United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
the Court is Defendants' motion for summary judgment.
(Dkt. 35.) This matter involves a civil rights claim brought
by Alma Plucinski (referred to also as Alma Hasse) against
Payette County, the Payette County Board of Commissioners,
the Payette County Planning and Zoning Commission, Chairman
Chad Henggeler, attorney Bert Osborn, and Officer Garry Toth.
Plucinski claims her constitutional rights were violated when
she was removed from a city council meeting on October 9,
2014, charged with trespass and obstruction and delay of an
officer, and later jailed as a result. The Complaint contains
five causes of action brought pursuant to 42 U.S.C. §
1983: violation of the First Amendment against Payette County
Defendants, Henggeler, and Osborn; violation of the Fourth
Amendment (unlawful seizure) against Payette County
Defendants, Henggeler, Osborn and Toth; violation of state
law and 42 U.S.C. § 1983 (false arrest and imprisonment)
against all Defendants; violation of state law and 42 U.S.C.
§ 1983 (malicious prosecution) against Osborn; and
intentional infliction of emotional distress against all
Court conducted a hearing on the motion on December 4, 2017,
at which the parties appeared and presented their arguments.
After the hearing, the Court ordered certain audio files
submitted by the parties and contained in the record to be
transcribed. (Dkt. 54, 56.) Given the importance of the audio
recordings to a resolution of this matter, the Court gave the
parties an opportunity to review the transcript and to file
supplemental briefing. (Dkt. 56, 57, 59, 60.) The parties
submitted their supplemental briefs on February 8, 2018, and
the matter was thereafter taken under advisement.
carefully considering the record before the Court, the
parties' written memoranda, relevant case law, and the
parties' arguments, the Court will grant Defendants'
motion summary judgment.
recorded the city council meeting held on October 9, 2014,
using a phone camera. The facts are gleaned from the record in
this case, including the various video and audio recordings
provided by the parties, which recordings were later
transcribed. (Dkt. 54, 56.)
has been an outspoken critic of Alta Mesa Idaho, LLC's
proposal to operate a natural gas and hydrocarbon liquid
treatment facility on property located in New Plymouth,
Idaho. (See Dkt. 43-11 at 2-3.) The Planning and
Zoning Commission held a public hearing on September 11,
2014, during which it considered Alta Mesa's request to
either rezone or obtain a conditional use permit to operate
the facility. (Dkt. 43-3 at 2.) Alta Mesa proposed to use the
rail line located near the property to transport hydrocarbon
waste. Plucinski's testimony at the September 11 meeting
concerned perceived safety issues presented by using rail
transportation rather than trucks to transport hydrocarbon
from the property. (Dkt. 43-6 at 3.) She testified that the
City of Santa Barbara did not allow rail traffic to haul the
product out, and insisted that the City of Santa Barbara
required the product be carried by trucks. (Id.)
Plucinski expressed her opposition to Alta Mesa's
proposal to use the existing rail line in Payette County
based, in part, upon what the City of Santa Barbara had done
under similar circumstances. (Id.)
conclusion of the public portion of the meeting, the
Commission discussed Alta Mesa's various applications,
and potential conditions of approval. (Dkt. 43-7 at 5.) The
Commission voted unanimously in favor of granting the
conditional use permit for the gas rail loading facility, to
include recommended conditions regarding the maximum decibel
level. (Dkt. 43-7 at 9.)
next regular meeting of the Commission was called to order on
October 9, 2014. (Dkt. 43-8 at 2.) Alta Mesa's
conditional use permit, as amended, to operate a natural gas
and hydrocarbon liquid treatment facility was again on the
agenda, and a public hearing was held. See Plucinksi
Decl. ¶10. (dkt 43-25 at 3.) Plucinski was in
attendance, and provided testimony during the public portion
of the meeting. (Dkt. 43-8 at 5.) She voiced her concern that
“some Planning and Zoning Commission members have
leases with Alta Mesa and stand to gain financially, which
should be disclosed to the public.” (Dkt. 43-8 at 5.)
During the discussion which ensued later in the meeting,
Commissioner Morgan commented on the assertion that
Commission members needed to disclose their leases to Alta
Mesa and asked for clarification of the issue. (Dkt. 43-8 at
7.) Thereafter, a motion was made and approved as to the
request to amend the conditional use permit submitted by Alta
in the meeting, after the public comment portion had closed,
the minutes reflect the Commission considered
“other” business. (Dkt. 43-8 at 10.) The minutes
indicate Henggeler commented that, once the Commission takes
action and makes a decision, it cannot go back and
“fact-check information that was presented for their
consideration, ” and that he thought it would be
prudent if the Commission requested additional documentation
from those who testified at public meetings if a situation
warranted it. (Dkt. 43-8 at 11.) Henggeler cited as an
example “testimony given at the September 11, 2014
public hearing, ” and asked Morgan to comment. (Dkt.
