had ten years as an officer was a detective and coker was kane on and off for about eight years of service but both perform their duties satisfactorily until or discharge was no showing that  they met together with their family the parents children and made a decision that they would ship to cohabitate with the others wife and they would share custody and they would generate an atmosphere of what they thought was love between them the very intimate and personal decision that they made under circumstances how to raise a family and how the ways their children when all this has happened is in the fall when this happened the fall of twenty fourteen about how many officers were there in the sheriff's department i believe up gongs and website i don't think there's anything in the record about this but at the website for the vote parish consent and with the intent to form a marriage and to raise a family and children in that atmosphere it seemed from the case law that if there had been some disruption in the police department or the sheriff's department about this that they probably have forty to discipline or common items or whatever i believe that would be correct under the authorities of bread if there is a material a substantial reason to discharge and wait until there's actual disruption or actual interruption or animosity before they take action i believe that the best cases along that line first start out with the pickering case the community is going to have some kind of on the issue with the actions of the officer and i believe in this case is one of the things that the sheriff and to cases that  you have my question is does the sheriff's office have to wait until there's personal animosity or loss of trust by their officers or but a think that the sheriff would have to have some rational at least on rational basis to believe that there could be some interruption or interference with the sheriff's operating efficiencies there's other would have to have some basis to believe that when you've got two two officers here now married are now living with each other's spouses soon to be former spouses but at that moment in time spouses there's at least the potential review here what's this what is our standard of review for the sheriff's policy it's a good question there are two rights at stake one is the first amendment right of associat for association worth individuals to create an intimate loving relationship image no let's just say let's just what is the standard view because there been cases where the policeman put nude photos of themself on the internet and they get fired and as far as i know those firings have been upheld because they cast disrespect on the police department if the police department becomes known as a place where the the cops are more interested in wife swapping than they are enforcing the law that casts disrespect on the police department at least one can make that argument no matter how loving everybody is so you know under what standard do we judge the enforcement of  recent case because kerry said he says that you do not have absolute freedom as a public employee even to speak out on a matter of public concern yes les that is a different kind of minutes of free speech down a free association free association you have to have all the tellers memon to me i mean they all have pretty high rank in the constitutional spectrum so and the supreme court was station right and that was made in the course of that individual's duties and as a da this on the other hand or totally private decisions that have been made among poor people about how they're going to raise their children how they're going to live their marriage and how they're going to establish your home it's a completely different framework so we look at whether whether it is  involved i can't spend the night one night with the other lady i can't discern public or is a public displays of affection are they as well i was the district court wrong in saying disregarding this this argument if you why was he wrong because the formal notice to them just says move out until you get divorced right mentioned your vagueness an overbroad challenges to the code of conduct in the last ten or fifteen years prior to this incident whether any other occasions where this code of conduct provision was invoked relative to an association or a first amendment or a personal choice as you phrase frame the issue the only time i've seen any decision that might have been critical of that time and we've heard on behalf of the defendants i think that the court's questions have tell him what we think of the significant issues as well but i wanted to start a little bit talking about what the record was just to make sure we understand i think these letters which are in the record in this defendant's record except perhaps three and who're make it difficult to suggest that the condition issue was anything other than what the letter stated if i could read real quick we read three ok i'm sorry but it's basically a question they're concerned about this no contact business and the responses that's not a condition the only condition is living separate from a married person so i think that that's frames the issue for the court is this record is undisputed and it's a legal issue as to whether there can be a rational basis to consider that can be can articulated and that's the extent of the analysis i think there's a lot of preaching about lawrence and post lawrence i think this court has been pretty clear in its rational review post lawrence reliable case i think was one that directly addressed and so that the issue then becomes is prohibiting this type of conduct rational can you articulate something and judge o you you are correct and in how you you know pose the question do you have to wait for destruction if you came and said no you want to wait for an explosion but of course the answer to that is there's not a case that says you have to wait for actual disruption there's not a case that says you have to have some interruption in the actual day to day operations that time of course you can expect there's all kinds of scenarios that could be  disruptive i mean we know that in hindsight like the best case is if you don't have to wait i think it would be every one of the cases that addressed adultery in a police said ng because there was not disruption in any one of them i can't recall a specific case that described that the eastern district of michigan case the judge walter referenced that that court did reference the fact that what point do you have to wait for just a relationship to become more serious but that was more into reckoning whether the right issue is fundamental or not well we're not i mean i thought these cases are talking about more than internal discipline within the sheriff's office aren't they they're all they're also talking about the public reputation of sheriff's office and the way the chair of the office must be perceived in order to have credibility among the public judge that's out each of those cases addressed have one half a million this mother for period of time that's correct but they each say we moved in with the other family on sunday monday the hollowing was saturday night when this all counts started so we're not sure that that's really not material to this but the fact is that a community the perception is that this is unusual and i guess i really think in hindsight perhaps it's not wife swapping or whatever was referenced initially but at the time it sure looked like it and so i think that that can bring disrepute to the agency that doesn't look how the suspicious it looks like it could be something so you have two issues there judge jones one is the reputation of the agency that's a rational consideration all these cases a descript acknowledge and then also with respect to the dish ruction the scenarios under which this could become a problem or you could go on on and now they're going to they're going to be living in each other's homes there's going to be financial issues perhaps the kids are involved in this what happens when one is not happy and the other one is i don't know i think all the employees of the sheriff's office at will employees e d s are operating under contract or under a c v a or anything that's correct there's not civil service there's not a cause provision