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 Arvo W. KANNISTO and the San Francisco Police Officers Association, Plaintiffs-Appellants, v. The CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, et al., Defendants-Appellees. No. 74-3193. United States Court of Appeals, Ninth Circuit. Aug. 31, 1976. Rehearing Denied Sept. 29, 1976. Arvo Kannisto, in pro. per. Thomas O'Connor, City Atty., and Rene A. Chouteau, San Francisco, Cal., for defendants-appellees. OPINION Before WRIGHT and SNEED, Circuit Judges, and LUCAS, * District Judge. EUGENE A. WRIGHT, Circuit Judge: 1 Plaintiff-appellant Kannisto, a lieutenant in the San Francisco Police Department (department), made disrespectful and disparaging remarks about a superior officer while addressing his subordinates during a morning inspection. He described his superior as a most "unreasonable, contrary, vindictive individual," whose behavior was "unreasonable, belligerent, arrogant, contrary and unpleasant." Kannisto also said that his superior officer had given him improper orders on several occasions, which Kannisto had intentionally disobeyed. 2 For this action 1 he was suspended from duty for 15 days, pursuant to then-existing Department Regulation 2.13.…

Plaintiff-appellant Kannisto, a lieutenant in the San Francisco Police Department (department), made disrespectful and disparaging remarks about a superior officer while addressing his subordinates during a morning inspection. He described his superior as a most “unreasonable, contrary, vindictive individual,” whose behavior was “unreasonable, belligerent, arrogant, contrary and unpleasant.” Kannisto also said that his superior officer had given him improper orders on several occasions, which Kannisto had intentionally disobeyed.

For this action 1 he was suspended from duty for 15 days, pursuant to then-existing Department Regulation 2.13. That regulation provided:

Kannisto brought this action on behalf of himself and others under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (3). He argued that the regulation was unconstitutionally applied, and was overbroad and vague. The district court dismissed the action for failure to show a violation of a constitutional right. We affirm.

This court has previously set forth the guidelines by which we determine whether, in a context such as this, the regulated expression is protected. We stated in Phillips v. Adult Probation Department,…

(concurring):

I concur in Judge Wright’s opinion.

This case presents an almost classic confrontation between the need to establish and maintain the efficiency of a particular activity of the state and the values of free speech protected by the First Amendment. The Constitution does not prohibit an accommodation of these interests. Nor should an accommodation in most instances require the intervention of the slow and somewhat ponderous federal judiciary. A society which accepts no accommodation save that mandated by a federal court is neither strong nor happy. Moreover, such reliance on the federal courts slowly saps their strength. Inevitably they become but another suspect mediative institution indistinguishable from those they supplanted. We have not reached that point as yet. Being required to intervene in cases such as this, however, contributes little to our avoidance of this fate.