yes your honor but thank you for remembering so that i don't have to mourn their owners this issue is fairly simple we present two questions for review asked whether the law was clearly stablished on t honor what remains is basically one percent of the case with the claim that remains is that borough council member murcutt silly pressure prison board commissioners for the county to deny the plaintiffs renewal of their prison clock so we start out with the fact that what figures factually are two completely separate municipal and it is under pennsylvania  political subdivisions and in particular the county acting through or not acting a board that is part of the county government correct or owner and so i think you've hit the issues right on the head first is can a tenant an attempt to get a nother government entity to retaliate be actionable under the first amendment well and that and the fact you need to add to this i guy is challenging this as retaliation so logan spoke out against american telly and then market telly was unhappy with that and told the three members of the present board he'd withdraw support of them if they maxwell you had a municipality that threatened to take adverse action against citibank unless they revoke the lease based upon the plane's billboards basically they said citibank take down the planes billboards or we're going to pass  push your business entity out of our municipality or we're going to take legal action against you civil legal action and this court in our city maxwell said that those threats were not sufficiently course we also said in the glock particularly virulent character that's correct your honor and in this case you're talking about a person who's a bird council member but also a citizen with his all speech rights talking about his all political support exist in the nature of clearly established constitutional law with respect to someone i certainly don't mean to precedence cover a situation like this address such a situation like this so that we should see should say that the right there but none other than to just purely establish a specific enough and how we define it we don't believe so swore as specifically defined refused to address this issue the fourth circuit said hey because this isn't sufficiently course of activity we're not going to decide whether pressure on a third party could ever be retaliatory because you're not the decision maker in that context as if the real answer the transplant really didn't define the right correct your order i believe that is the case and not in a way that addresses either of the two issues before this court first whether the action is sufficiently retaliatory law question and or see maxwell would say no so would swore us from the fourth circuit the fourth circuit talked about threaten legal or threaten legal action against the better business bureau unless they were both to corporations that us is the action here that market tele threatened is it the kind of governmental regulation or action that is retaliatory he was threatening to use his first amendment right to withdraw support right from these other people with legal would seem yet political support which would seem to be you know something that's a different character than somebody kind of bring a lawsuit against a logo correct or are it is not and the courts that the circuits not just this circuit but the other circuits that have looked at this question say for it to be retaliatory you need the power of the state you need to be threatening a state coersion  hammerhead by the second circuit the eleventh circuit the tenth circuit has looked at this question and they agree with this court's decision or see maxwell that you need some threat of the power of the state against the plaintiff and right the everything they can to coerce and thread but they just can't pull it off that that couldn't as a matter of law be the sort of thing that would be  virulent character may animate the person is voting correct and the fifth circuit looked at this identical issue and colson in that case you had someone that was running for da or actually da running for retention and in the is not any clearly established authority that one failed pressure on a third party could be retaliation or two that a threat that's not of government power could be actionable actionable retaliation those are the two who himself his deposition said i have helped a lot of people and that i am a policy maker and by virtue of that going to three members of the prison board he's got his own first amendment rights doesn't he does in fact he was elected and reelected in real life to do some how when he is in his small community does it mean he's stripped of the power to go around people say i don't like and i don't like his business i don't like how he conducts himself and i don't want to get the contract and if you say you're going to get the contract don't expect me to be helping you when you're up running for sheriff or da again how is that not just the right of any citizen to by virtue of the fact that he has been zig or all presidents for thirty two years by virtue of the fact that he says i'm not sure in a sense what exactly has a clearly established as what case should have put him on notice aha i can't do this it's a violation of the constitutional rights of others the what we're talking about is what is clearly staff exactly and i'm wondering what i k said and he should have not oh my retaliation clearly established well that isn't the key the question is is saying there's a personal right against retaliation sufficiently specific for that to be a sound ground on which the district court could have said not the general right to be free from retaliation for once but the more specific right to be free from and then it going into the specifics of that case it seems like the supreme court is saying you can't say what judge br such a high level of abstraction that it doesn't match up with the facts that are at stake here let me ask you this this hypothetical certainly what if john smith was a township supervisor for a township with in lackawanna county and the population smaller than the birth of music and who has not been offended  doesn't like it and goes to those same members of the prison and says this wasn't right this was unfair don't run this time is john smith subdivisions under pennsylvania and they're in the same county subject to the same county similar county constituents in judge smith i believe on said himself he believed doctors aloka to be a liar dirk until we said i don't like this gentleman i don't like what he does and on the on the flip side when the contract was and you know so when we need to find clearly established law that says something other than that and you're not helping us there yeah i'll go back and ask you again do you have something that indicates that naming the right at the level of generality that this record here is ok i've given you the language rightly so i can give you other language from the supreme court but they've said again what is particular about you can't retaliate and and i believe your honor that we are we are talking in the context about dick allies we're talking about the fourth amendment in the fourth amendment the right against unreasonable search and seizures which has exceptions here we are talking about the first amendment right against retaliation and that as best as i can tell back maybe maybe it would help their asses the supreme court has also said that for something to be clearly established it has to have been said in some kind of precedent in a way that quote beyond debate every reasonable official would know is that the fact is there something in the district court's opinion that would give us comfort that it's beyond debate that somebody  who happens to hold a position a political position in a different local government cannot express a political viewpoint and even threaten political there something that gives us the comfort that that is so clearly established it's beyond debate that mark to should have known that and and i believe your honor that george grant has told us this is a this argument or the real point is that you know the the only point saw i would like to made is we have a two prong test the case which is relied upon is mitchell mitchell was something quite different than that which we are confronted with here and that was the court deciding a purely objective legal question what judge brand has suggested and what i suggesting is if we use the first prong of the sauce year versus hats test there is a question of fact here well i thought we had said so more than once that whether something is clearly established in the and the position that i take on behalf of doctors a logo is that the issue of clearly established law has been a step here isn't oldest records that's correct in followup to a question posed to me when i was up here before as to where in the record it shows that the decision was unanimous in our statement immaterial facts which is  twenty six a paragraph one fifty three we are that are in the plaintiff's response they admit that fact which is one sixty nine it or actually that's one fifty three in the appendix a one twenty six and one fifty three a briefly on the point that the qualified immunity law only requires ace particular standard in the fourth amendment context i believe the plaintiff is mistaken the supreme court has in the last four years reversed circuits six times on the question of qualified immunity when it's been denied two of those six cases were case and that was it situation where a an employee was retaliated against for speaking in a deposition and the supreme court said well the employee had a right to speak in the deposition well that wasn't clearly established that the employee had a right to do that and so the employer was granted qualified immunity by the supreme court on a vote of ninety zero reichl also retaliation case was an issue of whether you could have retaliation when there's probable cause to arrest and the supreme court revoked reversed on a vote of six to win one just justice not participating the two judges that did not join the majority concurred in the judgment nonetheless and just  reach the qualified immunity question this is not an issue that the supreme court is taking lightly in the last six cases that they've reversed circuit courts three of them a been unanimous and it has not been an issue of controversy the supreme court is saying and saying repeatedly that the question needs to be defined so that not only is there a standard out there but the official would know that their conduct violates the standard thank you your honor i thank you very much