[00:00:00] Speaker 06:
Before we begin the session today, I just want to give our thanks to the Catholic University for providing us with this beautiful courtroom for today.

[00:00:08] Speaker 06:
As some of you may know, we are a circuit court, and in the good old days the circuit judges used to ride circuit.

[00:00:15] Speaker 06:
We've not done that.

[00:00:18] Speaker 06:
First of all, we have a pretty small circuit, namely only one jurisdiction, so we haven't really been called to do that.

[00:00:25] Speaker 06:
But over the last year and a half, we have been trying to get around a little bit into the circuit, and this is our opportunity to do that.

[00:00:32] Speaker 06:
So we came here today.

[00:00:33] Speaker 06:
Unlike the early judges, we did not ride our horses to get here.

[00:00:38] Speaker 06:
If the Marshal would call the first case.

[00:00:42] Speaker 00:
Case number 13-7189.

[00:00:43] Speaker 00:
Christopher Bauman, Chairman of the Fraternal Order of Police, Metropolitan Police Department Labor Committee, Appellant, versus District of Columbia at L. Mr. Conte for the Appellant, Ms.

[00:00:55] Speaker 00:
Wilson for the Appellees.

[00:01:01] Speaker 06:
If you could just hold on one second, we're having a minor technological problem.

[00:01:54] Speaker 03:
Don't worry, this doesn't count against your argument time.

[00:02:30] Speaker 06:
Okay, well maybe we did ride our horses here after all.

[00:02:51] Speaker 06:
Please proceed.

[00:02:56] Speaker 05:
Good morning, Your Honors.

[00:02:57] Speaker 05:
Anthony Conte on behalf of the appellant, Christopher Bauman.

[00:03:01] Speaker 05:
May it please the Court.

[00:03:03] Speaker 05:
We're here today asking this Court to resolve a question of my client's First Amendment rights.

[00:03:10] Speaker 05:
And in doing so, this Court is called upon to balance my client's right to convey actual facts through a police radio recording that exposed the potential unnecessary use of deadly force

[00:03:25] Speaker 05:
in an effort to promote both officer safety and public safety versus the Metropolitan Police Department's interest in avoiding being discredited by the truth.

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The facts of this case involve an exchange of gunfire between a suspect and members of the NPD's gun recovery unit.

[00:03:48] Speaker 05:
The suspect fled and holed himself up in a home and a barricade was declared.

[00:03:55] Speaker 04:
So let me ask, in your brief at page 20, you start by saying the 2009 investigation was undertaken purely as retaliation for Chairman Bauman's criticisms of the police actions and presenting the police in a bad light in violation of his First Amendment rights.

[00:04:15] Speaker 04:
So is your focus the retaliation in turn on the 2009 investigation?

[00:04:25] Speaker 05:
The retaliation on the investigation, yes, and then the recommendations of discipline flowing from that.

[00:04:30] Speaker 04:
In other words, what I'm getting at is some of the statements you just made and some of the points in your brief are not directed solely to that.

[00:04:41] Speaker 04:
So I want to be clear exactly how you're focusing your argument.

[00:04:47] Speaker 05:
And, Your Honor, we are focusing our argument on the media criticisms.

[00:04:53] Speaker 04:
I understand that, but it's the focus that as a result of what your client said, there was an investigation in 2009 by the Internal Affairs Division.

[00:05:08] Speaker 03:
Correct.

[00:05:08] Speaker 04:
And that is your challenge, that that's the nature of the retaliation, which you're challenging.

[00:05:13] Speaker 05:
Correct, and the recommendations of Discipline running afoul of his First Amendment rights.

[00:05:19] Speaker 04:
Well, I didn't see too much in your brief about that,

[00:05:23] Speaker 04:
The government responds, as you know, by saying some of the protected speech arguments are forfeited because they're not developed in your brief.

[00:05:32] Speaker 05:
Well, the district's argument is that the retaliation argument

[00:05:37] Speaker 05:
was forfeited.

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And the district's argument is that because we spent so little time on the retaliation component, we forfeited it.

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And admittedly, we did spend little time on it because we don't believe it is the central issue.

[00:05:52] Speaker 05:
The district

[00:05:53] Speaker 05:
through the investigative packet conceded that discipline was being recommended because of the release of the recording to the media.

[00:06:04] Speaker 05:
So in terms of a causation analysis, it's conceded.

[00:06:09] Speaker 05:
The real question for the Court is whether or not that speech is protected.

[00:06:14] Speaker 06:
I think what we're trying to focus on is what speech we're talking about.

[00:06:17] Speaker 06:
And at some point below, there were arguments

[00:06:20] Speaker 06:
In addition to the investigation, there are arguments about speech to the committee, to the union committee, about email, those sort of things.

[00:06:34] Speaker 06:
And the government's position is, accurately describing your brief, that you did not raise those in your opening brief.

[00:06:40] Speaker 06:
So instead, your argument

[00:06:42] Speaker 06:
The First Amendment speech we are talking about here today is the release of the information, that is, the release of the tape and the investigation.

[00:06:55] Speaker 06:
The release being the speech and the investigation being the retaliation.

[00:07:02] Speaker 06:
Is that right?

[00:07:03] Speaker 05:
And that's correct.

[00:07:04] Speaker 05:
That is the focus, yes.

[00:07:05] Speaker 02:
You don't, Mr. Conte, dispute that the

[00:07:10] Speaker 02:
Police Department can have a policy under which individuals who want to release documents need to at least alert them or check with them in advance.

[00:07:22] Speaker 02:
And I don't think you dispute that if a document that a Police Department employee proposed to release did in fact jeopardize an ongoing investigation, that under our First Amendment precedents, the Police Department would have an entitlement to

[00:07:40] Speaker 02:
withhold that and have the employee discipline if the employee did release that.

[00:07:44] Speaker 05:
We don't dispute that, but there is no policy of that nature.

[00:07:49] Speaker 02:
I'm just asking if you... Sure.

[00:07:51] Speaker 02:
I have a series of questions, and I just wanted to clarify.

[00:07:53] Speaker 02:
I believe that you're not saying that the police department has no entitlement to look at documents that employees propose to release in advance in order to serve the department's interest

[00:08:08] Speaker 02:
in protecting ongoing investigations against being jeopardized by release of documents that shouldn't be released?

[00:08:16] Speaker 05:
They could create a constitutional policy, yes.

[00:08:19] Speaker 02:
OK.

[00:08:19] Speaker 02:
So your challenge here is that this isn't such a policy and or that this release was not something the release of which would jeopardize an ongoing investigation.

[00:08:32] Speaker 05:
It's both.

[00:08:34] Speaker 02:
Yeah.

[00:08:34] Speaker 02:
So can you focus first on the second?

[00:08:38] Speaker 02:
The police chief and the department has claimed that there was, I guess there were two ongoing investigations.

[00:08:45] Speaker 02:
One was into the suspect that they were trying to apprehend.

[00:08:49] Speaker 02:
That was a criminal investigation.

[00:08:51] Speaker 02:
And the second was that there had been a discharge of firearms and the suspect actually had been wounded and they, as a routine matter, there's always an investigation of that, right?

[00:09:00] Speaker 02:
Correct.

[00:09:00] Speaker 02:
And so both of those were pending at the time that your client released this transcript.

[00:09:04] Speaker 02:
Is that right?

[00:09:04] Speaker 05:
That's correct.

[00:09:05] Speaker 02:
And so tell me your position about why, nonetheless, the department had no entitlement to prevent the release of the transcript.

[00:09:12] Speaker 05:
Well, foremost, the ERT transcript had nothing to do with either of those investigations.

[00:09:18] Speaker 05:
There were two reasons articulated by the lower court for why the release jeopardized the NPD's operations.

[00:09:29] Speaker 05:
First, the lower court determined that the release of the information contained tactical and confidential information.

[00:09:38] Speaker 05:
The release, the 14-minute transcript that was released did not contain tactical or confidential information.

[00:09:46] Speaker 04:
But let me be clear.

[00:09:46] Speaker 04:
The ERT tape that was released was of the barricade incident that led to the two investigations Judge Piller just mentioned.

[00:09:58] Speaker 05:
Actually, no, Your Honor.

[00:10:00] Speaker 04:
This is a completely separate incident?

[00:10:02] Speaker 05:
The first investigation, one of the investigations was a FIT investigation.

[00:10:07] Speaker 05:
a use of force investigation.

[00:10:09] Speaker 05:
That involved the exchange of gunfire between the suspect before ERT took over.

[00:10:15] Speaker 05:
The barricade situation first began with the gun recovery unit exchanging gunfire with this member.

[00:10:23] Speaker 05:
The member became holed up in a home.

[00:10:26] Speaker 05:
ERT responded because a barricade was declared.

[00:10:31] Speaker 05:
When ERT responded, they took over

[00:10:34] Speaker 05:
the scene.

[00:10:35] Speaker 05:
In taking over the scene, they communicate on an ERT radio only.

[00:10:42] Speaker 04:
But is it your position that there could necessarily be nothing on the tape that would be relevant to either of the two investigations?

[00:10:52] Speaker 05:
Our position is that indeed there was nothing relevant.

[00:10:57] Speaker 02:
Is that the standard, whether it's relevant?

[00:10:59] Speaker 02:
Yes.

[00:10:59] Speaker 05:
Well, the standard is that the government must prove actual harm and actual interference.

[00:11:07] Speaker 05:
This Court has held such.

