Nielander v. Board of County Commissioners

FILED
United States Court of Appeals
Tenth Circuit

August 31, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANK J. NIELANDER,

Plaintiff-Appellant,
v. No. 08-3092
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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:06–CV–2013–JAR)

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

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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

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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

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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

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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.

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 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

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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 12, 2004, and on July 14 gave him the documents he had prepared.

At the Board of Commissioners meeting on July 19, 2004, Mr. Spurney notified

the Board that he would be filing charges against Mr. Nielander for threatening

the Board. Mr. Spurney signed and caused to be filed a two-count

Complaint/Information charging Mr. Nielander with felony criminal threat, as

well as disorderly conduct, a misdemeanor. The Complaint/Information did not

include specific facts surrounding the incident, but did recite the elements of the

crime. Mr. Spurney verified the Complaint/Information.

Mr. Nielander was served with a summons. One month later, County

Attorney Spurney filed an Amended Complaint/Information, which added Ms.

Reed as an individual whom Mr. Nielander intended to threaten and listed Ms.

Reed and Mr. Nordell as witnesses. On September 8, 2004, a preliminary hearing

was held, at which both Ms. Reed and Mr. Nordell testified. At this hearing, Ms.

Reed testified that she did not feel threatened at the moment that Mr. Nielander

spoke, but that she would feel threatened if he came back with a gun because of

where she sat in the office. Aplt. App’x 559–60. She acknowledged that Mr.

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Nielander’s statements were not directed towards her. Id. The Magistrate Judge

found that there was probable cause to believe Mr. Nielander had made a criminal

threat.

On October 11, 2004, while the charges were pending, Mr. Nielander

traveled to Texas for a job interview. Immediately following the interview, he

was offered a position as Gas Controller. Mr. Nielander accepted and was told to

start in three or four days. Mr. Nielander returned to Kansas, where he learned

that his criminal trial had been rescheduled for January 2005. He called his new

Texas employer to explain that he could not start work as soon as he had thought.

In his brief, Mr. Nielander explains that he knew he might be convicted and

sentenced to jail in Kansas, or sentenced to a period of probation, the terms of

which would require him to remain within Kansas. The Texas employer told Mr.

Nielander to call when he knew when he would be able to report to work. Mr.

Nielander did so in early 2005, but by then the employer no longer desired to

employ him.

On January 13, 2005, the District Court of Republic County entered an

order finding that the preliminary hearing testimony did not establish probable

cause for the criminal threat charge and dismissing the charge. Order on

Defendant’s Motion to Dismiss 1. County Attorney Spurney then voluntarily

dismissed the disorderly conduct charge.

F. Proceedings in District Court

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 Mr. Nielander filed a § 1983 suit in federal district court against Mr.

Nordell, Ms. Reed, Deputy Perez, Attorney Spurney, and Republic County,

alleging malicious prosecution, First Amendment retaliation, and conspiracy. He

claimed he was forced to hire an attorney, experienced significant anguish, and

lost a job offered to him because of the prosecution. On a motion to dismiss, the

district court granted Mr. Spurney absolute prosecutorial immunity.

After discovery, the remaining defendants filed a motion for summary

judgment on all claims. They claimed Ms. Reed and Mr. Nordell were entitled to

absolute immunity against the federal claims of malicious prosecution, First

Amendment retaliation, and conspiracy to commit both because they were not

complaining witnesses and Mr. Nielander provided no evidence that their

accounts of his statements were intentionally false. They also claimed Mr.

Nielander’s malicious prosecution claim failed because Mr. Nielander was not

seized, because the individual defendants should be entitled to qualified

immunity, and because Mr. Nielander had not provided evidence to create issues

of fact about who instituted the proceedings, whether there was probable cause, or

whether they acted with malicious intent. They argued that the retaliatory

prosecution and conspiracy claims should be dismissed because Ms. Reed, Mr.

Nordell, and Deputy Perez were entitled to qualified immunity, and because Mr.

Nielander had failed to provide evidence that his protected speech motivated the

charges. Finally, defendants argued they were all entitled to immunity from the

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state law claims, and that all claims against Republic County Board of County

Commissioners failed “because no individual committed a constitutional violation

and there is no evidence that an unconstitutional policy or custom resulted in

Plaintiff’s claims.” Def. Mot. Summ. J. 2.

