United States District Court, E.D. Arkansas, Western Division
MARSHALL JR. UNITED STATES DISTRICT JUDGE
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.
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.
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 banc). The "controlling
authority" must place the constitutional question
"beyond debate." Hanson as Trustee for Lay ton
v. Best, 915 F.3d 543, 548 (8th Cir. 2019) (quotation
omitted). The Supreme Court hasn't 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.
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.
No 46 at 5; No 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.
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 substantial
factor in, or but-for cause of, Tanner's 2015 arrest.
Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir.
Tanner makes several Fourth Amendment claims against Trooper
Ziegenhorn. One fails; two proceed.
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. Ne 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. § 25-15-212(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).
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. That's a
plausible Fourth Amendment violation. United States v.
Dixon, 51 F.3d 1376, 1379 (8th Cir. 1995).
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. No 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.
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. No 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), aff' d in part, 825 F.3d 843 (7th
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
[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.
Tanner also claims that Sadler violated the Arkansas Freedom
of Information Act several times, which in turn violated the
Fourteenth Amendment. No 51 at 16. His complaint
says that these claims are "an appeal from the denial of
rights pursuant to Ark. Code Ann. § 25-19-101 et
seq." No 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).
Tanner pleads three state-law claims against Trooper
Ziegenhorn: malicious prosecution, abuse of process, and