Legal Case Summary

versus Jones whenever the lawyers are ready. Good morning, Your Honor. May I please the court? Reasonable police chief in the position of Sheriff Jones would not have understood that it violated the First Amendment for him to terminate a subordinate officer for unauthorized disclosure of confidential information and false accusations of misconduct leveled at the chain of command of the office. Indeed, this court's president and president of other courts hold the opposite. This court's decision in Jurgison establishes that where a police chief terminates an officer for an admitted or found violation of a general order prohibiting disclosure of confidential internal documents that it the termination of the officer does not violate the First Amendment. And indeed, that independent reason for terminating the officer eliminates the Mount Healthy But Forcauzation Test and whether or not the speech is a matter of public concern. But in this case, and also the force, the 11th Circuit has held that a police chief reasonably refuses to tolerate false accusations of misconduct leveled at the chain of command. Those are detrimental to a spritical core. They damage the reputations of the individual officers and they impair the mission of the organization. So a reasonable. You know, the legal looser are fine general principles. Unfortunately, you have to deal with the record in this case, the facts of this case, and the jury verdict in this case. Yes, Your Honor. And moving directly to the jury verdict, the jury verdict does not bear on the question of qualified immunity. The question. The jury found the facts. Well, what the jury was asked to determine was whether disclosure of the speech at issue was a contributing factor or substantial factor in the termination of the officer. And as I just said, the. This court. But you want to segregate. And I have a lot of sympathy. I have to tell you, I represented the state of Maryland a long time. I have a lot of sympathy with state here, but. I'm not sure about the way the state handled this case because what we have here, according to the plaintiff. Was corruption in the police. In the police offices, and it was that corruption that he was making public. So the cases you're relying on aren't that. And you have to take what the jury said about the corruption. But the jury didn't make a comment. At least in the absence of some plain instructional error. Right. But no, Your Honor, the jury didn't make a finding. The jury couldn't have found for him otherwise. Yes, the jury could have Your Honor under the instructions of the court because what the court instructed the jury. Was that pages one to three of this document were protected speech. But what the question of law for this court to determine is were they protected speech. And the facts of this case show that they were not protected speech. And the reason is that this was a three. This was three of four pages of an internal memorandum that the deputy prepared as part of an internal grievance. And the allegations of corruption in the document were based solely on his own incorrect views of Maryland law. That's the component where he said that there was false charges being leveled against Mr. Pitts

. And then the other part of it was that he was claiming that there was a suppression of facts relating to the arrest. And that was simply untrue. Well, your, he says it's true. No, Your Honor said it wasn't true. He testified that he was required to redo his report three times. He testified three earlier reports or two earlier reports. He testified at trial, Your Honor, that his total allegation of falsity was based on the fact that he had to move information from one report to another. That was, you move information to where it is, is hurtful. I mean, I think that the state could have made the case, but never did, that the agency was trying to pull the sheriff was trying to protect the officer here. By not having a cause of action brought against him, but they never even made that argument. And I don't know that that would have succeeded with a jury, but it might have. The deputy Durham testified at trial, and that's at the Joint Appendix at 249, that his, that all, that the claim of falsity was simply that he moved it from one report to another, but it wasn't deleted from the record. And that the reason that the deputy objected to moving it was because he wanted to cover him that the, he objected the deleted follow-up reports, which just dealt with his own reporting activities. He wanted to keep a paper trail to protect himself, and this was all part of his grievance against the officer, and that there was no information deleted from the official record. If you compare both reports, which are always maintained in the, in the record of the Sheriff's Department, they were not deleted from the official record. They're there, all of the detail from the original police report is now in report labeled use of force. And the deputy was directed. And it's going to be revealed to the person that had been apprehended. Well, they're all part of the, they were all been disclosed to him. So all three versions would be revealed to the person that was apprehended. There were only two in the traffic accident. Yes, Your Honor. All three of them were revealed to him. Why don't know what was actually revealed to him. They were what was available to be revealed to him. They were available. Yes, Your Honor. Okay. There's no evidence in this record that those, other, those earlier versions were not available. No, Your Honor, not at all. They are available. And the, the, the deputy was actually advised in writing that he was directed in writing. A J.A. 465, he was directed in writing to properly document your use of force on the proper form and to include your use of chemical spray and all physical force. That's a J.A. 465 in writing. He was advised to make a complete record of it. And he was advised it was on the wrong report, put it on the correct report. And so there's no factual basis for his allegations of misconduct

. The record is undisputed that it was all to secure an advantage in his grievance. He hadn't liked the way he was being questioned. And he hadn't liked the way that they were telling him to do his reports. He disagreed with the, with the clear Maryland law on this. Prinal versus state, which is cited in our brief at page 15. Identical activities of the arrestee. Resisting arrest and assault. There's probable cause for it. And so his claims are just incorrect. There's no evidence of them in this case. The evidence is undisputed that he wanted to do it his way. And the only misconduct with his. He falsely, he refused to follow directions. He revealed confidential information. It was all confidential. He admitted that he revealed confidential information. I'll tell the one that jury argument. No, Your Honor. No, no, please. I'll come start. I'll go down for all of this. Okay. You can say no, but I persist in my view that this sounds like a jury argument. That doesn't mean it's wrong or ineffective, but I would like to try to understand it. Yes, Your Honor. I apologize, Your Honor. What is the issue of fact that the district court never should have submitted to the jury, for which there is either insufficient evidence, or for which only one reasonable conclusion can be drawn, so that your client is entitled to qualified immunity? Whether the internal grievance memorandum, which was an issue in this case, that he prepared on advice of counsel and submitted up the chain of command, and that formed. And that's at 392, correct? Yes, Your Honor. Okay. That whether his disclosure of that internal document, that the judge advised and was protected speech, whether that was a substantial factor in his termination, that's what the jury decided. Well, wait a minute. Do you say it's not protected speech? Yes, Your Honor. So that's a question of law that you're asking us to review. Yes, Your Honor. So if we agree with the district court that it is protected speech, then what's your fallback position, or your next position? That it still should have been submitted to the jury because under this. It should not have been submitted. Yes, Your Honor. That the issue should not have been submitted. Yes, Your Honor. Because under this court's decision in Jürgenson, the disclosure of confidential internal documents is an independent reason for termination and that even if it is protected speech, the employer is entitled to terminate an employee for disclosing confidential information because no employee has the right to do so. So even if the sheriff acted under a mixed motive, your submission is he wins

. Yes, Sheriff wins is a matter of law. Yes, Your Honor. Under Jürgenson. Under Jürgenson. Yes, Your Honor. Okay, and how does Jürgenson compel that outcome? Because in Jürgenson, the same thing occurred. The employee disclosed a confidential document to a Washington Post reporter. And what about a pervasive corruption in the department? No, Your Honor. What was it about? A whole claim here. Well, that's a... Going back to Judge Mott's point. Yes, Your Honor. What was the claim in Jürgenson? In that, that it dealt with an audit of the internal operation of the police department. So it was not about corruption. So that's the prong about disclosure of confidential information. The corruption piece is analyzed under the fact that, as I was saying before, that there's actually no evidence of corruption because the allegations were false. The employee's allegations were false. See, that's when you fall into your jury argument. Well, let me rephrase. There's no evidence they were true because the employee admitted that, as far as the suppression of information, he was really only objecting to moving from one report to another. And as far as charging an innocent person, Mr. Pitts, he was just incorrect under Maryland law. So the undisputed evidence in this case, there's just no evidence of corruption. The trial record is very... I'm not sure. I'm not sure if the report ultimately people have found that there's something to do with this. But can I just go back to something you just said? I thought that you said disclosure of this because this was confidential information. His disclosure of it was violet of a Maryland law. Is that right? It violated the general orders. Uh-huh. I thought you told me just a few minutes ago that the information wasn't confidential. That anybody could see it. It was right there in the file. No, it would have been disclosedable to a person in interest under the Public Information Act if the authorized, like the sheriff had disclosed it. But it was not..

. What is the traffic victim had wanted it? That's what I asked you earlier. And you said, I don't know. It was right there in the filing. Oh, I just said what I meant was it wasn't suppressed. That it was... It was just as disclosedable as it had been on the original report. I guess is what I was trying to say, Your Honor, is that it wasn't made more secret. By being moved to a different report, it was just that any time there's use of force, it's required to be on the use of force report rather than on the police report. That's all that they were requiring. Well, of course there's an issue of fact about that. Well, there's no evidence. The plaintiff says that that's not the case. That he was told to put it on the report he put it on. He put the accurate report on the report he put it on. And then his supervisors got angry because they thought they were going to be sued. And they told him to redo the report and then put it on another piece of another report. That would his testimony is. But the documents don't kind of take it now because you have a jury verdict in the best light for him. But the jury was asked to make that determination. Sure, all that evidence was in front of them. He testified, didn't he? But that wasn't the issue before the jury. Well, that was all about his feeling that this was corruption. But the issue has he thought that this business about putting it on the correct report was just a phoneable only. That they were making that up because they were worried about the. Sheriff's office being sued. Yes, Your Honor. I guess his case. But I guess I guess my answer to that, Your Honor, would be that. That the question qualified immunity was for the court to determine and the court should have made it. Determined it regardless of the jury's verdict. That's a question of law for the court to determine before the issue goes to the jury. It did determine it. It said it wasn't entitled to it. It was. Right. So the problem is not that it didn't determine it. Yes, Your Honor. It's a matter of law. It's a deal without other court determined it

. Yes, Your Honor. The question for this court is as a matter of law was the district judge incorrect in making that determination. Okay. Well, so maybe we could talk about the elements of a First Amendment violation. Yes, Your Honor. Maybe that would be more fruitful for you. Certainly. And of course, the first thing is whether the employee speech is protected. And in determining whether it's protected, again, in a matter of public concern. Yes, Your Honor. And the reason, while generally speaking, corruption is a matter of public concern. When you look at the basis for the employee, the undisputed evidence on the basis for the employee's allegation, it dealt with the fact that information was moved from one report to another. And he has, he has view that the Mr. Pitts was innocent of the crimes that the employer wanted him to charge him with. But under pernell, there's no basis for concluding that he was innocent. The facts reported by Deputy Durham showed that there was probable cause for each of those charges under Maryland law. The facts of pernell are all on all fours with that. So in order for it to be a matter of public concern, it, you know, and fall into the... The speaker has to be accurate and precise. I don't, where do you get that? Well, the question is whether it was false or not. I mean, if there really is no corruption, and it's really just the employees in the state, or if it's untrue. Then you are arguing, don't order to be a matter of public concern. The speech has to be accurate in all respect. I don't read that in some people's work. No, I don't, I don't mean that at all. You're on it. But I think you have to look at it from the, you were doing this call of fact immunity. And the sheriff didn't investigate it. Well, we were first, I thought we were going to go through the first amendment element. No, no, you're on it. Yes, you're on it. Because we have to decide whether it's this clearly, first we all, we have to find that there's a violation. Yes, you're on it. And then whether it's clearly established or not. So you keep talking qualified immunity. Well, the first element qualified immunity is whether it's constitutional violation. And there's a certain here is that there's the first amendment violation. Yes, you're on it. So as I understand it, if you do have protected activity, you still, you the employer could still win