The court heard oral arguments, then granted all of the defendants summary

judgment on the federal claims, holding that the malicious prosecution claim

failed because Mr. Nielander had not been seized and the First Amendment

retaliation claim failed because Mr. Nielander’s speech was a threat, and therefore

not protected by the First Amendment. The court granted immunity from state

law claims to Ms. Reed and Deputy Perez. The County again argued that it could

not be liable for the actions of County Attorney Spurney unless Mr. Nielander

could show that “the execution of the government’s policy or custom inflicts

injury," and that it is not the policy of the county to maliciously prosecute

individuals. At this point in the summary judgment hearing, however, no federal

claims were at issue. This was brought to the court's attention by opposing

counsel, and the court agreed that only state claims were left so the “policy or

custom” rule did not apply. The court later said it was “taking under advisement

the . . . municipal liability [issue] with respect to the county,” but this was only

with regard to the remaining state law claims. In a subsequent order, the district

court declined to exercise jurisdiction over the remaining state law claims. Mr.

Nielander timely appealed.

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 II. Discussion

The parties raise a number of issues. We will begin with the district court’s

ruling on County Attorney Spurney’s motion to dismiss on the basis of

prosecutorial immunity. We then address the merits of the district court’s grant

of summary judgment in favor of all defendants on the two federal claims, for

malicious prosecution and first amendment retaliation. Finally, we address the

district court’s disposition of the state law claims.

A. Immunity for the County Attorney

Prior to discovery, the district court accorded absolute prosecutorial

immunity to County Attorney Frank Spurney based on the facts alleged in Mr.

Nielander’s complaint. Dist. Ct. Or. 5. On appeal of this order of dismissal, we,

too, “must accept all the well-pleaded allegations of the complaint as true.” David

v. City & County of Denver 101 F.3d 1344, 1352 (10th Cir. 1996).

Prosecutors are entitled to absolute immunity for their decisions to

prosecute, their investigatory or evidence-gathering actions, their evaluation of

evidence, their determination of whether probable cause exists, and their

determination of what information to show the court. Imbler v. Pachtman, 424

U.S. 409, 425–28 (1976). A prosecutor is not entitled to such immunity,

however, when he is acting as a witness rather than an advocate. Where a

prosecutor personally vouches for the truth of the facts set forth in a certification,

he is considered a witness and not entitled to immunity. See Kalina v. Fletcher,

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522 U.S. 118, 125–29 (1997). Mr. Nielander argues that Mr. Spurney was acting

as a witness in this case, and therefore is not entitled to immunity. We disagree.

Mr. Nielander alleged that Mr. Spurney signed and verified a

Complaint/Information in which he “aver[r]ed that Nielander had communicated

‘a threat to commit violence against: Republic County Commissioners and

Republic County Highway Administrator with intent to terrorize another, to–wit:

Beth Reed.’” Aplt. App’x 21. He did not allege, however, that Mr. Spurney

personally vouched for the truth of any specific facts in the

Complaint/Information. In fact, no such facts were averred in the document. In

Kalina, the Supreme Court held that a prosecutor is entitled to immunity for filing

an information and a motion for an arrest warrant, but not for personally vouching

for the truth of the facts in the certifications. Kalina, 522 U.S. at 121. Because

County Attorney Spurney did not personally vouch for or even list any of the

facts in the Complaint/Information, he is entitled to absolute immunity on all

claims.

Though not raised by the defendants in this case, Eleventh

Amendment immunity would shield Attorney Spurney from liability in his official

capacity. In Kansas, county attorneys act on behalf of the state, not their

respective counties. See Schroeder v. Kochanowski, 311 F. Supp.2d 1241, 1254

(D. Kan. 2004). Thus, “[a]ny actions by the county attorney are . . . attributable

to the state[,] mean[ing] that the county attorney’s acts in prosecuting crimes are

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cloaked with Eleventh Amendment immunity.” Id.

