James Andrew Tanner v. Kurt Ziegenhorn, in his individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 21-3462
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James Andrew Tanner
Plaintiff - Appellant
v.
Kurt Ziegenhorn, in his individual capacity; Bill Bryant, Colonel, in his official
capacity as head of the Arkansas State Police, an agency of the State of Arkansas;
William Sadler, “Bill”, in his individual capacity
Defendants - Appellees
John Doe, 1-5, individually and in their official capacity; Mike Kennedy,
Individually; Elizabeth Chapman, Individually
Defendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: September 20, 2022
Filed: January 20, 2023
[Unpublished]
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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.

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Openly carrying a holstered firearm at a Walmart landed James Andrew
Tanner in trouble with the law. He now sues the Arkansas trooper who stopped him.
The district court1 dismissed the case, and we affirm.
I.
Tanner ran into off-duty Arkansas State Trooper Kurt Ziegenhorn while
openly carrying a firearm in a thigh holster. Even though Walmart had no policy
against it, only law-enforcement officials could openly carry a firearm in Arkansas
at the time. See Ark. Op. Att’y Gen. No. 2013-047. When it became clear that
Tanner was not with any law-enforcement agency, Ziegenhorn asked for
identification. Tanner refused and allegedly moved his right hand toward his holster.
Ziegenhorn blocked the move by grabbing Tanner’s arm. Eventually, Tanner left
the store, only to have local police waiting for him outside.
It was not long before the dispute between Tanner and Trooper Ziegenhorn
moved from Walmart to state court. First, Ziegenhorn filed a complaint with the
Arkansas State Police to have Tanner’s concealed-carry permit revoked. See Ark.
Code Ann. § 5-73-302(a). After losing his permit, Tanner appealed to state court,
which upheld the agency’s decision. See Ark. Code Ann. § 25-15-212(a) (creating
a right to judicial review of “final agency action”). In the process, it rejected the
argument that briefly detaining him at Walmart had violated his Fourth Amendment
rights.
Second, the encounter led to criminal charges. The state charged Tanner with
obstructing governmental operations based on his refusal to provide identification.
See Ark. Code Ann. § 5-54-102(a)(1). Trooper Ziegenhorn, who was a witness at
the trial, testified that Tanner moved his right hand toward his gun during the
encounter. A state court eventually acquitted him.
1 The Honorable D. P. Marshall, Jr., Chief Judge, United States District Court
for the Eastern District of Arkansas.

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Now Tanner is the one pursuing Trooper Ziegenhorn. He claims, as relevant
here, that detaining him violated his Fourth Amendment rights, see 42 U.S.C.
§ 1983, and that Ziegenhorn committed perjury when he testified that Tanner moved
his right hand toward his gun, see Ark. Code Ann. § 5-53-102 (perjury); Ark. Code
Ann. § 16-118-107 (creating a private right of action).
The district court dismissed both claims, one on the pleadings and the other at
summary judgment. Collateral estoppel prevented him from relitigating the Fourth
Amendment issue. And the perjury claim could not get past summary judgment
because Trooper Ziegenhorn never made a “false material statement.” Ark. Code
Ann. § 5-53-102(a)(1).
II.
Tanner challenges both decisions. Our review of each is de novo. See
Bharadwaj v. Mid Dakota Clinic, 954 F.3d 1130, 1134 (8th Cir. 2020) (summary
judgment); Turner v. U.S. Dep’t of Just., 815 F.3d 1108, 1111 (8th Cir. 2016)
(motion to dismiss).
A.
In Arkansas, as elsewhere, the doctrine of collateral estoppel prevents parties
from trying to litigate the same issue twice. See State Off. of Child Support Enf’t v.
Willis, 59 S.W.3d 438, 444 (Ark. 2001). For a determination to be “conclusive in a
subsequent proceeding,” it must meet four requirements. Id. (listing them). Only
two of them, however, are in dispute here: whether the Fourth Amendment issue is
the same in both cases and whether the state court’s “determination” of it was
“essential to the judgment.” Id.
First, Tanner is suing on the same Fourth Amendment issue he raised in the
earlier proceeding. See id. Tanner asked for the return of his concealed-carry permit

