Tanner v. Ziegenhorn et al

Filing 60

ORDER partly granting and partly denying 47 Motion to dismiss by the State Police, Colonel Bryant, Sadler, and Trooper Ziegenhorn. 53 Motion by Chapman and Kennedy is granted. The Court directs Tanner to file a fifth and final amended complaint that includes only the surviving claims by 6/21/2019. A Second Amended Final Scheduling Order will issue. Signed by Judge D. P. Marshall Jr. on 5/31/2019. (jak)

IN THE UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES ANDREW TANNER

PLAINTIFF

No. 4:17-cv-780-DPM

v.

KURT ZIEGENHORN, in his individual
capacity; BILL BRYANT, Colonel, in his official
capacity as head of the Arkansas State Police;
BILL SADLER, in his individual capacity;
MIKE KENNEDY, Individually; and
ELIZABETH CHAPMAN, Individually

DEFENDANTS

ORDER
1. After he amended his complaint several times, the Court
directed James Tanner to file a concise fourth amended complaint. The
Defendants have now moved to dismiss it.

In the winter of 2014,

Tanner twice encountered State Trooper Kurt Ziegenhorn at the Searcy
Walmart. The encounters became confrontations, which centered on
Tanner's openly carrying a handgun in the Walmart. He was arrested
early the next year based on the two run-ins with Trooper Ziegenhorn.
The State eventually revoked Tanner's license to carry. Tanner was also
tried for obstructing governmental operations.

He was acquitted.

There's also been contention about Tanner's comments on the official
Arkansas State Police Facebook page. That back and forth is the core of
this lawsuit.

Tanner alleges that several Defendants (in both their

official and individual capacities) violated his federal constitutional
rights. He's also pleaded claims under the Arkansas Constitution and

other Arkansas law. The Defendants say all Tanner's claims fail for
various reasons;

Tanner responds that all his claims are solid.

Appendix A lists the many parties, the many claims, and the Court's
rulings in this Order.
2. Tanner's principal claims are about the First Amendment. He
pleads that Colonel Bill Bryant and his employees, Elizabeth Chapman
and Mike Kennedy, violated his constitutional rights. He says that
Kennedy ordered Chapman to delete Tanner's posts from the Arkansas
State Police Facebook page. Tanner also claims that Chapman blocked
him from posting on the page.
The interactive section of this Facebook page isn't government
speech. Davison v. Randall, 912 F.3d 666, 686 (4th Cir. 2019). This part
of the page is a forum, created by the State Police, where Facebook users
can and do speak.

Tanner posted six times on this page in 2016.

Chapman deleted all his posts. The Court assumes, for purposes of
Kennedy and Chapman's motion to dismiss, that these deletions
infringed Tanner's free speech rights. The guiding law, though, wasn't
clear enough then to subject Kennedy and Chapman to suit. State
actors are entitled to qualified immunity unless they violate clearly
established law. Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019)
(en bane). The "controlling authority" must place the constitutional

question "beyond debate." Hanson as Trustee for Layton v. Best, 915 F.3d
543,548 (8th Cir. 2019) (quotation omitted). The Supreme Court hasn't

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addressed this type of First Amendment claim yet. Only recently have
lower courts across the country done so. E.g., Davison, 912 F.3d at 666;
Robinson v. Hunt County, Texas, 921 F.3d 440, 449-50 (5th Cir. 2019);
Campbell v. Reisch, 367 F. Supp. 3d 987, 990-92 (W.D. Mo. 2019); One
Wisconsin Now v. Kremer, 354 F. Supp. 3d 940, 953-56 (W.D. Wis. 2019).

And the only guidance within the Eighth Circuit is the Campbell case,
decided in 2019.

This law isn't settled.

