Nielander v. Board of County Com'Rs

Decision Date31 August 2009
Docket NumberNo. 08-3092.,08-3092.
Citation582 F.3d 1155
PartiesFrank J. NIELANDER, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF REPUBLIC, KANSAS, Mark Nordell, Joshua Perez, Beth Reed, and Frank Spurney, in his individual capacity and in his official capacity as the Republic County Attorney, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Teresa L. Watson, Fisher, Patterson, Sayler & Smith, LLP (David R. Cooper, Fisher, Patterson, Sayler & Smith, LLP, with her on the briefs), for Plaintiff-Appellant.

Tara S. Eberline, Foulston Siefkin, LLP (James D. Oliver and Wendell F. Cowan, Foulston Siefkin, LLP, with her on the briefs), for Defendants-Appellees.

Before BRISCOE, BRORBY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case calls on us to consider various claims arising out of the prosecution of Frank Nielander for allegedly threatening local government employees in an angered response to the way his local road was being maintained. The district court dismissed all of Mr. Nielander's claims. We affirm.

I. Background
A. Preliminaries

Mr. Nielander lives on County Road 180 in Republic County, Kansas, the road leading to the county landfill. Mr. Nielander experienced many problems on the road due to debris from traffic hauling trash to the landfill. He attended meetings of the Board of Commissioners to complain about the debris. Defendants Beth Reed, the Solid Waste Secretary and secretary/receptionist for Republic County, and Sheriff's Deputy Josh Perez were aware prior to July 9, 2004 that Mr. Nielander had made such complaints.

On July 9, 2004, Mr. Nielander and his daughter entered the Republic County Courthouse Sanitary Landfill Office to pay the landfill fee. Mr. Nielander first checked the Commissioners' room, which was empty. Then Ms. Reed approached him, saying, "I'll be right with you." Mr. Nielander started writing a check while asking Ms. Reed if he could talk to her about a problem he had. She said he could. After signing the check he told her, "this is really bad what's going on here. I'm ruining tires, I'm ruining my cars." He explained the situation by way of analogy, saying that it would be like demanding ten dollars from her every time he poked her tire with an ice pick. Ms. Reed replied that she knew he had a real problem out there.

The two kept talking about the situation, and Mr. Nielander's daughter told Ms. Reed that the road was also dangerous because of how it was graded. Mr. Nielander interrupted her and said, "we're not here to discuss this road." Defendant Mark Nordell, another county employee, then walked in and asked what the problem was with the road. Mr. Nielander's daughter then explained the situation. When she finished, Mr. Nordell stepped in front of Mr. Nielander and told him to air his complaints at a Commissioners' meeting.

There is some discrepancy over what precisely was said after this point.

B. Mr. Nielander's Account of the July 9 Incident

Mr. Nielander claims that he said he was not going to another Commissioners' meeting because past meetings had proved fruitless. He assured Mr. Nordell that he was not mad at Ms. Reed, but at the Commissioners. He handed Ms. Reed the check and asked her if she "would be so kind as to let Commissioner Wilber know that [he] wasn't paying this again until they either fixed the road or [he] consult[ed] with an attorney about it." Mr. Nordell "started in on [him] again" about how he needed to go to Commissioners' meetings. Mr. Nielander responded, "[Y]ou know what, it's fallen on deaf ears. Every time I've gone in there they have no solution, they don't even look for a solution to the problem. So ... I'm not going in there anymore." He then called Commissioner Nelson a "complete idiot," said Commissioner Linda Hall was "about as useless as a coat rack. Just set her in the corner somewhere and that's all she'll do. She won't do nothing for you," and said Highway Administrator Alvin Perez was unqualified.

After Mr. Nordell reiterated that he should attend Commissioners' meetings, Mr. Nielander stated that he would "never go to another one because I'd be too afraid that I'd want to bring along a gun." Mr. Nordell responded: "[W]hoa, whoa whoa. Better ... watch what you say, you get in big trouble for that." Mr. Nielander told Mr. Nordell he was not making any threats. Mr. Nordell said that he needed to pay the landfill fees or "they" would come and collect it from him. Mr. Nielander replied, "then they'll have another Ruby Ridge," said "have a nice day," and walked out of the courthouse with his daughter.