B. Federal Claims Against Deputy Perez, Ms. Reed, Mr. Nordell, and the
County

1. Malicious Prosecution

To establish a malicious prosecution claim under § 1983, a plaintiff must

prove that the defendant initiated or continued a proceeding against him without

probable cause. Becker v. Kroll, 494 F.3d 904, 913–14 (10th Cir. 2007). The

Supreme Court has held that because malicious prosecution claims are Fourth

Amendment claims, a plaintiff must prove that he was also seized in order to

prevail. Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality). The district

court granted summary judgment for all defendants on Mr. Nielander’s federal

malicious prosecution claim because he was not seized within the meaning of the

Fourth Amendment. Nielander v. Bd. of County Comm’rs, No. 06-2013-JAR,

2008 U.S. Dist. LEXIS 24777, at *7 (D. Kan. 2008).

Mr. Nielander argues that he did not actually have to be arrested to

establish a Fourth Amendment violation, but that he was “seized” because the

criminal summons had a legal effect on his freedom of movement; in particular, it

precluded him from starting his out-of-state job. Whatever may be the logic of

this argument, see Albright, 510 U.S. at 277-78 (Ginsburg, J., concurring), our

precedent dictates otherwise. See Becker, 494 F.3d 904, 915 (declining “to

expand Fourth Amendment liability in cases where the plaintiff has not been

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arrested or incarcerated”). Thus, the district court properly concluded that Mr.

Nielander failed to state a Fourth Amendment violation on which to base his

malicious prosecution claim.

2. First Amendment Retaliation

To establish a First Amendment retaliation claim, a plaintiff must show that

(1) he was engaged in constitutionally protected activity, (2) the government’s

actions caused him injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the government’s actions were

substantially motivated as a response to his constitutionally protected conduct.

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). The district court

granted summary judgment for all of the defendants on Mr. Nielander’s First

Amendment retaliation claim. The court held that although Mr. Nielander was

engaged in constitutionally protected activity, some of the language he used was

not constitutionally protected because it conveyed a threat. Tr. of Sum. Judg. Hr.

14. It was this threat that motivated the report on the incident and the filing of

charges. Id. at 17. Thus, the court concluded that Mr. Nielander failed to

establish a viable First Amendment retaliation claim. Id.

Mr. Nielander spends much of his brief arguing that the insults he made

toward the Commissioners and Alvin Perez at least partially motivated the

government’s actions. Insults are not threats. Pointing to Deputy Perez’s

Probable Cause Determination, however, the defendants insist that the record

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shows that only the statements about Ruby Ridge and “the words that he said

about bringing the gun” motivated the prosecution. Aplt. App’x 513. A

plaintiff’s subjective beliefs about why the government took action, without facts

to back up those beliefs, are not sufficient to create a genuine issue of fact.

Vukadinovich v. Bd. of Sch. Tr. of N. Newton Sch. Corp., 278 F.3d 693, 700 (7th

Cir. 2002). It is undisputed that Deputy Perez excluded any mention of the

insults from the Probable Cause Determination, precisely because he understood

those statements were constitutionally protected. Thus, the district court properly

determined that the statements about Ruby Ridge and the gun motivated the

government’s actions—not the insults. Tr. of Sum. Judg. Hr. 16. This means that

only the first element—whether the statements were constitutionally protected—is

genuinely at issue.

Mr. Nielander claims that the two statements (about the gun and about

Ruby Ridge) were not threats and, as such, were constitutionally protected. This

court has held that “whether a defendant’s statement is a ‘true threat’ or a

‘political speech’ is generally a jury question.” United States v. Leaverton, 835

F.2d 254, 257 (10th Cir. 1987). According to Mr. Nielander, there is a genuine

issue of material fact as to whether the two statements were threats, thus making

summary judgment on this ground inappropriate.

Though we are inclined to agree that a reasonable jury could debate

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whether either statement constituted a true threat, we recognize that we may

affirm on any grounds that are sufficiently supported by the record to allow for a

conclusion as a matter of law. United States v. Sandoval, 29 F.3d 537, 542 n.6

(10th Cir. 1994). Even if Mr. Nielander has a viable First Amendment retaliation

claim, Mr. Nordell, Ms. Reed, and Deputy Perez argue that they are entitled to

qualified immunity. Because we agree, we affirm the grant of summary

judgment.

a. Qualified Immunity

Qualified immunity protects government officials performing discretionary

functions from individual liability in federal claims unless their conduct violates

“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir.

