney's office and the state investigator determine if releasing this recording would jeopardize that and a determination whether they fight to keep it confidential and cunningham only got it when he signed saying that he understood the release was for predictions of harm so we're at the very beginning here and that's what we're focusing on and you're saying your client under the first amendment has the authority to determine the relevance of a tape and that that is the basis on which he is entitled we're saying that our my client has the robot the right to release the recording and if the government wants to stop the release of the recording it bears the burden of demonstrating that that that that actual recording will actually while the ongoing investigations and it really doesn't have to be a retrospective they can have a together but they have to make the case that this is something that we can reasonably conclude likely could harm an ongoing investigation something along those lines i think they have to be right to be actually correct that it will and if they don't they bear the burden and they run afoul of the first amendment how does that square with the supreme court's decision and that he was waters where if the if the employer is wrong about the facts but have a reasonable policy of reviewing them the material and reasonably concluded that it was in the employer's interest that they can in fact  well the second basis was that it would interfere with their operations and what i would direct report to is that it is in the record join extracts page seven eighteen here a public employee that the recordings wouldn't have been released because of these two ongoing investigations that the n p t s claim that their release would have been blocked by these two investigations is without merit what this hearing examiner concluded now that there's two different rules like your client was found to violate the first was confidential information that would jeopardize a successful that may jeopardize the successful conclusion of the investigation that's what you're talking weapons all that can be described as a general description of the items seized information that may assist investigation general complaint files printouts automatic accident reports all those things can be released right with permission of measurement twelve that right doesn't say what he said section defines a member of management at the wake of lieutenant or above and this one is one that can't be released this is not one of those sats so it can't be matter whether the grand jury information is important when in the end relevant doesn't matter whether the grand jurors are discussing lunch you can at least an officer of the court prosecutor cannot question impose the event balance and determine whether or not it was important or wasn't important well i think that in effect in that sort of statute balancing would be required but in that situation i think balancing judges actually behave behind closed doors and the public should know that kind of stuff now do i have to say anything in response can i just fire her do i have to explain why there's a balance in here i want to make clear that you are you are discussing a sea change in the way in which the court for example works i think that members of the court would be stunned to learn that if internal documents can be released and the only way somebody to be fire is if we know in advance that that particular document is shouldn't you know that the public benefit is not outweighed by the benefit of the court that would totally change the way in which we act ups want to read aguilar which is the case about the wiretap stamps or the principle that those who accept positions of trust evolving a duty not to disclose information lawfully acquire while performing their assume grand jurors court reporters prosecutors for instance may not disclosing matter before the grand jury for privacy act imposes criminal penalties on gov employees who disclose agency wreckers about identifiable individuals that and the employees of the iris and not disclose hacks from it and none of those circumstances if an employee does those things as fire is there any case ever that has said that we  will balance that individual piece of information public interest against the columns so how does your argument square with the holding in the banner case and the implications of the rule for all of this well i think i think the difference is that when you're talking about a case that involves a broad sweeping policy that regulates a large group of folks and it's being challenged on a clerk every staff member anybody who discloses internal court documents will be fired and i think everybody knows that's the rule you're telling me that i can't do that i think that rule about filing for them and well what i'm saying is i think that the way that a court would look at that is to determine whether or not such a sweeping probation is justified i don't want to see it would be the particular wise balancing of the actual facts and circumstances of the particular case or not so you have to testify in that case as to my reasoning or would the court assess you know understand that some things are obvious some things are per se you have a circumstance in a situation where the public interest where it's private speech and there is a public interest and you the stablished that now the burden shifts to the government and so the government would have to put that particular disciplinary action because it was required to present evidence that it actually interfered with ongoing investigations while the government i mean after the fact yes once we and the burden is not simply hypothetical the burden is actual i think i think there is one of the things that's a little bit confusing to us and it's partly the way the case was presented and the doctor is also somewhat confusing on on th are really two levels of analysis and one is the policy right and the next level is in the individual case my initial question to you was really hoping to put aside the question of the policy because i don't think you you are just feuding that had they written a policy that covered only information that would jeopardize pending investigations they would be fined and what you're saying  application is breach something that actually didn't jeopardize a pending investigation because the policy is written in a way that is broader all the government said was it's related they didn't say it would jeopardize they've actually now looked at the docking and they pose discipline they were able to make a judgment after the fact so all of our predictions under hypothetical policy don't have to be made or they've looked at this and in fact they the charge that my client discredited the m p democrats a perhaps that's a little distracting but they said they've had a chance to look at it and i as i take your claim as a claim that this policy was susceptible of unconstitutional application wasn't as narrow as it should have been to survive that kind of challenge that chief judge garland was posing a flight you know disposition memos all of them