IN THE UNITED
STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
JOHN S. LA TOUR PLAINTIFF
VS. Case No. 02-5001
CITY OF FAYETTEVILLE, ARKANSAS DEFENDANT
ORDER
Now on this 3 day of February, 2003, comes on for consideration plaintiff's Motion Requesting Leave Of The Court To Amend Complaint (document #48), and from said motion, and the response thereto, the Court finds as follows:
1. Plaintiff seeks a ruling that the defendant has violated his First Amendment rights by enforcing its Sign Ordinance against him in a way that amounts to a prior restraint of his freedom of speech. He now seeks leave to amend his Complaint to add two defendants, Mike McKimmey and Brandt Warrick1, on the theory that those individuals acted under color of state law to deprive him of his First Amendment rights and to violate his right to equal protection.
2. F.R.C.P. 15(a) requires that courts grant leave to amend pleadings freely when justice so requires. Leave to amend is legitimately denied where it will result in undue delay coupled with undue prejudice to the opposing party, where it is the result of bad faith or dilatory motive, or where the amendment would be futile. Dennis v. Dillard Department Stores. Inc., 207 F.3d 523 (8th Cir. 2000). It is in light of these principles that the Court must examine the
pending motion.
3. Plaintiff's proposed amendment alleges that Warrick, the defendant's deputy prosecuting attorney, ordered the
removal of plaintiff's flashing electronic sign and prosecuted plaintiff for operating the sign, while allowing flashing electronic time
and temperature signs to operate. The proposed amendment also alleges that McKimmey, while serving as the defendant's sign
inspector, ordered plaintiff I to stop operating his sign, and later swore out an affidavit stating that plaintiff's sign was in violation
of the Sign
Ordinance, while not making a similar order with regard to time and
temperature signs and while McKimmey
believed that it was illegal for him to
order plaintiff to stop operating his sign.
4. With regard to the proposed amendment as against Warrick, the Court notes that he was acting in his capacity as deputy prosecutor for the City of Fayetteville in connection with the allegations. In initiating and prosecuting criminal charges, a state prosecutor is absolutely immune from civil liability pursuant to 42 U.S.C. §1983. Imbler v. Pachtman, 424 U.S. 409 (1976). While this immunity is limited to functions closely tied to prosecution, and has been held not to apply to the giving of advice to police officers, Burns v, U.S. 478 (1991), the proposed allegations as against Warrick fall within the parameters of absolute immunity. Thus to allow the proposed amendment as against Warrick would be a futile thing, since the claims against him would have to be dismissed on the basis of prosecutorial immunity. 5. McKimmey, as defendant's sign inspector, is not entitled to absolute immunity for his actions, but may be entitled to qualified immunity. In O'Malley v. Briggs, 475 U.S. 335 (1986), the Supreme Court examined the level of immunity available to a police officer in swearing out an affidavit for an arrest warrant, a situation closely analogous to the conduct alleged on the part of McKimmey. The Court there decided that the defendants "will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized."
In the case at bar, the Court looks to testimony and documents placed into evidence by the parties at the hearing on plaintiff's motion for .temporary injunction, finding therein the following:
* The Ordinance prohibits any sign "which flashes, blinks, or is animated." §174.08(B).
* Plaintiff's sign, when operated- as he desires in flashing mode, flashes or blinks.
* Signs located in buildings are exempt from the permit requirement if they are not visible to the public outside the building. §174.03(K).
* Plaintiff's sign is visible to the public outside his building.
* No City official has ever taken any action to prevent plaintiff from displaying any message he chooses on his sign, so long as it does not flash or blink.
Based on the evidence at the hearing on the motion for preliminary injunction, the Court found "a serious question as to whether time/temperature signs constitute speech as that word is understood in First Amendment jurisprudence." (Order dated December 20, 2002.)
Taking the foregoing into consideration, the Court now finds that officers of reasonable competence could disagree on whether a warrant should issue under the facts of this case. That being true, McKimmey would be entitled to qualified immunity on plaintiff's proposed allegations as against him, and the amendment would be futile as to him.
6. Because both aspects of the proposed amendment to plaintiff's complaint would be futile, inasmuch as the claims to be alleged would simply then be dismissed on the basis of the immunity. arguments outlined above, th.e Court finds that plaintiff's motion must be denied.
IT IS THEREFORE ORDERED that plaintiff's Motion
Requesting Leave Of The Court To Amend Complaint is denied. IT IS SO ORDERED.
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE