Tanner v. Ziegenhorn et al

Filing 143

JUDGMENT: The Court enters judgment against James Andrew Tanner, and for the various defendants, as specified in the attached chart on all the claims dismissed with prejudice before trial. The other listed claims that were not tried are dismissed wi thout prejudice. The Court held a jury trial in Little Rock from 7/6/2021 to 7/8/2021 on Tanner's unresolved Fourth Amendment claims (and echoing Arkansas law claims) and his unresolved First Amendment claims (and echoing Arkansas law claims). T he eight-person jury returned three unanimous special verdicts, 135 , which the Court attaches and incorporates. The Court resolved the remaining issues of law and fact (with the parties' consent) on the speech issues in a 142 Memorandum Opin ion and Order. Based on the jury's special verdicts 2 and 3, the Court enters judgment for James Andrew Tanner on his Fourth Amendment claim and echoing Arkansas law claim about the December 2014 Wal-Mart encounter against Kurt Ziegenhorn, in h is individual capacity, for $1.00 in nominal damages, post-judgment interest at a rate of 0.09%, and a reasonable attorney's fee and costs as may be allowed on later timely motion. Based on special verdict 1 and the Court's post-t rial rulings, the Court enters judgment for James Andrew Tanner on his First Amendment claim and echoing Arkansas law claim against Colonel Bill Bryant, in his official capacity as head of the Arkansas State Police. The Court orders Colonel Bryant to unblock Tanner from the State Police's Facebook page. The Court further orders Colonel Bryant to develop and implement a narrower approach to filtering comments on the State Police's Facebook page. This narrower approach must not engage in any viewpoint discrimination. Tanner is entitled to a reasonable attorney's fee, and costs as may later be allowed on timely motion, on these free speech claims. The Court encourages the parties to confer and attempt to resolve the attorney's fees and costs issues. Tanner's deadline for filing any motion seeking those items is 10/29/2021. Signed by Chief Judge D. P. Marshall Jr. on 9/30/2021. (cmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
PLAINTIFF

JAMES ANDREW TANNER
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; WILLIAM
SADLER,"Bill", in his individual capacity;
JOHN DOE 1-5, individually and in their
official capacity; MIKE KENNEDY, individually;
and ELIZABETH CHAPMAN, individually

DEFENDANTS

JUDGMENT
1.

The Court resolved many of the federal and state claims

against various defendants in pretrial Orders.

The Court enters

judgment against James Andrew Tanner, and for the various
defendants, as specified in the attached chart on all the claims
dismissed with prejudice before trial. The other listed claims that were
not tried are dismissed without prejudice.
2.

The Court held a jury trial in Little Rock from 6 July 2021 to

8 July 2021 on Tanner's unresolved Fourth Amendment claims (and
echoing Arkansas law claims) and his unresolved First Amendment
claims (and echoing Arkansas law claims).

The eight-person jury

returned three unanimous special verdicts, Doc. 135, which the Court

attaches and incorporates. The Court resolved the remaining issues of
law and fact (with the parties' consent) on the speech issues in a
Memorandum Opinion and Order.
3.

Based on the jury's special verdicts 2 and 3, the Court enters

judgment for James Andrew Tanner on his Fourth Amendment claim
and echoing Arkansas law claim about the December 2014 Wal-Mart
encounter against Kurt Ziegenhorn, in his individual capacity, for $1.00
in nominal damages, post-judgment interest at a rate of 0.09%, and a
reasonable attorney's fee and costs as may be allowed on later timely
motion, on these seizure claims. FED. R. Crv. P. 54(d); 28 U.S.C. § 1920;
42 U.S.C. § 1988.
4.

Based on special verdict 1 and the Court's post-trial rulings,

the Court enters judgment for James Andrew Tanner on his First
Amendment claim and echoing Arkansas law claim against Colonel Bill
Bryant, in his official capacity as head of the Arkansas State Police.
The Court declares:
• The State Police violated the First Amendment and article 2,
section 6 of the Arkansas Constitution in blocking Tanner
from the State Police's Facebook page based on Tanner's use
of profanity in private messages to page administrators; and
II

• The State Police's use of Facebook's strong" profanity filter,
II

11

11

and its inclusion of the words pig", pigs", copper", and

-2-

"jerk", violate the First Amendment and article 2, section 6
of the Arkansas Constitution.
The Court orders Colonel Bryant to unblock Tanner from the State
Police's Facebook page. The Court further orders Colonel Bryant to
develop and implement a narrower approach to filtering comments on
the State Police's Facebook page. This narrower approach must not
engage in any viewpoint discrimination.