C. Mr. Nordell's Version of the July 9 Incident

Mr. Nordell, in a statement to police, claimed that Mr. Nielander said he had tried to speak with the Board of Commissioners twice in the past and nothing happened. Mr. Nielander insulted various public officials. He called the Commissioners "stupid idiots." He said one of the Commissioners was a "Son of a Bitch," and so was Alvin Perez. Mr. Nordell also reported that Mr. Nielander stated the next time he came into the Board of Commissioners he would bring a gun. After Mr. Nielander handed the check to Ms. Reed, he said it was the last time he was paying the tax and that "`they' can come out and try and collect it and we will have another Ruby Ridge."

In his subsequent deposition, Mr. Nordell reported substantially the same facts. He stated that Mr. Nielander was "almost yelling" at Ms. Reed, that he called the Commissioners "a bunch of dumb idiots or that type of thing," that he called one of the Commissioners a "[s]on of a bitch," that he had said "if he came back in that he would have a gun," that he told Ms. Reed he was not threatening her, and that he said this was "the last time he's paying this bill or tax, and then if they can come try to collect we'll have another Ruby Ridge." Mr. Nordell denied that Mr. Nielander ever said, "I'm never coming to another commission meeting for fear I'd want to bring a gun," and did not recall him referring to one particular Commissioner as a "coatrack." Mr. Nordell also testified in his deposition that he understood "to some degree what Ruby Ridge was," but he could not recall what he felt at the time the reference was made.

D. Ms. Reed's Account of the Incident

Ms. Reed explained in a statement to police that Mr. Nielander became agitated when he was told to visit with the Commissioners to voice his complaints. He said "he had been in to see the Commissioners before and the next time he came in, it would be with a gun and that he could promise there would be another Ruby Ridge." According to Ms. Reed's statement, Mr. Nielander called the Commissioners "dumb idiots," called one of the Commissioners "a joke," and called Alvin Perez a "dumb s.o.b.". When Mr. Nordell told Mr. Nielander not to talk like that, "Mr. Nielander said that he was not yelling at the Secretary and that he thought that it was understood that he was mad at the Commissioners." The last sentence in the statement reads: "I did feel somewhat threatened and was very glad that Mr. Nordell and Mr. Raney were present."

Her testimony in her subsequent deposition was also substantially the same as the statement she submitted to police. She testified that she was "surprised" by her interaction with Mr. Nielander on July 9 because "this is not the kind of conversation you normally have in a workplace." She did not recall Mr. Nielander comparing one of the Commissioners to a coatrack, but conceded that Mr. Nielander said to her "I'm not yelling at you, you understand that, right?"

E. Aftermath

After Mr. Nielander left Ms. Reed's office, Mr. Nordell called the sheriff because he "felt obligated" to report Mr. Nielander's statement about bringing a gun and the reference to Ruby Ridge as a "possible threat." He thought someone "needed to come down and listen to what just happened." Ms. Reed was unaware that Mr. Nordell was going to contact law enforcement; she did not initiate any such contact herself.

Later that afternoon Republic County Sheriff's Deputy Joshua Perez, who happens to be the son of Highway Administrator Alvin Perez, came to Mr. Nordell's office to interview him about the incident. Mr. Nordell reported that Mr. Nielander was mad about having to pay his solid waste tax, and claimed Mr. Nielander had said "that the next time he come to the, came back he would bring a gun." Deputy Perez requested that Mr. Nordell submit a written statement to him, and Mr. Nordell did so the next day.

Then Deputy Perez entered Ms. Reed's office to interview her about the incident. According to Deputy Perez, Ms. Reed told him that "Frank Nielander came in to pay his solid waste tax ... He got—he was upset, made the comment that he would— next time he came he would bring a gun and something to do with Ruby Ridge." Deputy Perez then told her, in effect, that "this kind of talk is not acceptable in today's workplace." He asked her to write down what happened, including how she felt while Mr. Nielander made the statements, and that he would "take it from there." Ms. Reed submitted a statement shortly thereafter.

Deputy Perez then prepared a "Probable Cause Determination and Order to Appear" and a "Standard Offense and Arrest Report." He attached Ms. Reed's and Mr. Nordell's statements to the Probable Cause Determination. The Determination included Ms. Reed's and Mr. Nordell's recitations of Mr. Nielander's statements regarding a gun and Ruby Ridge. The Determination contained no mention of the insults Mr. Nielander made about Alvin Perez or any of the Commissioners. Deputy Perez later testified that he did not include the insults in the Determination because "it's freedom of speech. He has his rights to say what he wants to say about the county Commissioners and the county engineer. That's his freedom. He ain't breaking the law by saying that."

Deputy Perez notified County Attorney Frank Spurney of the incident the week of July...

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