The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JAMES ANDREW TANNER PLAINTIFF
Vv. No. 4:17-cv-780-DPM
KURT ZIEGENHORN, in his individual
capacity, and BILL BRYANT, Colonel,
in his official capacity as head of the
Arkansas State Police DEFENDANTS
ORDER
1. The Court must decide whether any of the remaining claims in
this case involving police encounters at Wal-Mart, Facebook posts, and
potential violations of federal rights and state law should go to trial.
Tanner seeks partial summary judgment on his free speech claims
against Arkansas State Police Colonel Bryant and unreasonable search
and seizure claims against Trooper Ziegenhorn from their Wal-Mart
run-in. Colonel Bryant and Trooper Ziegenhorn also seek summary
judgment on these claims, plus Tanner’s Fourth Amendment arrest
warrant claim and state law malicious prosecution and perjury claims.
The Court takes the material facts, where genuinely disputed, in the
non-moving party’s favor. Oglesby v. Lesan, 929 F.3d 526, 532 (8th Cir.
2019).
2. The First Amendment issues loom large, so the Court addresses
them first. The defendants argue that the Arkansas State Police’s
Facebook page is shielded from First Amendment scrutiny as
government speech. The Court disagrees. Doc. 60 at 2. The interactive
section of this Facebook page isn’t government speech but is instead a
designated public forum. Knight First Amendment Institute at Columbia
University v. Trump, 302 F. Supp. 3d 541, 574 (S.D.N.Y. 2018), aff'd, 928
F.3d 226 (2d Cir. 2019). This means restrictions are permissible “only if
they are narrowly drawn to achieve a compelling state interest.”
International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,
678 (1992). While the nature of the forum will be important at trial, it is
less so now. Government actors commit unconstitutional viewpoint
discrimination in any kind of public forum when they hamper speech
because of “the specific motivating ideology or the opinion or
perspective of the speaker.” Rosenberger v. Rector and Visitors of
University of Virginia, 515 U.S. 819, 829 (1995). But did deleting Tanner's
comments and blocking him infringe Tanner’s free speech rights? Yhe
answer depends on when and why these things happened.
The parties disagree, and offer conflicting evidence, about when
the State Police created terms and conditions for its Facebook page and
whether they were publicly available. If there weren’t any such
provisions when Tanner made his comments, those comments must’
been removed for some other reason. If there were terms and
conditions when Tanner made his comments, material facts about why
Tanner’s comments were deleted and why he was blocked remain
disputed. Nor is it clear whether the State Police always deletes
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comments that violate the terms and conditions or whether the State
Police targets comments it dislikes, such as Tanner’s. And the Court
isn’t sure the terms and conditions themselves are compatible with the
Constitution. At a minimum, the State Police’s automatic blocking of
non-obscenities like “pig,” “copper,” and “jerk” suggests an
unconstitutional allergy to certain viewpoints. Doc. 79-14 & 79-15. On
this record, the Court can’t rule out viewpoint discrimination, but the
Court can’t conclude as a matter of law that viewpoint discrimination
happened, either. The disputed facts surrounding Tanner’s free speech
claims require a jury’s decision.
3. Next, the Fourth Amendment claims. As to the December 2014
encounter, Tanner says Trooper Ziegenhorn arrested him without
probable cause. The State Police defendants disagree, maintaining that
the search and the seizure were reasonable. As to the arrest warrant,
Tanner contends that Ziegenhorn’s supporting affidavit contained
misleading information and relied on misinformed beliefs. Defendants
respond that Ziegenhorn’s affidavit relied on undisputed facts and was
properly submitted.
Trooper Ziegenhorn seeks qualified immunity here. This doctrine
protects him from civil liability unless Tanner shows the violation of a
constitutional right that was clearly established at the time of the
alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). It’s
clearly established that police officers violate the Fourth Amendment
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when they make warrantless arrests without probable cause. Walker v.
City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And it’s clearly
established that police officers violate the Fourth Amendment when
they get arrest warrants based ona “ deliberate falsehood” or a “reckless
disregard for the truth.” Franks v. Delaware, 438 U.S. 154, 171 (1978).
The parties’ evidentiary materials tell divergent and conflicting
versions about what happened at Wal-Mart.
According to Trooper Ziegenhorn, he approached Tanner at the
customer service area to see if Tanner would surrender his concealed
carry license. He asked Tanner whether he was carrying a weapon and
requested identification, and Tanner was less than cooperative.
Trooper Ziegenhorn then asked to see Tanner’s concealed carry license.
At this point in the conversation, Ziegenhorn believed Tanner was
becoming unruly in violation of Arkansas’s disorderly conduct statute,
including raising his voice to a level where he attracted people’s
attention, stiffening his posture, and bowing up like he might be
confrontational. ARK. CODE ANN. §§ 5-71-207(a)(1), (2) & (7). They were
in a group of people at the customer service area and Ziegenhorn
couldn’t see who was behind him. The trooper decided he needed to
handcuff Tanner and move things outside to his patrol car. Once there,
Ziegenhorn searched Tanner for identification, opened his wallet, and
confiscated his concealed carry license.
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According to Tanner, Trooper Ziegenhorn approached him at the
customer service area, called him by name, asked for identification, and
asked whether he was carrying a weapon. Tanner said he wasn’t armed
and he didn’t have to show identification since Trooper Ziegenhorn
called him by name. As they talked, Tanner stayed relatively still and
wasn’t loud or obnoxious. No crowd gathered, no one came to the area,
and Trooper Ziegenhorn didn’t have his back to anybody. Trooper
Ziegenhorn cuffed him, took him outside, searched him for
identification, and confiscated his concealed carry license.