Tanner is entitled to a

reasonable attorney's fee, and costs as may later be allowed on timely
motion, on these free speech claims. FED. R. Crv. P. 54(d); 28 U.S.C.
§ 1920; 42 U.S.C. § 1988.

5.

The Court encourages the parties to confer and attempt to

resolve the attorney's fees and costs issues. Tanner's deadline for filing
any motion seeking those items is 29 October 2021.

D.P. Marshall Jr.
United States District Judge

-3-

Party
Bill Bryant
Mike Kennedy
Elizabeth Chapman
Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn
William Sadler
William Sadler

Claims
First Amendment,
Official Capacity
First Amendment,
Individual Capacity
First Amendment,
Individual Capacity
First Amendment
Retaliation, Individual
Capacity
Fourth Amendment,
Individual Capacity;
November 2014
Fourth Amendment,
Individual Capacity;
December 2014
Fourth Amendment,
Individual Capacity;
False Information
Second Amendment,
Individual Capacity
Conspiracy

Kurt Ziegenhorn

Fourteenth
Amendment,
Individual Capacity
Malicious Prosecution

Kurt Ziegenhorn

Abuse of Process

Kurt Ziegenhorn

Felony Tort- Perjury

Dis position
Proceeded to trial
Dismissed with
prejudice
Dismissed with
prejudice
Dismissed without
prejudice
Dismissed with
prejudice
Proceeded to trial

Dismissed with
prejudice
Dismissed without
prejudice
Dismissed without
prejudice
Dismissed without
prejudice
Dismissed with
prejudice
Dismissed without
prejudice
Dismissed with
prejudice

Each echoing state law claim proceeded, or failed, in the same way as
each federal claim.

-4-

Case 4:17-cv-00780-DPM Document135 Filed

07/08/ff'~;~oJUL g lO?\

SPECIAL VERDICT NO. 1

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tAM"Y-~-R%

1.

Cl.~-

IY-~
Were the terms and conditions for the Arkansas State Police
Facebook page adopted before Tanner's first comment was
deleted?
Yes

No
2.

Were the terms and conditions of the Arkansas State Police's
Facebook page publicly available when Tanner posted his
comments?

__X:

__,___

Yes

No
3.

Did the Arkansas State Police delete any of Tanner's comments
because of the views expressed in the comments?
\

Yes
No

4.

Did the Arkansas State Police block Tanner from its ,.,_--..;;;;.;;;~;::_::
a e because o his views ex ressed in the comments o
what he said in private m.essages? ircle one)

7- i - '1....
' Foreperson
Court's Special Verdicts
8 July 2021

\

Date/time
4:17-cv-780-DPM
Tanner v. Ziegenhorn

-

Case 4:17-cv-00780-DPM Document 135 Filed 07/08/21 Page 2 of 3

SPECIAL VERDICT NO. 2

1.

,Did Tanner rai~~ his voice to an unreasonabl~ve
volume during the Wal-Mart encounter?
FILE~
Yes

- ~':x-.-. ·-·
,.
2.

No

JUL 8 2021
~

tHOP&Kco~r ,..

~ Y H ~jrka

Was Tanner's voice at a level where it was attra~iitiiir
people's attention during the Wal-Mart encounter?

· 'b.,

Yes
No

3.

Did the encounter between Tanner and Trooper Ziegenhorn at
Wal-Mart cause anyone to gather around them?

~
4.

Yes
No

Did Tanner's demeanor · change· during the Wal-Mart
encounter?

X

Yes
No

5.

Did Tanner stiffen up his posture during the Wal-Mart
encounter?

i

Yes
No

7- i ..-1 \
Foreperson
Court's Special Verdicts
8 July 2021

Date/time .
4:17-cv-780-DPM
Tanner v. Ziegenhorn

Case 4:17-cv-00780-DPM Document 135 Filed 07/08/21 Page 3 of 3

SPECIAL VERDICT NO. 3

1.

EAl./thm~

We find Drew Tanner's compensatory damages, as submitted

: Instructi n No. 10, to be:
o

JUL 8 2021
._,.~ ~ ,~- ...
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.

·~

)/\.;

If your answer to Question 1 is 0", then you mugl:a-waid ';{-,1:w,wr - nominal damages of $1.00 in Question 2 and answer Question 3.
11

If your answer to Question 1 is greater than 11 0", skip Question 2
and answer Question 3.

$_~'·

as

2.

We find Tanner's nominal damages to be
submitted in Instruction No. 11.

3.

We assess punitive damages against Trooper Ziegenhorn, as
n
..;;;...._
submitted in Instructio_ No. 12, of $__0 _ _~---'--

Foreperson

Court's Special Verdicts
8 July 2021

_ _<:l _
E:l _

.,.J

Date/time

4:17-cv-780-DPM
Tanner v. Ziegenhom