please the court i would like to start with an observation by justice robert jackson seventy seven years ago in the case of west virginia more of education versus barnett which is if there is any fixed star  constellation constitutional constellation it is that no official high work heading may prescribe what shall be orthodox in politics nationalism religion or other matters of opinion this is a case where two officials a deputy chief and a captain with las vegas metropolitan police department which i'm just going to refer to as metros as we call it here in las vegas determined that a disciplinary transfer should be given to a swat sniper not because of any disruption that his speech cost but solely because they and by extension the department didn't like it metro does not dispute th in the record i'm sorry i want to think they can see that the reason that he got the transfer was they felt his statements were contrary to their values that's on page thirty two of their answering roof that disruptive disruption is the point broadly as damaging harmony and working relationships and the government's interest in promoting an effective workplace a statement such as i do not agree and i do not intend to follow it would be an outright it's not the only way i could say that a failure of qualification for a position by definition is destructive to workplace efficiency i don't see it as a distinction and i don't know why i want to push it into  intent is irrelevant its objective reasonable this so a statement of the sort that goes to qualifications is not going to have any practical implication other than in my view the insubordinate nature which would get enough itself justify discipline under the balance and what the court did however in this case was attempt to devalue the speech to suggest that it perhaps was not on a significant matter of public concern even though the defendant conceded that what the court says it is not of the same ilk as the speech that normally outweighs the public employer's interests that is incorrect a commentary on a news story  often by definition of public concern and i'd like to read a quote from that i stumbled across in the janice decision which says climate change the confederacy sexual orientation and and in most of the other cases you have somebody going to a superior publicans or something and saying you know was this policy is a very bad idea and this is the reason why it's a bad idea and there's some contribution to the forty nine where the district court just adidas difficult to serve what message was it was attempting to convey yet later she attributes to moser meaning which is contrary to the evidence that he conveyed that he wanted his fellow officers to jackson versus blair if i had one federal nd seven hundred and fourteen that speech need only be up on a matter of public concern it's practical effect of this in addressing the concern is a relevant even the  the pickering balancing test which is does a damage relationships does it impact the efficiency of the workplace now that it's actual evidence under yes i agree and i would make the observation that arthur macpherson's comment about the assassination of president reagan shouldn't they go from again i hope they get here has absolutely no effect on the at that point you go to the pickering balancing test and the burden is on the employer to produce actual evidence of disruption or interference or impairment to its  itself or its operations and that that must be under nichols versus dancer out of the circuit joining the other circuits must be evidence not speculative anybody can say oh well i think this hurts us but it must be actual evidence must be presented by which the court can measure the impact and that didn't happen in this case instead the district court actually resorted to her own speculation saying yes mr bowser were dips covered to be an employee of the police department because it was not apparent in the pubs and as a ticket in footnote seven of the opening brief the record was never developed after the privacy settings on the facebook page so we don't even know whether the public are seeing this but for the purpose of summary liability should be granted because there was no evidence presented in other words if there were evidence presented and there was an issue of fact just a disruption then you would have trouble when there is no evidence presented the case off but you're liable and nd there is no qualified immunity if no evidence is presented so my position is it should be remanded for consideration of the motel issues and at least liability granted in favor internal affairs that he was under investigation that would be a fair assumption what suppose a swat officer oh something on facebook commenting on a public issue but uses a racial slur in that context what metro have a right to fire that officer or demote that officer yes because of racial slurs or would can taint a reasonable probability of disruption and other officers not wanting to work that officer most cases dealing with slurs such as the room upper case that was briefed extensively will out of the i believe the th circuit most of those cases observed that racial slurs generally are private grievances are not a matter of public concern but in your example it wasn't a matter of public concern it used a racial slur there is a reasonable prediction of damaging working relationships to get action destruction is  disruption and i think that reasonable prediction have to be at the time that the action was taken not with two thousand and twenty hindsight today after the events of april in georgia floyd   your honor hit on the point that in today's society that promoting expressive force and in particular deadly force with a was i'm sorry i don't know exactly how much you heard before i was inadvertently cut off but what i would like to focus on is the department's interest under the balancing test and the reason given his particular job that was a problem with regard to his ability to carry out his job and why does it matter whether anybody knew about it or  no you're absolutely right your honor and so and that is but that's the route that i was going in the sense that while the the magic phrases that are you think a fog is a reasonable prediction of destruction i i do believe that department has satisfied its obligation because the department was concerned that he was unfit to