[00:11:11] Speaker 05:
The Sands York case

[00:11:14] Speaker 05:
It's not enough for the court to reasonably infer, which is what the lower court did, that an investigation could be jeopardized.

[00:11:22] Speaker 05:
The court is required to determine the investigation was actually jeopardized.

[00:11:27] Speaker 04:
Well, how would it know?

[00:11:29] Speaker 04:
It's just begun, the investigations.

[00:11:32] Speaker 04:
They have a tape of an incident that's being investigated.

[00:11:37] Speaker 04:
They may not know the significance of the tape until the investigation proceeds.

[00:11:44] Speaker 05:
But that's the government's burden under Pickering.

[00:11:47] Speaker 06:
You mean you can't start even an investigation until you already know the result of the investigation?

[00:11:52] Speaker 06:
Is that the argument?

[00:11:54] Speaker 06:
You said that you didn't think there was something in the tape that was relevant.

[00:11:59] Speaker 06:
No one could possibly know that until they investigate that.

[00:12:02] Speaker 06:
Are you saying it's unlawful or that the police department is at risk by even investigating the question?

[00:12:11] Speaker 05:
If the motivation of the police department is to investigate because the recording discredited the department, yes.

[00:12:18] Speaker 06:
In the beginning, all we have is a released tape.

[00:12:22] Speaker 06:
Wouldn't you think there has to at least be an investigation to determine whether the released tape releases anything confidential or not?

[00:12:31] Speaker 05:
There was a preliminary inquiry done by the Office of Unified Communications.

[00:12:37] Speaker 05:
This was vetted.

[00:12:38] Speaker 06:
The Office of Unified Communications, this is a criminal investigation to begin with.

[00:12:43] Speaker 06:
And the Chief of Police letter says, we gave the tape to the United States Attorney's Office, to a particular United States attorney, for a criminal investigation.

[00:12:54] Speaker 06:
Right.

[00:12:55] Speaker 05:
Correct.

[00:12:56] Speaker 06:
Isn't it appropriate to first at least look at the tape at that level of investigation?

[00:13:02] Speaker 06:
Is there anything inappropriate about starting an investigation?

[00:13:06] Speaker 05:
And our contention is that that was done by the Office of Unified Communications.

[00:13:10] Speaker 05:
They were reached out to both the U.S.

[00:13:12] Speaker 05:
Attorney's Office, at least the investigator working with the U.S.

[00:13:16] Speaker 05:
Attorney's Office, and the FIT investigator to determine if releasing this recording would jeopardize it.

[00:13:22] Speaker 04:
And a determination would be to keep it confidential.

[00:13:26] Speaker 04:
And Cunningham only got it when he signed

[00:13:31] Speaker 04:
saying that he understood the release was for internal purposes only.

[00:13:38] Speaker 05:
Cunningham is not the plaintiff in this case.

[00:13:42] Speaker 04:
I understand but your client got the tape from Cunningham.

[00:13:46] Speaker 04:
And so what I'm trying to get at is the Department had already looked at the tape and made a determination, at least preliminarily, that it was confidential and should be used internally only.

[00:13:58] Speaker 04:
I'm just trying to understand what the standard is, is who makes the determination.

[00:14:03] Speaker 04:
And I just reference you to the Supreme Court's decision in NTEU where the Court notes that where

[00:14:15] Speaker 04:
You know, the government's interest is involved, gives some deference to its predictions of harm.

[00:14:26] Speaker 04:
So we're at the very beginning here.

[00:14:29] Speaker 04:
And that's what we're focusing on.

[00:14:32] Speaker 04:
And you're saying your client, under the First Amendment, has the authority to determine the relevance of a tape, and that that is the basis on which he is entitled to release it.

[00:14:45] Speaker 05:
We're saying that my client has the right to release the recording, and if the government wants to stop the release of the recording, it bears the burden of demonstrating that that actual recording will actually harm the ongoing investigations.

[00:15:05] Speaker 02:
And so it doesn't have to be a retrospective.

[00:15:07] Speaker 02:
They can have a prediction that it would harm, right?

[00:15:11] Speaker 02:
They can believe that

[00:15:13] Speaker 02:
I mean, they don't know yet, really, as Judge Garland was saying and Judge Rogers was saying, it's not entirely clear how all the puzzle pieces are going to fit together, but they have to make a case that this is something that we can reasonably conclude likely could harm an ongoing investigation, something along those lines.

[00:15:34] Speaker 05:
No, I think they have to be right.

[00:15:36] Speaker 05:
They have to be actually correct that it will, and if they don't, they bear the burden and they run afoul of the First Amendment.

[00:15:45] Speaker 02:
How does that square with the Supreme Court's decision in, I think it was Waters, where if the employer is wrong about the facts but had a reasonable policy of reviewing the material and reasonably concluded that it was in

[00:16:04] Speaker 02:
the employer's interest that they can in fact discipline someone for a disclosure.

[00:16:11] Speaker 05:
Well, I think the distinguishing point is that the district didn't have that basis.

[00:16:18] Speaker 02:
Well, so I know there's two layers to your argument.

[00:16:22] Speaker 02:
Let me just back up, because you had said that there were two bases in the lower court.

[00:16:25] Speaker 02:
One was that the lower court concluded this was tactical and confidential information, and we didn't let you get to your second point.

[00:16:30] Speaker 02:
The second basis for the district court

[00:16:32] Speaker 02:
determination was that they thought it would discredit the department.

[00:16:38] Speaker 05:
Well, no, the second basis was that it would interfere with their operations.

[00:16:42] Speaker 05:
And what I would direct the Court to is in the record, Joint Extract, page 718.

[00:16:52] Speaker 05:
a public employee relations board hearing examiner took testimony from all of the ERT witnesses, Tammy Kramer from the Office of Unified Communications.

[00:17:02] Speaker 05:
He concluded that while the MPD's position was that the recordings wouldn't have been released because of these two ongoing investigations, that the MPD's claim that the release would have been blocked by these two investigations is without merit.

[00:17:20] Speaker 05:
what this hearing examiner concluded after hearing all of the evidence was not only, and this is conceded by the district that the hearing examiner concluded, it's not only was there nothing tactical, not only was there nothing confidential.

[00:17:33] Speaker 06:
I'm still not following why that matters in the end.

[00:17:35] Speaker 06:
So now let me ask you a series of questions.

[00:17:38] Speaker 06:
So the finding against your client is a violation of the general order C1 and C7, right?

[00:17:47] Speaker 05:
Correct.

[00:17:48] Speaker 06:
C7 is all that he released a document not listed as releasable, correct?

[00:17:54] Speaker 06:
Correct.

[00:17:54] Speaker 06:
And that's in Part C. In Part B, he lists the documents that are releasable.

[00:17:59] Speaker 06:
So this is a particular kind of police document that is not on the list of things that can be released, right?

[00:18:06] Speaker 06:
Just a flat rule that you can't release this kind of document, right?

[00:18:09] Speaker 05:
Well, it's a recording.

[00:18:10] Speaker 05:
We're not discussing a document.

[00:18:12] Speaker 06:
It's the actual... I'm sorry.

[00:18:14] Speaker 06:
I'm using the word document to include recordings.

[00:18:17] Speaker 05:
Understood.

[00:18:18] Speaker 06:
All right.

[00:18:19] Speaker 06:
So are you saying that the police can't have a flat rule, not a balancing rule, just a flat rule that says you can't release recordings of ERT actions, at least until the end of the criminal investigation?

[00:18:39] Speaker 06:
And that in each case, this has to be balanced.

[00:18:41] Speaker 06:
Is that what you're saying?

[00:18:42] Speaker 05:
I don't even think that is the rule.

[00:18:44] Speaker 05:
Their rule, if you look to the prior subsection, is that you can't release it if it would impair the investigation.

[00:18:51] Speaker 06:
And that's what's material.

[00:18:54] Speaker 06:
rules that your client was found to have violated.

[00:18:58] Speaker 06:
The first was confidential information that may jeopardize the successful conclusion of the investigation.

[00:19:05] Speaker 06:
That's what you're talking about.

[00:19:07] Speaker 06:
And seven, all documents not listed as releasable, right?

[00:19:11] Speaker 06:
There's a list of the things that you can release.

[00:19:13] Speaker 06:
An officer can release factual information concerning the individual involved, the circumstances surrounding the incidents, time, place, possession.

[00:19:21] Speaker 06:
of weapons, all that can be described, a general description of the item seized, information that may assist an investigation, general complaint files, printouts, automatic accident reports, all those things can be released, right?

[00:19:35] Speaker 05:
With permission of management.

[00:19:41] Speaker 06:
Is that right?

[00:19:42] Speaker 06:
It doesn't say?

[00:19:42] Speaker 05:
Every subsection defines a member of management at the rank of lieutenant or above.

[00:19:46] Speaker 05:
All right.

[00:19:47] Speaker 06:
And this one is one that can't be released.

[00:19:49] Speaker 06:
This is not one of those sets, so it can't be released.

[00:19:52] Speaker 05:
This is the default rule, is every document or piece of material.

[00:19:55] Speaker 06:
Let me see if I can define this a little more narrowly.

[00:19:57] Speaker 06:
There is a Federal rule of criminal procedure, Rule 60.

[00:20:01] Speaker 06:
It says you can't release grand jury information, right?

[00:20:05] Speaker 06:
That's what it says.

[00:20:06] Speaker 06:
It doesn't matter whether the grand jury information is.

[00:20:10] Speaker 06:
important in the end, relevant, doesn't matter whether the grand jurors are discussing lunch, you can't release a officer of the court, prosecutor, cannot release it, right?