. Yes, you're on it because... But your witness, the sheriff, said there'd been no interference. You couldn't point to anything that had happened. So he hasn't put anything on the balancing scale, his way. But you're under under underwater versus Churchill. And under this course, President, it's not whether there was actually disruption. It's whether at the time of the termination, the employer could have reason concluded that there was a potential for disruption. Does he testify that he thought at the time there was potential, but he now decided that there wasn't? I don't read him, it's testimony. He said that either. And I read everything in this record. Well, you're on it at the time he terminated him. He cited the fact that he had disclosed confidential information. Violated his trust. And violated his trust. And then he later testified that it hurt morale in the office. And that, you know, it took a lot of time. And he was a bit of a hit on that. And he really didn't have anything to say about that. The record is startling, I think, in the lack. Yes, Your Honor. But again, the, the, the Scorch's Presidents and the Supreme Court have made clear that it's the potential that the court views as a matter of law. Make it up, which is what your brief tries to do. We can't just say it's a matter of law. We can't just talk about general principles about what could be just, you could be the disturbance. We need some evidence. And we don't have any in this record. Yes, Your Honor. But I mean, that's the old identity case pointed out, which is cited in the brief. And I think that when you have false allegations of misconduct against officers that a reasonable each chief can, can, can conclude that there's a potential for disruption and it damages the street of court allegations were false. Farming, Your Honor. What court has concluded that the allegations were false? No, Court, Your Honor. But again, you look at the reasonable, he did his own investigation. As water says he's entitled to do and he looked at the, you know, he looked at the evidence and I think it's that, you know, during appendix for 22 is a result of his investigation. And he concluded that the employees, you know, allegations of, you know, misconduct by the superior offers were, were false. And you know, under waters, that's the court is, you know, the, the employers entitled to make that determination. He's entitled to reasonably rely on his investigation and he did so. And so from his perspective, which is what the court exam is at the time of the innocent, the sheriff wasn't involved in, in, I think your time is expired. Well, I'm sorry, Your Honor. But you had some time for ribbon

. Okay. Thank you, Your Honor. Mr. Harmon, the state's principal argument seems to me that all of these allegations were false. And so do we have, what do you say with respect to that? They were true. Well, who, who says what? Your clients is the true, their clients are false. Well, what we do know about this, let's start with, if we could with the statement. The statement that forms the basis of the speech was that Mr. Durham had requested an immediate full investigation that the, that the detective sergeant miles had ordered Mr. Durham to change his report and delete follow-up reports. Or, or Mr. Durham would be charged or suspended. All of this has not, has not been contested. The sheriff put on no case whatsoever. So these claims of falsity are, are, are, are, are kind of made up from full cloth. As I understand it, their argument is, as a matter of law, what your client was suggesting was bad activity by the sheriff was in fact wrong. He was just wrong on that. And therefore all his speech about that activity is not protective. Well, he has quite a bit of speech, including speech about the grievance, his grievance being returned from the county commissioners back to the sheriff himself to investigate. That's not wrong, but the, with respect to, I think the meat of this here is that Mr. Durham. From, uh, complained that he was being told to put an assault charge on, uh, Mr. Pits, the, uh, the traffic offender. And, in fact, Mr. Durham testified at trial. Uh, they told me that they're going to either arrest me. Unless I do, and, uh, Mr. Pits, so I either do him or they're going to do may. I'm sorry, was it assault or resisting arrest? Um, or both. Actually both. Because they had to tussle. Mr., Mr. Durham. What's wrong with that? Mr., well, if you go back to the facts of the case, what Mr. Durham did was there was a speeding motorcycleist named Mr. John Pits, I believe it was, who was fleeing a Maryland state trooper. Mr. Durham, who was, uh, was at the time of deputy, uh, Sheriff of the Somersight County Sheriff's Office, just happened to be at the right place at the right time. Motorcycle sped by Mr

. Durham joined the chase. Mr. Durham got to the motorcycle. The motorcycleist ends up trying to cross a lawn and ditch his bike or what, uh, can't, pushing his bike along. Mr. Durham actually happens to get to the motorcycleist first. Before the troop. Before the trooper, the troopers running across the lawn, Mr. Durham gets to the motorcycleist. The motorcycleist is literally trying to push his motorcycle, as I understand it, trying to push his motorcycle away. Mr. Durham then tries to detain to stop this gentleman who's trying to still flee. He's, and this gentleman does not want to stop Mr. Durham. What does he do? What does he do? Mr. Durham administers not the officer. Being suspect. Okay. He do to demonstrate his not wanting to be arrested. As I understand it, there was a certain like, um, he, he certainly, he just simply wouldn't, um, he physically resisted. He wouldn't comply with requests, for example, to put both of his hands behind his back. And it was trooper Morton, the Maryland State Trooper, who actually grabbed the second arm. Mr. Durham could not get both arms behind his back and could not get him to, in essence, complicit. This is it. This is it. This is it. But at no time. And also Mr. Pitts was trying to get up off the ground, trying to raise his body off the ground. And Mr. Durham was trying to hold him down to the ground to detain him. So, uh, trooper Morton. I think if you don't have a limited amount of time, I think it would be good to get to what Mr. Pitts, uh, what your client did do. Yeah. What Mr. Durham did do was in order to, uh, hold the suspect, he administered a, uh, I believe two forearm blows. Uh, underneath the, uh, the, the nose. And also, um, some knee strikes to the side. And also O

.C. spray, which is. And he put all that in his first report. Uh-huh. He put it. That's exactly what he did. He put it all in his first investigative report. And then what happened? And that was, if I could say, per his sergeant's instruction, sergeant Williams testified at trial. That, that use of force should go in the investigative report. Then the, um, uh, one of, uh, Mr. Durham supervisors comes in and urges him to go seek, to go seek medical help and it's, and informs Mr. Durham that the suspect was, was going to the hospital and claiming injuries from the, from the police encounter. So we need to protect ourselves and we'll pretend to claim. So we need you to go to the hospital. Absolutely. Absolutely. And we need you to revise your report. Absolutely. And put it on this form where it should have been to begin with. Absolutely. And you said, oh, no, no, no, you're skipping a part. Is the, the point is this is seemed to me in this case is. The way this guy, the suspect looks. Looks like somebody beat the crap out. Right. Either if you did this, we assume as an office of the law, you did it because it was necessary. All right. That's, that's, that's taking his side and report. But if you did this to this level, he must have been doing something that violated the law. Whether it was obstruction of justice, resisting arrest. So basically what they're saying to him is that, okay, you said that happened. But you told me there's nothing that he did that violated the law. Well, they were saying that what they're saying is take your use of force out of your first investigative report and delete your follow-up reports, which included discussions between Mr. Durham and his supervisors about, oh, you might want to go get yourself checked out and other sorts of things. They were offended that what they were trying to do was trying to posture in order to avoid a potential claim brought by this, by this motorist. Mr. Durham explained a trial and that obviously the jury took stock in this. That couldn't be the case because there were troopers right there to see what he did. It wasn't like he was by himself and if it didn't exist in his report, then it would be, it would go away except for the suspect. The troopers saw what happened. So anybody would say yes

. Rightly or wrongly those blows were administered by this officer. Right. So he could, so he wouldn't go away just because he didn't put in his incident report under these facts. What, what Mr. Durham, let me say that, what Mr. Durham, what he was asked to do was not just delete and alter his initial reports, but also to charge the suspect. Exactly. Because he ought to be a child, this a man looks like this. He looks like this going to the hospital, then he better have been doing something that violated the law. That's a reasonable type of, if I was his watch sergeant, I would say the same thing. You better have some reason why you'd be the crap out of a man like that. Okay. And you tell me, oh no, it's not even a charge against him. Well, that's why is that not a natural police follow up to this incident? Well, the first of all, Mr. Pitts never made, ultimately made any kind of complaints. I'm sorry, I understand, but could you answer Judge Gregory's last question? Why isn't it appropriate for a police supervisor who reads a report and draws the inference that surely the defendant must have done something, and my officer, my deputy, has left something out of his report. Complete your report, Mr. Deputy. Right. And you don't continue that's inappropriate, right? Well, let me back up because I do think we're missing something. Mr. Durham, when he first got back from the station, from this altercation with Mr. Pitts, did speak with Sergeant Paul Williams. And Sergeant Paul Williams hands him the form, the taser form that is discussed in the... I'm sorry, but I think we're trying to focus on the propriety of a supervisory officer who instructs his or her subordinate. You left something out of your report, and indeed, bigger than that, you have failed to place a charge against a citizen, where there's every reason to believe you should have. Okay. Right? There's, there as a general principal, there's nothing wrong with the supervisor saying that. So why is that different from this case? Okay. Because there's an absolute absence of any evidence that Mr. Pitts actually assaulted Mr. Durham for one, two. But Judge Gregory's point is that the inference drawn from the use of force might reasonably suggest to a supervisory law enforcement officer that her subordinate has failed. To place a charge that is reasonably available to be placed. Okay. What, Mr., okay. I'll explain how Mr. Durham testified a trial, I think I can answer your question. He said he did not charge him with resisting arrest because it wasn't his arrest. Trooper Morton ended up putting 10 charges against Mr. Pitts. That's how he explained it at trial. That's in the record. Two, how he explained with respect and with respect to not charging Mr. Pitts with an assault. He explained at trial that Mr. Pitts did not assault him. Mr. Pitts tried to, Mr. Pitts tried to get up off the ground and he wouldn't allow himself to be stopped and detained in order for Mr., for Trooper Morton to arrest. Did Morton charge Pitts with assaulting Morton or assaulting Durham? That, that's not in the record, Your Honor. That is not something that. But you say he did charge him with assault? Trooper Morton, as I understand it, charged Mr. Pitts with assault. I don't know the specific charges. You don't know the specific. Okay, look, you just conceded that as a general matter, it would be alright for a supervisor to say to Mr., to a deputy or an underling that you, let's make your report accurate. Let's do the charges. So why wasn't that okay here? Understand he thought it wasn't okay and he apparently has persuaded a jury. It wasn't okay. Because this dispute simply is not about a supervisor trying to get an officer to correct their forms. Yes, it is. He says that that's all fraud and that that's the fraud that he exposed. And he, and that's right. And it forms the basis of his, of his seat. So what we have here is an underling saying his judgment is better than his supervisors. And he can go tell the press about it and therefore make a first amendment claim. Just when you disagree. One of my law clerks decides to disagree with me. They think that their view is better. He can go send it to the Washington Post and make first amendment claim. Well, then you'd have to evaluate the public concern and the disruption that that might, might bring to the court. But the problem, this is not a case where there's out of whole cloth, they want him to charge somebody something that didn't exist at all. You must concede that that's a natural follow-up to say you can't have this level of force being exhibited and not have a counterbalance of a charge. So he, in a sense, that's what council said. It's almost like using leverage. I disagree with you