2007); see also Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 815 (2009).

Applying this standard, we first conclude that Mr. Nordell and Ms. Reed did not

violate Mr. Nielander’s rights. Individuals merely providing the police with their

account of events commit no constitutional violation at all, as they are not

bringing charges. See Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404

(10th Cir. 1987) (holding that one who made a complaint to police about plaintiff

which led to an unlawful arrest after police investigation was not liable under §

1983); Benavidez v. Gunnell, 722 F.2d 615 (10th Cir. 1983) (holding that “the

mere furnishing of information to police officers who take action thereon” does

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not result in liability under § 1983). There is no evidence in the record that Ms.

Reed or Mr. Nordell intentionally lied to law enforcement or sought to procure

Mr. Nielander’s prosecution. 1 Unlike Deputy Perez, who sought out information

upon which to convict, reported the events to the prosecutor, and prepared a

probable cause determination, an order to appear, and a standard offense and

arrest report, Mr. Nordell simply reported the incident to the police, and Ms. Reed

merely responded to a subsequent request for information regarding the incident.

They did not actively initiate any proceedings against Mr. Nielander. For this

reason, Mr. Nordell and Ms. Reed are entitled to qualified immunity on this

claim.

That leaves Deputy Perez. Although we think a jury may be able to find

that Mr. Nielander’s statements, at least taken in the light most favorable to him,

were not threats and his First Amendment rights were violated by Deputy Perez,

we need not decide the issue. We are permitted to address whether the law is

clearly established before addressing whether a constitutional violation has

occurred. Pearson, — U.S. at —, 129 S.Ct. at 818. “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he

1
In his appellate brief, the plaintiff asserts that Ms. Reed and Mr. Nordell
“knew full well that Nielander hadn’t threatened them and was not coming back
to see the Commissioners.” Aplt. Br. 30; see also Aplt. Br. 14, 47, 56. But mere
discrepancies in various parties’ recollections of the conversation fall short of
evidence of intentional falsehood or intention to induce retaliatory prosecution.

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confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). In other words, we must

determine whether a reasonable officer could conclude that Mr. Nielander’s

statements were true threats before determining if there was a constitutional

violation. If so, Deputy Perez is entitled to qualified immunity.

Determining whether the law is clearly established usually requires a

Supreme Court or Tenth Circuit decision on point. See Cordova v. Aragon, 569

F.3d 1183 (10th Cir. 2009). We have recognized, however, that “[t]he plaintiff is

not required to show . . . that the very act in question previously was held

unlawful in order to establish an absence of qualified immunity.” Weigel v.

Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (citations omitted). Still, we do not

think precedent is sufficiently clear to hold that no reasonable officer could have

thought Mr. Nielander’s speech was unprotected.

Much of Mr. Nielander’s brief focuses on disputes of historical fact that

would normally render summary judgment inappropriate. At the summary

judgment hearing, Mr. Nielander’s counsel confirmed that Mr. Nielander had said,

in substance, that he was afraid to attend another Commissioners’ meeting for

fear that he would bring a gun along (“statement one”), and if the government

came to his house to collect his taxes, they would have another Ruby Ridge

(“statement two”). Tr. of Sum. Judg. Hr. 10. Mr. Nordell and Ms. Reed both

reported that Mr. Nielander said the next time Mr. Nielander came to a

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Commissioners’ meeting he would bring a gun, and if officers tried to collect his

taxes there would be another Ruby Ridge. Thus, there appears to be a genuine

dispute of historical fact over what exactly was said, at least as to statement one.

We agree with Mr. Nielander that ordinarily this dispute could very well be

material, as Ms. Reed’s and Mr. Nordell’s version suggest Mr. Nielander would

bring a gun, whereas Mr. Nielander’s version, that he is not going to go to a

meeting because he is afraid he would bring a gun, explains why Mr. Nielander

would not be going to another Commissioners’ meeting. Because we are asking

only whether Deputy Perez is entitled to qualified immunity, however, we must

look only to what information Deputy Perez possessed when he wrote the

probable cause determination. Deputy Perez was unaware of Mr. Nielander’s

version of events prior to writing the probable cause determination. Aplt. App’x

605. Thus, the question presented is whether a reasonable officer with the

information provided to Deputy Perez by Ms. Reed and Mr. Nordell could have

thought true threats had been made.