[00:20:21] Speaker 06:
We don't do any balancing of any kind, right?

[00:20:25] Speaker 06:
And is that a violation of the First Amendment?

[00:20:28] Speaker 06:
Say I'm a grand juror and I decide, you know what, I've looked at this transcript, it actually doesn't say anything important, I'm going to send it to the Washington Post.

[00:20:38] Speaker 06:
Do we then balance and determine whether or not it was important or wasn't important?

[00:20:43] Speaker 05:
Well, I think that in enacting that sort of statute, balancing would be required.

[00:20:48] Speaker 05:
But in that situation, I think balancing would favor nondisclosure.

[00:20:53] Speaker 06:
And as you get balancing in, let me bring this even closer to home.

[00:20:57] Speaker 06:
That woman over there is my law clerk.

[00:20:59] Speaker 06:
I'm sure she knows.

[00:21:01] Speaker 06:
And after this disposition, after we have this meeting, this discussion with you,

[00:21:07] Speaker 06:
The judges are going to meet.

[00:21:09] Speaker 06:
We're going to decide the case.

[00:21:10] Speaker 06:
I'm going to write a disposition memo, which explains our disposition.

[00:21:15] Speaker 06:
We haven't discussed this before.

[00:21:17] Speaker 06:
I'm sure my law clerk knows that if she releases that document to the press before the opinion comes out, I will fire her.

[00:21:24] Speaker 06:
And I want to be sure she knows now.

[00:21:26] Speaker 06:
Just to be clear, if you do that, I will fire you.

[00:21:31] Speaker 06:
Now, she looks at the information from our disposition memo and she says, one, it wouldn't hurt to release it because opinion is going to come out in a day or two anyway, so who cares?

[00:21:43] Speaker 06:
And two, it shows, you know, some stuff about the way in which judges actually behave behind closed doors and the public should know that kind of stuff.

[00:21:53] Speaker 06:
Now, do I have to say anything in response?

[00:21:56] Speaker 06:
Can I just fire her?

[00:21:58] Speaker 06:
Do I have to explain why there's a balancing here?

[00:22:03] Speaker 05:
I don't think it's you that has to do the balancing.

[00:22:06] Speaker 06:
Let's say she does it and I fire her.

[00:22:08] Speaker 06:
Now what happens?

[00:22:09] Speaker 06:
She sues for the First Amendment retaliation.

[00:22:11] Speaker 05:
And she might retain me.

[00:22:13] Speaker 05:
And I would say that I think the court would need to balance that.

[00:22:19] Speaker 05:
No, this is not contingency.

[00:22:22] Speaker 05:
I would say the court would need to balance that.

[00:22:25] Speaker 05:
What is the public interest at issue?

[00:22:28] Speaker 05:
And is it, like in our case, concededly a strong public interest?

[00:22:31] Speaker 06:
So that's what I thought you were going to say.

[00:22:33] Speaker 06:
And I want to make clear that you are suggesting a sea change in the way in which the court, for example, works.

[00:22:41] Speaker 06:
I think that members of the court would be stunned to learn that if internal documents can be released and the only way somebody can be fired is if we know in advance

[00:22:51] Speaker 06:
that that particular document is shouldn't, you know, the public benefit is not outweighed by the benefit of the court.

[00:23:00] Speaker 06:
That would totally change the way in which we act.

[00:23:03] Speaker 06:
And Rule 6E similarly says the events occurring in the grand jury are

[00:23:10] Speaker 06:
private are confidential, and if a prosecutor releases them, he goes to jail.

[00:23:15] Speaker 06:
Similarly, there's a statute about wiretap.

[00:23:18] Speaker 06:
Now I'm getting closer to a real case.

[00:23:20] Speaker 06:
Statute says if you disclose the existence of a wiretap, you go to jail.

[00:23:24] Speaker 06:
You don't balance whether disclosing the interest of the wiretap is important or not.

[00:23:29] Speaker 06:
You just go to jail.

[00:23:30] Speaker 06:
And in the Boehner case, we said the following.

[00:23:33] Speaker 06:
I just want to read it to you.

[00:23:36] Speaker 06:
Aguilar, which is the case about the wiretap,

[00:23:38] Speaker 06:
stands for the principle that those who accept positions of trust involving a duty not to disclose information they lawfully acquire while performing their responsibilities have no First Amendment right to disclose that information.

[00:23:53] Speaker 06:
Period.

[00:23:54] Speaker 06:
The Court says there are many federal provisions that forbid individuals from disclosing information they have lawfully obtained.

[00:24:00] Speaker 06:
The validity of these provisions have long been assumed.

[00:24:04] Speaker 06:
Grand jurors, court reporters, prosecutors, for instance, may not disclose a matter occurring before the grand jury.

[00:24:10] Speaker 06:
The Privacy Act imposes criminal penalties on government employees who disclose agency records about identifiable individuals.

[00:24:19] Speaker 06:
The employees of the IRS may not disclose tax return information.

[00:24:23] Speaker 06:
And in none of those circumstances, if an employee does those things and is fired,

[00:24:28] Speaker 06:
Is there any case ever that has said that we will balance that individual piece of information, public interest, against the government's interest?

[00:24:37] Speaker 06:
So how does your argument square with the holding in the Boehner case and the implications of your rule for all of this Court's internal papers?

[00:24:46] Speaker 05:
Well, I think the difference is

[00:24:50] Speaker 05:
that when you're talking about a case that involves a broad sweeping policy that regulates a large group of folks, and it's being challenged on a policy level.

[00:25:03] Speaker 06:
OK, let me be clear.

[00:25:04] Speaker 06:
I'm the chief judge of the court.

[00:25:06] Speaker 06:
I'm making a policy for our entire court.

[00:25:08] Speaker 06:
Every judge, every, I can't fire a judge, needless to say.

[00:25:13] Speaker 06:
The Constitution would forbid that.

[00:25:14] Speaker 06:
But every law clerk, every staff member,

[00:25:19] Speaker 06:
anybody who discloses internal court documents will be fired.

[00:25:22] Speaker 06:
And I think everybody knows that that's the rule.

[00:25:25] Speaker 06:
You're telling me that I can't do that?

[00:25:26] Speaker 06:
I can't make that rule without violating the First Amendment?

[00:25:29] Speaker 05:
Well, what I'm saying is I think that the way that a court would look at that rule is to determine whether or not such a sweeping prohibition is justified.

[00:25:41] Speaker 05:
And there would be balancing.

[00:25:43] Speaker 05:
It wouldn't be the particularized balancing of the actual facts and circumstances of the particular case.

[00:25:48] Speaker 05:
Fair enough.

[00:25:48] Speaker 05:
So you have both.

[00:25:49] Speaker 06:
And would I have to testify in that case as to my reasoning or would

[00:25:54] Speaker 06:
the court understand that some things are obvious, some things are per se, without me having to testify or put any facts into the evidence about my own reliance on the confidentiality of internal papers?

[00:26:10] Speaker 05:
Well, what Pickering and NTU say is if

[00:26:17] Speaker 05:
You have a circumstance and a situation where the public interest, where it's private speech and there is a public interest, and you've established that, now the burden shifts to the government.

[00:26:30] Speaker 05:
And so the government would have to put that evidence up.

[00:26:33] Speaker 04:
And what burden do you think the government has in terms of its evidentiary showing?

[00:26:38] Speaker 04:
It's not enough, I gather, from your responses to Chief Judge Garland to suggest that it's obvious.

[00:26:46] Speaker 04:
that something may be relevant to an investigation.

[00:26:51] Speaker 04:
What more must the government present?

[00:26:55] Speaker 05:
The government must present evidence, in this case, as to this particular disciplinary action, the government was required to present evidence that it actually interfered with ongoing investigations.

[00:27:10] Speaker 04:
Well, the government, you mean after the fact?

[00:27:15] Speaker 05:
Yes.

[00:27:16] Speaker 05:
Once we've established as the plaintiff, as the appellant, that we are providing private speech in a public interest, which it's already been determined by the lower court, then it shifts and the government has the burden.

[00:27:31] Speaker 05:
And the burden is not simply hypothetical.

[00:27:34] Speaker 05:
The burden is actual.

[00:27:36] Speaker 02:
I think there's one of the things that's a little bit confusing to us, and it's partly the way the case

[00:27:42] Speaker 02:
was presented and the doctrine is also somewhat confusing on this.

[00:27:46] Speaker 02:
There are really two levels of analysis and one is the policy and the next level is in the individual case.

[00:27:54] Speaker 02:
My initial question to you was really hoping to put aside the question of the policy because I don't think you are disputing that had they written a policy that covered only

[00:28:09] Speaker 02:
information that would jeopardize pending investigations, they would be fine.

[00:28:14] Speaker 02:
And what you're saying is, well, this application reached something that actually didn't jeopardize a pending investigation because the policy is written in a way that is broader.

[00:28:28] Speaker 02:
All the government said was it's related.

[00:28:31] Speaker 02:
They didn't say it would jeopardize.

[00:28:33] Speaker 02:
They've actually now looked at the document.

[00:28:35] Speaker 02:
They imposed discipline.

[00:28:38] Speaker 02:
They were able to make a judgment after the fact, so all of our predictions under our hypothetical policy don't have to be made here.

[00:28:44] Speaker 02:
They've looked at this.

[00:28:45] Speaker 02:
And in fact, they rescinded the discipline and they expunged your client's record.