. He said he did not charge him with resisting arrest because it wasn't his arrest. Trooper Morton ended up putting 10 charges against Mr. Pitts. That's how he explained it at trial. That's in the record. Two, how he explained with respect and with respect to not charging Mr. Pitts with an assault. He explained at trial that Mr. Pitts did not assault him. Mr. Pitts tried to, Mr. Pitts tried to get up off the ground and he wouldn't allow himself to be stopped and detained in order for Mr., for Trooper Morton to arrest. Did Morton charge Pitts with assaulting Morton or assaulting Durham? That, that's not in the record, Your Honor. That is not something that. But you say he did charge him with assault? Trooper Morton, as I understand it, charged Mr. Pitts with assault. I don't know the specific charges. You don't know the specific. Okay, look, you just conceded that as a general matter, it would be alright for a supervisor to say to Mr., to a deputy or an underling that you, let's make your report accurate. Let's do the charges. So why wasn't that okay here? Understand he thought it wasn't okay and he apparently has persuaded a jury. It wasn't okay. Because this dispute simply is not about a supervisor trying to get an officer to correct their forms. Yes, it is. He says that that's all fraud and that that's the fraud that he exposed. And he, and that's right. And it forms the basis of his, of his seat. So what we have here is an underling saying his judgment is better than his supervisors. And he can go tell the press about it and therefore make a first amendment claim. Just when you disagree. One of my law clerks decides to disagree with me. They think that their view is better. He can go send it to the Washington Post and make first amendment claim. Well, then you'd have to evaluate the public concern and the disruption that that might, might bring to the court. But the problem, this is not a case where there's out of whole cloth, they want him to charge somebody something that didn't exist at all. You must concede that that's a natural follow-up to say you can't have this level of force being exhibited and not have a counterbalance of a charge. So he, in a sense, that's what council said. It's almost like using leverage. I disagree with you. So I'm going to make your request, which seems to be reasonable into a smoking gun of fraud. You want me to put in a report, but there's no factual basis that suggests actually bring a charge. But it's clearly it was suggested charge unless you're saying I'm a rogue police officer, which we know is not the case. Nobody has ever suggested this case. That's why I presume the highest level for the office to involve your client. Therefore, that's why it begs the question of saying, I know there must have done something because he wouldn't be presented to the hospital like this. And that's, that's, that seems to be reasonable as does my suggestion because he disagreed with that that me, you now can go out and turn what otherwise would be a grievance matter into a call celeb for your benefit and then a jury believe it. That's why we have to look at reasonable under the circumstances to get from under protection of qualified immunity. Well, there's there's two things that form kind of the basis of the speech. One is the falsifying or altering of the police reports and the demanding that Mr. Pitts be charged with assault or Durham be charged. That's right. Because if you don't have any basis for doing this, then that's excessive falls and maybe criminal. Okay, so that's one that's one. Secondly, your honors, the grievance that was filed, which is a joint appendix 390 is different than the actual speech. The internal grievances at 390, the speech is at 398. And what that speech included was that after he filed the internal grievance, Somerset County suspended him and sent the investigation. His grievance against the sheriff back to the sheriff himself to investigate, which is a public that is a great public concern based on the conflict of interest. But a problem is that the risk is that it really has to be something that's appropriately disclosed. Otherwise, it doesn't go to the trustworthiness of the officer. So, that he's disclosing documents. Otherwise, he shouldn't. Well, actually, what he disclosed in his in his communication and in the attachments that went with it, were the sheriff testified that at 293 lines 14 through 17, he admitted that he didn't know what confidential information was allegedly sent out by Durham. That's a joint appendix 293 line 14 through 17. He, you know, I appreciate you mentioning that when you say the sheriff testified, you're talking about the deposition testimony. I'm talking about the trial testimony. He did testify at the trial. The sheriff testified that quite clearly at 290, joint appendix 293 that he didn't know what confidential information that Durham had sent out. And that he admitted that the information was accessible at 319, the sheriff admitted that some of the materials that Durham disseminated were accessible to citizens if they asked for them. He also admitted that there was no confidential police techniques or any confidential information given out by Durham. That's a 318 319. I think that if we get to the balancing, you win. Right. So now we have to focus on the protected activity. Right. And I think that's where we were. Right. Okay. So you win on balancing. If you get if you get by the protected activity. Okay

. So I'm going to make your request, which seems to be reasonable into a smoking gun of fraud. You want me to put in a report, but there's no factual basis that suggests actually bring a charge. But it's clearly it was suggested charge unless you're saying I'm a rogue police officer, which we know is not the case. Nobody has ever suggested this case. That's why I presume the highest level for the office to involve your client. Therefore, that's why it begs the question of saying, I know there must have done something because he wouldn't be presented to the hospital like this. And that's, that's, that seems to be reasonable as does my suggestion because he disagreed with that that me, you now can go out and turn what otherwise would be a grievance matter into a call celeb for your benefit and then a jury believe it. That's why we have to look at reasonable under the circumstances to get from under protection of qualified immunity. Well, there's there's two things that form kind of the basis of the speech. One is the falsifying or altering of the police reports and the demanding that Mr. Pitts be charged with assault or Durham be charged. That's right. Because if you don't have any basis for doing this, then that's excessive falls and maybe criminal. Okay, so that's one that's one. Secondly, your honors, the grievance that was filed, which is a joint appendix 390 is different than the actual speech. The internal grievances at 390, the speech is at 398. And what that speech included was that after he filed the internal grievance, Somerset County suspended him and sent the investigation. His grievance against the sheriff back to the sheriff himself to investigate, which is a public that is a great public concern based on the conflict of interest. But a problem is that the risk is that it really has to be something that's appropriately disclosed. Otherwise, it doesn't go to the trustworthiness of the officer. So, that he's disclosing documents. Otherwise, he shouldn't. Well, actually, what he disclosed in his in his communication and in the attachments that went with it, were the sheriff testified that at 293 lines 14 through 17, he admitted that he didn't know what confidential information was allegedly sent out by Durham. That's a joint appendix 293 line 14 through 17. He, you know, I appreciate you mentioning that when you say the sheriff testified, you're talking about the deposition testimony. I'm talking about the trial testimony. He did testify at the trial. The sheriff testified that quite clearly at 290, joint appendix 293 that he didn't know what confidential information that Durham had sent out. And that he admitted that the information was accessible at 319, the sheriff admitted that some of the materials that Durham disseminated were accessible to citizens if they asked for them. He also admitted that there was no confidential police techniques or any confidential information given out by Durham. That's a 318 319. I think that if we get to the balancing, you win. Right. So now we have to focus on the protected activity. Right. And I think that's where we were. Right. Okay. So you win on balancing. If you get if you get by the protected activity. Okay. Okay. Now there's been the suggestion that all we have here is a disagreement by your client with a personal action. I mean, he decided his judgment about what happened here was better than his supervisors. Yeah. That's that's simply because he sent that disagreement to a paper. Okay. And charge fraud in your view. It turns into a matter of public concern. Well, I mean, the the sheriff himself admitted that the public would be concerned about the possible filing of trumped up criminal charges. That's one of the things that Mr. Durham states that he thought that the assault charges on Mr. Pitts were not there was not sufficient evidence of that. Mr. Durham testified that Mr. Pitts did not strike him or do it or harm him in anywhere harm his uniform or damages vehicle or anything like that. So so that that that has to say I'm really perplexed that maybe I shouldn't be, but you're not here able to tell us about the actual charges. Well, what do you say? I'm really confused because clearly what happened here, nothing's clear, but but the deputy regarded this as a Maryland state police matter. All he did as you put it so aptly, he was in the right place at the right time. He helped out this trooper. He hit the guy several times. He sprayed him, but it was the state police's matter. And I ask you earlier, of course, was there an assault charge and who was the victim on that charge? So what seems to be going on is the sheriff is concerned not with what charges have been placed against Pitts because he's been charged by the agency with responsibility for the investigation and prosecution of the case. He the sheriff, I thought what you were saying is the sheriff is trying to cover the sheriff's potential liability by asking the subordinate to do what the facts on the reports that the subordinate prepared seem to suggest. And so how do you get a matter of public concern out of that? Well, he's not just saying charge, Mr. Pitts. He's saying delete your use of force if if your honors compare the original investigative report to what it became. So it was delete your use of force or charge the man. It's no, it was delete your use of force or alter your use of force put it on a different form. Delete the three follow up reports about them requesting Mr. Durham to go to get seek medical help among other things. And then thirdly, charge Mr. Pitts with an assault. When you say delete the reports, you don't mean destroy the reports or maybe you do know I do. Is that in the record? That is it. That is it. It was as I understand this record to be in the trial testimony, it was a punch a key gone. The follow up. They had already been printed out the follow the only reason why they're even available in the joint appendix is because Mr. Durham had printed them out before he deleted them off the. The Somerset County Sheriff's Office is computers. So you're saying the supervisor reviewed them while they were still in cyberspace

. Okay. Now there's been the suggestion that all we have here is a disagreement by your client with a personal action. I mean, he decided his judgment about what happened here was better than his supervisors. Yeah. That's that's simply because he sent that disagreement to a paper. Okay. And charge fraud in your view. It turns into a matter of public concern. Well, I mean, the the sheriff himself admitted that the public would be concerned about the possible filing of trumped up criminal charges. That's one of the things that Mr. Durham states that he thought that the assault charges on Mr. Pitts were not there was not sufficient evidence of that. Mr. Durham testified that Mr. Pitts did not strike him or do it or harm him in anywhere harm his uniform or damages vehicle or anything like that. So so that that that has to say I'm really perplexed that maybe I shouldn't be, but you're not here able to tell us about the actual charges. Well, what do you say? I'm really confused because clearly what happened here, nothing's clear, but but the deputy regarded this as a Maryland state police matter. All he did as you put it so aptly, he was in the right place at the right time. He helped out this trooper. He hit the guy several times. He sprayed him, but it was the state police's matter. And I ask you earlier, of course, was there an assault charge and who was the victim on that charge? So what seems to be going on is the sheriff is concerned not with what charges have been placed against Pitts because he's been charged by the agency with responsibility for the investigation and prosecution of the case. He the sheriff, I thought what you were saying is the sheriff is trying to cover the sheriff's potential liability by asking the subordinate to do what the facts on the reports that the subordinate prepared seem to suggest. And so how do you get a matter of public concern out of that? Well, he's not just saying charge, Mr. Pitts. He's saying delete your use of force if if your honors compare the original investigative report to what it became. So it was delete your use of force or charge the man. It's no, it was delete your use of force or alter your use of force put it on a different form. Delete the three follow up reports about them requesting Mr. Durham to go to get seek medical help among other things. And then thirdly, charge Mr. Pitts with an assault. When you say delete the reports, you don't mean destroy the reports or maybe you do know I do. Is that in the record? That is it. That is it. It was as I understand this record to be in the trial testimony, it was a punch a key gone. The follow up. They had already been printed out the follow the only reason why they're even available in the joint appendix is because Mr. Durham had printed them out before he deleted them off the. The Somerset County Sheriff's Office is computers. So you're saying the supervisor reviewed them while they were still in cyberspace. He wanted them off the systems computers. Correct. He wanted the follow up reports of all the back and forth between Mr. Durham and the supervisors. The history. So we said so to speak. The fact that he was a very, gone, banished. In fact, Mr. Durham. I acknowledge that he had. Printed out copies of those materials. Acknowledged to whom when to his supervisors that he had a. At what point in time? This would have been late, I believe late August or early September of 2008. And and and his supervisors and this would be Sergeant Miles. With a threatened to initiate criminal excuse me starting to initiate departmental charges against Mr. Durham for printing out the reports the original follow up reports and simply. And simply keep providing his attorney a copy. Mr. With judge, Matt's permission. Could you just spend 30 seconds and tell us what effect the court of special appeals decision might or might not have on this case. Well, for one, the court of special appeals said that the sheriff's decision to terminate was arbitrary and capricious. Right. So if you want to get this job back. He's gotten his job back. It's well. Why don't I address that? Mr. Durham has been reinstated. Right. That is the thumbnail version. I could spend another hour and a half about what happened after he returned on September 7th. Sure, it's not a happy happy situation for anybody. It's he. Well, he was on leave with pay for a whole year when this happened. So he didn't even work and he got his pay. Then he's reinstated and he's gotten more than a million dollars in damages. The state never asked for a remittor. Never said that we should count what we paid him against the verdict. It's really the most extraordinary case I think I've ever seen. No, the I'm sorry. The damages began from the time when Durham was terminated in September 2009 when he went off their payroll. From September 2008 to September 2009, he was suspended with that

