right our next case for this morning is ronald for gang against city of chicago dismiss this case stems from a pattern of harassment against lieutenant forget as he ended the last few years of his career with the police department summing from pete officers targeting his son to higher ups in the human resources department and in the in our case lieutenant for his equal protection class of one claim stems from the fact that his children some of whom were minors for some of the events but eighteen or nineteen for other the events were targeted by individual police officers for false context and recognizes that public employers you know shouldn't have every possible case blown up into a first amendment case on the other hand in order to have an equal protection case you need something beyond just a matter of private concern you know i'm sure a lieutenant for gay did not want his sons to be harassed by the police but that why is that a matter of public concern and if it is a matter of public concern why didn't that throw you right back and quit  been harassed as a way to target him much in the way that in the guy nasty case where this court did allow class of one claim to go forward the plaintiff in that case was targeted by i think it was eight to ten officers of a specific unit for giving them bogus parking tickets over the spammer his bogus part it's not like they were his family members bogus parking tickets that's true your honor that's true but it did reflect a campaign of harassment against him speaking to the first me claim we recognize that it is also an uphill battle that there are cases saying that a police officer has a duty to report misconduct however this case is distinct from those cases that the city cites and their for the report is that consistent with the law not necessarily his motivations but just just who he was when he made the reports that there are there is some separation between him being a police officer and in fact at the time a lieutenant a supervisory officer and being a father of these young men that were targeted by the police lieutenant for he also complained about a facebook page that was put up mocking him calling him an i e d informant with a photo of him and an i informant title on top of the page he's also spoke out about about that but i want you to spend just a minute on actually is whether there's any evidence  to i guess this goes out and twelve six but any reason to believe that the i didn't the retirement identification card  is somehow different from what's printed in the book i mean but what we read is that the determination of good standing is in the discretion of whomever the chief of police or somebody and it seems to me you're arguing that that's and at best an incomplete description that in fact the concept of good standing has an objective criteria well that's the fact that this was dismissed on a twelve motion is is part of the problem here we had the general order my client for twenty four he had an understanding of what the policy was that if you were tired and you were in good standing you would get your retirement identification card so where's the meaning of good state what does good standing mean and that's exactly the point his understanding was that he was retiring in good standing and there's nothing delineated as to why he was not in good standing why he did not get the card and who made that decision and that's exactly why he we brought the procedural due process claim we believe it should be reversed so that he everything that if you were to look at custom and practice in the police department yourself put it that way you would see that people who you know don't have too many disciplinary notations on their record there's something that i'm just grasping for what it is you're thinking if you would prove that that everyone to my clients knowledge everyone gets this retirement identification card if he doesn't get it is he right now being impeded from getting health insurance for example  suffering a tangible deprivation that's correct or are it's also implicated his ability to get a concealed carry license because there is some sort of hold on his application with the state police and because he has and law enforcement  he still would like to continue going on in one force and even though he's retired from the police department that has affected him as well  if i could just make one more point about the complaints that are made some of the tenant for his complaints were made to the internal affairs division some were made to the independent police review with already there's case law concerning internal complaints not necessarily being made as a private citizen but the cases that do find that a government place spoke out as a private citizen looked more to whether those complaints were public the independent police review authority is where residents of chicago can go to complain about police misconduct honors the district or probably dismissed mr ford as federal claims in this case so the part that really worries me is this retirement identification card because i can certainly see the injury in fact there and i  reading the complaint generously to lieutenant forget that if everybody else gets good standing determinations this may not be the unfettered discretion you know i don't like the time mr hubbard is wearing so i'm not going to give him a good standing card and i do like the dress that somebody else is wearing so i'm going to give her a good standing car seat as i understand it his allegation collective bargaining agreement between the police officers and the city that that this determination of good standing which is a necessary prerequisite to eligibility for the card lies and has rested entirely within the discretion of the superintendent right but to say that in the discretion i c think of any number of things that this court would say lie in the discretion of the district courts granting or denying a preliminary injunction admitting evidence and the like but it but to say discretion doesn't always mean unfettered and arbitrary discretion to say discretion sometimes means they're just there's a zone within which the actor with discretion can take action and there's a