No precedent informed

Kennedy or Chapman in 2016 that deleting comments or blocking users
from posting on the interactive part of a State agency's Facebook page
violated free speech rights.
The official-capacity claims against Arkansas (through Colonel
Bryant) go forward nonetheless. Tanner's request for injunctive relief
isn't barred by sovereign immunity. Calzone v. Hawley, 866 F.3d 866,
869-70 (8th Cir. 2017). Tanner's pleading against Colonel Bryant is thin.
But he mentions the "unconstitutional terms and conditions" of the
Facebook page throughout his papers. NQ 46 at 5; NQ 51-2 . Whether the
State Police's Facebook policy violates the U.S. Constitution or the
Arkansas Constitution is an open question, which the Court will
answer in due course on a more complete record.
3. Tanner's First Amendment retaliation claims against Trooper
Ziegenhorn are dismissed without prejudice. Tanner hasn't pleaded
any facts showing that his complaint to the State Police about Trooper
Ziegenhorn's actions during the November 2014 Walmart stop was a

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substantial factor in, or but-for cause of, Tanner's 2015 arrest. Kilpatrick
v. King, 499 F.3d 759, 767 (8th Cir. 2007).

4. Tanner makes several Fourth Amendment claims against
Trooper Ziegenhorn. One fails; two proceed.
First, collateral estoppel bars Tanner from relitigating any Fourth
Amendment claim based on his lost license to carry a concealed firearm
and the November 2014 Walmart encounter.

Tanner appealed the

Arkansas State Police's decision to revoke his license to the Pulaski
County Circuit Court. That Court affirmed the revocation. The Court
held that Trooper Ziegenhorn did not violate Tanner's Fourth
Amendment Rights. NQ 33-4 at 7. Under the Arkansas Administrative
Procedure Act, a Circuit Court can reverse an administrative decision
that violated petitioner's constitutional rights. ARK. CODE ANN. § 2515-212(h)(1). The Fourth Amendment ruling was necessary in this
earlier branch of the litigation.

And Tanner had a full and fair

opportunity to litigate this constitutional claim. Crockett & Brown, P.A.
v. Wilson, 314 Ark. 578, 581, 864 S.W.2d 244,246 (1993); see also Bockman
v. Arkansas State Medical Board, 229 Ark 143, 147, 313 S.W.2d 826, 829

(1958).
Second, Tanner has stated a false arrest claim about the December
2014 Walmart encounter.

Tanner pleads these facts:

Trooper

Ziegenhorn approached him, seized him, and took him to his car for
thirty minutes before letting him go.
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That's a plausible Fourth

Amendment violation. United States v. Dixon, 51 F.3d 1376, 1379 (8th
Cir. 1995).
Third, Tanner says that Trooper Ziegenhorn applied for Tanner's
arrest warrant with misleading information about the December 2014
encounter. Trooper Ziegenhorn wrote that Tanner falsely identified
himself; Tanner says he didn't. NQ 46 at 14. A warrant based on a
"deliberate falsehood" or "reckless disregard for the truth" violates the
Fourth Amendment. Franks v. Delaware, 438 U.S. 154,171 (1978). Tanner
has therefore pleaded a plausible constitutional claim about the arrest
warrant.
5. Tanner has failed to state a Second Amendment claim against
Trooper Ziegenhorn.

The Arkansas State Police revoked Tanner's

Concealed Carry Handgun License based on the December 2014
Walmart encounter. NQ 33-4. "Lawful seizure and retention of firearms
... does not violate the Second Amendment." Rodgers v. Knight, 781
F.3d 932,941 (8th Cir. 2015). Tanner therefore hasn't pleaded sufficient
facts showing that Trooper Ziegenhorn chilled his right to bear arms.
Moustakas v. Margolis, 154 F. Supp. 3d 719, 732 (N.D. Ill. 2016), affdin
part, 825 F.3d 843 (7th Cir. 2016).