For First Amendment purposes,

we define ‘threat’ as a declaration of intention, purpose, design, goal,
or determination to inflict punishment, loss, or pain on another, or to
injure another or his property by the commission of some unlawful
act. It is not necessary to show that defendant intended to carry out
the threat, nor is it necessary to prove he had the apparent ability to
carry out the threat. The question is whether those who hear or read
the threat reasonably consider that an actual threat has been made. It
is the making of the threat and not the intention to carry out the
threat that violates the law.

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United States v. Viefhaus, 168 F.3d 392, 395-96 (10th Cir. 1999) (emphasis

omitted) (citations omitted). Whether a statement constitutes a “true

threat” is a fact-intensive inquiry, in which the language, the context in

which the statements are made, as well as the recipients’ responses are all

relevant. United States v. Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001);

United States v. Crews, 781 F.2d 826, 832 (10th Cir. 1986).

It is well-established that political hyperbole is protected speech, but

speech on political subjects may also contain unprotected threats. Watts v.

United States, 394 U.S. 705, 708 (1969). A true threat “convey[s] a gravity

of purpose and likelihood of execution so as to constitute speech beyond

the pale of protected vehement, caustic . . . unpleasantly sharp attacks on

government and public officials.” Crews, 781 F.2d at 832 (internal

quotations omitted). An example may be found in United States v. Crews.

Mr. Crews, after watching a television movie about the nuclear annihilation

of Lawrence, Kansas, told a nurse at the hospital in which he was staying

that “[i]f Reagan came to Sheridan, [Mr. Crews] would shoot him.” Id. at

829. The nurse reported his statement to the Secret Service. When

speaking with a Secret Service Agent, he denied using those exact words,

but said he hated President Reagan and said that it would be in the best

interests of the nation if he were shot. Id. A jury found that this was a true

threat; this court upheld his conviction. We held that the jury’s

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determination had “adequate support in the record.” Id. at 832. That Mr.

Crews’ statement was conditional, was irrelevant, and although Mr. Crew’s

statement “had political overtones because of its context, . . . a compelling

government interest in protecting the President justifies imposition of

criminal liability when it is reasonably clear that the defendant was not

engaged in political advocacy.” Id.

In United States v. Welch, 745 F.2d 614 (10th Cir. 1984), Mr. Welch

told mental health personnel that if President Reagan were in town he

would get a rifle and shoot him, and that he would do a better job than

Hinckley. He repeated that statement to Secret Service agents the next day.

This Court upheld a jury finding that Mr. Welch had made a “true threat.”

Similarly, in United States v. Martin, 163 F.3d 1212, 1216 (10th Cir. 1998),

we held that Mr. Martin made a “true threat” when he repeatedly affirmed

his plans to shoot a detective. Mr. Martin had also stated his motives, the

type of gun he planned to use, and his strategy for evading law

enforcement. Id.

In contrast, the Supreme Court found the statements in Watts v.

United States were not true threats. 394 U.S. at 706. Mr. Watts was

participating in a public rally on the Washington Monument grounds. The

crowd broke into small discussion groups, and Mr. Watts joined a gathering

scheduled to discuss police brutality. When one member of the group said

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that the young people should become more educated before expressing their

views, Mr. Watts replied,

They always holler at us to get an education. And now I have already
received my draft classification as 1-A and I have got to report for my
physical this Monday coming. I am not going. If they ever make me
carry a rifle the first man I want to get in my sights is L.B.J. They are
not going to make me kill my black brothers.

Id. The Supreme Court held that “[t]aken in context, and regarding the expressly

conditional nature of the statement and the reaction of the listeners [laughter from

the crowd after the statement was made],” Mr. Watts's statement was political

hyperbole protected by the First Amendment. Id. at 708.

Though we recognize similarities between this case and Watts, we hold that

Mr. Nielander has failed to establish that a reasonable officer would necessarily

know he was not making true threats. As to his first statement, Ms. Reed and Mr.

Nordell both reported to Deputy Perez that Mr. Nielander said he would bring a

gun the next time he went to a Commissioners’ meeting. Moreover, both said Mr.

