Plucinski v. Payette County

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge.

         INTRODUCTION

         Before 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 Defendants.

         The 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.

         After 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.

         FACTS

         Plaintiff recorded the city council meeting held on October 9, 2014, using a phone camera.^[1] 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.)

         Plucinski 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.)

         At the 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.)

         The 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 Mesa. (Id.)

         Later 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.

         The 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.)^[2]

         In 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.)^[3]

         At this 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.”^[4] 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.)^[5]

         The 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.)

         Harvey 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, ^[6] “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.)

         McDonald 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.)

         According to the audio recording of the dispatch call^[7] 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 arrival:

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 trespassing.

Plucinski: It's a public meeting.

McDonald: I understand that, but you're not supposed to speak.

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 entails.

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.)

         At this 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 all.” Id.

         Turning 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.)^[8] 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.^[9] 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.)^[10]

         The 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. (Id.)

         Later that same evening, Toth called Osborn at his residence.

         The conversation follows:^[11]

Toth: Sorry to bother you, Bert. This is Gary. Um…

Osborn: Hi Gary.

Toth: Isn't there a specific law about disrupting a public meeting?

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-

Osborn: Well…

Toth: Okay. I'll go trespass. She's still not giving us her-but we know who it is, but she's still [inaudible]-

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-

Osborn: Okay.

Toth: -a new charge too.

Osborn: Okay.

Toth: But she won't even be booked [on] anything until she cooperates.

Osborn: Cool.

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.

Toth: Chad?

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 wouldn't leave?

Osborn: Right.

Toth: What-I mean, what, was she, just being disruptive? Or…

Osborn:^[12] 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.

Toth: Okay.

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 ...