43-8 at 11.) It is at this point that the video recording of
the October 9, 2014 meeting begins.
video depicts the chairman of the Planning and Zoning
Commission, Chad Henggeler, in the center of a courtroom,
presiding over the meeting. The Commissioners are seated in
the area usually reserved for a jury. Morgan then talks about
Plucinski's testimony from the September meeting
concerning the City of Santa Barbara not allowing rail
transportation of gas liquids through the city. Morgan
recounts a telephone conversation he had with someone in the
planning and zoning department in Santa Barbara to follow up
on that testimony, and states that he learned the City of
Santa Barbara had no such ordinance prohibiting rail cars
with such liquids from traveling through town. (Dkt. 43-8 at
11, Dkt. 54 at 4-5.)
response to Morgan's comments about his phone
conversation with an individual from the Santa Barbara
planning and zoning department, Plucinski interrupts loudly,
asking “who did you speak to?” Morgan does not
respond to Plucinski's question, and continues speaking.
Another audience member whispers to Plucinski,
“planning and zoning.” Plucinski retorts,
“Yeah, but I want a name.” At the other end of
the room, Morgan continues to give his presentation. (Dkt. 54
at 5.) Morgan states that he “didn't want these
hearings-to come to the point where it's who can show up
and tell the biggest whopper….” (Dkt. 43-8 at
11; Dkt. 54 at 5-6.)
point, Plucinski yells loudly, “Point of order, if
somebody is going to say- accuse me of giving bad
information, I would like a name.” Osborn, visible on
the left side of the screen, stands and states, “You do
not have standing to make a point of order. Alma, you need to
leave.” Plucinski responds, “I'm not
leaving.” Osborn directs his next comment toward
Henggeler, and asks, “can we get the Sergeant-at-Arms
to have her removed?” Henggeler replies, “yes,
” and Sergeant-at-Arms Mark Harvey then stands and
leaves the room. (Dkt. 54 at 6.)
Commissioners continue their discussion. Plucinski then
states loudly, “so that's real fair, isn't it?
Just giving generic names without an opportunity for other
people to contact and find out, that's really fair.
That's really acting in the public's best interest,
isn't it?” (Dkt. 54 at 6.) Morgan can be heard
saying, “I've lost my train of thought.”
Plucinski next hands the camera phone to someone else in the
audience, asking “Gina” to “keep
recording.” (Dkt. 54 at 7.)
returns to the meeting room with Jailer McDonald. Henggeler
instructs McDonald: “We would like her removed from the
meeting-in the back.” (Dkt. 54 at 7.) McDonald proceeds
to the back of the room where Plucinski is standing against
the back wall. Plucinski states loudly, “It's a
public meeting.” McDonald approaches Plucinski, and
states,  “Okay. They asked you to
leave.” Plucinski responds, “I stood up, asked
for a point of order, because somebody's accusing me
basically of being a liar. I just wanted a name. He refuses
to give it. I think it's in my rights to ask for that
information.” (Dkt. 54 a 7.) McDonald explains to her,
“this is a public meeting, where you can attend. You
cannot say anything. You can't raise your hand. You
can't do anything. So they're asking me to leave
you-make you leave. So you need to leave.” (Dkt. 54 at
7-8.) Plucinski responds, “Well, I'm not leaving.
It's a public meeting.” McDonald states,
“Then you'll be arrested for trespassing.”
Plucinski answers, “That's fine.” McDonald
responds, “okay, ” and thereafter radios for
assistance. (Dkt. 54 at 8.)
is heard, both on the video recording and on the audio
recording of the dispatch call, saying: “If dispatch
isn't busy, can you have them dispatch me a city officer
to the courtroom?” He is told, “we have Toth up
here, do you need my assistance?” McDonald responds,
“No, a lady that's refusing to move. We're
going to have to trespass her.” (Dkt. 54 at 8, 11.)
to the audio recording of the dispatch call on October 9,
2014, Officer Toth received a call requesting a city officer
to respond to the courtroom. He was told there was a
“lady that is refusing to move, and we're going to
have to trespass her.” Thereafter, an exchange takes
place between McDonald and Plucinski prior to Toth's
Plucinski: I ain't trespassing on this property.
McDonald: I understand. But they're asking you to leave,
and you're refusing to leave. Then you're
Plucinski: It's a public meeting.