Nielander was extremely agitated and yelling, and although she eventually

admitted in her deposition that she did not feel threatened, the last sentence of

Ms. Reed’s written statement to Deputy Perez said, “I did feel somewhat

threatened . . . .” Aplt. App’x 633. In light of the statements’ context, we cannot

say that a reasonable officer in Deputy Perez’s position could not conclude that

Mr. Nielander had made a true threat.

We reach the same conclusion as to Mr. Nielander’s second statement: if

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“they” came to collect his taxes at his house, there would be a Ruby-Ridge-like

incident. The reference to Ruby Ridge is inherently ambiguous, because this

incident carries different meanings in our cultural memory. On the one hand, the

reference could suggest an intention on Mr. Nielander’s part to resist authorities

by violence. On the other, he could have been predicting that the authorities

would engage in needless violence against him and his family. 2 Because it is

debatable whether a reasonable officer would consider this to be a true threat, an

issue of ultimate fact, we cannot say that the applicable law is clearly established

such that Deputy Perez acted unreasonably in writing a probable cause

determination.

To make clear, we are not holding that qualified immunity is appropriate

whenever there is an underlying question of historical fact (in this case, what Mr.

Nielander actually said). Rather, we are holding that where a question of ultimate

fact (in this case, whether a reasonable officer would be unreasonable in

2
In 1992, a stand-off and violent confrontation occurred between U.S.
Marshals and the Randy Weaver family in rural Ruby Ridge, Idaho. Randy
Weaver’s wife and fourteen-year-old son were killed by police, as was one U.S.
Marshal. Randy Weaver and friend Kevin Harris were seriously injured. The
incident is often used as an example of abuse of federal power. A task force
formed by former Deputy Attorney General Phillip Heymann to investigate the
FBI’s actions found that the Rules of Engagement employed by the FBI officers
on the scene “expanded the use of deadly force beyond the scope of the
Constitution and beyond the FBI’s own standard deadly force policy.” DOJ Rep.
on Internal Invest. of Ruby Ridge, IV.F.3(c)(3). For a detailed description of the
facts surrounding Ruby Ridge, see Harris v. Roderick, 126 F.3d 1189, 1192–94
(9th Cir. 1997).

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concluding that statement two was a true threat under clearly established federal

law) cannot be resolved as a matter of law, the law is not clearly established and

qualified immunity is appropriate. See Hunter v. Bryant, 502 U.S. 224 (1991)

(holding that police officers were entitled to qualified immunity for an allegedly

wrongful arrest because a reasonable officer could have believed that probable

cause existed to arrest the plaintiff for making a threat on the President); see also

Anderson v. Creighton, 483 U.S. 635 (1987) (holding that officers who

participated in unconstitutional search were entitled to qualified immunity

because a reasonable officer could have believed the search comported with the

Fourth Amendment). Thus, Deputy Perez is entitled to qualified immunity on Mr.

Nielander’s First Amendment retaliation claim.

b. Municipal Liability

The County argued below that even if Mr. Nielander’s statements were

constitutionally protected, it still is not liable for Attorney Spurney’s or Deputy

Perez’s actions under the principles laid out in Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978) (holding a municipality can only be liable under § 1983 for

actions of its employees if “execution of a government’s policy or custom . . .

inflicts the injury”). Though the County does not renew this argument on appeal,

we are free to affirm a district court decision on any grounds for which the record

is sufficient to permit conclusions of law. Sandoval, 29 F.3d at 542 n.6. We

conclude that the County cannot be held liable under a municipal liability theory.

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 A municipality is only liable “when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 (1978). Proving a single incident of

unconstitutional conduct is not enough. Rather, a plaintiff must show that the

incident resulted from an existing, unconstitutional policy attributable to a

municipal policymaker. Oklahoma City v. Tuttle, 471 U.S. 808, 823–24. Mr.

Nielander argued in his response to the defendants’ motion for summary judgment

that Attorney Spurney had the “final authority” to “actually fil[e] the criminal

charges in district court,” and thus his actions subjected the County to liability.

Aplt. App’x, Vol. 2, 476 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1998)).