confidential period that polic concessional here we have a policy that says anything not listed is presumed confidential and you're saying well not everything under that policy can cause usually be withheld e g this tank in the circumstance of my client's case so you don't necessarily have to take on the whole policy as i understand it you're taking on the discipline that was meted out to your client in this case and they're saying oh it was good under our policy and well now you individual discipline to me you're in a clearer posture and i'm wondering you know what am i right that that's if that's the way we should think about the case i certainly think that's the way you should think about the case however i will say that there are there's both aspects of the challenge the government has taken the position that through the disciplinary packet that my client should have s approval before releasing the record that's in the disciplinary bad that that was one of the reasons my client was recommended for just one he did not seek approval there's nothing in the media policy that lays out how to seek approval what criteria would be used and what courts have said is that when you have that's one of a pre approval process when you have that sort of a prior restraint when there's unfettered discretion the risk opinion and i think as we have heard the panel was very careful to read the state department's policy not to impose a prior approval requirement but to say that only a prior an interest in seeing what government documents on matters of public concern its employees are planning to and that the court upheld it so i think you're saying well this isn't we were because here they're saying you don't have to just come and check with us we're going to hold it we're best at it well worse we're not going to even tell you that there's a process we're not going to tell you the timing of which will review the material and we're not going to tell you perhaps even our decision and that's unfettered discretion and it does run the risk of viewpoint discrimination which actually occurred here my client was recommended for discipline for discrediting the m p p my client released a recording that had on it that officials that were at a barricade interfered with the barricade and try to get rid of the deployment of get this credit she didn't see that and in the excerpt that was in the record it's actually almost comical and confusing how little of it we have people talk about oh it shows outside interference is the whole transcript in the record on the the i don't i don't know that it is what's material or at least to the in order and one of those officials told the media there was never any order regarding gas and what my client was exposing by releasing the recording was that the m p t was covering this up and that they were lying to the media i think there was one other that involved releasing the pre approval process for releasing secure documents that was about something that was not about elisa's here doctors out it was possibly writing a book which our disposition memos you do think that that requires a balancing or if i have a lateral that just says no release of any internal court documents you think that that can be challenged either somebody releases one because it has something really important and it can be challenged on its face that it might be too broad or not justified right yeah i think the first amendment stands above a court's policy and the chief judge is hypothetical what type of evidence would have to be shown in that instance i don't think it  in case it says the court is going to affirm for the following three and that's exactly what the point out so releasing the document as i understand your art didn't harm the process in any way at the root question would be then what was the compelling public interest in releasing the document that makes it speech protected so the pose it's about a very controversial other and the bottom line disposition is we're going to mix them together and that is what comes out so that that debate about originalism and purpose of a summit seems like a very big pie if you read any of the law locks you will certainly see th interest a subject of enormous public interest at least among the law community and the law clerk would also need to be speaking as a private citizen remember my client was not speaking as an e problem is the release of the tape sal which isn't just his speech right he's he's releasing something that was generated by this part of the department's work well but the importance of that release is speech it's actual fact that demonstrates the good department right but they've conceded that this is a speech a matter of public concern to the dispute is when and whether the government's interests and they can they just sort of an interest relating to pending investigations outweighs that interest on the part of the employee and as you know the public employees speech rights are diminished compared to that situations have they articulate enough can they do it in general terms they have to do it case by case and when and why might they have to step from having a general presumptively valid policy where they don't have to give an individual ised reason to deliberative process is weighty enough to i think outweigh the public employees speeches that's the thing is here i think your case has to be now not every piece of paper in the police department that might be relevant to an ongoing investigation is has a significant enough government interest for them to keep it secret so it's i think that that's the distinction you are making and that's why earlier i wouldn't concede that there is no sort of racial aspect to the challenge in this case because there is no get nowhere on facial because you have to show the you know the bulk of applications are uncons tremendous number of applications where there are constitutional you you get your comments rights protected if you make the case that it's pretty good that we are on this policy required to look at the individual instances because of the way but using you know different labels it is an overly broad policy it does contain a sweeping default rule it does have the absence of any pre approval procedure and then when you look to the actual application of it there is the suggestion by district that there was a pre approval process there is the suggestion by a concession by the district that this recording could have been released after these investigations were completed which doesn't square with the fact that my client was being disciplined for discrediting the department through the release and try to get so much for where you go with this the rule as you point out says iraqi has any standing to make an argument for act the problem here is a lack of process let me ask you this one last question will the time do you think that the government's position is stronger by having a they just had a flat rule that said which i believe government leaves they have a flat rule that bars this kind of information is that put them in a stronger or weaker position i think just to bar puts