. He wanted them off the systems computers. Correct. He wanted the follow up reports of all the back and forth between Mr. Durham and the supervisors. The history. So we said so to speak. The fact that he was a very, gone, banished. In fact, Mr. Durham. I acknowledge that he had. Printed out copies of those materials. Acknowledged to whom when to his supervisors that he had a. At what point in time? This would have been late, I believe late August or early September of 2008. And and and his supervisors and this would be Sergeant Miles. With a threatened to initiate criminal excuse me starting to initiate departmental charges against Mr. Durham for printing out the reports the original follow up reports and simply. And simply keep providing his attorney a copy. Mr. With judge, Matt's permission. Could you just spend 30 seconds and tell us what effect the court of special appeals decision might or might not have on this case. Well, for one, the court of special appeals said that the sheriff's decision to terminate was arbitrary and capricious. Right. So if you want to get this job back. He's gotten his job back. It's well. Why don't I address that? Mr. Durham has been reinstated. Right. That is the thumbnail version. I could spend another hour and a half about what happened after he returned on September 7th. Sure, it's not a happy happy situation for anybody. It's he. Well, he was on leave with pay for a whole year when this happened. So he didn't even work and he got his pay. Then he's reinstated and he's gotten more than a million dollars in damages. The state never asked for a remittor. Never said that we should count what we paid him against the verdict. It's really the most extraordinary case I think I've ever seen. No, the I'm sorry. The damages began from the time when Durham was terminated in September 2009 when he went off their payroll. From September 2008 to September 2009, he was suspended with that. Did the state ever ask for a remittor? I'm sorry. The state did not ask for remittor. You're saying they weren't entitled to one because they paid him up to a termination. Well, that's just for the whether they may have had other arguments for remittor, but they did not make them during this was too much damages for this. This offense. That's would be the damage. That's the argument about remittor. An economist testified. Part of the problem is that the jury's verdict was in May of 2012 and the Maryland Court of Special Appeals decision was in August of 2012. So there was no way for the economist to consider the possibility that Durham would actually be reinstated when she tested. Leave aside the reinstatement or not. Just a $1.2 million dollars. Is that what it was? $1.2 million dollars verdict. That's correct. That's correct. I mean, four have people that are beat up that don't get that much money. $400, $412,000 in economic, $700,000 in non-economic and that was based on the testimony by Mr. Durham as to what this did to his career and to his reputation and in the distress that it caused him. Okay. He testified. His supervisor told me I was going to change my original police report and I was going to delete altogether my three prior reports. And if I did not comply, I would be charged departmentally and I would be charged criminally, which would mean arrested and charged. That's what he said. Okay. That's so that's that's your best evidence isn't about what what was going on. In other words, we've been asking you and I'm not sure that we are all meeting. We're having a meeting of the minds here, but we've been saying, well, what's wrong with what the his superiors did? What's. And I guess your ultimate answer is that if all he has is a difference of opinion about what was involved in this arrest and what the appropriateness was putting stuff in his report. Then you've conceded sort of in the abstract world, it would be okay for his supervisors to overruling, right? I would say this at trial, you had two competing theories of this case. One, a disagreement among Durham and his supervisors. Two, a cover up. An attempt to try to charge Mr. Pitz before he sued the department. At the time that this was going on, there was a case known as it went to the foot circuit, Henry versus pernell. But he had already been charged. Not when they originally questioned it, isn't that right? The supercharged him. No, but not right away because there's always the beginning conversations took place right away. Isn't that right? The same day. The conversations that occurred between Durham and his supervisors occurred over a number of days, but they began on August 21st, 2000

. Did the state ever ask for a remittor? I'm sorry. The state did not ask for remittor. You're saying they weren't entitled to one because they paid him up to a termination. Well, that's just for the whether they may have had other arguments for remittor, but they did not make them during this was too much damages for this. This offense. That's would be the damage. That's the argument about remittor. An economist testified. Part of the problem is that the jury's verdict was in May of 2012 and the Maryland Court of Special Appeals decision was in August of 2012. So there was no way for the economist to consider the possibility that Durham would actually be reinstated when she tested. Leave aside the reinstatement or not. Just a $1.2 million dollars. Is that what it was? $1.2 million dollars verdict. That's correct. That's correct. I mean, four have people that are beat up that don't get that much money. $400, $412,000 in economic, $700,000 in non-economic and that was based on the testimony by Mr. Durham as to what this did to his career and to his reputation and in the distress that it caused him. Okay. He testified. His supervisor told me I was going to change my original police report and I was going to delete altogether my three prior reports. And if I did not comply, I would be charged departmentally and I would be charged criminally, which would mean arrested and charged. That's what he said. Okay. That's so that's that's your best evidence isn't about what what was going on. In other words, we've been asking you and I'm not sure that we are all meeting. We're having a meeting of the minds here, but we've been saying, well, what's wrong with what the his superiors did? What's. And I guess your ultimate answer is that if all he has is a difference of opinion about what was involved in this arrest and what the appropriateness was putting stuff in his report. Then you've conceded sort of in the abstract world, it would be okay for his supervisors to overruling, right? I would say this at trial, you had two competing theories of this case. One, a disagreement among Durham and his supervisors. Two, a cover up. An attempt to try to charge Mr. Pitz before he sued the department. At the time that this was going on, there was a case known as it went to the foot circuit, Henry versus pernell. But he had already been charged. Not when they originally questioned it, isn't that right? The supercharged him. No, but not right away because there's always the beginning conversations took place right away. Isn't that right? The same day. The conversations that occurred between Durham and his supervisors occurred over a number of days, but they began on August 21st, 2000. Okay, the second conversation, the first conversation is fill out on this improper report, they say. He says they told him to fill it out. What and when is the next conversation? The next, there's additional conversations leading up to an interrogation. When is the next conversation? The dates I'd have to pull from the appendix. How long after the event is the interrogation, what you call the interrogation? I believe it's like three or four days later. And hadn't Pitz been charged by then? I mean, wasn't he charged the day he was detained and arrested? As I understand it, Mr. Pitz faced ten different charges. And I would have imagined- You know when they were charged. I don't know when they were charged. It was when he was released before he was presented to a police officer. He was in the hospital. Where did he go? He was in the record. The day of, he left, that's correct, the day of he went to go to the hospital or claiming injuries because he had had a problem with his shoulder. I understand that your economic loss calculus was based on his not having his job over an period of time in the future, right? Front pay. It included that's right moving into the future. Wow. And you mean telling me that the state allowed that to happen without arguing that way? We lose this case to Verilings. We're going to put him back to work. They did. And it still gave out- Wow. Could you get that- Is it the one or the other? You know, you win. You know, if you win, they're going to put you back to work. If you lose, you're not entirely anything. But how can you get both of the best work? Well, you weren't seeking me in statement here, were you? Yeah. This was a- No, there was no reinstatement saws. This was just a requirement. This is just qualified- You were seeking me in statement in the state case. That's right. We were all together seeking. But really, what this all amounts to is- Is a competing version of- Was this about just getting the right form completed? Which Mr. Derm testified it was not about? Or is it about a cover-up? Is this about something else? And Mr. Derm reported that information, reported his version, reported his opinion to different government agencies, and to- Members of the press, as well as politicians. And this is an issue of public concern, whether or not a motorist who gets injured by- In a police encounter who indicates he's going to the hospital, whether a- A department- Department's posturing to protect itself from liability by then charging the suspect when the initiating police officer did not want to- Let's say- Place those charges. Judge March was the lead judge. She's been- Obviously generous to not only you, but to- To the panel too. Let me follow- I don't understand that. Your client- That takes position. Listen, I just happened to be there. It wasn't my arrest. But from an institutional standpoint, Oh, it's more than that, you are the one who's going to be responsible for what you did on that scene. And therefore, why is it not reasonable to follow up to- To make sure what seems to be a reasonable circumstance Or bringing a charge? Why is that not done? You just don't have to cavalier to say what? What am I arrest? I'm stopping it

. Okay, the second conversation, the first conversation is fill out on this improper report, they say. He says they told him to fill it out. What and when is the next conversation? The next, there's additional conversations leading up to an interrogation. When is the next conversation? The dates I'd have to pull from the appendix. How long after the event is the interrogation, what you call the interrogation? I believe it's like three or four days later. And hadn't Pitz been charged by then? I mean, wasn't he charged the day he was detained and arrested? As I understand it, Mr. Pitz faced ten different charges. And I would have imagined- You know when they were charged. I don't know when they were charged. It was when he was released before he was presented to a police officer. He was in the hospital. Where did he go? He was in the record. The day of, he left, that's correct, the day of he went to go to the hospital or claiming injuries because he had had a problem with his shoulder. I understand that your economic loss calculus was based on his not having his job over an period of time in the future, right? Front pay. It included that's right moving into the future. Wow. And you mean telling me that the state allowed that to happen without arguing that way? We lose this case to Verilings. We're going to put him back to work. They did. And it still gave out- Wow. Could you get that- Is it the one or the other? You know, you win. You know, if you win, they're going to put you back to work. If you lose, you're not entirely anything. But how can you get both of the best work? Well, you weren't seeking me in statement here, were you? Yeah. This was a- No, there was no reinstatement saws. This was just a requirement. This is just qualified- You were seeking me in statement in the state case. That's right. We were all together seeking. But really, what this all amounts to is- Is a competing version of- Was this about just getting the right form completed? Which Mr. Derm testified it was not about? Or is it about a cover-up? Is this about something else? And Mr. Derm reported that information, reported his version, reported his opinion to different government agencies, and to- Members of the press, as well as politicians. And this is an issue of public concern, whether or not a motorist who gets injured by- In a police encounter who indicates he's going to the hospital, whether a- A department- Department's posturing to protect itself from liability by then charging the suspect when the initiating police officer did not want to- Let's say- Place those charges. Judge March was the lead judge. She's been- Obviously generous to not only you, but to- To the panel too. Let me follow- I don't understand that. Your client- That takes position. Listen, I just happened to be there. It wasn't my arrest. But from an institutional standpoint, Oh, it's more than that, you are the one who's going to be responsible for what you did on that scene. And therefore, why is it not reasonable to follow up to- To make sure what seems to be a reasonable circumstance Or bringing a charge? Why is that not done? You just don't have to cavalier to say what? What am I arrest? I'm stopping it. Don't- Well, while his command said no, You have to follow through with what he did. I-I hope it's clear enough. Mr. Durham did do what his supervisors told him to do. He did- He did. He told the papers about it and said it was corruption. Yeah. But we do have all of his testimony about- I mean, they put him in the room and they- They put him in the room and they wouldn't let him talk to a lawyer. You have anything you could add? Is this- Is this great, Rick? I'm thinking- Is there any other questions? No, there's no- There's lots of questions. Anyway, I don't think you can help us anymore. Thank you. Thank you. I'm a big fan of the law's laws. My name is Melissa. May I address the qualified immune nearer with the court buying some other- There's a court of a question on some other aspect of the case before I address- With everyone. Thank you. I-I would- Go ahead. No, go ahead. No. Somebody go ahead. I had the sense that you're better off now than you were when you sat down. And I'm really puzzled and be guiled by that. You... Is that what you were trying to say? I guess is my question. That the real problem here is that... That this is not a matter of public concern as a matter of law, because when it's objectively examined, your point is that as a matter of law, it is no more than a garden variety workplace dispute that has been elevated and magnified through some rather hyperbolic language about what was actually going on. Thank you, Your Honor. Yes, Your Honor, that is exactly the point the state is trying to make that the district judge and this court examined the issue and this court examined the Genovo, whether it's a matter of public concern and the balance thing. Now, you didn't follow motion to dismiss, correct? And I don't mean this as criticism. I mean, you didn't appeal from the denial of the motion. And you did follow motion for summary judgment? No, you're right. You did not follow motion for summary judgment. Okay, so which is, again, not a criticism. In fact, if anything, I for one tend to criticize these interlocutorial appeals more than most, I think. So, you rested on your laurels in the sense, I don't mean that as criticism, but basically you said we didn't get it on a 12 B6, we're going to get it on a rule 50 A or a rule 50 B. Yes, Your Honor. Okay