[00:28:50] Speaker 05:
No?

[00:28:56] Speaker 05:
They rescinded half of the discipline.

[00:28:59] Speaker 05:
They rescinded the charge that my client discredited the MPD.

[00:29:06] Speaker 02:
Okay, so perhaps that's a little distracting, but so they've had a chance to look at it.

[00:29:11] Speaker 02:
And as I take it, your claim is a claim that this policy was susceptible of unconstitutional application.

[00:29:20] Speaker 02:
It wasn't as narrow as it should have been to survive the kind of challenge

[00:29:24] Speaker 02:
that Chief Judge Garland was posing of disposition memos, all of them confidential, period.

[00:29:30] Speaker 02:
That policy's constitutional.

[00:29:31] Speaker 02:
Here we have a policy that says, well, anything not listed is presumed confidential.

[00:29:37] Speaker 02:
And you're saying, well, not everything under that policy can constitutionally be withheld, e.g.

[00:29:43] Speaker 02:
this tape in the circumstance of my client's case.

[00:29:47] Speaker 02:
So you don't necessarily have to take on the whole policy.

[00:29:49] Speaker 02:
As I understand it, you're taking on

[00:29:52] Speaker 02:
the discipline that was meted out to your client in this case.

[00:29:57] Speaker 02:
And they're saying, oh, but it was good under our policy.

[00:29:59] Speaker 02:
And you're saying, well, no.

[00:30:00] Speaker 02:
You have to defend it under the First Amendment, which is similar to what this court has done.

[00:30:07] Speaker 02:
And I think in Senjor and Weaver, we've looked at the interaction between a policy and an individual discipline.

[00:30:13] Speaker 02:
So I guess if you're focusing on the individual discipline

[00:30:18] Speaker 02:
To me, you're in a clearer posture, and I'm wondering, you know, am I right that that's the way we should think about the case?

[00:30:28] Speaker 05:
I certainly think that's the way you should think about the case.

[00:30:31] Speaker 05:
However, I will say that there's both aspects of the challenge.

[00:30:37] Speaker 05:
The government has taken the position that through the disciplinary packet that my client should have sought approval

[00:30:46] Speaker 05:
before releasing the recording.

[00:30:48] Speaker 05:
That's in the disciplinary packet.

[00:30:50] Speaker 05:
That was one of the reasons my client was recommended for a discipline.

[00:30:54] Speaker 05:
He did not seek approval.

[00:30:55] Speaker 05:
There's nothing in the media policy that lays out how to seek approval, what criteria would be used.

[00:31:02] Speaker 05:
And what courts have said is that when you have that sort of a pre-approval process,

[00:31:08] Speaker 05:
When you have that sort of a prior restraint where there is unfettered discretion, the risk is viewpoint discrimination.

[00:31:17] Speaker 05:
And that's precisely what happened in this case.

[00:31:20] Speaker 02:
And or just prior restraint of information of public concern that they don't have any right to.

[00:31:24] Speaker 02:
viewpoint or not.

[00:31:25] Speaker 02:
Two different First Amendment concerns there.

[00:31:27] Speaker 02:
Correct.

[00:31:28] Speaker 02:
That's absolutely correct.

[00:31:29] Speaker 02:
So in our opinion, and I think it was Weaver, the panel was very careful to read the State Department's policy, not to impose a prior approval requirement, but to say there's only a prior review requirement.

[00:31:46] Speaker 02:
And that is constitutional.

[00:31:48] Speaker 02:
You have to give the employer a chance.

[00:31:50] Speaker 02:
If they're quick, if they're going to let you go out with it no matter what, if you have First Amendment right to bring it to the public.

[00:31:58] Speaker 02:
If the employer has an interest in seeing what government documents on matters of public concern its employees are planning to release,

[00:32:08] Speaker 02:
And that the court upheld.

[00:32:10] Speaker 02:
And so I think you're saying, well, this isn't Weaver, because here they're saying, you don't have to just come and check with us.

[00:32:15] Speaker 02:
We're going to hold it back.

[00:32:17] Speaker 05:
And worse.

[00:32:19] Speaker 05:
Well, worse.

[00:32:20] Speaker 05:
We're not going to even tell you that there's a process.

[00:32:23] Speaker 05:
We're not going to tell you the timing of which we'll review the material.

[00:32:26] Speaker 05:
And we're not going to tell you perhaps even our decision.

[00:32:29] Speaker 05:
And that's unfettered discretion, and it does run the risk of viewpoint discrimination, which actually occurred here.

[00:32:37] Speaker 05:
My client was recommended for discipline for discrediting the MPD.

[00:32:42] Speaker 05:
My client released a recording

[00:32:44] Speaker 05:
that had on it that officials that were at a barricade interfered with the barricade and tried to order the deployment of gas.

[00:32:53] Speaker 02:
Mr. County, I actually didn't see that in the excerpt that was in the record.

[00:32:58] Speaker 02:
It's actually almost comically confusing how little of it we have.

[00:33:02] Speaker 02:
People talk about, oh, it shows outside interference.

[00:33:05] Speaker 02:
Is the whole transcript in the record on appeal?

[00:33:08] Speaker 05:
I don't know that it is.

[00:33:12] Speaker 05:
What's material or at least to the district's case was quoted and what's material to our case as well.

[00:33:18] Speaker 02:
So I'm being given the go-ahead to use gas and he says we're not ready and they didn't use gas.

[00:33:24] Speaker 02:
I am being pressured.

[00:33:27] Speaker 02:
Right.

[00:33:28] Speaker 05:
Pressured.

[00:33:29] Speaker 05:
And what was occurring at the command post was that there were officials interfering with the emergency response team.

[00:33:36] Speaker 02:
Which isn't on the tape part that we saw.

[00:33:39] Speaker 05:
No.

[00:33:39] Speaker 05:
But what occurred was the media was questioning whether or not there was a gas deployment order.

[00:33:44] Speaker 05:
And one of those officials told the media there was never any order regarding gas.

[00:33:50] Speaker 05:
And what my client was exposing by releasing the recording was that the MPD was covering this up.

[00:33:56] Speaker 05:
and that they were lying to the media.

[00:33:58] Speaker 06:
I'm still a little confused.

[00:33:59] Speaker 06:
All the cases that you mentioned in your colloquy with Judge Pillard, not one of them involves a government document, right?

[00:34:05] Speaker 06:
They all involve speech or things written by the employee, correct?

[00:34:10] Speaker 06:
Correct.

[00:34:10] Speaker 06:
The only case we have that involves a government document is Boehner, and that's the one that says you have no First Amendment right to disclose it, right?

[00:34:21] Speaker 06:
Not balancing, not anything else, just no right.

[00:34:24] Speaker 05:
I think there was

[00:34:28] Speaker 05:
I think there was one other that involved the release and the pre-approval process for releasing secure documents.

[00:34:38] Speaker 06:
That was about some, that was not about releasing secure documents, that was about somebody writing a book, which might include confidential information in his own book.

[00:34:46] Speaker 06:
That's snap in those related cases.

[00:34:48] Speaker 05:
Okay.

[00:34:49] Speaker 05:
Yes.

[00:34:50] Speaker 06:
Just again, did I have your point though, that if we have a

[00:34:55] Speaker 06:
flat rule that says no release of our disposition memos, you do think that that requires a balancing.

[00:35:04] Speaker 06:
Or if I have a flat rule that just says no release of any internal court documents, you think that that can be challenged either if somebody releases one because it has something really important in it, or it can be challenged on its face, that it might be too broad or

[00:35:26] Speaker 06:
not justified, right?

[00:35:27] Speaker 05:
Yeah, I think the First Amendment stands above a court's policy.

[00:35:34] Speaker 04:
And in the Chief Judge's hypothetical, what type of evidence would have to be shown in that instance?

[00:35:42] Speaker 05:
I think it would probably be a pretty easy case for the Chief Judge, because there are quite a few.

[00:35:49] Speaker 05:
There are quite powerful and legitimate reasons to protect that confidentiality.

[00:35:53] Speaker 04:
And I think... Well, I thought, based on your argument here, suppose there's a disposition memo in Case A, and it says the Court is going to affirm for the following three reasons.

[00:36:05] Speaker 04:
And that's exactly what the Court does.

[00:36:08] Speaker 04:
So releasing the document, as I understand your argument, didn't harm the process in any way.

[00:36:16] Speaker 05:
The real question would be then what was the compelling public interest in releasing the document that makes it speech protected?

[00:36:25] Speaker 04:
Well, suppose it's about a very controversial matter.

[00:36:29] Speaker 06:
Suppose that judges dispute whether originalism or purposivism should be, I hope the law students understand what I'm talking about, should be the correct way of studying this and one judge says one, one says the other and the bottom line disposition is

[00:36:44] Speaker 06:
We're going to mix them together.

[00:36:46] Speaker 06:
And that is what comes out.

[00:36:48] Speaker 06:
That debate about originalism and purposeivism, that seems like a very big part.

[00:36:53] Speaker 06:
If you read any of the law blocks, you will certainly see that that is a subject of enormous public interest, at least among the law community.

[00:37:02] Speaker 05:
And the law clerk would also need to be speaking as a private citizen.

[00:37:09] Speaker 05:
Remember, my client was not speaking as an NPD police officer.

[00:37:13] Speaker 06:
Well, she wouldn't be.

[00:37:13] Speaker 06:
She would be speaking as an interested member of the legal community who wants the legal community to know how judges actually decide their cases.