them it even just  hypothetically putting someone on notice put you in a better position but the fact of the matter is the pickering analysis does ask the court to look at the actual harm way things after the fact that you know and so prohibiting disclosure of information of this type in the pink of violated it at his peril information of this type while the two categories confidential information that may jeopardize the defense to the investigation of the use of force to arm future not just future emergency response team proceedings but to so the fairness of the entire criminal investigation that can you give us just some examples of how this transcript that's and the portion that's in the record just more concretely how it's release might have jeopardized an ongoing come of it seems a little more granularity on that well first i don't think the court has the entire trip recording and at his second internal affairs interview the point of says that he himself did not listen to the entire recording so we don't know on what basis m p t made the decision that it would only be released for internal use because the entire recording is not in the record and the entire recording was not listened to by the pointer but in general  this how i mean what i read and i thought this actually puts the department really good light it didn't give me much sense of anything that was going on as i recall there is somebody radioing somebody who's on a crime scene with a barricade on the radio  person says we're giving we're we're we're being given permission or we're being pressured to give you the go ahead to use gas and the guy on the scene says no gas we're not ready for that that's not that doesn't make sense and the guy in the back says well ok the guy down in front then says  well it's kind of embarrassing here but actually also there are people in the line of fire like the chief you know so don't also not only don't use gas here but don't start shooting to try to get this barricaded guy out because you could there could be some you know because some department people and some verisign because if you should be sent a lot of fire in a crisis situation right but it all showed the department to its credit you know having people on the ground who are level headed and said take a deep breath we're dealing i think we're going to going to resolve this and they did so i'm reading that i'm thinking in the investigation of first of all the two things are under investigation one was the use of firearms against the barricaded ma i don't see anything in the act that i can imagine sort of relevant to work or jeopardize that investigation the investigation into why the fleeing man is there and what's going on here in the barricades are two a short way to go with the tapes of what happened on the outside were quite important to the investigation of who fired first absolutely was appropriate degree of force used or not use all those things seem to me to be obvious elements of emergency response team communication is that wrong you know that's absolutely had even though that's not really a little snippet good that we have to defer to m p s on before you tell me what the law is i suspect find out the facts it's also the case that you don't know what's in them and all you can do is predict in advance what's likely to be an emergency response team tape right and so you have released at least not until somebody reviews it makes a file determination and then decides if that's all right or maybe in the end it will go to the public and no doubt will go to the defendant in the case in which he is trying to defend himself he shot because the police fired first shot because he was afraid of any of those things are all elements of an investigation yes is that is that no that's absolutely right thank you for going now with him because that's precisely what  t s concerns about the criminal prosecution the suspects defense on what to be gleaned about what happened on the scene and and on the use of force investigation which is the internal affairs investigation the question is were the officers in danger right did they feel a need to use force to protect themselves or other individuals under the current test the only way you can know the answer the ad is going to hear to what he says you're going to hear what the police officers are saying at the time and in the end you'll potential jeopardy competing so all that may be true and i understand opponents are given in part to be that he is the president of the union he is obviously concerned about the safety of the union members he has information that some of his members may have been in jeopardy at the time and he's being told by the media that there may have been an order to use tear gas so i understood much of the thrust of his argument is that in action even though he's speaking as a private citizen his interest arises in terms of what are called the proper operation of the department whether these emergency response teams are properly organized much less whether it is an attempted cover up by the police department as to what was actually going on at the time so he argues with balance back against what he says is a tape that doesn't say much that the district court had to do more and require more government to indicate why that tape important and while the chief judge has listed a lot of reasons i haven't read the entire transcript of what went on in the district court but certainly in the district court's opinion it's just a statement so obvious purposes of internal review for to the extent they had a concern of protecting the investigating this on behalf of the union and the safety concerns there was no restriction on him reviewing it internally within the n p t so that the safety concern was met that way it was also no restriction on him expressing his views to the press he knew from people telling him he didn't need the tape that there had been an order to you  as he understood it in order to use tear gas in concerns about the management of the scene he was the policy and one is may jeopardize an ongoing us to get him and the other is anything not listed and it seems like anything not listed you'd have to concede is way over private for example if you had tapes of  police radio chatter that was otherwise nonpublic that disclosed police officers making you know sexist racist remarks about one another about members of the public and it was no investigation  pending and somebody got a hold of patents of this shocking you know we need confidence in our police departments and they went and they asked they said i'm planning to release this so take a look so you'll be ready and  departments said oh no that's not listed in the person that well under we have her i have a first amendment right to disclose that and they went and disclosed it and are you saying that the bare violation of the policy position would be that under subsection seven all documents not listed as release well that they violate that at their peril yes at their peril and you as a lawyer would say that that trumps the person i'm an interest media policy for violating subsection seven they