Opinion · Court of Appeals for the Ninth Circuit
Byrd v. Gain
Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977)
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1977-08-02
- Topic
- labor-and-employment
How later courts describe this case
- noting that police departments have special concerns regarding employees' speech due to the nature of their mission
Citator
UpLaw has not yet analyzed Byrd v. Gain. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 25 opinions
BYRD v. GAIN,558 F.2d 553(9th Cir. 1977)
JESSE BYRD, TRAVIS A. TAPIA, AND OFFICERS FOR JUSTICE, A NON-PROFIT
ASSOCIATION, APPELLANTS, v. CHARLES R. GAIN, CHIEF OF POLICE, RICHARD
SIGGINS, JANE MURPHY, JUDITH CIANI, HERMAN GALLEGOS, AND JAMES A. HALL,
POLICE COMMISSIONERS [FILED AS DONALD M. SCOTT, ETC., ET AL.], APPELLEES.
No. 75-2731.
United States Court of Appeals, Ninth Circuit.
August 2, 1977.
Philip S. Ward, San Francisco, Cal., argued for appellees.Page 554
Before CHAMBERS and GOODWIN, Circuit Judges, and KELLEHER,fn*District Judge.
[2] The district court granted the defendants' motion for summary judgment, upon the theory that the First Amendment does not guarantee the plaintiffs an unqualified platform from which publicly to hector their department and its superior officers by language calculated to inflame the public or part of it against the police and to affect adversely the morale and discipline of the department.
[3] In granting summary judgment, the court necessarily held that San Francisco Police Department Rule 2.13 under which the reprimands were issued was not facially unconstitutional, and that it was not episodically unconstitutional as applied in this case.
[4] We resolved the issue of facial unconstitutionality against the plaintiffs after the district court had ruled in this case. S.F.P.D. Rule 2.13 is not unconstitutional on its face for overbreadth.Kannisto v. City and County of San Francisco,541 F.2d 841(9th Cir. 1976),cert. denied,430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977).
[5] The officers seek to distinguishKannistoon its facts and have us hold the regulation unconstitutional as applied in this case. They also seek to bring themselves within the line of cases which guarantee schoolteachers a First Amendment right to criticize in public their school and their superiors in the school system.See, e.g., Pickering v. Board of Education,391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968);Bernasconi v.Tempe Elementary School District No. 3,548 F.2d 857(9th Cir. 1977).
[6] Substantial differences between the public interest in education and the public interest in safety and order justify a difference in the standards by which the respective institutions may protect themselves from attempted destruction by their employees.
[7] The reasoning developed inKannisto v. City and County of SanFrancisco, supra,and inPhillips v. Adult ProbationDepartment,491 F.2d 951(9th Cir. 1974), establishes in this circuit the proposition that, while First Amendment rights of employees are deserving of protection against unreasonable and arbitrary restriction in the name of institutional policy, the employee does not have an unqualified right to abuse his employer in public while remaining on the payroll. Rule 2.13 is not unconstitutional as applied in this case.
[8] Affirmed.Page 555
- The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation. ↩
- See Williams v. Alioto,549 F.2d 136(9th Cir. 1977). ↩