. Don't- Well, while his command said no, You have to follow through with what he did. I-I hope it's clear enough. Mr. Durham did do what his supervisors told him to do. He did- He did. He told the papers about it and said it was corruption. Yeah. But we do have all of his testimony about- I mean, they put him in the room and they- They put him in the room and they wouldn't let him talk to a lawyer. You have anything you could add? Is this- Is this great, Rick? I'm thinking- Is there any other questions? No, there's no- There's lots of questions. Anyway, I don't think you can help us anymore. Thank you. Thank you. I'm a big fan of the law's laws. My name is Melissa. May I address the qualified immune nearer with the court buying some other- There's a court of a question on some other aspect of the case before I address- With everyone. Thank you. I-I would- Go ahead. No, go ahead. No. Somebody go ahead. I had the sense that you're better off now than you were when you sat down. And I'm really puzzled and be guiled by that. You... Is that what you were trying to say? I guess is my question. That the real problem here is that... That this is not a matter of public concern as a matter of law, because when it's objectively examined, your point is that as a matter of law, it is no more than a garden variety workplace dispute that has been elevated and magnified through some rather hyperbolic language about what was actually going on. Thank you, Your Honor. Yes, Your Honor, that is exactly the point the state is trying to make that the district judge and this court examined the issue and this court examined the Genovo, whether it's a matter of public concern and the balance thing. Now, you didn't follow motion to dismiss, correct? And I don't mean this as criticism. I mean, you didn't appeal from the denial of the motion. And you did follow motion for summary judgment? No, you're right. You did not follow motion for summary judgment. Okay, so which is, again, not a criticism. In fact, if anything, I for one tend to criticize these interlocutorial appeals more than most, I think. So, you rested on your laurels in the sense, I don't mean that as criticism, but basically you said we didn't get it on a 12 B6, we're going to get it on a rule 50 A or a rule 50 B. Yes, Your Honor. Okay. And that's basically where you are. And that's not to say that chairference would have been titled a summary judgment on the undisputed facts, but the trial record makes it even stronger, because the employee himself testified that it was all in furtherance of his agreements and revealed his personal motive. Okay, I'll give you a second. I quite take your point. In fact, as I say, I have some sympathy for this business about it was just agreements. But his further testimony was that the employer was threatening him. And that strikes me, you know, wouldn't let him talk to a lawyer and told him that if he didn't do this, we've been shoved him in a room and wouldn't let him. And what are we to make of all that? Well, I think, again, we step back to the reasonable employers viewpoint at the time, and he did conduct investigation and the share. Because he, remember, the share was not personally involved in any of these activities, and he did conduct investigation. Joining appendix 422 is the result of his investigation. And he reasonably concluded from investigating what his chain of command, what the chain of command in the office was telling him was that this had not happened, that the, he was right, the rights were not denied, that there was no violation of the law enforcement officers' Bill of Rights, which is applicable to this situation, and that it was in subordination of the employee and that he was refusing to fill out the proper terms. The plaintiff alleges about his very adversarial questioning by his supervisors and being man-handled and not allowed to talk to his representative. I don't think there's really much question about that in the record. Well, he did say that, Your Honor. Yeah. And nobody testified to the contrary. No, Your Honor. So that's on dispute. But going back to the, the sheriff's investigation of that at the time, you have to go back and when the court looks at this, you know, I'm on the facts. But he's going in exposing that, if you will. I mean, that's, I'm with trying to decide whether that's. What he did, Your Honor, was in exposing it. He used confidential documents. And the sheriff, a reasonable person, the sheriff's position, what he knows is that he's disposed confidential documents and that the sheriff's investigation has revealed that the allegations of corruption is counterfeit. And so under, under church waters versus church, Supreme Court case, and this court's precedent that the employer is entitled, you know, to make a reasonable. What are the confidential documents again? Well, the memo that the, that's being now called a complaint letter is actually an internal grievance memorandum written on the advice of counsel. And what is, what is confidential, what is confidential about that? He's no personal record. She's own personal record. Yes, Your Honor. That doesn't mean it's disposable to the media or to outside agencies by the non custodian. I mean, confidential records under the public information act is disposed, and the employer gets to decide whether to disclose. An employee cannot disclose his own personal records. Sure. He can't obtain them from the employer and disclose them without authorization. Right. In this circumstances, in like he was himself a potential suspect of excessive force himself. Yes, Your Honor. And basically what I was going to say. And he was found to have violated disclosure requirements. And in the law enforcement officers bill of rights proceeding and he admitted that he had, and he accepted a suspension. I mean, those facts are for close to him now

. And that's basically where you are. And that's not to say that chairference would have been titled a summary judgment on the undisputed facts, but the trial record makes it even stronger, because the employee himself testified that it was all in furtherance of his agreements and revealed his personal motive. Okay, I'll give you a second. I quite take your point. In fact, as I say, I have some sympathy for this business about it was just agreements. But his further testimony was that the employer was threatening him. And that strikes me, you know, wouldn't let him talk to a lawyer and told him that if he didn't do this, we've been shoved him in a room and wouldn't let him. And what are we to make of all that? Well, I think, again, we step back to the reasonable employers viewpoint at the time, and he did conduct investigation and the share. Because he, remember, the share was not personally involved in any of these activities, and he did conduct investigation. Joining appendix 422 is the result of his investigation. And he reasonably concluded from investigating what his chain of command, what the chain of command in the office was telling him was that this had not happened, that the, he was right, the rights were not denied, that there was no violation of the law enforcement officers' Bill of Rights, which is applicable to this situation, and that it was in subordination of the employee and that he was refusing to fill out the proper terms. The plaintiff alleges about his very adversarial questioning by his supervisors and being man-handled and not allowed to talk to his representative. I don't think there's really much question about that in the record. Well, he did say that, Your Honor. Yeah. And nobody testified to the contrary. No, Your Honor. So that's on dispute. But going back to the, the sheriff's investigation of that at the time, you have to go back and when the court looks at this, you know, I'm on the facts. But he's going in exposing that, if you will. I mean, that's, I'm with trying to decide whether that's. What he did, Your Honor, was in exposing it. He used confidential documents. And the sheriff, a reasonable person, the sheriff's position, what he knows is that he's disposed confidential documents and that the sheriff's investigation has revealed that the allegations of corruption is counterfeit. And so under, under church waters versus church, Supreme Court case, and this court's precedent that the employer is entitled, you know, to make a reasonable. What are the confidential documents again? Well, the memo that the, that's being now called a complaint letter is actually an internal grievance memorandum written on the advice of counsel. And what is, what is confidential, what is confidential about that? He's no personal record. She's own personal record. Yes, Your Honor. That doesn't mean it's disposable to the media or to outside agencies by the non custodian. I mean, confidential records under the public information act is disposed, and the employer gets to decide whether to disclose. An employee cannot disclose his own personal records. Sure. He can't obtain them from the employer and disclose them without authorization. Right. In this circumstances, in like he was himself a potential suspect of excessive force himself. Yes, Your Honor. And basically what I was going to say. And he was found to have violated disclosure requirements. And in the law enforcement officers bill of rights proceeding and he admitted that he had, and he accepted a suspension. I mean, those facts are for close to him now. So is it the case that the court of special appeals decision found the termination improper, but not the lesser recommended punishment? What the court of special appeals decided was that when the chair imposed the greater penalty, he didn't state sufficient reason for the record. Okay. That's all the court of special appeals determined. But did they remand it for, for do over? No, Your Honor. They just remanded it and he was reinstated. So could there have been a do over? I believe there could have been your honor, but there wasn't. And I think probably the jury's verdict played some role in that at that point. But you know, there had been the other proceedings as well. So, but again, I mean, all I would ask the court to do in conclusion is to, is to look at the, the, the case from the viewpoint of the reason the one employer in the sheriff's situation at the time. And that the trial record, you know, just further establishes that what he knew at the time. A reason one employer would have concluded that he could terminate an employee for disclosing confidential information and violation of the general orders when he'd been found of done so in the leover proceeding had admitted that he did so admitted some punishment was appropriate. But all the sheriff, it was increased the punishment as he's authorized to do under the statute. Unfortunately, he didn't state sufficient reasons for the record. So it was later referred. Didn't say the reasons. Pardon me, Your Honor? It wasn't much of a hearing. I think you're on a little weak grounds when you get to the sheriff's. But, but, but looking at his perspective at the time, he certainly wouldn't have reasonably concluded that it was clearly established that he was violating the first amendment in merely an increasing a poundy for admitted and found misconduct. And particularly when based on his own investigation, the allegations of corruption and placing false charges on his person were unfounded. And from his perspective, you know, no precedent establishes that it's that it's, you know, clearly established that an employer in that situation violates the first amendment. Confidential information has been disclosed and false allegations have been made against the chain of command. And that's well, but if true allegations are made against the chain of command, no, there is no precedent says that this isn't a matter of public concern. That's the problem. Yes, Your Honor, but there's no. Have his testimony about this allegations. But if you examine his testimony and look at why he believes they were false, you see that it's just based on his mistake of law and pernell establishes that that pushing against an officer and resisting is resisting arrest. It doesn't matter which officer was trying to make the arrest. Do you know anything about the charges placed by the trooper? I understand we're outside the record apparently. We are outside the record, Your Honor, and I don't know what the charges are, but I can tell that the record establishes that it was the state's attorneys view that it was up to the state trooper to exercise discretion on whether to charge with resisting arrest. So that's why the state's attorney was not pushing for deputy Durham to follow. Does this have much greater curiosity about things than most people, I guess. Yes, Your Honor. Okay, thank you very much. Thank you, Your Honor. Thank you for your work to adjourn court. Then come down and say a little bit of lawyers. The son of a court stands adjourned until tomorrow morning at 9.30. God save the United States and the son of a court.