violate it at their peril to be disciplined under this if you bring a first amendment challenge then in any particular case the department would have to do the balancing and in the end your hypothetical department would have less of an interest if there's no criminal investigation going if there's been no use of force that could be circumstances where ok so every case has its own pouncing on a first amendment challenge and that's where we are that's what mr you ask for permission in the circumstance transport will say have the police were to say that at that point you bring a case saying either either in advance or afterwards saying the only reason they turned it down was because it chilled rhesus or sexist remarks there would be a balance in that circumstance government would loose but that's a different case that's a case where somebody tried in the past off the police were given the opportunity to term policy requiring pre clearance for everything including things that the government has no first amendment entitlement to withhold and you're not going to be punishing the employee for his disclosure matters  on issues of public concern that don't harm any substantial interest of harm and you're only you're merely going to be punishing him for violating the policy that seems like that sort of bootstraps the person i'm analysis right out of the picture in favor of i never brought in discretionary policy that the department has used as a trial well i think when you have a law enforcement agency like m p t that has need documents that could jeopardize a criminal investigation jeopardize the lives of informants jeopardize someone's international affairs interests of the most highly sensitive nature with countries around the world including countries that have nuclear weaponry and there are our core said pre publication scrutiny fine but pre publication approval no but the distinction as i think the court already pointed out is that they are it was the point there is only writings and o let's say and i'm writing my own book and so it's just my own words you know no of course the state department as an artist lee important interests there nonetheless the court would not read the state department's policy because it believed it would be unconstitutional if the policy says stated that you have to wait before you can say anything until you have our approval are pushed back and said no we're going to use our interpretive latitude under the constitution we're going to read this policy to require only that we get to look at it not that we have to not that it can be withheld until we get our approval your policy is much more aggressive than that and i'm wondering if you think that that can really stand under the sun yes well i think we'll see when the to seven one being may jeopardize ongoing investigation yes yes  and to protect the interests the default rule is yes the documents are not releasable and under the circumstances of this case where there was a procedure available to balance his interests before he re punished at all for not using the proceed it seems to me that has to fall away for that reason that i was saying you can't strap your interest into well whatever our interests may be pickering worthy or not we don't have to go  long as it is an excuse the government from having to show that it has weighed interests apart from that will follow my interest under pressure and i'm willing to take that chance is where i think you need took that chance and i think this court can rule investigated yes and it was under one it was a temporary restriction until the investigations were concluded and the threat of that is why all on court in the sand her case about the amount of discretion that a policy that's generally worded like that leaves it is a little bit concerning and we see some flavor of that in this case where you know there were these kinds of discredits the agency and  department isn't tied to a certain amount of discretion so in this case as applied the department had made a determination upon her viewing the tape yes that it should remain confidential yes when conning him asked for the tape he never requested and they reviewed it before they released it to him and then said this is for internal just so at least in this case we're not dealing with a blanket situation every tape is confidential just as a matter of our policy but rather here we have where the department did exercise its discretion to determine its discretion and judgment to determine whether or not this was a tight tape should be confidential at least during the course of be released outside so i want to the slightly more granular description of how this recording would jeopardize what was once were in that realm and i think that is i think that the appropriate analytic realm to be  forward i'm guesstimating that this might jeopardize but actually when the dust has settled should this person be disciplined or not we've got time reading the whole recording transcript what about it right now w supervisor now and say you know if these investigations have concluded i would like to release the entire take but there's no indication the plaintiff has made has asserted that there's been this is on on all fours with precedent if the n p t has a recording that has nothing to do with tactical issues and it has comments whether they're racist or otherwise it's in the public interest to disclose and a member such as my client goes to the m p and asks for permission and that permission is denied it my client theoretically could file a first amendment lawsuit to compel the production of that document and to allow the publication of the question the court would be called upon to ask is whether or not under pickering the balance weighs in favor of producing that document now your honest questions were should there just be an absolute ban why should we get into the particular facts if your honour's hypothetical is the law then under your honor standard the court would look at it and say well could that recording ever jurors are talking about racist remarks and the grand jury or one of them have the ability without seeking permission without going to court of doing anything else just release the information i think that person puts themself in criminal jeopardy but i still think the court has an obligation to do pickering balancing to determine if the first amendment trumps that statutory prohibition it may not and that's quite a risk that somebody has to take and my explain to the corps as a witness i take it you're saying the stress of a trial or asked to be a pic or a balance etc every time a documents released would have to explain why this particular gawker bed is of a significant importan pickering that that is the state you don't see that is a sea change so i mean i don't mean because it's a document or because it's a what a state department worker has in their photographic memory of incidents i don't i don't think there is a material difference it's it's pickering it's the president it may not be perfect in every case and it mate there may be a hypothetical where it's overstepping but i still think the