[00:37:22] Speaker 06:
That's exactly what you're saying is happening here, right?

[00:37:25] Speaker 06:
That's what makes your client a speaking as a citizen on a matter of public interest.

[00:37:31] Speaker 02:
The thing that's different is that under this policy, you could say all the things that were in this tape.

[00:37:39] Speaker 02:
and not be subject to the policy.

[00:37:41] Speaker 02:
The problem is the release of the tape itself, which isn't just his speech, right?

[00:37:47] Speaker 02:
He's releasing something that was generated by and is part of the department's work.

[00:37:55] Speaker 05:
Well, but the importance of that release is speech.

[00:38:00] Speaker 05:
It's actual fact that demonstrates that the department was... Right.

[00:38:05] Speaker 02:
But they've conceded that this is speech on a matter of public concern.

[00:38:08] Speaker 02:
The dispute is when and whether the government's interest, and they've asserted interest relating to pending investigations, outweighs that interest on the part of the employee.

[00:38:23] Speaker 02:
And as you know, the public employee's speech rights are diminished compared to that of an unaffiliated citizen.

[00:38:30] Speaker 02:
And the employer has strong prerogatives to run the department as they need to.

[00:38:37] Speaker 02:
And so the question is, in what situations have they articulated enough?

[00:38:43] Speaker 02:
Can they do it in general terms?

[00:38:44] Speaker 02:
Do they have to do it case by case?

[00:38:46] Speaker 02:
And when and why might they have to shift from having a general, presumptively valid policy where they don't have to give an individualized reason to, as you're saying,

[00:38:57] Speaker 02:
an individualized reason in a particular case.

[00:39:00] Speaker 02:
And I suggest that maybe when the policy is categorically valid, as with court deliberative process, then there wouldn't need to be an individual justification.

[00:39:10] Speaker 02:
All of our deliberative process is weighty enough to, I think, outweigh the public employee's speech interests on the other side.

[00:39:17] Speaker 03:
That's what we think anyway.

[00:39:18] Speaker 02:
Whereas here, I think your case has to be, no, not every piece of paper in the police department

[00:39:25] Speaker 02:
that might be relevant to an ongoing investigation has a significant enough government interest for them to keep it secret.

[00:39:34] Speaker 02:
So I think that that's the distinction you're making.

[00:39:37] Speaker 05:
Well, that is.

[00:39:38] Speaker 05:
And that's why earlier I wouldn't concede that there is no sort of facial aspect to the challenge in this case, because there is.

[00:39:46] Speaker 02:
I need to get nowhere on facial, because you have to show that the bulk of applications are unconstitutional.

[00:39:55] Speaker 02:
tremendous number of applications for that are constitutional.

[00:39:57] Speaker 02:
You get your client's rights protected if you make the case that we are on this policy required to look at the individual instance because of the policy's overbred and in that once we do that balancing and require them to come forward, you win.

[00:40:16] Speaker 02:
I don't think you have a facial challenge here.

[00:40:19] Speaker 02:
I may be wrong and you should push back if I'm wrong.

[00:40:22] Speaker 05:
I think we're probably describing it in the same way, but using, you know, different labels.

[00:40:28] Speaker 05:
It is an overly broad policy.

[00:40:32] Speaker 05:
It does contain a sweeping default rule.

[00:40:34] Speaker 05:
It does have the absence of any preapproval procedure.

[00:40:38] Speaker 05:
And then when you look to the actual application of it, there's the suggestion by the district that there was a preapproval process.

[00:40:46] Speaker 05:
There's the suggestion by a concession by the district that this recording could have been released

[00:40:52] Speaker 05:
after these investigations were completed, which doesn't square with the fact that my client was being disciplined for discrediting the department through the release.

[00:41:02] Speaker 06:
You didn't try to get approval, though, right?

[00:41:04] Speaker 06:
So I'm not sure where you'd go with this.

[00:41:06] Speaker 06:
The rule, as you point out, says prior approval is required.

[00:41:11] Speaker 06:
You're making an argument now, which frankly I did not read in the brief, that there wasn't a process to permit them and that that's the real problem here.

[00:41:19] Speaker 06:
But your client didn't try.

[00:41:20] Speaker 06:
Isn't that right?

[00:41:22] Speaker 06:
That's correct.

[00:41:23] Speaker 06:
I'm not clear if he has any standing to make an argument that the problem here is a lack of an approval process.

[00:41:31] Speaker 06:
Let me ask you just one last question since we're way over time.

[00:41:34] Speaker 06:
Do you think that the government's position is stronger

[00:41:38] Speaker 06:
By having a rule that says don't disclose this information, then it would be if it simply punished people after the fact for disclosing information that on balance it thought was jeopardizing an investigation.

[00:41:56] Speaker 06:
If they just had a flat rule that said, which I believe the government believes they have, but a flat rule that bars this kind of information, does that put them in a stronger or weaker position?

[00:42:07] Speaker 05:
I think just a bar puts them at even.

[00:42:10] Speaker 05:
Just puts it even.

[00:42:12] Speaker 06:
So how is that consistent with Connick?

[00:42:15] Speaker 06:
In Connick v. Myers, the Supreme Court finds, does a pickering analysis on the question of whether sending a round of a questionnaire was allowed, and the Court said if there were a rule, the violation of such a rule would strengthen the district attorney's position.

[00:42:32] Speaker 06:
The point being you give people advance notice and then

[00:42:38] Speaker 06:
If they violate it, they violate it.

[00:42:41] Speaker 06:
I thought that was your position, because that certainly is the position reflected in the briefs.

[00:42:45] Speaker 06:
That seems inconsistent with the Court's admonition and conic.

[00:42:48] Speaker 05:
Well, I mean, I do think it's an argument the District would raise, and I appreciate that the Court has acknowledged that hypothetically putting someone on notice puts you in a better position.

[00:43:00] Speaker 05:
But the fact of the matter is the Pickering Analysis does ask the Court to look at the actual harm, weigh things after the fact.

[00:43:10] Speaker 05:
that, you know, and so whether or not someone is told we're going to violate your constitutional rights ahead of time or is punished after the fact.

[00:43:19] Speaker 06:
I think that's one of those ones where you assume the answer and the question, right?

[00:43:23] Speaker 06:
I think that we'll hear from the other side.

[00:43:25] Speaker 05:
Thank you.

[00:43:52] Speaker 01:
Good morning, and if it pleases the Court, I'm Mary Wilson, representing the District of Columbia and the individual police officers named as defendants in this case.

[00:44:02] Speaker 01:
The District Court got the First Amendment issue right.

[00:44:04] Speaker 01:
The District does have a rule that prohibiting disclosure of information of this type, and the plaintiff violated it at his peril.

[00:44:13] Speaker 01:
Information of this type.

[00:44:17] Speaker 01:
The two categories, confidential information that may jeopardize the successful conclusion of an investigation and all documents not listed as releasable.

[00:44:27] Speaker 01:
And this document fell into both categories.

[00:44:34] Speaker 01:
So whether you apply the Pickering NTEU Balancing Test or the Pickering

[00:44:39] Speaker 01:
I think the Court's questioning has highlighted that the police department has an extremely strong interest in not releasing just days after this barricade incident information that might relate to the trial, to the suspect's defense, to the investigation of the use of force, to future, not just future emergency response team proceedings,

[00:45:02] Speaker 01:
to the fairness of the entire criminal investigation.

[00:45:07] Speaker 02:
Can you give us just some examples of how this transcript that's in the portion that's in the record, just more concretely, how its release might have jeopardized an ongoing criminal investigation?

[00:45:23] Speaker 02:
Just give us a little more granularity on that.

[00:45:25] Speaker 01:
Well, first, I don't think the court has the entire recording.

[00:45:32] Speaker 01:
at his second internal affairs interview, the plaintiff says that he himself did not listen to the entire recording.

[00:45:41] Speaker 01:
So we don't know on what basis the MPD made the decision that it would only be released for internal use, because the entire recording is not in the record, and the entire recording was not listened to by the plaintiff.

[00:45:52] Speaker 01:
But in general, I think, as the court said, you do have to defer to MPD's

[00:46:03] Speaker 01:
determination that this might jeopardize.

[00:46:05] Speaker 01:
And just give us a little snippet.

[00:46:08] Speaker 02:
Let me say one in the record.

[00:46:09] Speaker 02:
Just run it down to ground.

[00:46:12] Speaker 02:
What about this?

[00:46:13] Speaker 02:
How?

[00:46:14] Speaker 02:
I mean, I read it and I thought, this actually puts the department in really good light.

[00:46:19] Speaker 02:
It didn't give me much sense of anything that was going on.

[00:46:22] Speaker 02:
As I recall, there's somebody radioing somebody who's on a crime scene with a barricade.

[00:46:26] Speaker 02:
And the radioing in person says,

[00:46:29] Speaker 02:
We're being given permission or we're being pressured to give you the go-ahead to use gas.

[00:46:35] Speaker 02:
And the guy on the scene says, no, gas, we're not ready for that.

[00:46:38] Speaker 02:
That doesn't make sense.

[00:46:39] Speaker 02:
And the guy on the back says, well, okay.

[00:46:41] Speaker 02:
And the guy down in front then says, well, it's kind of embarrassing here, but actually also

[00:46:46] Speaker 02:
there are people in the line of fire, like the chief, you know, so don't also, not only don't use gas here, but don't start shooting to try to get this barricaded guy out because you could, there could be some, you know, you could kill some department people, and it's embarrassing because the chief shouldn't be setting a line of fire in a crisis situation, right?