in place it's at and what sort of guidelines would there be or are there any over and above this code of conduct provision which seems maybe you'll disagree with me but seems somewhat subjective do not engage in any illegal well that part's not subjective immoral or indecent conduct nor in engage in any legitimate act which when performed in view of the public would reflect  favorably on the boccia sheriff's office that's something for the sheriff himself or herself as the case may be in the future to decide pretty much up to that sheriff is that not correct well there right there is not any more descriptive summary judgment filings about three or four other occasions with people who had different affairs and were subjected to discipline this sheriff's office position is an elected position am i correct that's correct the sheriff had been there i think four years is what the record shows at the time he does have a reputation for trying to run a pretty clean reputable agency it's been an issue to try to overcome some historical he talks about that a little bit in his deposition so i think that that but the point that i need to make is that is a standard kind of condition that we see it's been addressed if i can real quickly the signaller case was his tenth circuit it said you can't bring disrespect to the agency and that's a good tenth circuit case dealing with this very issue but one must admit that what is read by the community is more or whatever has been on a rolling standard in the last twenty years there's no question that i think the courts recently started to address we can't just say based on morality alone certain of these issues and i don't think that's where we're going i think there's a rational basis separate apart from some who are ality issues that this is a little more unusual than just is in the in the shah go case the court was a little bit concerned about how junior role it was but they commented they were critical of the agency for not giving them a chance to correct whatever it was and i don't remember seeing anybody else talk about that i did recall that from shar go way back when they were dealing with that that of this kind of a gentle one and they said i would really think it's might be unfair it's it's so general and we sure wish they could have told them hey you're violating isn't given a chance to change and so i think this case that's a pretty critical to when they have specific instructions this is all you have to do and they like not to do the so i think that's the vagueness that's the vagueness issue it's like these courts i think the did the district the d c circuit opinion we referenced that they did a good job of explaining you can't put something in there about as long as it's not a criminal case we're dealing with and as long it's not a protected constitutional activity we're talking about that we really can't expect much more than something as general  this in this unique setting where it's two families exchanging and they're playing in kind of unusual circumstances i think they understood it was no mission of that there was some issue about why don't they come tell everybody they were doing not see a single case where conduct of this sword or related this sword was held to be constitutionally protected in a police department and i also draw attention to kelly very johnson is that ranges so the only way one can get to a claim of recovery for the plaintiffs is by saying that the law has fundamentally changed in the last three or four years of it ok that's while the briefing was done about lawrence sheriff we should get qualified immunity for sure on this because he said personally and chief deputy owens was just communicating with these people he obviously should get qualified immunity that is clearly not clearly established or we wouldn't be spending all this and that's what i'm assuming arguing that there were some protected status here the law does not seem to be clearly established in the circumstance definitely that that would be a violation  d that he wanted to move it out and i just don't see that any court so far has expanded the constitutional privacy interest of the fourteenth amendment or the freedom of association issue under the first amendment to include compass living in this circumstance and particularly when you frame the right at issue is narrowly as though as the cases would would require that we just real quickly with respect to i guess there hadn't been much comment on the evidentiary issue there was some argument that rule for a way would prohibit the consideration of these communications i think issue it's how you communicate with these employees when they when they all of a sudden have counsel and it's fortunate that he did have counsel who made it clear for us exactly what the condition was that the sheriff was  reputational they're held to a little higher standard than the general public that is trust there's all kinds of issues that are i call them kind of big picture if you're it's issues but there's also it's you could articulate more more day to day issues what could happen when if things aren't going well in the and and seriously without hindsight's this case is no different than all the other cases that have dealt with with hindsight perhaps these folks are happier than they could have been and their motives and maybe this is not a fair circumstance but that obviously is not the issue and i don't think this court should expand what's out there to create a privacy interest here it's not the kind of right that historically has been recognized and shouldn't expand the association right here and under that circumstance is this qualified immunity for both of these xango is not really under that xango chiefly who is under due process it mentions first amendment right to privacy but it cites kelly b johnson telling b johnson was explicitly only a due process analysis for the grooming and harriet situation in that case the matter of fact it mentions it mentions the first amendment only to contrast it against the due process the sunder rational basis or under some elevated standard and i assume you're going for an elevated standard but you know the most you can do i mean one thing you can derive from you can talk about your business about sexual aut onomy but the whole point of the america fell case was say the marriage is a special institution and marriage is open to members of the opposite sex as well as it has historically been  to heterosexual relationships and you know this cohabitation wife swapping moving into different houses is a frontal assault on the institution of marriage  because it says that marriage means nothing i have i love your wife you love my wife you know heck we'll just trade it doesn't matter if we don't go through the formalities of law that are designed to protect the institution of marriage oh you may have a little minute before you ask one question you just mentioned in the beginning of your rebuttal that there's a factual dispute as to what the conditions were on their return to playmate we just heard your opponent say that the only condition was that they ceased co habiting with the married woman that that was the directive that's what they were given notice of and they were given a period of time to rectify that and i understand that in the exchange that followed later that you contend there was some additional conditions that were put on but at any point did either of the plaintiffs say you know i can live with this first condition i'll move out pending morse and whatever else but i can't live with these additional conditions in other words is it is it not moot whether or not there's a factual dispute because they were going to do the first thing anyway they were they contend they had a right to cohabit is under the current state of the law but i do have one final question suppose suppose a sheriff's deputy decides to co habit with his fourteen year old daughter and they're in a loving relationship and mom says i'm tired of that old battered anyway begins to have a relationship with let's say i mean you know maybe they'll go for big love you know maybe they'll go for polygamy i mean the whole what your argument is marriage bond means nothing legally so why should any of these other probations amount to anything in the face of love and commitment