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for several reasons, one of which was that Trooper Ziegenhorn had
unconstitutionally seized him at Walmart. See United States v. Arvizu, 534 U.S. 266,
273 (2002) (discussing the reasonable-suspicion requirement for investigatory
stops). The court ultimately disagreed and left no doubt about its conclusion:
“Ziegenhorn clearly had reasonable suspicion to stop and detain Tanner.” The issue
is the same here, even if Tanner is now seeking a different remedy. See Palmer v.
Ark. Council on Econ. Educ., 40 S.W.3d 784, 789–90 (Ark. 2001).
Second, deciding the Fourth Amendment issue was “essential to the
judgment.” See Willis, 59 S.W.3d at 444. Under Arkansas’s Administrative
Procedure Act, a court “may reverse or modify the [agency’s] decision” if it was “in
violation of constitutional or statutory provisions.” Ark. Code Ann. § 25-15-212(h).
It decided not to do so, which made rejecting the Fourth Amendment argument
essential to its judgment upholding the permit revocation. See Beaver v. John Q
Hammons Hotels, L.P., 138 S.W.3d 664, 667 (Ark. 2003) (explaining that two issues
were “essential” to affirming an administrative decision because “without either, . . .
the judgment would not have been able to stand”). Collateral estoppel prevents him
from getting a second bite at the apple in federal court.2
B.
Nor can he get past summary judgment on his perjury claim. It may seem
unusual for there to be a private right of action for perjury, which is a criminal
offense. But under Arkansas law, a crime victim can sue for someone else’s felony
conduct. See Ark. Code Ann. § 16-118-107; see also Hamby v. Health Mgmt.
2 Tanner’s other argument, which is that the state court deferred to the agency,
fares no better. Although it is true that Arkansas courts review administrative
decisions for substantial evidence under an arbitrary-and-capricious standard,
Wright v. Ark. State Plant Bd., 842 S.W.2d 42, 45 (Ark. 1992), the record shows that
the Fourth Amendment issue received de novo review, cf. Ark. Ethics Comm’n v.
Weaver, 617 S.W.3d 680, 683 (Ark. 2021) (“We afford no deference to an agency’s
statutory interpretation; our review is de novo.”).

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Assoc., Inc., 462 S.W.3d 346, 351 (Ark. Ct. App. 2015) (explaining how the
statutory cause of action works).
In this case, the perjury allegation arises out of Trooper Ziegenhorn’s
testimony that Tanner moved his right hand toward his holstered gun during their
encounter at Walmart. According to the complaint, the surveillance footage
conclusively rebuts his testimony and shows that he knowingly made a “false
material statement” in an “official proceeding.” Ark. Code Ann. § 5-53-102(a)(1).
The main problem for Tanner is a lack of materiality.3 Only those statements
that “affect[] or could affect the course or outcome of an official proceeding” can
support a perjury prosecution. Ark. Code Ann. § 5-53-101(1)(A). And here, “[t]he
issue” was, as the state court put it, whether Arkansas’s concealed-carry rules created
an “obligation on the part of a citizen to provide identification when requested.” See
Ark. Code Ann. § 5-54-102(a)(1). Whether Tanner reached for his gun, by contrast,
had nothing to do with that issue. To put the point in legal terms, the false statement
could not have “affect[ed] the course or outcome” of the trial. Ark. Code Ann. § 5-
53-101(1)(A).
III.
We accordingly affirm the judgment of the district court.
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3 Like the district court, we have our doubts about whether Tanner can prove
that Trooper Ziegenhorn knowingly made a false statement. After all, he relied on
his own memos and notes from the case file in preparing his testimony, not the
Walmart surveillance video.

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