[00:47:03] Speaker 02:
But it all showed the department to its credit, you know, having people on the ground who were level-headed and said, take a deep breath, we're dealing, I think we're going to resolve this, and then they did.

[00:47:15] Speaker 02:
So I'm reading that and I'm thinking in the investigation of, first of all, the two things that were under investigation.

[00:47:22] Speaker 02:
One was the use of firearm against the barricaded man.

[00:47:26] Speaker 02:
I don't see anything in that that I can imagine sort of relevant to or could jeopardize that investigation.

[00:47:35] Speaker 02:
The investigation into why the fleeing man is there and what's going on, you know, spell it out for me.

[00:47:45] Speaker 01:
Again, the police department listened to the entire recording, and more than that was released to Bauman, and more than that was released to the press.

[00:47:54] Speaker 01:
He says he released, I think, 12 minutes to the press.

[00:47:56] Speaker 01:
But you didn't put it in records, so just give us... No, because it would jeopardize the investigation.

[00:48:03] Speaker 06:
This is a tape of communications between members of the emergency response team who are observing a barricade situation in which somebody has fired shots, right?

[00:48:11] Speaker 06:
Yes.

[00:48:12] Speaker 06:
So in the normal circumstance like that,

[00:48:14] Speaker 06:
the radio chatter is going to include the descriptions the officer sees of the site, correct?

[00:48:20] Speaker 06:
Yes.

[00:48:20] Speaker 06:
Where the gunman is.

[00:48:21] Speaker 01:
Yes.

[00:48:22] Speaker 06:
Did the gunman fire?

[00:48:23] Speaker 06:
Yes.

[00:48:24] Speaker 06:
Did the police fire before or after the gunman fired?

[00:48:26] Speaker 01:
Yes.

[00:48:27] Speaker 06:
In the barricade situation in Waco, the tapes of what happened on the outside were quite important to the investigation of

[00:48:37] Speaker 06:
Who fired first?

[00:48:39] Speaker 06:
Absolutely.

[00:48:40] Speaker 06:
Was appropriate degree of force used or not used?

[00:48:43] Speaker 06:
All those things seem to me to be obvious elements of an emergency response team communication.

[00:48:49] Speaker 06:
Is that wrong?

[00:48:50] Speaker 01:
No, that's absolutely right.

[00:48:51] Speaker 01:
And even though that's not in the little snippet that we have to defer to MPDs.

[00:48:57] Speaker 06:
Before you tell me what the law is, I just want to find out what the facts are.

[00:49:01] Speaker 06:
It's also the case that you don't know what's in them.

[00:49:04] Speaker 06:
And all you can do is predict

[00:49:07] Speaker 06:
in advance what's likely to be on an emergency response team tape, right?

[00:49:11] Speaker 06:
And so you have a rule that says don't release that information, right?

[00:49:16] Speaker 01:
That may jeopardize, yes.

[00:49:18] Speaker 06:
Well, you have a rule that says all documents not listed, and this is a document that's not listed.

[00:49:24] Speaker 06:
So this is the kind of document you don't want released, at least not until somebody reviews it, makes a final determination.

[00:49:32] Speaker 06:
and then decides that it's all right or maybe in the end it will go to the, no doubt will go to the defendant in the case in which he is trying to defend himself.

[00:49:41] Speaker 06:
He's shot because the police fired first.

[00:49:43] Speaker 06:
He's shot because he was afraid.

[00:49:46] Speaker 06:
Any of those things are all elements of an investigation.

[00:49:50] Speaker 01:
Yes.

[00:49:50] Speaker 01:
Is that right?

[00:49:51] Speaker 01:
No, that's absolutely right.

[00:49:52] Speaker 01:
Thank you for that analysis.

[00:49:54] Speaker 01:
Because that's precisely what the MPD's concerns about the criminal prosecution, the suspect's defense, what could be gleaned about what happened on the scene.

[00:50:04] Speaker 06:
And on the use of force investigation, which is the internal affairs investigation, the question is, were the officers in danger?

[00:50:12] Speaker 06:
Did they feel a need to use force to protect themselves or other individuals under the Garner test?

[00:50:20] Speaker 06:
The only way you can know the answer to that is you're going to hear two voices.

[00:50:24] Speaker 06:
You're going to hear what the police officers are saying at the time, and in the end you'll hear what the object, the person who the force was used against are going to say.

[00:50:31] Speaker 06:
Those two seem to me, just seem blindingly obvious elements of any investigation.

[00:50:37] Speaker 01:
We agree.

[00:50:38] Speaker 01:
And as the Court already pointed out, Cunningham requested the recording just within a day or two of the incident when everything was fresh and they just begun the investigation.

[00:50:49] Speaker 01:
And it was MPD's prerogative to say, we're going to hold this back until the investigations are complete and to protect the suspect's rights and the MPD's interest in both the internal and the criminal investigations.

[00:51:07] Speaker 01:
I certainly agree with your explanation of the potential jeopardy to MPD.

[00:51:14] Speaker 04:
So all that may be true, and I understand appellant's argument in part to be that he is the president of the union.

[00:51:27] Speaker 04:
He is obviously concerned about the safety of the union members.

[00:51:34] Speaker 04:
He has information that

[00:51:37] Speaker 04:
some of his members may have been in jeopardy at the time.

[00:51:42] Speaker 04:
And he's being told by the media that there may have been an order to use tear gas.

[00:51:53] Speaker 04:
So, and I understood much of the thrust of his argument is that in connection, even though he's speaking as a private citizen, his interest arises in terms of

[00:52:06] Speaker 04:
what I'll call the proper operation of the department, whether these emergency response teams are properly organized, much less whether there is an attempted cover-up by the police department as to what was actually going on at the time.

[00:52:23] Speaker 04:
So he argues when you balance that against what he says is a take that doesn't say much,

[00:52:34] Speaker 04:
that the district court had to do more and require more of the government to indicate why the tape was important.

[00:52:42] Speaker 04:
And while the chief judge has listed a lot of reasons, I haven't read the entire transcript of what went on in the district court, but certainly in the district court's opinion, it's just a statement.

[00:52:55] Speaker 04:
It's obvious, but doesn't go any further.

[00:52:58] Speaker 01:
Yes.

[00:52:59] Speaker 01:
Well, first, MPD did release

[00:53:03] Speaker 01:
the recording to the plaintiff in his capacity or to his subordinate, to the vice president of the union for purposes of internal review.

[00:53:12] Speaker 01:
So to the extent they had a concern of protecting, investigating this on behalf of the union, the safety concerns, there was no restriction on him reviewing it internally within the NPD so that the safety concern was met that way.

[00:53:28] Speaker 01:
There was also

[00:53:30] Speaker 01:
no restriction on him expressing his views to the press.

[00:53:34] Speaker 01:
He knew from people telling him, he didn't need the tape, that there had been an order to, as he understood it, an order to use tear gas and concerns about the management of the scene.

[00:53:47] Speaker 01:
He was... Oh, sorry.

[00:53:51] Speaker 02:
I was going to let you finish your sentence.

[00:53:52] Speaker 02:
I do have a question.

[00:53:53] Speaker 01:
The media policy in no way restricts his ability as a private citizen to express his concerns

[00:54:00] Speaker 01:
about what happened at the barricade.

[00:54:03] Speaker 02:
So there are these two different elements of the policy, and one is may jeopardize an ongoing investigation, and the other is anything not listed.

[00:54:12] Speaker 02:
And it seems like the anything not listed you'd have to concede is way over broad.

[00:54:17] Speaker 02:
For example, if you had tape of police radio chatter that was otherwise non-public

[00:54:25] Speaker 02:
that disclosed police officers making, you know, sexist or racist remarks about one another, about members of the public.

[00:54:33] Speaker 02:
And there was no investigation pending.

[00:54:37] Speaker 02:
And somebody got a hold of that and said, this is shocking.

[00:54:40] Speaker 02:
You know, we need confidence in our police departments.

[00:54:43] Speaker 02:
And they went and they asked, they said, I'm planning to release this.

[00:54:47] Speaker 02:
So take a look.

[00:54:48] Speaker 02:
So you'll be ready.

[00:54:49] Speaker 02:
And the department said, oh, no, that's not listed.

[00:54:53] Speaker 02:
And the person thought, well, under Weaver, I have a First Amendment right to disclose that.

[00:54:58] Speaker 02:
And they went and disclosed it.

[00:55:00] Speaker 02:
And are you saying that the bare violation of the policy requiring nondisclosure of documents not listed would trump the First Amendment interest of that public employee?

[00:55:15] Speaker 01:
The media policy establishes a process.

[00:55:18] Speaker 02:
Right, and I'm saying the person went through the process.

[00:55:20] Speaker 01:
Well, and then you have FOIA, you can, and subpoenas, so this is not the only process.

[00:55:24] Speaker 02:
The person disclosed it that way in a timely manner and didn't wait the year and a half it would take to get it under FOIA that they could be subject to discipline.

[00:55:33] Speaker 01:
I would have to double check with MPD, but I think MPD's position would be that under subsection seven, all documents not listed as releasable, that they violate that at their peril.

[00:55:44] Speaker 01:
Yes.

[00:55:44] Speaker 02:
at their peril, and you as a lawyer would say that that trumps the First Amendment interest of the public and the public employee to disclose something that would not jeopardize, and by hypothesis saying it would not jeopardize any ongoing investigation, it's on a matter of public concern.