zone beyond that where the not fond of of hispanic police officers you couldn't deny all the hispanic police officers a retirement card and just say well it was in my discretion so there's a concept that discretion can be abused  under the collective bargaining agreement if he disagrees with that it superintendent's discretion in these type of matters and he's not made any allegations that he proceeded through that process to challenge the abuse of discretion is that's the next step right that would be a case that moves past the twel elements of the claim and one the element of the due process claim is that there's an entitlement which requires a non discretionary rule if it's based on a rule that vests the property interest in the person and where there's discretion that simply is not a matter of a due process  interment cases as well as other cases and in this circuit obviously those are supreme court decisions have recognized that even when there's some discretion so for example in interest in collegiate employment for somebody who's  tenured so they don't have that formal interest is nonetheless entitled to a certain level of due process if there's an understanding if there are less formal protections available you're sort of the story you think it is the end of the story ok you know maybe that's your position i don't think it is the end of the story i think sentiment tells us that it's not the end of the story well your honor here there there's even allegation a complaint that that the that this that the superintendent abused his discretion it wasn't even an allegation that mr ford was intent final point of the complaint i should have had my card he says that he should have had the card but he doesn't even make the allegation the complaint that he was in fact in good standing it wasn't even until the reply brief that he made that barest assertion he has made any allegation that the superintendent himself abused his discretion in making a decision that he wasn't in good standing he never made that specific allegation even until the reply repeated waves that by not raising it to the reply brief so free there's nothing here to suggest that mr four day was improperly denied this card on the basis of an abuse of discretion even by his own allegation simply says that he's entitled to this card without even addressing the exercise of discretion well he says actually the denial of the retired identification card was designed and intended to punish racial group but this ethnic group or this religious group surely would not defend the ability of the superintended to for knives a card and one of those bases and he's saying that it's a comparable constitutional basis which is also not one of or maybe of some motive but he doesn't even allege the basic that he was in fact in good standing thought a rational inference we take inferences and light most favorable to the pleader in these situations i don't know why you wouldn't infer when he says he didn't give me his card for a bad reason that otherwise i would have gotten it what's the point otherwise well your honor again we i we take the we will take the we are position is that here in order for there to be an intimate there had to be a non discretionary world this was a discretionary action and that there's not even an allegation that he process claim only adds to the time i mean he also brings up the retirement card within the context in fairly exercise of his first and then right well only on equal protection claim i believe you identifies retirement card he doesn't actually identify the time a card on the first amendment claim that i n his brief he limits the first amendment discussions of the facebook page compliance and to the retaliation against the suns but he doesn't actually he addresses a retirement card only with an equal protection claim and again the retirement card just decision within the equal protection context is i may to be the district court properly dismissed mr foley's first amendment retaliation claim because a public employee speech is only protected by the first amendment where the employee speaks as a private citizen on a matter of public concern and here goes said he makes clear that speech pursuant to official employment duties is not protected private speech the district and so so your position has to be with respect to the harassment of the sun's that there's just no way to leave the badge at second prong of whether this was public speech public concern versus a private concern all of this was animated when we look at the context the form and the context of the speech by mr ford is i have concerns about his own reputation and  family nothing about the public at large no attempts to bring this to the public's attention all of this was a matter of private concern went just quickly on the equal protection claimed the district court also probably didn't dismiss mr for his equal protection  form this complaint the harassment of his sons and the denial to retire a retirement card or things that involve his employment that he said specifically in paragraph forty six of the complaint that the reasons that his sons were targeted for harassment was that it was because of his workplace mr for his workplace conduct and reputation and yet this is not a claim brought by his sons directly this claim is here only in this court because mr for he says it arose out of his employment it was retaliation for his workplace conflict and for that reason it's bar whistleblower it was attempting to be a whistleblower brings attention or try to bring attention to the community of the police covering up wrongdoing another point we're getting a little far afield with mr tenet for having to file grievances and  r department to find out why he was not given his car but his understanding was that he was entitled to the card at the very least a notice or hearing a prior to being denied the card itself and then and then one final point that i that i hope i can clarify w kind of forget i was attempting to improve the police department and stop police misconduct and that's why he was targeted and why his sons were harassed the harassment of the sons is what's actionable here and we've asked this court to let