Arvo W. Kannisto and the San Francisco Police Officers Association v. The City and County of San Francisco, a Municipal Corporation
541 F.2d 841
9th Cir.
1976
Check Treatment

*2 right. We affirm. SNEED, Circuit Before WRIGHT LUCAS,* Judge. District Judges, and set previously This court has forth whether, guidelines determine by which we WRIGHT, Judge: A. Circuit EUGENE this, regulated in a such as context Kannisto, a lieutenant Plaintiff-appellant stated in Phil- еxpression protected. We Department Department, in the Francisco Police lips San v. Adult Probation (9th 1974): (department), disrespectful made and dis- F.2d 954-55 Cir. paraging superior remarks about а officer Amendment It is well settled that First addressing during his subordinates absolute, while expression supe- He morning inspection. time, described place as to “unreasonable, contrary, vin- a most rior аs when rea- manner of exercise individual,” public whose behavior was interest. sonably dictive related to a valid 536, 558, “unreasonable, Louisiana, belligerent, arrogant, con- Cox v. (1965). While unpleаsant.” Kannisto also said 13 L.Ed.2d trary and * Lucas, M. United States Honorable Malcolm the case to the Police Commission as it manded Judge, District of the Central District of Cali- weight the could not determine whаt Commis- fornia, by designation. sitting given sion had to the invalid reason. upheld sus- On remand Commission department originally 1. The cited as an alter- solely pension on account of the statements by suspensiоn publication nate reason for made Kannisto to his subordinates in the opinions newspaper Kannisto of his in a duty. of official The district court San Francisco Police Officers Associаtion. The course action, publication appeal thereupon court held that this and this dismissed constitutionally (see Hanneman followed. Breier, 1976)), 528 F.2d 750 and re- depart- rank-and-file members оf the public theory that “[t]he during duty be altogether may regular may hours be denied ment considered, conditions, adjunct regardless necessary subjected any to the unreasonable, uniformly re- has bеen how interest main- Regents, v. Board of jected”, Keyishian taining discipline, uniformity. morale and *3 685, 605-606, 675, 589, 87 385 U.S. S.Ct. asserted-by ‍​‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌​​​‌‌​​​​​‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌‍is his The interest Kannisto (1967), gain- “it 17 L.Ed.2d 629 cannot right public to comment on matters of con- an that has interests as said the State operation pertaining to the of the de- cern of its employer regulating speech in the partment part. of he is a Picker- Cf. significantly from employees diffеr that Education, 563, Board ing v. of 391 U.S. possesses reg- with those it in connection 568, 1731, (1968). 20 88 S.Ct. L.Ed.2d 811 in citizenry of of speech ulation the the noted, agree, and we that The district court Pickering v. of Educa- general.” Board right in the abstract Kannisto’s is substan- 568, 1731, tion, 563, 391 88 S.Ct. U.S. because, of depart- member the tial as a 1734, (1968). problem 20 The L.Ed.2d 811 ment, a person “extraordinarily he is able the to at a balance between “is arrive public inform the of deficiencies in this to [public employee], as a interests of the governmental department.” important Cf. citizen, upon of commenting in matters 572, Pickering at 88 1731. S.Ct. the interest оf the public concern and weighing along Also in the balance with State, in the employer, promoting as an right right individual is of the public per- efficiency of the service 573, public the to be informed. Id. at 88 employees.” Id. through forms its S.Ct. omitted.)2 (Brackets original, in footnote reg- application To determine that of the department does not It be that the comports herein with the First ulatiоn developing the interest in have identical Amendment, depart- find we must that the among “instant obedience” unquestioning esprit corps, discipline, ment’s interest in de organiza- a employees militаry its as does uniformity outweighs and on these facts 1126, 1129 Barry, Dwen 483 F.2d tion. v. and public the interests of the of Kannisto 1973), grounds on sub (2nd Cir. rev’d other particular in the statements made. 238, Johnson, 96 Kelley 425 nom. v. U.S. provides in Pickering Thе Court’s decision 1440, (1976). 708 also 47 L.Ed.2d See S.Ct. guidance. plaintiff The in considerable 1185, Breier, Bence v. 501 F.2d 1192 Pickering was discharged a teacher for sub- 1974). Indeed, Supreme has the Court mitting newspaper a letter to the local criti- clear teachers “policemen, made it that like policies. cizing budgetary school The board lawyers military personnel, and unlike [and public found at Court that statement 758-60, 733, v. 417 94 Parker U.S. general public related a matter of issue 2547, (1974)], are not S.Ct. L.Ed.2d employment and “the fact of concern that of con- relegated to a watered-down version in- only tangentially insubstantially Garrity Jersey, rights.” stitutional v. New subject public in the matter volved 500, 616, 620, 493, 385 U.S. 87 S.Ct. 574, at 391 U.S. 88 S.Ct. communication.” (1967). pecu- The no at 1738. Court concluded that true, though, department It that arising employ- from the liar statе interest developing interest in has at that relationship ment stake and corps, uniformity,” “discipline, esprit de Pickering to the therefore entitled Kelley Johnson, v. supra, 246, 425 U.S. at protection First аfforded same Amendment 1445, adequate “promo- at to insure 96 S.Ct. public. general Id. safety property.” persons tion of Pickering noted: Court supra, at Barry, 483 F.2d also Dwen v. See way in no directed The statements prohibition against Certainly [were] any appellant person with whom of an officer’s disaffection towards communication J., concurring). Johnson, 1440, (1976) (Powell, Kelley 2. Cf. 96 S.Ct. a member rights, general not as contact in normally be Pickering, 391 public, as a teacher. daily of his work course depart- but as officer maintaining either question Thus no respect simply ment. In this superiors or har- discipline by immediate Pickering. as those asserted in not same among presented here. mony coworkers supra, 491 F.2d at 955. Phillips, See relationships Appellant’s and, a somewhat lesser with the Board expressed, we conclude For the reasons extent, superintendent with the [were] has not department that the unconstitution- working relation- the kind of close con- ally applied its persuasively be ships for which it can duct. loyalty and confi- personal claimed if his own argues also even necessary to their dence [were] unprotected, conduct was functioning. *4 regulаtion nevertheless unconstitution- that it was not emphasized also The Court disagree. ally We overbroad. shown, presumed, the nor could it be that po our reemphasize belief that We any way way “in either at issue statements department regulations, perhaps while lice performance the impeded teacher’s to mili directly analogous not those of the classroоm, or . daily duties in the of his service, entitled ‍​‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌​​​‌‌​​​​​‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌‍tary are to considerable regular operation of the interfered with the of the state’s substantial deference because 572-73, 391 at 88 generally.” schools U.S. maintaining ef creating and interest in omitted.) (Footnote at 1737. S.Ct. impor carry ficient to out the organization sharply con The in this case facts assigned by Kelley v. tant duties law. Pickering. Herе, Kan with those in Johnson, trast 11, 425 at 246 & U.S. n. 96 S.Ct. against one comments were directed nisto’s at 1445 n. 11. & in close whose direction he worked under conclusion factor reinforces our This discipline of daily Questiоns contact. statements, they that made as Kannisto’s harmony clearly presented here. Kan regular performance of his during were the diatribe, it as was before nisto’s delivered duties, plаinly inappropriate were so inspection, for his men while in formation disruptive they were doubt without have had a presumed can be to beyond protection of pale the affоrded regular opera the disruptive influence on Moreover, the de the First Amendment. Cf. su department. Phillips, tions of the appears proscribe partment’s regulation to F.2d at The pra, 491 955-56. range a wide of or related conduct. similar the case is conclusion that this was entitled though department Accordingly, even the Kelley to considerable deference. v. John might possibly regulation the apply to some son, 246, at 425 U.S. 96 at S.Ct. ultimately be we protected,3 conduct held Moreover, cannot, whether infor- query challenge we as a only with imparted by mation Kannisto “vitаl to for predicate, invalidate decision-making” by legiti- Levy, informed those Parker v. overbreadth. Cf. 2547, department’s op- 760-61, L.Ed.2d 439. mately concerned with 94 41 S.Ct. 572, Pickering, erations. 391 U.S. at 88 challenges regula Kannistо also the nature of the infor- While vague. being unconstitutionally as tion may af- imparted by mation Kannisto language While of Again, disagree. we strength right, his asserted it is fect the regulation, “unofficerlike conduct” in our view relevant to consideration of the order, good to subvert “tends substantiality public’s interest in be- Depart discipline efficiency ‍​‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌​​​‌‌​​​​​‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌‍or [the] ing informed. susceptible vagueness ment” contexts, clearly not challenges it is it is Finally, clear to us in some vague applied to the facts of this case. exercised his First Amendment as asserted supra. 3. See note stated, writing tinguishable they supplanted. for the from those As Justice White 104, Kentucky, yet. point in Colten v. We reached that Court have not 1957, 1953, 32 L.Ed.2d 584 92 S.Ct. such as Being required to intervene in cases vagueness (1972): this, “The root of the doctrinе however, to our contributes little rough fairness.” test for is a idea of fate. avoidance of this “ ‘citizens who desire vagueness is whether difficulty have no in obey the will statute Id., understanding quoting . . .” Commonwealth, v. 467 S.W.2d

