Tanner v. Ziegenhorn et al

Filing 107

ORDER partly granting and partly denying 95 Motion in Limine. Tanner's 96 Motion in limine is partly granted and partly denied. Signed by Chief Judge D. P. Marshall Jr. on 10/21/2020. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JAMES ANDREW TANNER

PLAINTIFF

No. 4:17-cv-780-DPM

v.

KURT ZIEGENHORN, in his individual
capacity, and BILL BRYANT, Colonel,
in his official capacity as head of the
Arkansas State Police

DEFENDANTS

ORDER
1. Trooper Ziegenhorn and Colonel Bryant's motion in limine, Doc.

95, is partly granted and partly denied.

The unopposed parts-

paragraphs 3, 7, 10, and 11-are granted. Here are the Court's rulings
on the opposed parts:

• Dismissed Claims
Mostly granted. The Court will allow a limited discussion of the
November 2014 Wal-Mart encounter to provide necessary context for
the December 2014 Wal-Mart encounter. As agreed in principle, the
Court will propose a stipulation. The Court has reviewed the video
clips and considered Tanner's request to use the screenshot of Trooper
Ziegenhorn's face at the end of the November encounter. Request
denied.

• Testimony of Richard Tanner Jr.
Denied without prejudice. Richard Tanner Jr.' s testimony would
be relevant if the jury gets to damages. The Court continues to think
about the compensatory and punitive issues, and looks forward to the
parties' papers.
• Testimony of Trooper Ziegenhorn's coworkers
Granted.

Trooper Ziegenhorn's co-workers' testimony 1s

excluded.
• Testimony of Kayce Bell
Granted. Bell's testimony is excluded.
• Testimony of Al Brodbent
Granted. Brodbent' s testimony is excluded; the trial must focus
on the December 2014 Wal-Mart encounter and Tanner's Facebook
posts.
• Tanner's "Stalking" Allegation
Denied.
• Medical Records of Trooper Ziegenhorn' s Son
Denied, with directions to redact carefully.
• Other Incidents and Comments to Arkansas State Police's
Facebook Page
Partly denied and partly granted.

Evidence and testimony

regarding other incidents, reports, or investigations involving Trooper
Ziegenhorn or Colonel Bryant are excluded. But the treatment of other
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Facebook comments goes directly to the issue of viewpoint
discrimination.

Evidence and testimony about other Facebook

comments will therefore be allowed.

• Disciplinary Actions or Prior Bad Acts
Granted.

• Wayback Machine
Denied without prejudice. Evidence from the Wayback Machine
is admissible with the right foundation and proper authentication.
2. Tanner's motion in limine, Doc. 96, is partly granted and partly

denied. The unopposed parts-paragraphs 2-3, 9-11, 13-20, and 2240- are granted. Here are the Court's rulings on the opposed parts:

• Seating
Denied. The seating arrangements are first-come, first-served.

• Prior Discovery Responses
Denied without prejudice.

• Pleadings
Denied without prejudice and with directions.

Evidence and

testimony about the pleadings must be treated with caution to avoid
discussion of claims and issues that have passed out of the case.
Counsel must request a bench conference before using a pleading in
front of the jury.

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• Failure to Call Witnesses
Granted. The Court granted this unopposed request in Trooper
Ziegenhorn and Colonel Bryant's motion in limine, and this door swings
both ways.

• Statement of Law
Granted. Tanner and Tanner's counsel will not be allowed to state
that Trooper Ziegenhorn violated his rights'' as a matter of law."

• Prior Suits or Claims
Granted.

• Statement of Medical Records
Denied without prejudice, with two caveats. First, any testimony
regarding Tanner's medical records requires an adequate foundation
and must be relevant. Second, the testimony must comply with Federal
Rule of Civil Procedure 26(a).

• Trooper Uniform
Denied. Trooper Ziegenhorn may wear his uniform, if he wishes,
because he is still a Trooper. Plus, the qualified immunity issue remains
open.

• Minimization of Injuries
Denied.
* * *

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So Ordered.
D.P. Marshall Jf.
United States District Judge

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