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TABLE OF AUTHORITIES CITED

Cases - Federal

Ambassador Books & Video Inc. v. City of Little Rock,

20 F.3d 858 (8th Cir. 1994)........................................................................ .14

Assaad-Faltas v. University of Arkansas for Medical

Sciences,

708 F. Supp. 1026 (E.D. Ark. 1989)............................................................. 29

Central Hudson Gas & Electric Corp. v. Public Service Commission,

447 U. S. 557 (1980)................................................................................... .18

City of Cincinnati v. Discovery Network,

507 U. S. 410 (1993)..................................................................................... 8

City of Renton v. Playtime Theaters, Inc.,

475 U. S. 41 (1986)..................................................................................... .14

Cleavinger v.Saxner,

474 U. S. 193 (1985) ....................................................................................28

Excalibur Group, Inc. v. City of Minneapolis

116 F.3d 1216 (8t Cir. 1997) .....................................................................7,14

Fish v. St. Cloud State University

295 F.3d 849 (8t Cir. 2002).......................................................................... viii

Harlow v. Fitzgerald,

457 U. S. 800 (1982) ...................................................................................29

Horizon Concepts, Inc. v. City of Balch Springs,

789 F.2d 1165 (5t Cir. 1986) ............................................................................27

Hunter v. Bryant,

502 U. S. 224 (1991)........................................................................................ 29

Imbler vs. Pachtman,

424 U. S. 409 (1976) ........................................................................................ 28

J.H.H. v. O'Hara,

878 F.2d 240 (8th Cir. 1989) .............................................................................29

Mal1eyv. Briggs,

475 U. S. 335 (1986) .........................................................................................29

Members of City Council v. Taxpayers for Vincent,

466 U. S. 789 (1984) ........................................................................................ .13

Metromedia Inc. v. San Diego,
453 U. S. 490 (1981) ........................................................................................ .18

Pursely v. City of Fayetteville, Ark.,

820 F.2d 951 (8t Cir. 1987) .................................................................................20

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) ..............................................................................8, 10, 12, 13, 21, 22

U.S. v. Eichman,

496 U.S. 310, 315 (1990)................................................................................... .11

Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989)........................................................................... .8, 10, 14, 19

Whitton v. City of Gladstone, MO,

54 F.3d 1400 (1995) ........................................................................................ 8

Cases - state

City of Fayetteville v. McIlroy Bank & Trust Company,

278 Ark. 500, 647 S.W.2d 439 (Ark. 1983).. ...................................................15, 17, 19

City of Fayetteville v. S&H, Inc.,

261 Ark. 148, 547 S.W.2d 94 (Ark. 1977).......................................................15, 16, 17, 19

Culpepper v. Smith,

302 Ark. 558, 792 S.W.2d 293 (1990) ......................................................................28

Donrey Communications Co. Inc. v. City of Fayetteville,

280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)................................................... .15, 18, 19

Fisher Buick, Inc. v. City of Fayetteville,

286 Ark. 49, 689 S.W.2d 350 (Ark. 1985)........................................................... .15

Hatfield v. City of Fayetteville,

278 Ark. 544,647 S.W.2d 450 (Ark., 1983).......................................................... 15

Osage Oil and Transportation Inc. v. City of Fayetteville, (Osage I),
258 Ark. 91, 522 S.W.2d 836 (Ark. 1975) ........................................................15, 16

Osage Oil and Transportation Inc. v. City of Fayetteville, (Osage II),

1 260 Ark. 448, 541 S.W.2d 922 (Ark. 1976) ....................................................15, 16

Statutes and Rules

F.R.E. R. 401.......................................................................................................... 25

F.R.E. R. 403.......................................................................................................... 24, 25

Fed. R. App. P. R. 28 (a) (7)....................................................................................3

Fed. R. App. P. R. 28 (a) (9) (A)..............................................................................22

Fed. R. App.P. R. 28 (e)...........................................................................................3

Fed. R. App. P. R. 32 (a) (7) (C) .............................................................................33

Fed. R. App. P. R. 32 (a) (7) (B) (iii)........................................................................33

8th Cir. Local Rule 28 (A) (c) ...................................................................................33

Ark. Code Ann. § 19-10-305 (Supp. 2002)............................................................ 28

Ark. Code Ann. § 21-9-203 (Supp. 2002).............................................................. 29

Other Authority

Chapter 174 of the Unifed Development Ordinance............................................................................. 5

Local Regulation of Adult Businesses, Jules B. Gerand,West Publishing Company, 2001 Ed ...................12, 13

STATEMENT OF THE ISSUES AND STANDARD OF REVIEW

STATEMENT OF THE ISSUES

I.     Whether the District Court erred in holding that the challenged provision of the Sign Ordinance, regulating the operation of flashing or blinking signs, is constitutional?