[00:56:02] Speaker 01:
Well, under a First Amendment analysis on the balancing, every case has its own facts to be balanced.

[00:56:10] Speaker 02:
Also we're saying no, that every case doesn't have its own facts, that the policy level is the level at which we do the balancing, and I'm testing that.

[00:56:17] Speaker 02:
I'm putting back on that because I agree with you.

[00:56:19] Speaker 01:
Well, I clarify that for violating the media policy, for violating subsection seven, they violate it at their peril to be disciplined under this.

[00:56:28] Speaker 01:
If you bring a First Amendment challenge,

[00:56:29] Speaker 01:
then in any particular case, the Department would have to do the balancing.

[00:56:34] Speaker 01:
And in your hypothetical, the Department would have less of an interest if there's no criminal investigation going, if there's been no use of force, that there could be circumstances where... Okay.

[00:56:47] Speaker 02:
So if every case has its own balancing on a First Amendment challenge, and that's where we are, that's what Mr. Bauman is doing right now, is bringing a First Amendment challenge.

[00:56:54] Speaker 02:
That same reasoning applies to not only to subsection seven, but also to subsection one, no?

[00:57:02] Speaker 02:
That jeopardizes an ongoing investigation.

[00:57:04] Speaker 02:
There's a balance in there.

[00:57:05] Speaker 02:
You're saying we're happy we're there.

[00:57:09] Speaker 02:
We've got the goods.

[00:57:10] Speaker 02:
Balance is going to go in our favor, right?

[00:57:13] Speaker 06:
I was on the first one.

[00:57:14] Speaker 06:
Are you saying there's a balancing if the person applied in advance and was turned down or if it took too long?

[00:57:23] Speaker 06:
Or are you saying there's always a balance?

[00:57:25] Speaker 06:
I thought your position was

[00:57:27] Speaker 06:
You can't just release these on your own.

[00:57:30] Speaker 06:
These are government documents.

[00:57:31] Speaker 06:
You can't just decide on your own to release these.

[00:57:34] Speaker 06:
You have to get permission.

[00:57:35] Speaker 06:
Yes, there's a process.

[00:57:36] Speaker 06:
And then if you ask for permission in the circumstance that Judge Pillard was saying, and the police were to say no, and at that point you bring a case saying,

[00:57:48] Speaker 06:
either in advance or afterwards, saying the only reason they turned it down was because it showed racist or sexist remarks.

[00:57:55] Speaker 06:
There would be a balancing, and in that circumstance, government would lose.

[00:58:00] Speaker 06:
But that's a different case.

[00:58:01] Speaker 06:
That's a case where somebody tried in advance, the police were given an opportunity to determine whether this particular document had a problem or not.

[00:58:12] Speaker 06:
Right?

[00:58:12] Speaker 01:
That's an opposition.

[00:58:16] Speaker 01:
And he did never ask.

[00:58:18] Speaker 01:
He never went to his chief.

[00:58:21] Speaker 01:
He never went through the process.

[00:58:23] Speaker 02:
But is that enough?

[00:58:23] Speaker 02:
I mean, that's a violation of his employment contract.

[00:58:27] Speaker 02:
But is that something that trumps his First Amendment right?

[00:58:32] Speaker 02:
That doesn't seem like that can be right.

[00:58:34] Speaker 02:
You can set up a policy requiring pre-clearance for everything, including things that the government has no First Amendment entitlement to withhold.

[00:58:44] Speaker 02:
And you're not going to be punishing the employee for his disclosure of matters on issues of public concern that don't harm any substantial interests of the department.

[00:58:56] Speaker 02:
You're merely going to be punishing him for violating the policy.

[00:58:58] Speaker 02:
That seems like that sort of bootstraps the First Amendment analysis right out of the picture in favor of an over-broadened discretionary policy that the department has used as a trump.

[00:59:08] Speaker 01:
Well, I think when you have a law enforcement agency like MPD that has many documents that could jeopardize a criminal investigation, jeopardize the lives of informants, jeopardize someone's right to a criminal defense,

[00:59:22] Speaker 01:
that the default is, unless we have specifically listed a document as releasable, all documents not listed as releasable shall be closed to the public to protect that interest.

[00:59:32] Speaker 02:
Like the State Department in Weber, which has international affairs interests of the most highly sensitive nature with countries around the world, including countries that have nuclear weaponry.

[00:59:44] Speaker 02:
And there, our court said, pre-publication scrutiny fine

[00:59:51] Speaker 01:
But pre-publication approval?

[00:59:53] Speaker 01:
No.

[00:59:54] Speaker 01:
But the distinction, as I think the Court already pointed out, is that there it was the plaintiff's own writings and own speech.

[01:00:03] Speaker 01:
But with information.

[01:00:04] Speaker 02:
And here it's a government document.

[01:00:06] Speaker 02:
But that was, I think I was the one who pointed that out.

[01:00:09] Speaker 02:
But nonetheless, the information issues are similar.

[01:00:13] Speaker 02:
So I'm someone who served in

[01:00:15] Speaker 02:
you know, the Caribbean, and I know all kinds of things about the State Department's relations with Cuba, let's say, and I'm writing my own book, and it's, oh, it's just my own words.

[01:00:23] Speaker 02:
You know, no, of course the State Department has an enormously important interest there.

[01:00:29] Speaker 02:
Nonetheless, the court would not read the State Department's policy because it believed it would be unconstitutional if the policy so stated that you have to wait before you can say anything until you have our approval.

[01:00:40] Speaker 02:
our court pushed back and said, no, we're going to use our interpretive latitude under the Constitution.

[01:00:45] Speaker 02:
We're going to read this policy to require only that we get to look at it, not that we have to, not that it can be withheld until we give our approval.

[01:00:54] Speaker 02:
Your policy is much more aggressive than that.

[01:00:56] Speaker 02:
And I'm wondering if you think that that can really stand under Weber.

[01:01:00] Speaker 02:
The subsection seven policy.

[01:01:03] Speaker 01:
Well, the subsection seven policy

[01:01:06] Speaker 01:
And may I point out that in Chief Lanier's decision upholding the discipline, she only cites to one.

[01:01:16] Speaker 01:
She upholds it under one, not under seven.

[01:01:21] Speaker 02:
Is that something you stand by and say, this is what we're standing on one, not on seven?

[01:01:26] Speaker 01:
Well, he was charged under both one and seven.

[01:01:28] Speaker 01:
They challenged both one and seven.

[01:01:29] Speaker 01:
But the ultimate decision by the chief cites to only one.

[01:01:33] Speaker 01:
She doesn't cite to seven.

[01:01:37] Speaker 02:
One being may jeopardize ongoing investigation.

[01:01:40] Speaker 01:
Yes.

[01:01:41] Speaker 01:
Yes.

[01:01:45] Speaker 01:
And I would also like to point out that the plaintiff hasn't parsed the media policy in this way.

[01:01:53] Speaker 01:
But I think, Your Honor, under the NTEU and Pickering balancing that, again, under the facts of this case,

[01:02:05] Speaker 01:
The MPD does have this interest, have an extremely serious interest in keeping many of its documents confidential.

[01:02:15] Speaker 01:
And to protect that interest, the default rule is, yes, the documents are not releasable.

[01:02:21] Speaker 01:
And under the circumstances of this case, where there was a procedure available to balance his interests before he released it,

[01:02:31] Speaker 02:
Is he being punished at all for not using the procedure?

[01:02:35] Speaker 02:
It seems to me that has to fall away for the reason that I was saying.

[01:02:37] Speaker 02:
You can't bootstrap your interest into, well, whatever our interests may be, Pickering worthy or not, we don't have to go there because he violated the rule.

[01:02:51] Speaker 01:
Well, I'm saying he violated the rule at his own peril that he decided he would release this.

[01:02:56] Speaker 02:
But he's saying, okay, I'm willing to take that chance because the peril involves a pickering balance.

[01:03:02] Speaker 02:
And as long as it doesn't excuse the government from having to show that it has weighty interests apart from the rule-following interest under pickering,

[01:03:12] Speaker 02:
I'm willing to take that chance is where I think he is.

[01:03:15] Speaker 01:
Well, and he took that chance, and I think this Court can rule as a matter of law that the balance tips in the government's favor.

[01:03:22] Speaker 02:
Because of the ongoing investigation and the points that Chief Judge Garland made about it's got factual information about something that's still being investigated.

[01:03:33] Speaker 01:
Yes.

[01:03:34] Speaker 01:
And at least under one, it was a temporary restriction until the investigations were concluded.

[01:03:43] Speaker 01:
And the breadth of that is what?

[01:03:47] Speaker 02:
All documents relevant to an ongoing investigation?

[01:03:51] Speaker 01:
Well, confidential information that may jeopardize the successful conclusion.

[01:03:58] Speaker 01:
How do employees know?

[01:04:03] Speaker 01:
Well, you can ask your unit official's approval, as in 6-1.

[01:04:15] Speaker 01:
6A1 and 6D, how information releases shall occur.

[01:04:20] Speaker 01:
The member shall seek the assistance and advice of his or her immediate supervisor, if possible, before making a statement.

[01:04:27] Speaker 02:
Can you, Ms.

[01:04:28] Speaker 02:
Wilson, respond to the concern that was raised by the Ambon Court in the Sandor case about the amount of discretion that a policy that's generally worded like that

[01:04:37] Speaker 02:
leaves.

[01:04:38] Speaker 02:
It is a little bit concerning and we see some flavor of that in this case where there were these claims about discredit to the agency and there was concern that it wasn't because it was jeopardizing ongoing investigation but in fact because it was embarrassing.