McDonald: I understand that, but you're not supposed to
Plucinski: I'm done speaking.
McDonald: Okay. Then leave.
Plucinski: I'm listening.
McDonald: Just leave. That's- Plucinski: I can't-
McDonald: Do you understand what a trespassing complaint
You'll spend the night in jail.
Plucinski: I'm sure ACLU will have a field day with that.
McDonald: I understand that ma'am. [Inaudible].
Plucinski: If you want to throw me in jail for all night and
[inaudible], that's fine. McDonald: I would prefer not to
throw you in jail. All you have to do is leave. Plucinski:
I'm not leaving.
(Dkt. 54 at 9.)
point, Officer Toth approached the Commissioners to speak
with Osborn. Osborn informs Toth, “She was interfering
with the public hearing. The chairman asked her to be quiet.
She refused. So he asked her to [inaudible].” (Dkt. 54
at 9-10.) The minutes of the meeting also reflect that Toth
spoke to Osborn at this point during the meeting, and Osborn
advised Toth that Plucinski was being disruptive, had been
asked to leave, and refused to leave. (Dkt. 43-8 at 12.)
Later, during his deposition, Osborn testified that Toth
asked Osborn if he could use the trespassing section, and
Osborn indicated he could do so. Osborn Depo. at 56 (Dkt.
43-24 at 6.) Osborn recalls Toth asking him what he wanted
done, and that he responded: “Remove her. That's
back to the video recording of the meeting, Toth proceeds to
the back of the room, gesturing for Plucinski to accompany
him. Plucinski responds audibly, “I'm not
leaving.” (Dkt. 54 at 10.) Toth then approaches
Plucinski and states, “okay, I'm placing you under
arrest for not obeying a lawful order to leave, ” and
he handcuffs Plucinski and escorts her from the
room. As Plucinski is handcuffed and escorted
out of the room, Plucinski loudly exclaims, “Boy I love
how the public's treated in Payette County. Nice to know
that you guys are looking out for our best interests. Thank
you very much.” (Dkt. 54 at 10.)
Commissioners continued their discussion about when it may be
appropriate to request further documentation from individuals
testifying at public meetings. (Dkt. 43-8 at 12.) Osborn
provided information on the rights of the Commission to
request documentation, and how it could proceed under such
circumstances. The meeting adjourned at 8:19 p.m.
that same evening, Toth called Osborn at his residence.
Toth: Sorry to bother you, Bert. This is Gary. Um…
Osborn: Hi Gary.
Toth: Isn't there a specific law about disrupting a
Osborn: Well you know, I-
Toth: I couldn't find it.
Osborn: You can't find it?
Toth: No. So do you want to just trespass?
Osborn: How do you---
Toth: Charge her with trespassing and-
Osborn: Yeah, because she was told to leave. She was asked to
leave. The deputy went in there and asked her to leave.
Toth: Right. Okay. Well, you know, there's- somewhere in
the back of my mind, there was something about disturbing a
public meeting, but I can't find it, so-
Toth: Okay. I'll go trespass. She's still not giving
us her-but we know who it is, but she's still
Osborn: Yeah, but if she's-
Toth: -her name and date of birth. So she's going to be
just not booked or anything, just held until then. So…
Osborn: Well, if she's refusing to give her name,
isn't that obstruct and delay?
Toth: It will be obstruct and delay-
Toth: -a new charge too.
Toth: But she won't even be booked [on] anything until
Toth: So, anyway- okay. I just wanted to make sure. So
I'll go ahead and go with trespass…And I'll
put you down as a witness, too- in my case.
Osborn: Actually, it's Chad Henggeler is the witness.
Osborn: Henggeler. He's the chairman. He's the guy
who has the authority-
Toth: All right.
Osborn: -to summons.
Toth: And he's the one who asked her to leave when she
Toth: What-I mean, what, was she, just being disruptive?
Osborn: She's a spectator…And she has
a right to testify at a public hearing, and she did that. And
then so, I closed the public hearing. I'm in charge of
that. I handed the meeting back to Chad Henggeler. He's
the chairman. And so he's conducting the meeting of the
planning and zoning commission. And, at the planning and
zoning commission, it's a commission meeting. And those
people talk. And one of the members was talking. And she
interrupts, and she starts to-she wants to argue. She raises
a point of order. She has no business doing it. She's not
a member of the Commission.
Osborn: So I tell her she has no standing. “You
interrupt the meeting. Please leave.”
Toth: So it had ended the public meeting, and now is in
a-just a- what did you call ...