Though we are doubtful that a prosecutor is a policymaker merely because

he has discretion in deciding who to prosecute, we need not decide the issue

because, regardless, Attorney Spurney is not a municipal policymaker. As noted

above, in Kansas, county attorneys are officials of the state, not the county.

Schroeder, 311 F. Supp.2d at 1254 (“Any actions by the county attorney are

therefore attributable to the state, such that no liability can be imposed against the

county for the county attorney’s actions.”); see also McMillian v. Monroe County,

520 U.S. 781, 785–92 (1997) (discussing why state policymakers’ actions do not

lead to municipal liability). Attorney Spurney admits that the County has no

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authority over how he exercises his law enforcement duties; his discretionary

authority does not derive from Republic County, but from the state. Aplt. App’x,

Vol. 2, 521 (he testified that the County has “absolutely no control” over what he

does, and he is controlled only by “the law of the State of Kansas”). Thus, the

county attorney’s actions cannot be attributable to the Board of County

Commissioners under a municipal liability theory.

C. State Law Claims

1. Immunity from State Law Claims for Deputy Perez and Ms. Reed

a. Deputy Perez

The district court dismissed all state law claims against Deputy Perez,

holding that he was entitled to law enforcement immunity under the Kansas Tort

Claims Act. Tr. of Sum. Judg. Hr. 40. Under the Act, “[a] governmental entity or

an employee acting within the scope of the employee’s employment shall not be

liable for damages resulting from: . . . (c) enforcement of or failure to enforce a

law, whether valid or invalid, including, but not limited to, any statute, rule and

regulation, ordinance or resolution.” K.S.A. § 75-6104(c). However, as both

parties recognize, government employees are not entitled to immunity for willful

or intentional actions.

Mr. Nielander argues on appeal that because malicious prosecution,

conspiracy, and First Amendment retaliation claims involve intentional actions,

no government employee should be entitled to immunity on such claims. This

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argument is inconsistent with Burgess v. West, 817 F. Supp. 1520 (D. Kan. 1993),

the precedent upon which he relies. In Burgess, the district court granted law

enforcement officer immunity under K.S.A. section 75-6104(c) on both false

arrest and false imprisonment claims, which are intentional torts, because the

officer had probable cause and thus was enforcing a law when he arrested the

defendant. Id. at 1526.

Burgess holds that immunity does not apply to willful or wanton acts by

government employees. Id. Mr. Nielander, however, failed to show a question of

fact as to whether Deputy Perez acted willfully or wantonly. Deputy Perez took

the statements of Ms. Reed and Mr. Nordell and completed a Probable Cause

Determination using almost the exact same language as those statements. Mr.

Nielander put forth no evidence that Deputy Perez had reason to doubt the

accuracy of Ms. Reed or Mr. Nordell’s statements. Though Mr. Nielander

speculates that Deputy Perez relied on the insults towards his father in completing

the determination, mere speculation is insufficient to thwart summary judgment.

See Heffernan v. Provident Life & Accident Ins. Co., 45 F. Supp.2d 1147, 1149

n.2 (D. Kan. 1999). Without any evidence that Deputy Perez falsified his

Probable Cause Determination, had reason to believe the statements included in it

were false, or intentionally included baseless charges in it, there are no

intentional actions which would preclude law enforcement immunity under

Kansas law.

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 b. Ms. Reed

The district court held that Ms. Reed was entitled to absolute witness

immunity and discretionary immunity under Kansas law. Tr. of Sum. Judg. Hr.

45–46. Mr. Nielander argues that the district court erred in reaching both

conclusions. Because we hold that Ms. Reed was entitled to absolute witness

immunity, we need not address whether she is also entitled to discretionary

immunity.

Generally, witnesses are entitled to absolute immunity from civil liability

under Kansas law. Allin v. Schuchmann, 886 F. Supp. 793 (D. Kan. 1995). The

only exception to this rule is for “complaining witnesses.” A complaining

witness is “the person (or persons) who actively instigated or encouraged the

prosecution of the plaintiff.” Anthony v. Baker, 955 F.2d 1395, 1399 n.2, 1402

(10th Cir. 1992). Such witnesses are not entitled to absolute immunity. Id. Mr.

Nielander argues that Ms. Reed was a complaining witness, and thus not

protected. We disagree.