This incident, the parties agree, lasted about thirty minutes. And
on either version of these facts, the Court concludes that Trooper
Ziegenhorn arrested and searched Tanner. United States v. Mendenhall,
446 U.S. 544, 554 (1980); Chimel v. California, 395 U.S. 752, 762-63 (1969).
Qualified immunity on this claim depends on whether Trooper
Ziegenhorn had arguable probable cause to arrest Tanner. Smithson v.
Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000). Arguable probable exists if
an officer makes an objectively reasonable mistake in determining, in
the fast moment, whether probable cause exists for an arrest. Gilmore
v. City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016). If a reasonable
officer could conclude that Tanner was disorderly within the
Arkansas’s statute’s meaning, then Trooper Ziegenhorn is entitled to
qualified immunity.
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But the Court can’t say, as a matter of law, whether Ziegenhorn’s
conclusions that Tanner was becoming disorderly, and that safety
mandated restraining Tanner, were or were not objectively reasonable
on the current record. The trooper’s contemporaneous recollections
alternate between saying Tanner was disorderly and saying he thought
Tanner might become disorderly, an important distinction. Doc. 79-9.
The parties’ conflicting accounts of their respective demeanors and
actions leave room for debate, too. The soundless video clip of the
encounter does the same. Because of the competing motions for
summary judgment on this issue, the Court has considered the record
in the light most favorable to each side. Because of the murkiness
created by the genuinely disputed material facts, the Court is unable to
decide, at this point, whether this encounter was an unreasonable
search and seizure. A jury must decide the disputed factual issues
about the run-in on special interrogatories, and then the Court will
decide the immunity issue. Lee v. Andersen, 616 F.3d 803, 811 (8th Cir.
2010). The Court therefore denies Ziegenhorn qualified immunity on
this claim without prejudice.
In his affidavit for the arrest warrant, Trooper Ziegenhorn
recounted his first Wal-Mart encounter with Tanner, which had
occurred the month before in November 2014. Doc. 79-6. Based on
these facts, Ziegenhorn believed that Tanner broke state laws about
obstructing governmental operations and carrying a weapon. ARK.
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CODE ANN. §§ 5-54-102 & 5-73-120. The local prosecutor reviewed these
facts with Ziegenhorn and approved his affidavit. Doc. 79-1 at 15 & 81
at 4-5. Ziegenhorn submitted the affidavit to the White County District
Court, which issued an arrest warrant for Tanner in mid-January 2015.
He was arrested two days later. Tanner says he didn’t break any laws
and that Ziegenhorn didn’t have good reason to believe he did. But this
Court doesn’t see anything in the affidavit approaching “a deliberate
falsehood” or “reckless disregard for the truth.” Franks, 438 U.S. at 171.
The warrant application contains “a truthful factual showing of
probable cause” for the cited offenses. Hunter v. Namanny, 219 F.3d 825,
831 (8th Cir. 2000). No reasonable juror could conclude that
Ziegenhorn’s actions were objectively unreasonable, and Ziegenhorn is
therefore entitled to qualified immunity on the related Fourth
Amendment arrest warrant claim.
4. Finally, the state law claims. On malicious prosecution, Tanner
alleges that Ziegenhorn lacked probable cause to recommend Tanner’s
state court prosecution and filled out a misleading arrest warrant to
support it. On his felony tort claim for perjury, Tanner alleges that
Ziegenhorn maliciously stretched the truth about what happened
during the November 2014 encounter in state-level proceedings and
official reports about the incident.
Tanner’s malicious prosecution claim fails as a matter of law.
First, Trooper Ziegenhorn’s warrant application established probable
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cause. Tanner’s claim is therefore missing an essential element.
McMullen v. McHughes Law Firm, 2015 Ark. 15, 15, 454 S.W.3d 200, 210
(2015). Plus, Tanner was found guilty of obstructing justice by the
White County District Court, and “a judgment of conviction by a court
of competent jurisdiction is conclusive evidence of the existence of
probable cause, even though the judgment is later reversed.” Sundeen
v. Kroger, 355 Ark. 138, 143, 133 S.W.3d 393, 396 (2003). On this record,
no reasonable juror could conclude that Ziegenhorn committed
malicious prosecution.
Tanner’s perjury-based claim also fails. Trooper Ziegenhorn
committed perjury if he knowingly made “a false material statement
under an oath required or authorized by law” in an official proceeding.
ARK. CODE ANN. § 5-53-102(a)(1). A false material statement is one
“which affects or could affect the course or outcome of an official
proceeding or the action or decision of a public servant in the
performance of any governmental function.” ARK. CODE ANN. § 5-53-
101(1)(A). Nothing in the record shows that Ziegenhorn knowingly
made any material false statements. Ziegenhorn believed that Tanner
dropped his hand toward his weapon during the November 2014
encounter and testified to that belief. Doc. 79-1 at 4. Though the video
of the encounter seems at odds with this account, Ziegenhorn testified
before he saw the tape. Ibid. at 23. He relied on his memos and his
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memory. On this record, no reasonable juror could conclude that he
perjured himself in doing so.
Tanner’s motion for partial summary judgment, Doc. 76, is
denied. Colonel Bryant and Trooper Ziegenhorn’s motion for
summary judgment, Doc. 79, is partly granted and partly denied. The
Court grants summary judgment in Ziegenhorn’s favor on Tanner’s
Fourth Amendment arrest warrant claims and state law claims about
the November 2014 encounter. The Court denies summary judgment
on Tanner's free speech claims and December 2014 unreasonable search
and seizure claims. The overlapping federal and state claims on those
issues are for trial. The Court will also revisit the qualified immunity
defense after the jury answers factual questions about the second Wal-
Mart encounter. This case is first out for trial on 2 November 2020.
So Ordered.
Pr pa stoll
D.P. Marshall Jr.
United States District Judge
AX Styotwn bu_2020
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