versus Jones whenever the lawyers are ready. Good morning, Your Honor. May I please the court? Reasonable police chief in the position of Sheriff Jones would not have understood that it violated the First Amendment for him to terminate a subordinate officer for unauthorized disclosure of confidential information and false accusations of misconduct leveled at the chain of command of the office. Indeed, this court's president and president of other courts hold the opposite. This court's decision in Jurgison establishes that where a police chief terminates an officer for an admitted or found violation of a general order prohibiting disclosure of confidential internal documents that it the termination of the officer does not violate the First Amendment. And indeed, that independent reason for terminating the officer eliminates the Mount Healthy But Forcauzation Test and whether or not the speech is a matter of public concern. But in this case, and also the force, the 11th Circuit has held that a police chief reasonably refuses to tolerate false accusations of misconduct leveled at the chain of command. Those are detrimental to a spritical core. They damage the reputations of the individual officers and they impair the mission of the organization. So a reasonable. You know, the legal looser are fine general principles. Unfortunately, you have to deal with the record in this case, the facts of this case, and the jury verdict in this case. Yes, Your Honor. And moving directly to the jury verdict, the jury verdict does not bear on the question of qualified immunity. The question. The jury found the facts. Well, what the jury was asked to determine was whether disclosure of the speech at issue was a contributing factor or substantial factor in the termination of the officer. And as I just said, the. This court. But you want to segregate. And I have a lot of sympathy. I have to tell you, I represented the state of Maryland a long time. I have a lot of sympathy with state here, but. I'm not sure about the way the state handled this case because what we have here, according to the plaintiff. Was corruption in the police. In the police offices, and it was that corruption that he was making public. So the cases you're relying on aren't that. And you have to take what the jury said about the corruption. But the jury didn't make a comment. At least in the absence of some plain instructional error. Right. But no, Your Honor, the jury didn't make a finding. The jury couldn't have found for him otherwise. Yes, the jury could have Your Honor under the instructions of the court because what the court instructed the jury. Was that pages one to three of this document were protected speech. But what the question of law for this court to determine is were they protected speech. And the facts of this case show that they were not protected speech. And the reason is that this was a three. This was three of four pages of an internal memorandum that the deputy prepared as part of an internal grievance. And the allegations of corruption in the document were based solely on his own incorrect views of Maryland law. That's the component where he said that there was false charges being leveled against Mr. Pitts. And then the other part of it was that he was claiming that there was a suppression of facts relating to the arrest. And that was simply untrue. Well, your, he says it's true. No, Your Honor said it wasn't true. He testified that he was required to redo his report three times. He testified three earlier reports or two earlier reports. He testified at trial, Your Honor, that his total allegation of falsity was based on the fact that he had to move information from one report to another. That was, you move information to where it is, is hurtful. I mean, I think that the state could have made the case, but never did, that the agency was trying to pull the sheriff was trying to protect the officer here. By not having a cause of action brought against him, but they never even made that argument. And I don't know that that would have succeeded with a jury, but it might have. The deputy Durham testified at trial, and that's at the Joint Appendix at 249, that his, that all, that the claim of falsity was simply that he moved it from one report to another, but it wasn't deleted from the record. And that the reason that the deputy objected to moving it was because he wanted to cover him that the, he objected the deleted follow-up reports, which just dealt with his own reporting activities. He wanted to keep a paper trail to protect himself, and this was all part of his grievance against the officer, and that there was no information deleted from the official record. If you compare both reports, which are always maintained in the, in the record of the Sheriff's Department, they were not deleted from the official record. They're there, all of the detail from the original police report is now in report labeled use of force. And the deputy was directed. And it's going to be revealed to the person that had been apprehended. Well, they're all part of the, they were all been disclosed to him. So all three versions would be revealed to the person that was apprehended. There were only two in the traffic accident. Yes, Your Honor. All three of them were revealed to him. Why don't know what was actually revealed to him. They were what was available to be revealed to him. They were available. Yes, Your Honor. Okay. There's no evidence in this record that those, other, those earlier versions were not available. No, Your Honor, not at all. They are available. And the, the, the deputy was actually advised in writing that he was directed in writing. A J.A. 465, he was directed in writing to properly document your use of force on the proper form and to include your use of chemical spray and all physical force. That's a J.A. 465 in writing. He was advised to make a complete record of it. And he was advised it was on the wrong report, put it on the correct report. And so there's no factual basis for his allegations of misconduct. The record is undisputed that it was all to secure an advantage in his grievance. He hadn't liked the way he was being questioned. And he hadn't liked the way that they were telling him to do his reports. He disagreed with the, with the clear Maryland law on this. Prinal versus state, which is cited in our brief at page 15. Identical activities of the arrestee. Resisting arrest and assault. There's probable cause for it. And so his claims are just incorrect. There's no evidence of them in this case. The evidence is undisputed that he wanted to do it his way. And the only misconduct with his. He falsely, he refused to follow directions. He revealed confidential information. It was all confidential. He admitted that he revealed confidential information. I'll tell the one that jury argument. No, Your Honor. No, no, please. I'll come start. I'll go down for all of this. Okay. You can say no, but I persist in my view that this sounds like a jury argument. That doesn't mean it's wrong or ineffective, but I would like to try to understand it. Yes, Your Honor. I apologize, Your Honor. What is the issue of fact that the district court never should have submitted to the jury, for which there is either insufficient evidence, or for which only one reasonable conclusion can be drawn, so that your client is entitled to qualified immunity? Whether the internal grievance memorandum, which was an issue in this case, that he prepared on advice of counsel and submitted up the chain of command, and that formed. And that's at 392, correct? Yes, Your Honor. Okay. That whether his disclosure of that internal document, that the judge advised and was protected speech, whether that was a substantial factor in his termination, that's what the jury decided. Well, wait a minute. Do you say it's not protected speech? Yes, Your Honor. So that's a question of law that you're asking us to review. Yes, Your Honor. So if we agree with the district court that it is protected speech, then what's your fallback position, or your next position? That it still should have been submitted to the jury because under this. It should not have been submitted. Yes, Your Honor. That the issue should not have been submitted. Yes, Your Honor. Because under this court's decision in Jürgenson, the disclosure of confidential internal documents is an independent reason for termination and that even if it is protected speech, the employer is entitled to terminate an employee for disclosing confidential information because no employee has the right to do so. So even if the sheriff acted under a mixed motive, your submission is he wins. Yes, Sheriff wins is a matter of law. Yes, Your Honor. Under Jürgenson. Under Jürgenson. Yes, Your Honor. Okay, and how does Jürgenson compel that outcome? Because in Jürgenson, the same thing occurred. The employee disclosed a confidential document to a Washington Post reporter. And what about a pervasive corruption in the department? No, Your Honor. What was it about? A whole claim here. Well, that's a... Going back to Judge Mott's point. Yes, Your Honor. What was the claim in Jürgenson? In that, that it dealt with an audit of the internal operation of the police department. So it was not about corruption. So that's the prong about disclosure of confidential information. The corruption piece is analyzed under the fact that, as I was saying before, that there's actually no evidence of corruption because the allegations were false. The employee's allegations were false. See, that's when you fall into your jury argument. Well, let me rephrase. There's no evidence they were true because the employee admitted that, as far as the suppression of information, he was really only objecting to moving from one report to another. And as far as charging an innocent person, Mr. Pitts, he was just incorrect under Maryland law. So the undisputed evidence in this case, there's just no evidence of corruption. The trial record is very... I'm not sure. I'm not sure if the report ultimately people have found that there's something to do with this. But can I just go back to something you just said? I thought that you said disclosure of this because this was confidential information. His disclosure of it was violet of a Maryland law. Is that right? It violated the general orders. Uh-huh. I thought you told me just a few minutes ago that the information wasn't confidential. That anybody could see it. It was right there in the file. No, it would have been disclosedable to a person in interest under the Public Information Act if the authorized, like the sheriff had disclosed it. But it was not... What is the traffic victim had wanted it? That's what I asked you earlier. And you said, I don't know. It was right there in the filing. Oh, I just said what I meant was it wasn't suppressed. That it was... It was just as disclosedable as it had been on the original report. I guess is what I was trying to say, Your Honor, is that it wasn't made more secret. By being moved to a different report, it was just that any time there's use of force, it's required to be on the use of force report rather than on the police report. That's all that they were requiring. Well, of course there's an issue of fact about that. Well, there's no evidence. The plaintiff says that that's not the case. That he was told to put it on the report he put it on. He put the accurate report on the report he put it on. And then his supervisors got angry because they thought they were going to be sued. And they told him to redo the report and then put it on another piece of another report. That would his testimony is. But the documents don't kind of take it now because you have a jury verdict in the best light for him. But the jury was asked to make that determination. Sure, all that evidence was in front of them. He testified, didn't he? But that wasn't the issue before the jury. Well, that was all about his feeling that this was corruption. But the issue has he thought that this business about putting it on the correct report was just a phoneable only. That they were making that up because they were worried about the. Sheriff's office being sued. Yes, Your Honor. I guess his case. But I guess I guess my answer to that, Your Honor, would be that. That the question qualified immunity was for the court to determine and the court should have made it. Determined it regardless of the jury's verdict. That's a question of law for the court to determine before the issue goes to the jury. It did determine it. It said it wasn't entitled to it. It was. Right. So the problem is not that it didn't determine it. Yes, Your Honor. It's a matter of law. It's a deal without other court determined it. Yes, Your Honor. The question for this court is as a matter of law was the district judge incorrect in making that determination. Okay. Well, so maybe we could talk about the elements of a First Amendment violation. Yes, Your Honor. Maybe that would be more fruitful for you. Certainly. And of course, the first thing is whether the employee speech is protected. And in determining whether it's protected, again, in a matter of public concern. Yes, Your Honor. And the reason, while generally speaking, corruption is a matter of public concern. When you look at the basis for the employee, the undisputed evidence on the basis for the employee's allegation, it dealt with the fact that information was moved from one report to another. And he has, he has view that the Mr. Pitts was innocent of the crimes that the employer wanted him to charge him with. But under pernell, there's no basis for concluding that he was innocent. The facts reported by Deputy Durham showed that there was probable cause for each of those charges under Maryland law. The facts of pernell are all on all fours with that. So in order for it to be a matter of public concern, it, you know, and fall into the... The speaker has to be accurate and precise. I don't, where do you get that? Well, the question is whether it was false or not. I mean, if there really is no corruption, and it's really just the employees in the state, or if it's untrue. Then you are arguing, don't order to be a matter of public concern. The speech has to be accurate in all respect. I don't read that in some people's work. No, I don't, I don't mean that at all. You're on it. But I think you have to look at it from the, you were doing this call of fact immunity. And the sheriff didn't investigate it. Well, we were first, I thought we were going to go through the first amendment element. No, no, you're on it. Yes, you're on it. Because we have to decide whether it's this clearly, first we all, we have to find that there's a violation. Yes, you're on it. And then whether it's clearly established or not. So you keep talking qualified immunity. Well, the first element qualified immunity is whether it's constitutional violation. And there's a certain here is that there's the first amendment violation. Yes, you're on it. So as I understand it, if you do have protected activity, you still, you the employer could still win. Yes, you're on it because... But your witness, the sheriff, said there'd been no interference. You couldn't point to anything that had happened. So he hasn't put anything on the balancing scale, his way. But you're under under underwater versus Churchill. And under this course, President, it's not whether there was actually disruption. It's whether at the time of the termination, the employer could have reason concluded that there was a potential for disruption. Does he testify that he thought at the time there was potential, but he now decided that there wasn't? I don't read him, it's testimony. He said that either. And I read everything in this record. Well, you're on it at the time he terminated him. He cited the fact that he had disclosed confidential information. Violated his trust. And violated his trust. And then he later testified that it hurt morale in the office. And that, you know, it took a lot of time. And he was a bit of a hit on that. And he really didn't have anything to say about that. The record is startling, I think, in the lack. Yes, Your Honor. But again, the, the, the Scorch's Presidents and the Supreme Court have made clear that it's the potential that the court views as a matter of law. Make it up, which is what your brief tries to do. We can't just say it's a matter of law. We can't just talk about general principles about what could be just, you could be the disturbance. We need some evidence. And we don't have any in this record. Yes, Your Honor. But I mean, that's the old identity case pointed out, which is cited in the brief. And I think that when you have false allegations of misconduct against officers that a reasonable each chief can, can, can conclude that there's a potential for disruption and it damages the street of court allegations were false. Farming, Your Honor. What court has concluded that the allegations were false? No, Court, Your Honor. But again, you look at the reasonable, he did his own investigation. As water says he's entitled to do and he looked at the, you know, he looked at the evidence and I think it's that, you know, during appendix for 22 is a result of his investigation. And he concluded that the employees, you know, allegations of, you know, misconduct by the