serve as a swat sniper and they think his duties which is not in dispute here is extremely important because as a swat sniper and not swat officer his responsibilities dealt with chris's precision shooting he testified in his deposition that he is given optics to where he is set up in a tactical advantage and the key is that able to see things that for instance the patrol officer is unable to see and so the concern was the thought that his lack of judgment on on promoting deadly force in a facebook comments were stuff that was maybe what you meant that is not what the post set and nothing in the the post specifically which if you look at the the record page seventeen nothing in there references the defend himself what to justify the issue that it dealt with a matter of public concern and that is a legal issue it's not a factual issue but even so your honor again we're at the summary judgment stage so even if you take the facts in the in the light most favorable to the plaintiffs that does not demean the department's interest in in the fact that they believe that the a swat sniper was unfit to perform his duties because he is nonetheless promoting the deadly the use of deadly force with a weapon which is exactly what he does his job a swat sniper i'd like to also focus on the appellant kind of mentions this in both of his briefs regarding you know the the use of force as a relates to a swat sniper and a patrol officer there one in the same the standard across the department and united states is the same under granby connor and while that is true to this argument fail to recognize that swat sniper again she is put in a tactical advantage and the record reflects that she had been involved in four prior officer involved shootings as a swat sniper is significant based off of the department's reasonable prediction that he would again be involved if he were to stay in the position of a swat like or that he would again be involved in an officer involved shooting and and the department in order to mitigate their risk and their concern whether or not he could properly do his job as was my swat sniper transferred him to to patrol where it's not disputed that patrol officers may be put in a position where deadly force may be necessary but the difference it is the substantial likelihood of a swat knife or which is exactly what they are trained to do is shoot another individual compared to a patrol officer there's a huge gap between the two the drawing upon a distinction between that fact pattern the you just gave in and the issue in this case is that a sniper's duty is to shoot another individual  teacher again i'm not familiar with the particularly law over education events and i apologize but i don't think i can necessarily comment on that one way or judgment as a swat sniper based off of his his comment and i think it's also relevant as the core as a circuit court found in here recognized that this type of comment could bring issue with the public in his internal affairs interview and not to page eighty four of the record he was specifically asked could you see how this this comment could negatively impact the department bring public discredit and he said yes sir and so i think that's another fact that's important as far as from a summary judgment standpoint is concerned here and what the department's interests are i'm not see the  i don't believe that this is an issue of fact this is the department's position there's no other evidence to refute the department's position and so i don't think i have a happened here what happened here is that the department's taking into consideration the role and responsibilities of a swat sniper and the likelihood of him pulling the trigger again in that position is is  their main focus whereas like you just mentioned a patrol officer has other duties and the likelihood albeit it still exists but the likelihood that a patrol officer will be in a position to use deadly force is different than a swat sniper  page actually had a picture of a sniper with them and that is correct your honor and there's multiple within the record there's multiple pictures of the of the facebook comment but lego with a sniper and i believe a firearm in is he hands and then the word sniper across his his checked thank you i would like to start with what is actually in the record the evidence in the record was that a patrol officer is more likely to have to use deadly force than a swat sniper there is nothing about the precision shooting call out the constitutional requirements permitting deadly force are already established in other words it's already escalated to the point it doesn't force would be authorized once was called out whereas in a normal patrol officer they have to go up in force continuum but there is a very important point that goes i think to your honor's contention about why does this have to be about disruption what about qualification for the job and i'm going to cite you it's at exit for the record button to go to a wait when i question captain ballard he stated that there was nothing about moser facebook post with interfered with this ability to perform a swat officer that was not the rationale give him for demotion they didn't say we determine he is no longer qualified raptor what they did was and this is where evidence is important both in the river below they said yep he's involved in another shooting in the future it's f well his comment could be used against him if there was a lawsuit brought against the department and that is exactly the sort of speculative impermissible rationale to be utilized under the pickering balancing test dancer you must have evidence of disruption or predictions by which the court may measure whether or not the employer's assertion is reasonable and there was none in this case other than if somebody actually managed to figure out who he was by docs in him i e you know standing internet records and databases to try to figure this out because he did not identify themselves as a sniper and amongst others nobody can tell based upon we that he's actually a metro officer but again it was speculation if somebody could figure it out to determine internet sleuth that's like oh no somebody didn't know for all we know settings are and whether or not this was a conversation contained within eight tight knit group of law enforcement or otherwise thank you thank you very much it's very interesting ca