[01:04:51] Speaker 02:
to the agency that that's why they clamped down.

[01:04:54] Speaker 01:
Right.

[01:04:54] Speaker 01:
And I do want to just point out that the language in the charging document, the disciplinary document about discredit to the agency, does not relate to the media policy.

[01:05:04] Speaker 01:
It relates to a second charge.

[01:05:06] Speaker 01:
And again, the last paragraph of Chief Lanier's decision vacates that charge.

[01:05:10] Speaker 01:
He was only disciplined for violating the media policy by releasing this document.

[01:05:15] Speaker 01:
His discipline had no analysis.

[01:05:17] Speaker 01:
On that issue, has no analysis of whether he brought discredit

[01:05:21] Speaker 01:
So the discredit, I think, is a red herring.

[01:05:27] Speaker 02:
On the discretion point.

[01:05:32] Speaker 01:
On the discretion point, thank you for bringing me back to your question.

[01:05:38] Speaker 01:
Many decisions have also said that when the agency is a law enforcement agency, you do give its determination, discretion, deference.

[01:05:48] Speaker 01:
and that you have to take into account the serious mission of the police department to investigate crime and

[01:05:55] Speaker 01:
legally help legally prosecute people who are charged with crimes, and in balancing that, and you're protecting people's lives, informants' lives, witnesses' lives, defendants' freedom, that under the circumstances here, a police department is entitled to a certain amount of discretion.

[01:06:16] Speaker 04:
So in this case, as applied, the department had made a determination upon

[01:06:24] Speaker 04:
the tape that it should remain confidential?

[01:06:28] Speaker 01:
Yes.

[01:06:28] Speaker 01:
When Cunningham asked for the tape, he emailed a request and they reviewed it before they released it to him and then said, this is for internal use only, or words to that effect.

[01:06:39] Speaker 04:
And do we have?

[01:06:41] Speaker 04:
Just one point.

[01:06:42] Speaker 04:
So at least in this case, we're not dealing with the blanket situation of every tape is confidential.

[01:06:53] Speaker 04:
just as a matter of our policy, but rather here we have where the department did exercise its discretion to determine its discretion and judgment to determine whether or not this was the type of tape that should be confidential at least during the course of these investigations.

[01:07:12] Speaker 01:
Yes, that's a very good point, Your Honor.

[01:07:14] Speaker 01:
Thank you.

[01:07:14] Speaker 01:
That it wasn't a blanket, this is a recording, we're blocking it.

[01:07:17] Speaker 01:
They listened to it, decided it could be released to an FOP official for FOP's use, but would not be released outside.

[01:07:27] Speaker 02:
That's why I wanted this slightly more granular description of how this recording would jeopardize, because once we're in that realm, and I think that's the appropriate analytic realm to be in, then

[01:07:42] Speaker 02:
The case law seems to suggest that the government has a burden that is a little more particular to say, and that's why I was asking the questions about, can you articulate what it is about this?

[01:07:52] Speaker 02:
Now that we're looking, we're not looking in a sort of forward, I'm guesstimating that this might jeopardize, but actually when the dust has settled, should this person be disciplined or not?

[01:08:03] Speaker 02:
We've got time, we're reading the whole recording transcript,

[01:08:08] Speaker 02:
What about it?

[01:08:09] Speaker 02:
Was there actual harm in that that we know?

[01:08:12] Speaker 01:
It doesn't matter.

[01:08:13] Speaker 01:
The MPD was entitled to discipline the plaintiff even if ultimately the release did not cause harm.

[01:08:19] Speaker 01:
I mean the policy says may jeopardize.

[01:08:23] Speaker 06:
So that puts it in the category of items that may rather than items that do.

[01:08:29] Speaker 06:
So your argument is, is this the kind of document that may?

[01:08:34] Speaker 01:
Yes, absolutely.

[01:08:36] Speaker 06:
It's a categorical question about whether officers' reports of what's happening at the scene may jeopardize the successful conclusion of the investigation.

[01:08:46] Speaker 01:
Yes, and you don't know until the conclusion of the investigation what will be relevant, what will be relevant to the suspect's defense.

[01:08:57] Speaker 01:
There's also

[01:09:00] Speaker 01:
chatter between ERT members that may divulge something about how the emergency response team operates, or... Have you reviewed the whole 19 minutes of the state?

[01:09:13] Speaker 01:
No, because we are not privy to it.

[01:09:16] Speaker 01:
I am not privy to it.

[01:09:17] Speaker 01:
MPD looked at it, and MPD, which is the expert in this area, if not me... It's not now been released publicly?

[01:09:24] Speaker 01:
Not that I know of.

[01:09:26] Speaker 02:
Has these investigations concluded?

[01:09:30] Speaker 01:
I don't know the answer to that.

[01:09:31] Speaker 01:
The criminal prosecution, I mean, certainly it would be subject to a FOIA request at this point, or the plaintiff could go to his supervisor now and say, you know, if these investigations have concluded, I would like to release the entire tape.

[01:09:49] Speaker 01:
But there's no indication the plaintiff has asserted that there's been a conclusion of the investigations.

[01:09:59] Speaker 01:
So I don't think we're at that point.

[01:10:05] Speaker 01:
So thank you and we would thank you for your help with some questions and we will urge the Court to affirm.

[01:10:12] Speaker 06:
Does the Appellant have any time?

[01:10:17] Speaker 00:
The Appellant does not have any time.

[01:10:19] Speaker 06:
You went way over with the other side so we'll give you another two minutes.

[01:10:26] Speaker 05:
Your Honor, I'd just like to quickly address some of your inquiries on this sea change, if you will.

[01:10:35] Speaker 05:
And Judge Pollard's hypothetical, I think, is the best way to illustrate that this is not a sea change, that this is on all fours with precedent.

[01:10:45] Speaker 05:
If the MPD has a recording that has nothing to do with tactful issues and it has comments whether they're racist or otherwise that's in the public interest to disclose, and a member such as my client goes to the MPD and asks for permission, and that permission is denied,

[01:11:04] Speaker 05:
My client theoretically could file a First Amendment lawsuit to compel the production of that document and to allow the publication of that document.

[01:11:14] Speaker 05:
The question the court would be called upon to ask

[01:11:17] Speaker 05:
is whether or not underpickering the balance weighs in favor of producing that document.

[01:11:25] Speaker 05:
Now, Your Honor's questions were shouldn't there just be an absolute ban?

[01:11:29] Speaker 05:
Why should we get into the particular facts?

[01:11:32] Speaker 05:
If Your Honor's hypothetical is the law, then under Your Honor's standard

[01:11:37] Speaker 05:
The court would look at it and say, well, could that recording ever have possibly bad information that we don't want out?

[01:11:45] Speaker 05:
If so, it's never required to be produced.

[01:11:49] Speaker 05:
That's not consistent with the First Amendment.

[01:11:50] Speaker 06:
I understand the problem, but then, so what do you say about what we said in Boehner about grand jury information?

[01:11:55] Speaker 06:
Imagine the grand jurors are talking about racist remarks in the grand jury.

[01:12:01] Speaker 06:
Would one of them have the ability without seeking permission, without going to court, without doing anything else, to just release the information?

[01:12:08] Speaker 05:
Well, I think that person puts themselves in criminal jeopardy, but I still think the Court has an obligation to do pickering balancing to determine if the First Amendment trumps that statutory prohibition.

[01:12:21] Speaker 05:
It may not.

[01:12:23] Speaker 05:
And that's quite a risk that somebody has to take.

[01:12:25] Speaker 05:
And my client took that risk.

[01:12:28] Speaker 06:
So in each of these cases, and again, not to bring this too close to home, but if internal court documents are released, it would require the judge who did the punishment to explain to the court as a witness.

[01:12:43] Speaker 06:
I take it you're saying this has to go to trial, there has to be a pickering balance, et cetera.

[01:12:47] Speaker 06:
Every time a document's released, we'd have to explain why this particular document is of significant importance.

[01:12:56] Speaker 05:
Yeah, I think under Pickering, that is the standard.

[01:12:59] Speaker 05:
You don't see that as a sea change.

[01:13:03] Speaker 05:
I mean, I don't think because it's a document or because it's what a State Department worker has in their photographic memory of incidents, I don't think there's a material difference.

[01:13:14] Speaker 05:
It's pickering.

[01:13:16] Speaker 05:
It's the precedent.

[01:13:17] Speaker 05:
It may not be perfect in every case, and there may be a hypothetical where it's overstepping, but I still think that court owes the duty to the First Amendment to do that way.

[01:13:29] Speaker 06:
But there wasn't a balancing in Aguilar either.

[01:13:31] Speaker 06:
It's the same – we're talking about the same series of questions.

[01:13:36] Speaker 06:
You have information that was obtained in a way that violated the statute, and that was the end of the matter from the First Amendment point of view.

[01:13:49] Speaker 06:
Maybe a sea change is necessary, but it does strike me as a considerably different way of thinking about the release of particularly investigative documents.

[01:14:01] Speaker 06:
Are there further questions?

[01:14:04] Speaker 06:
Thank you.

[01:14:04] Speaker 06:
Thank you very much.

[01:14:06] Speaker 06:
It's up to you.

[01:14:14] Speaker 06:
We're going to be allowing these lawyers to leave and others to come up, and so there'll just be a few minutes of training places.

[01:14:24] Speaker 06:
We'll take the matter under submission.