Colten (Ky.1971). view be no

In our there could reasonable disparaging that a part

doubt on Kannisto’s officer, on his communicat- superior

attack regular course of patrolmen ed to America, Appellee, UNITED STATES good “subvert or- duty, tend to v. der, efficiency disciplinе Depart- [the] SHUEY, Appellant. Velma Lee Breier, supra, v. ment.” ‍​‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌​​​‌‌​​​​​‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌‍See Bence J., concurring in (Jameson, F.2d at 1195 No. 76-1269. part). Cf. part dissenting Parker of Appeals, United Court States 94 S.Ct. U.S. at Ninth Circuit. 439; Greensborо, City of Allen v. *5 1971). fortiori, 452 F.2d A Aug. 1976. scarcely Kannisto could have doubted that Sept. 28, Rehearing Denied upon” remarks reflect “discredit department. a member clearly applies

Since conduct, challenge he cannot vagueness. Parker v.

for facial

Being unpersuaded by any appellant’s we

arguments, affirm the decision of the court.

SNEED, Judge (concurring): Circuit Wright’s opinion. in Judge

I concur presents almost

This case classic con- the need to

frontation between establish efficiency particular of a

and maintain the

activity of the and the free state values of the First

speech by Amendment. prohibit ‍​‌‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌​​​‌‌​​​​​‌​‌​‌‌‌‌​​‌‌​​​‌​‌‌‍does not an ac- Constitution

commodation of these interests. Nor in most

should an accommodation instances

require the intervention slow ponderous A judiciary.

somewhat federal no

society accepts accommodation

save that a federal court is mandated Moreover, strong happy.

neither nor such slowly saps on courts

reliance the federal strength. Inevitably they but

their become suspect indis-

another mediative institution