Reporting facts to a law enforcement officer who then deems a crime to

have been committed and directs the defendant’s arrest is, in and of itself,

insufficient to cause one to be classified as a complaining witness. Arceo v. City

of Junction City, 182 F. Supp.2d 1062, 1087-88 (D. Kan. 2002) (citing Barnes v.

Danner, 216 P.2d 804, 807 (Kan. 1950). According to the commentary to the

Restatement (Second) of Torts section 655, “the defendant must take an active

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part in [the plaintiff’s] prosecution after learning that there is no probable cause

for believing the accused guilty.” Cmt. c.

Mr. Nielander cites to Schuchmann in support of his argument that “[a]

person who approaches the authorities with information known to be false when

there is no request for information and no ongoing investigation, then later acts as

a witness for the prosecution, has instigated the criminal proceeding.” Aplt. Br.

55–56. While this may be a true statement, it does not reflect the facts of this

case. Mr. Nielander’s counsel conceded that Ms. Reed’s first contact with law

enforcement was when Deputy Perez first contacted her. She did not initiate the

proceedings or actively encourage them; she merely provided information to

Deputy Perez when asked to do so. In fact, both parties agreed that Ms. Reed did

not even know what Deputy Perez was going to do with her statement.

Because Ms. Reed merely responded to a request for information, she did

not actively participate in Mr. Nielander’s prosecution and thus is entitled to

absolute witness immunity under Kansas law.

2. Supplemental Jurisdiction

Mr. Nielander argues that the district court acted improperly in considering

the state law claims against Ms. Reed and Deputy Perez but declining to exercise

supplemental jurisdiction over the claims against Mr. Nordell and Republic

County. We review a denial of supplemental jurisdiction for abuse of discretion.

Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1139 (10th Cir. 2004).

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 Under 28 U.S.C. §1367(c), a district court may decline to exercise

supplemental jurisdiction if the claim raises a novel or complex issue of state law,

it substantially predominates the claim(s) over which the district court has

original jurisdiction, the district court has dismissed all claims over which it has

original jurisdiction, or there are other compelling reasons for declining

jurisdiction. In deciding whether to exercise jurisdiction, the district court is to

consider “judicial economy, convenience, fairness, and comity.” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).

Mr. Nielander relies on Gold v. Local 7 United Food and Commercial

Workers Union, 159 F.3d 1307 (10th Cir. 1998) to argue that a court cannot

exercise supplemental jurisdiction over some claims and not others. This reliance

is misplaced. In Gold, the district court ruled on several state law claims and, in

the alternative, declined to exercise jurisdiction over those same claims. Id. at

1310–11. We rejected the district court’s approach because the court had not

“satisf[ied] itself of subject matter jurisdiction before proceeding to the merits of

the claim.” Id. at 1309–10. In this case, the district court ruled on the claims

against Ms. Reed and Deputy Perez because the judge thought they were clearly

entitled to immunity; but the court declined to assert supplemental jurisdiction

over the claims against Mr. Nordell and Republic County. The court conducted a

separate analysis for all of Mr. Nielander’s claims and decided that some

warranted supplemental jurisdiction and others did not. Aple. Br. 42-43. This is

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proper under 28 U.S.C. § 1367 and not inconsistent with precedent. See, e.g., Roe

v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1237 (10th Cir. 1997) (holding that

the lower court properly ruled on some state law claims, but should have

remanded one state law claim to state court); Schartz v. Unified Sch. Dist. No.

512, 953 F. Supp. 1208, 1218–19 (D. Kan. 1997) (exercising supplemental

jurisdiction over some state law claims that were easy to resolve, but declining to

exercise jurisdiction over more complex state law claims); see also 13D Charles

Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Jurisdiction, §

3567.3, 413 (2d. ed. 2008) (“[A]lthough it is unusual, it is permissible for the

federal court to decide one supplemental claim on the merits while declining to

hear another supplemental claim.”).

Thus, we affirm the district court’s decision not to exercise supplemental

jurisdiction over the claims against Mr. Nordell and Republic County even though

the court addressed the claims against Ms. Reed and Deputy Perez.

III. Conclusion

Accordingly, we AFFIRM the district court’s judgment in favor of the

defendants on all claims.

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