Frank Nielander's house sits along the road leading to a landfill in Republic County, Kan. He's long been annoyed by debris strewn here and there from traffic bringing trash to the site, but, despite his repeated complaints to county officials, he's gotten no satisfaction.
One day, Nielander walked into the Sanitary Landfill Office in the county courthouse to pay his waste disposal fee. Starting to write his check, he said to Beth Reed, the office secretary, “[It's] really bad what's going on here. I'm ruining tires, I'm ruining my cars.” The two of them talked more about the situation, and Reed acknowledged that he had a problem. Eventually, county employee Mark Nordell entered the room, and, overhearing the conversation, he told Nielander to take his complaint to the county board.
What happened next depends on how one reconciles the conflicts among the formal statements made by these parties. For the most part, though, Reed's and Nordell's accounts jibe with what Nielander related.
As Nielander saw it, appealing to the commissioners at meetings was fruitless. “It's fallen on deaf ears,” he said. “They have no solution. They don't even look for a solution.” As he handed over his check, he told Reed he would not pay the fee again unless the road problem was fixed. He referred to one commissioner as “a complete idiot” and another as “useless as a coat rack.” When Nordell again encouraged Nielander to go to a meeting, Nielander stated that he wouldn't go “because I'd be too afraid that I'd want to bring along a gun.” When Nordell told Nielander that he'd have to pay the landfill fees or “they” would come and collect it from him, Nielander replied, “Then they'll have another Ruby Ridge.”
After Nielander left Reed's office, Nordell called the sheriff, fearing a threat from Nielander's statement about bringing a gun and his reference to the violent 1992 confrontation between federal agents and Idaho residents. Reed and Nordell later provided both verbal and written statements to a deputy sheriff who used them in preparing the paperwork for legal action against Nielander. The deputy then gave the documents to the county attorney who, after notifying the county board, filed charges against Nielander for felony criminal threat and misdemeanor disorderly conduct.
While the charges were pending, Nielander received a job offer in Texas. However, with his trial date only a few months away, he told his new employer he'd be unable to start work right away. In fact, he was concerned about ending up either in a Kansas jail or on probation and unable to leave the state.
Following a preliminary hearing, a state court judge found no probable cause for the criminal threat charge. The county attorney voluntarily dismissed the misdemeanor.
When Nielander was finally able to tell the Texas employer he was available, he learned someone else had been hired.
Nielander filed suit in federal district court alleging violations of his constitutional rights through malicious prosecution and First Amendment retaliation. The district judge dismissed the claims for lack of legal merit. On appeal, the judgment for the defendants was affirmed.
Noting that “political hyperbole is protected speech, but speech on political subjects may also contain unprotected threats,” the U.S. Court of Appeals for the Tenth Circuit held that Mr. Nielander “failed to establish that a reasonable officer would necessarily know he was not making true threats.”
[Nielander v. Board of County Commissioners, No. 08-3092, 10th Cir., Aug. 31, 2009]
Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.
The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].