superior offers were, were false. And you know, under waters, that's the court is, you know, the, the employers entitled to make that determination. He's entitled to reasonably rely on his investigation and he did so. And so from his perspective, which is what the court exam is at the time of the innocent, the sheriff wasn't involved in, in, I think your time is expired. Well, I'm sorry, Your Honor. But you had some time for ribbon. Okay. Thank you, Your Honor. Mr. Harmon, the state's principal argument seems to me that all of these allegations were false. And so do we have, what do you say with respect to that? They were true. Well, who, who says what? Your clients is the true, their clients are false. Well, what we do know about this, let's start with, if we could with the statement. The statement that forms the basis of the speech was that Mr. Durham had requested an immediate full investigation that the, that the detective sergeant miles had ordered Mr. Durham to change his report and delete follow-up reports. Or, or Mr. Durham would be charged or suspended. All of this has not, has not been contested. The sheriff put on no case whatsoever. So these claims of falsity are, are, are, are, are kind of made up from full cloth. As I understand it, their argument is, as a matter of law, what your client was suggesting was bad activity by the sheriff was in fact wrong. He was just wrong on that. And therefore all his speech about that activity is not protective. Well, he has quite a bit of speech, including speech about the grievance, his grievance being returned from the county commissioners back to the sheriff himself to investigate. That's not wrong, but the, with respect to, I think the meat of this here is that Mr. Durham. From, uh, complained that he was being told to put an assault charge on, uh, Mr. Pits, the, uh, the traffic offender. And, in fact, Mr. Durham testified at trial. Uh, they told me that they're going to either arrest me. Unless I do, and, uh, Mr. Pits, so I either do him or they're going to do may. I'm sorry, was it assault or resisting arrest? Um, or both. Actually both. Because they had to tussle. Mr., Mr. Durham. What's wrong with that? Mr., well, if you go back to the facts of the case, what Mr. Durham did was there was a speeding motorcycleist named Mr. John Pits, I believe it was, who was fleeing a Maryland state trooper. Mr. Durham, who was, uh, was at the time of deputy, uh, Sheriff of the Somersight County Sheriff's Office, just happened to be at the right place at the right time. Motorcycle sped by Mr. Durham joined the chase. Mr. Durham got to the motorcycle. The motorcycleist ends up trying to cross a lawn and ditch his bike or what, uh, can't, pushing his bike along. Mr. Durham actually happens to get to the motorcycleist first. Before the troop. Before the trooper, the troopers running across the lawn, Mr. Durham gets to the motorcycleist. The motorcycleist is literally trying to push his motorcycle, as I understand it, trying to push his motorcycle away. Mr. Durham then tries to detain to stop this gentleman who's trying to still flee. He's, and this gentleman does not want to stop Mr. Durham. What does he do? What does he do? Mr. Durham administers not the officer. Being suspect. Okay. He do to demonstrate his not wanting to be arrested. As I understand it, there was a certain like, um, he, he certainly, he just simply wouldn't, um, he physically resisted. He wouldn't comply with requests, for example, to put both of his hands behind his back. And it was trooper Morton, the Maryland State Trooper, who actually grabbed the second arm. Mr. Durham could not get both arms behind his back and could not get him to, in essence, complicit. This is it. This is it. This is it. But at no time. And also Mr. Pitts was trying to get up off the ground, trying to raise his body off the ground. And Mr. Durham was trying to hold him down to the ground to detain him. So, uh, trooper Morton. I think if you don't have a limited amount of time, I think it would be good to get to what Mr. Pitts, uh, what your client did do. Yeah. What Mr. Durham did do was in order to, uh, hold the suspect, he administered a, uh, I believe two forearm blows. Uh, underneath the, uh, the, the nose. And also, um, some knee strikes to the side. And also O.C. spray, which is. And he put all that in his first report. Uh-huh. He put it. That's exactly what he did. He put it all in his first investigative report. And then what happened? And that was, if I could say, per his sergeant's instruction, sergeant Williams testified at trial. That, that use of force should go in the investigative report. Then the, um, uh, one of, uh, Mr. Durham supervisors comes in and urges him to go seek, to go seek medical help and it's, and informs Mr. Durham that the suspect was, was going to the hospital and claiming injuries from the, from the police encounter. So we need to protect ourselves and we'll pretend to claim. So we need you to go to the hospital. Absolutely. Absolutely. And we need you to revise your report. Absolutely. And put it on this form where it should have been to begin with. Absolutely. And you said, oh, no, no, no, you're skipping a part. Is the, the point is this is seemed to me in this case is. The way this guy, the suspect looks. Looks like somebody beat the crap out. Right. Either if you did this, we assume as an office of the law, you did it because it was necessary. All right. That's, that's, that's taking his side and report. But if you did this to this level, he must have been doing something that violated the law. Whether it was obstruction of justice, resisting arrest. So basically what they're saying to him is that, okay, you said that happened. But you told me there's nothing that he did that violated the law. Well, they were saying that what they're saying is take your use of force out of your first investigative report and delete your follow-up reports, which included discussions between Mr. Durham and his supervisors about, oh, you might want to go get yourself checked out and other sorts of things. They were offended that what they were trying to do was trying to posture in order to avoid a potential claim brought by this, by this motorist. Mr. Durham explained a trial and that obviously the jury took stock in this. That couldn't be the case because there were troopers right there to see what he did. It wasn't like he was by himself and if it didn't exist in his report, then it would be, it would go away except for the suspect. The troopers saw what happened. So anybody would say yes. Rightly or wrongly those blows were administered by this officer. Right. So he could, so he wouldn't go away just because he didn't put in his incident report under these facts. What, what Mr. Durham, let me say that, what Mr. Durham, what he was asked to do was not just delete and alter his initial reports, but also to charge the suspect. Exactly. Because he ought to be a child, this a man looks like this. He looks like this going to the hospital, then he better have been doing something that violated the law. That's a reasonable type of, if I was his watch sergeant, I would say the same thing. You better have some reason why you'd be the crap out of a man like that. Okay. And you tell me, oh no, it's not even a charge against him. Well, that's why is that not a natural police follow up to this incident? Well, the first of all, Mr. Pitts never made, ultimately made any kind of complaints. I'm sorry, I understand, but could you answer Judge Gregory's last question? Why isn't it appropriate for a police supervisor who reads a report and draws the inference that surely the defendant must have done something, and my officer, my deputy, has left something out of his report. Complete your report, Mr. Deputy. Right. And you don't continue that's inappropriate, right? Well, let me back up because I do think we're missing something. Mr. Durham, when he first got back from the station, from this altercation with Mr. Pitts, did speak with Sergeant Paul Williams. And Sergeant Paul Williams hands him the form, the taser form that is discussed in the... I'm sorry, but I think we're trying to focus on the propriety of a supervisory officer who instructs his or her subordinate. You left something out of your report, and indeed, bigger than that, you have failed to place a charge against a citizen, where there's every reason to believe you should have. Okay. Right? There's, there as a general principal, there's nothing wrong with the supervisor saying that. So why is that different from this case? Okay. Because there's an absolute absence of any evidence that Mr. Pitts actually assaulted Mr. Durham for one, two. But Judge Gregory's point is that the inference drawn from the use of force might reasonably suggest to a supervisory law enforcement officer that her subordinate has failed. To place a charge that is reasonably available to be placed. Okay. What, Mr., okay. I'll explain how Mr. Durham testified a trial, I think I can answer your question. He said he did not charge him with resisting arrest because it wasn't his arrest. Trooper Morton ended up putting 10 charges against Mr. Pitts. That's how he explained it at trial. That's in the record. Two, how he explained with respect and with respect to not charging Mr. Pitts with an assault. He explained at trial that Mr. Pitts did not assault him. Mr. Pitts tried to, Mr. Pitts tried to get up off the ground and he wouldn't allow himself to be stopped and detained in order for Mr., for Trooper Morton to arrest. Did Morton charge Pitts with assaulting Morton or assaulting Durham? That, that's not in the record, Your Honor. That is not something that. But you say he did charge him with assault? Trooper Morton, as I understand it, charged Mr. Pitts with assault. I don't know the specific charges. You don't know the specific. Okay, look, you just conceded that as a general matter, it would be alright for a supervisor to say to Mr., to a deputy or an underling that you, let's make your report accurate. Let's do the charges. So why wasn't that okay here? Understand he thought it wasn't okay and he apparently has persuaded a jury. It wasn't okay. Because this dispute simply is not about a supervisor trying to get an officer to correct their forms. Yes, it is. He says that that's all fraud and that that's the fraud that he exposed. And he, and that's right. And it forms the basis of his, of his seat. So what we have here is an underling saying his judgment is better than his supervisors. And he can go tell the press about it and therefore make a first amendment claim. Just when you disagree. One of my law clerks decides to disagree with me. They think that their view is better. He can go send it to the Washington Post and make first amendment claim. Well, then you'd have to evaluate the public concern and the disruption that that might, might bring to the court. But the problem, this is not a case where there's out of whole cloth, they want him to charge somebody something that didn't exist at all. You must concede that that's a natural follow-up to say you can't have this level of force being exhibited and not have a counterbalance of a charge. So he, in a sense, that's what council said. It's almost like using leverage. I disagree with you. So I'm going to make your request, which seems to be reasonable into a smoking gun of fraud. You want me to put in a report, but there's no factual basis that suggests actually bring a charge. But it's clearly it was suggested charge unless you're saying I'm a rogue police officer, which we know is not the case. Nobody has ever suggested this case. That's why I presume the highest level for the office to involve your client. Therefore, that's why it begs the question of saying, I know there must have done something because he wouldn't be presented to the hospital like this. And that's, that's, that seems to be reasonable as does my suggestion because he disagreed with that that me, you now can go out and turn what otherwise would be a grievance matter into a call celeb for your benefit and then a jury believe it. That's why we have to look at reasonable under the circumstances to get from under protection of qualified immunity. Well, there's there's two things that form kind of the basis of the speech. One is the falsifying or altering of the police reports and the demanding that Mr. Pitts be charged with assault or Durham be charged. That's right. Because if you don't have any basis for doing this, then that's excessive falls and maybe criminal. Okay, so that's one that's one. Secondly, your honors, the grievance that was filed, which is a joint appendix 390 is different than the actual speech. The internal grievances at 390, the speech is at 398. And what that speech included was that after he filed the internal grievance, Somerset County suspended him and sent the investigation. His grievance against the sheriff back to the sheriff himself to investigate, which is a public that is a great public concern based on the conflict of interest. But a problem is that the risk is that it really has to be something that's appropriately disclosed. Otherwise, it doesn't go to the trustworthiness of the officer. So, that he's disclosing documents. Otherwise, he shouldn't. Well, actually, what he disclosed in his in his communication and in the attachments that went with it, were the sheriff testified that at 293 lines 14 through 17, he admitted that he didn't know what confidential information was allegedly sent out by Durham. That's a joint appendix 293 line 14 through 17. He, you know, I appreciate you mentioning that when you say the sheriff testified, you're talking about the deposition testimony. I'm talking about the trial testimony. He did testify at the trial. The sheriff testified that quite clearly at 290, joint appendix 293 that he didn't know what confidential information that Durham had sent out. And that he admitted that the information was accessible at 319, the sheriff admitted that some of the materials that Durham disseminated were accessible to citizens if they asked for them. He also admitted that there was no confidential police techniques or any confidential information given out by Durham. That's a 318 319. I think that if we get to the balancing, you win. Right. So now we have to focus on the protected activity. Right. And I think that's where we were. Right. Okay. So you win on balancing. If you get if you get by the protected activity. Okay. Okay. Now there's been the suggestion that all we have here is a disagreement by your client with a personal action. I mean, he decided his judgment about what happened here was better than his supervisors. Yeah. That's that's simply because he sent that disagreement to a paper. Okay. And charge fraud in your view. It turns into a matter of public concern. Well, I mean, the the sheriff himself admitted that the public would be concerned about the possible filing of trumped up criminal charges. That's one of the things that Mr. Durham states that he thought that the assault charges on Mr. Pitts were not there was not sufficient evidence of that. Mr. Durham testified that Mr. Pitts did not strike him or do it or harm him in anywhere harm his uniform or damages vehicle or anything like that. So so that that that has to say I'm really perplexed that maybe I shouldn't be, but you're not here able to tell us about the actual charges. Well, what do you say? I'm really confused because clearly what happened here, nothing's clear, but but the deputy regarded this as a Maryland state police matter. All he did as you put it so aptly, he was in the right place at the right time. He helped out this trooper. He hit the guy several times. He sprayed him, but it was the state police's matter. And I ask you earlier, of course, was there an assault charge and who was the victim on that charge? So what seems to be going on is the sheriff is concerned not with what charges have been placed against Pitts because he's been charged by the agency with responsibility for the investigation and prosecution of the case. He the sheriff, I thought what you were saying is the sheriff is trying to cover the sheriff's potential liability by asking the subordinate to do what the facts on the reports that the subordinate prepared seem to suggest. And so how do you get a matter of public concern out of that? Well, he's not just saying charge, Mr. Pitts. He's saying delete your use of force if if your honors compare the original investigative report to what it became. So it was delete your use of force or charge the man. It's no, it was delete your use of force or alter your use of force put it on a different form. Delete the three follow up reports about them requesting Mr. Durham to go to get seek medical help among other things. And then thirdly, charge Mr. Pitts with an assault. When you say delete the reports, you don't mean destroy the reports or maybe you do know I do. Is that in the record? That is it. That is it. It was as I understand this record to be in the trial testimony, it was a punch a key gone. The follow up. They had already been printed out the follow the only reason why they're even available in the joint appendix is because Mr. Durham had printed them out before he deleted them off the. The Somerset County Sheriff's Office is