6. Tanner also alleges that William Sadler conspired with others
to violate his right to obtain information through the Arkansas
Freedom of Information Act. 42 U.S.C. § 1985(3). Sadler is the Arkansas
State Police's public information officer. Tanner "must show: (1) that
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[Sadler] conspired with others to deprive him of constitutional rights;
(2) that at least one of the alleged co-conspirators engaged in an overt
act in furtherance of the conspiracy; and (3) that the overt act injured
[Tanner]." White v. McKinley, 519 F.3d 806,814 (8th Cir. 2008). Tanner
hasn't stated a plausible conspiracy claim. He hasn't pleaded any overt
act by a co-conspirator or that Sadler actually conspired with others.
7. Tanner also claims that Sadler violated the Arkansas Freedom
of Information Act several times, which in turn violated the Fourteenth
Amendment. NQ 51 at 16. His complaint says that these claims are" an
appeal from the denial of rights pursuant to Ark. Code Ann. § 25-19101 et seq." NQ 46 at 17. But these issues were already fully litigated in
state court by Tanner's lawyer. Hyman v. Sadler for Arkansas State Police,
2018 Ark. App. 82, at 3-6, 539 S.W.3d 642, 643-45. Res judicata. Tanner
cannot relitigate already decided claims. Jayel Corporation v. Cochran,
366 Ark. 175, 178-79, 234 S.W.3d 278, 281-82 (2006) .
8. Tanner pleads three
Ziegenhorn:

state-law claims against Trooper

malicious prosecution, abuse of process, and perjury

under the felony tort statute.
First, the malicious prosecution claim survives.

Trooper

Ziegenhorn suggested that Tanner be prosecuted based on the Walmart
encounters in 2014. Tanner was found not guilty in the White County
Circuit Court of obstructing governmental operations. NQ 35-1 & 35-2.

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Tanner says that Trooper Ziegenhorn lacked probable cause to
recommend this prosecution. Those facts satisfy Rule 12.
Second, Tanner's abuse of process claim fails as a matter of law.
This tort requires that the criminal charge against Tanner was "used to
extort or coerce." Sundeen v. Kroger, 355 Ark. 138, 147, 133 S.W.3d 393,
398-99 (2003);

see also HOWARD

w. BRILL

& CHRISTIAN H. BRILL, 1

ARKANSAS LAW OF DAMAGES§ 33:5 (6th ed. 2014). But Tanner hasn't
pleaded any facts showing that Trooper Zeigenhorn used the state case
to extort or coerce him.

Tanner's malicious prosecution claim

adequately covers the legal ground about the state charge.
Third, the perjury-based claim against Trooper Zeigenhorn under
the felony tort statute also survives.

This statute provides a civil

remedy to anyone injured by another's criminal conduct. ARK. CODE
ANN. § 16-118-107. Tanner says that Trooper Zeigenhorn committed
perjury during his trial by stretching the truth about what happened
during the Walmart encounters. Tanner has sufficiently stated this
claim.

* * *
The motion to dismiss by the State Police, Colonel Bryant, Sadler,
and Trooper Zeigenhorn, NQ 47, is partly granted and partly denied.
Chapman and Kennedy's motion, NQ 53, is granted. The Court directs
Tanner to file a fifth and final amended complaint that includes only
the surviving claims. It must include specific details about the State
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Police's Facebook policy and the surviving Fourth Amendment and
state-law claims against Trooper Zeigenhorn. It must also comply with
Federal Rule of Civil Procedure 8(a); it should not exceed fifteen pages;
and Tanner should attach any material exhibits.
Amended complaint due by 21 June 2019. A Second Amended
Final Scheduling Order will issue.
So Ordered.

D.P. Marshal(j;.
United States District Judge

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Appendix A
Party
Bill Bryant

Mike Kennedy
Elizabeth Chapman
Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn

Kurt Ziegenhorn
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
Abuse of Process

Kurt Ziegenhorn

Felony Tort - Perjury

William Sadler

Kurt Ziegenhorn

Disposition
Proceeds

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

Proceeds

Dismissed without
prejudice
Dismissed without
prejudice
Dismissed without
prejudice
Proceeds
Dismissed without
prejudice
Proceeds

Each echoing state law claim proceeds, or fails, like each federal claim.
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