computers. So you're saying the supervisor reviewed them while they were still in cyberspace. He wanted them off the systems computers. Correct. He wanted the follow up reports of all the back and forth between Mr. Durham and the supervisors. The history. So we said so to speak. The fact that he was a very, gone, banished. In fact, Mr. Durham. I acknowledge that he had. Printed out copies of those materials. Acknowledged to whom when to his supervisors that he had a. At what point in time? This would have been late, I believe late August or early September of 2008. And and and his supervisors and this would be Sergeant Miles. With a threatened to initiate criminal excuse me starting to initiate departmental charges against Mr. Durham for printing out the reports the original follow up reports and simply. And simply keep providing his attorney a copy. Mr. With judge, Matt's permission. Could you just spend 30 seconds and tell us what effect the court of special appeals decision might or might not have on this case. Well, for one, the court of special appeals said that the sheriff's decision to terminate was arbitrary and capricious. Right. So if you want to get this job back. He's gotten his job back. It's well. Why don't I address that? Mr. Durham has been reinstated. Right. That is the thumbnail version. I could spend another hour and a half about what happened after he returned on September 7th. Sure, it's not a happy happy situation for anybody. It's he. Well, he was on leave with pay for a whole year when this happened. So he didn't even work and he got his pay. Then he's reinstated and he's gotten more than a million dollars in damages. The state never asked for a remittor. Never said that we should count what we paid him against the verdict. It's really the most extraordinary case I think I've ever seen. No, the I'm sorry. The damages began from the time when Durham was terminated in September 2009 when he went off their payroll. From September 2008 to September 2009, he was suspended with that. Did the state ever ask for a remittor? I'm sorry. The state did not ask for remittor. You're saying they weren't entitled to one because they paid him up to a termination. Well, that's just for the whether they may have had other arguments for remittor, but they did not make them during this was too much damages for this. This offense. That's would be the damage. That's the argument about remittor. An economist testified. Part of the problem is that the jury's verdict was in May of 2012 and the Maryland Court of Special Appeals decision was in August of 2012. So there was no way for the economist to consider the possibility that Durham would actually be reinstated when she tested. Leave aside the reinstatement or not. Just a $1.2 million dollars. Is that what it was? $1.2 million dollars verdict. That's correct. That's correct. I mean, four have people that are beat up that don't get that much money. $400, $412,000 in economic, $700,000 in non-economic and that was based on the testimony by Mr. Durham as to what this did to his career and to his reputation and in the distress that it caused him. Okay. He testified. His supervisor told me I was going to change my original police report and I was going to delete altogether my three prior reports. And if I did not comply, I would be charged departmentally and I would be charged criminally, which would mean arrested and charged. That's what he said. Okay. That's so that's that's your best evidence isn't about what what was going on. In other words, we've been asking you and I'm not sure that we are all meeting. We're having a meeting of the minds here, but we've been saying, well, what's wrong with what the his superiors did? What's. And I guess your ultimate answer is that if all he has is a difference of opinion about what was involved in this arrest and what the appropriateness was putting stuff in his report. Then you've conceded sort of in the abstract world, it would be okay for his supervisors to overruling, right? I would say this at trial, you had two competing theories of this case. One, a disagreement among Durham and his supervisors. Two, a cover up. An attempt to try to charge Mr. Pitz before he sued the department. At the time that this was going on, there was a case known as it went to the foot circuit, Henry versus pernell. But he had already been charged. Not when they originally questioned it, isn't that right? The supercharged him. No, but not right away because there's always the beginning conversations took place right away. Isn't that right? The same day. The conversations that occurred between Durham and his supervisors occurred over a number of days, but they began on August 21st, 2000. Okay, the second conversation, the first conversation is fill out on this improper report, they say. He says they told him to fill it out. What and when is the next conversation? The next, there's additional conversations leading up to an interrogation. When is the next conversation? The dates I'd have to pull from the appendix. How long after the event is the interrogation, what you call the interrogation? I believe it's like three or four days later. And hadn't Pitz been charged by then? I mean, wasn't he charged the day he was detained and arrested? As I understand it, Mr. Pitz faced ten different charges. And I would have imagined- You know when they were charged. I don't know when they were charged. It was when he was released before he was presented to a police officer. He was in the hospital. Where did he go? He was in the record. The day of, he left, that's correct, the day of he went to go to the hospital or claiming injuries because he had had a problem with his shoulder. I understand that your economic loss calculus was based on his not having his job over an period of time in the future, right? Front pay. It included that's right moving into the future. Wow. And you mean telling me that the state allowed that to happen without arguing that way? We lose this case to Verilings. We're going to put him back to work. They did. And it still gave out- Wow. Could you get that- Is it the one or the other? You know, you win. You know, if you win, they're going to put you back to work. If you lose, you're not entirely anything. But how can you get both of the best work? Well, you weren't seeking me in statement here, were you? Yeah. This was a- No, there was no reinstatement saws. This was just a requirement. This is just qualified- You were seeking me in statement in the state case. That's right. We were all together seeking. But really, what this all amounts to is- Is a competing version of- Was this about just getting the right form completed? Which Mr. Derm testified it was not about? Or is it about a cover-up? Is this about something else? And Mr. Derm reported that information, reported his version, reported his opinion to different government agencies, and to- Members of the press, as well as politicians. And this is an issue of public concern, whether or not a motorist who gets injured by- In a police encounter who indicates he's going to the hospital, whether a- A department- Department's posturing to protect itself from liability by then charging the suspect when the initiating police officer did not want to- Let's say- Place those charges. Judge March was the lead judge. She's been- Obviously generous to not only you, but to- To the panel too. Let me follow- I don't understand that. Your client- That takes position. Listen, I just happened to be there. It wasn't my arrest. But from an institutional standpoint, Oh, it's more than that, you are the one who's going to be responsible for what you did on that scene. And therefore, why is it not reasonable to follow up to- To make sure what seems to be a reasonable circumstance Or bringing a charge? Why is that not done? You just don't have to cavalier to say what? What am I arrest? I'm stopping it. Don't- Well, while his command said no, You have to follow through with what he did. I-I hope it's clear enough. Mr. Durham did do what his supervisors told him to do. He did- He did. He told the papers about it and said it was corruption. Yeah. But we do have all of his testimony about- I mean, they put him in the room and they- They put him in the room and they wouldn't let him talk to a lawyer. You have anything you could add? Is this- Is this great, Rick? I'm thinking- Is there any other questions? No, there's no- There's lots of questions. Anyway, I don't think you can help us anymore. Thank you. Thank you. I'm a big fan of the law's laws. My name is Melissa. May I address the qualified immune nearer with the court buying some other- There's a court of a question on some other aspect of the case before I address- With everyone. Thank you. I-I would- Go ahead. No, go ahead. No. Somebody go ahead. I had the sense that you're better off now than you were when you sat down. And I'm really puzzled and be guiled by that. You... Is that what you were trying to say? I guess is my question. That the real problem here is that... That this is not a matter of public concern as a matter of law, because when it's objectively examined, your point is that as a matter of law, it is no more than a garden variety workplace dispute that has been elevated and magnified through some rather hyperbolic language about what was actually going on. Thank you, Your Honor. Yes, Your Honor, that is exactly the point the state is trying to make that the district judge and this court examined the issue and this court examined the Genovo, whether it's a matter of public concern and the balance thing. Now, you didn't follow motion to dismiss, correct? And I don't mean this as criticism. I mean, you didn't appeal from the denial of the motion. And you did follow motion for summary judgment? No, you're right. You did not follow motion for summary judgment. Okay, so which is, again, not a criticism. In fact, if anything, I for one tend to criticize these interlocutorial appeals more than most, I think. So, you rested on your laurels in the sense, I don't mean that as criticism, but basically you said we didn't get it on a 12 B6, we're going to get it on a rule 50 A or a rule 50 B. Yes, Your Honor. Okay. And that's basically where you are. And that's not to say that chairference would have been titled a summary judgment on the undisputed facts, but the trial record makes it even stronger, because the employee himself testified that it was all in furtherance of his agreements and revealed his personal motive. Okay, I'll give you a second. I quite take your point. In fact, as I say, I have some sympathy for this business about it was just agreements. But his further testimony was that the employer was threatening him. And that strikes me, you know, wouldn't let him talk to a lawyer and told him that if he didn't do this, we've been shoved him in a room and wouldn't let him. And what are we to make of all that? Well, I think, again, we step back to the reasonable employers viewpoint at the time, and he did conduct investigation and the share. Because he, remember, the share was not personally involved in any of these activities, and he did conduct investigation. Joining appendix 422 is the result of his investigation. And he reasonably concluded from investigating what his chain of command, what the chain of command in the office was telling him was that this had not happened, that the, he was right, the rights were not denied, that there was no violation of the law enforcement officers' Bill of Rights, which is applicable to this situation, and that it was in subordination of the employee and that he was refusing to fill out the proper terms. The plaintiff alleges about his very adversarial questioning by his supervisors and being man-handled and not allowed to talk to his representative. I don't think there's really much question about that in the record. Well, he did say that, Your Honor. Yeah. And nobody testified to the contrary. No, Your Honor. So that's on dispute. But going back to the, the sheriff's investigation of that at the time, you have to go back and when the court looks at this, you know, I'm on the facts. But he's going in exposing that, if you will. I mean, that's, I'm with trying to decide whether that's. What he did, Your Honor, was in exposing it. He used confidential documents. And the sheriff, a reasonable person, the sheriff's position, what he knows is that he's disposed confidential documents and that the sheriff's investigation has revealed that the allegations of corruption is counterfeit. And so under, under church waters versus church, Supreme Court case, and this court's precedent that the employer is entitled, you know, to make a reasonable. What are the confidential documents again? Well, the memo that the, that's being now called a complaint letter is actually an internal grievance memorandum written on the advice of counsel. And what is, what is confidential, what is confidential about that? He's no personal record. She's own personal record. Yes, Your Honor. That doesn't mean it's disposable to the media or to outside agencies by the non custodian. I mean, confidential records under the public information act is disposed, and the employer gets to decide whether to disclose. An employee cannot disclose his own personal records. Sure. He can't obtain them from the employer and disclose them without authorization. Right. In this circumstances, in like he was himself a potential suspect of excessive force himself. Yes, Your Honor. And basically what I was going to say. And he was found to have violated disclosure requirements. And in the law enforcement officers bill of rights proceeding and he admitted that he had, and he accepted a suspension. I mean, those facts are for close to him now. So is it the case that the court of special appeals decision found the termination improper, but not the lesser recommended punishment? What the court of special appeals decided was that when the chair imposed the greater penalty, he didn't state sufficient reason for the record. Okay. That's all the court of special appeals determined. But did they remand it for, for do over? No, Your Honor. They just remanded it and he was reinstated. So could there have been a do over? I believe there could have been your honor, but there wasn't. And I think probably the jury's verdict played some role in that at that point. But you know, there had been the other proceedings as well. So, but again, I mean, all I would ask the court to do in conclusion is to, is to look at the, the, the case from the viewpoint of the reason the one employer in the sheriff's situation at the time. And that the trial record, you know, just further establishes that what he knew at the time. A reason one employer would have concluded that he could terminate an employee for disclosing confidential information and violation of the general orders when he'd been found of done so in the leover proceeding had admitted that he did so admitted some punishment was appropriate. But all the sheriff, it was increased the punishment as he's authorized to do under the statute. Unfortunately, he didn't state sufficient reasons for the record. So it was later referred. Didn't say the reasons. Pardon me, Your Honor? It wasn't much of a hearing. I think you're on a little weak grounds when you get to the sheriff's. But, but, but looking at his perspective at the time, he certainly wouldn't have reasonably concluded that it was clearly established that he was violating the first amendment in merely an increasing a poundy for admitted and found misconduct. And particularly when based on his own investigation, the allegations of corruption and placing false charges on his person were unfounded. And from his perspective, you know, no precedent establishes that it's that it's, you know, clearly established that an employer in that situation violates the first amendment. Confidential information has been disclosed and false allegations have been made against the chain of command. And that's well, but if true allegations are made against the chain of command, no, there is no precedent says that this isn't a matter of public concern. That's the problem. Yes, Your Honor, but there's no. Have his testimony about this allegations. But if you examine his testimony and look at why he believes they were false, you see that it's just based on his mistake of law and pernell establishes that that pushing against an officer and resisting is resisting arrest. It doesn't matter which officer was trying to make the arrest. Do you know anything about the charges placed by the trooper? I understand we're outside the record apparently. We are outside the record, Your Honor, and I don't know what the charges are, but I can tell that the record establishes that it was the state's attorneys view that it was up to the state trooper to exercise discretion on whether to charge with resisting arrest. So that's why the state's attorney was not pushing for deputy Durham to follow. Does this have much greater curiosity about things than most people, I guess. Yes, Your Honor. Okay, thank you very much. Thank you, Your Honor. Thank you for your work to adjourn court. Then come down and say a little bit of lawyers. The son of a court stands adjourned until tomorrow morning at 9.30. God save the United States and the son of a court