Turner Broadcasting System, Inc. v. FCC, 512 u.S. 622(1994)

Ward v. Rock Against Racism, 491 u.S. 781, 791 (1989)

Excalibur Group, Inc. v. City of Minneapolis, 116

F.3d 1216 (8t Cir. 1997)

Donrey Communications Co. Inc. v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)

II.    Whether the District Court erred in holding that Mr. LaTour's right to Equal Protection was not violated by how the Sign Ordinance is applied to him?



Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622(1994)

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

Excalibur Group, Inc. v. City of Minneapolis, 116

F.3d 1216 (8t Cir. 1997)

Donrey Communications Co. Inc. v. City of

Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983)

vii



III.      Whether the District Court erred in holding that Mr. Warrick and Mr. McKimmey are entitled to            immunity under these facts and finding that Mr. LaTour is not entitled to punitive damages in this case?

Cleavinger v.Saxner, 474 u.s. 193 (1985)

Imbler vs. Pachtman, 424 U.S. 409 (1976)

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Hunter v. Bryant, 502 u.s. 224 (1991)

Ark. Code Ann. § 19-10-305 (Supp. 2002)

STANDARD OF REVIEW

City, Mr. Warrick, and Mr. McKimmey agree with Mr. LaTour in that the issues are exclusively ones of law and that the applicable standard of review for all issues presented herein is de novo.

Fish v. St. Cloud State University, 295 F.3d 849 (8th Cir. 2002)

viii

STATEMENT OF THE CASE

    Mr. LaTour filed his federal lawsuit on January 3, 2002 after reaching an agreement with the City regarding his violation of the Sign Ordinance in Question. Mr. LaTour I sought a declaration that the Sign Ordinance was unconstitutional as applied to him and sought punitive damages from the defendants to that action. (LaTour Addendum (hereinafter "LTA") , Item F; Original Complaint, p. 2, 7, 13)
    Subsequently, Mr. LaTour sought to amend his Complaint to add two additional defendants to his cause of action. (LTA, Item G) Specifically, Mr. LaTour wanted to add Mr. Warrick and Mr. McKimmey, appellees herein. rd. On February 3, 2003, the District Court denied Mr. LaTour's request .for leave to amend his Complaint. (LTA, Item H) Among other things, the District Court held that Mr. Warrick was entitled to absolute immunity and that Mr. McKimmey was entitled to qualified immunity. (LTA, Item H February 3, 2003 Order, p. 2-4)
    On or about May 7, 2003, the District Court called a pre-trial hearing to, among other things, evaluate whether a jury trial would be necessary in this matter. (Transcript, p. 59) During this hearing the parties agreed upon several undisputed material facts: (Transcript 2-52). The District Court determined that the issues presented by Mr. LaTour's Complaint were purely

                                                                                        1
legal and that it would not be necessary to seat a jury to hear Mr. LaTour's case. (Transcript, p. 66, 68) The parties agreed to conduct a conference call with the District Court the following day to revisit these issues before the Court entered a ruling reflecting the agreed upon material facts and indicating that there would be no need to seat a jury for Mr. LaTour's case. (Transcript, pg. 72-99)
    During the conference call, Mr. LaTour agreed to forego his request for a jury trial. (Transcript, p. 80-81) Because of the limited issues presented herein, the City also agreed not to ask for a jury trial. (Transcript, pg. 85) The District Court would not be calling a jury in for trial the following Monday. (Transcript, p. 90) The parties also agreed to accept the proffered uncontested material facts. (Transcript, p. 72-99; LTA, Item K; May 12, 2003 Memorandum Opinion, p. 2-3)1
    On May 12, 2003, the District Court entered a Memorandum Opinion holding, among other things, that the prohibition against flashing or blinking signs contained in the Fayetteville Sign Ordinance is constitutional. (LTA, Item K; May 12, 2003,
                                                                                       2                                                                                                  Memorandum Opinion, p. 17-28) The District Court entered its Judgment reflecting the same Findings on June 19, 2003. (LTA, Item J) Mr. LaTour timely appealed the District Court's rulings.

STATEMENT OF THE FACTS

    The City objects to Mr. LaTour's Statement of Facts in its entirety because his Statement of Facts does not contain the proper citations or any citations to the Record or Transcript as required by Rules 28(a) (7) and 28(e) of the Federal Rules of Appellate Procedure. The City specifically objects to the first sentence contained in Mr. LaTour's Statement of the Case and further objects to that sentence because it is internally inconsistent with the documents that Mr. LaTour cites to in support of that proposition.
    Specifically, Mr. LaTour indicates that he paid $1,800 I for his electronic sign, which is contrary to the amount that he states in the letter he cites in support of that proposition wherein he alleges that he paid $5,000 for his sign. (LTA, Item B, p. 2) In the same sentence, Mr. LaTour alleges that he purchased his sign to express his political and religious opinions, which is contrary to the language located in Item B of his Addendum where he indicates that he purchased the sign so that passersby                                                                                             3
"could easily see the signs and identify the business located in this new 1 building" and so people would "know about our business." (LTA, Item B, p. 1-3) For these reasons, the City f respectfully requests that this Court strike Mr. LaTour's Statement of the Case in its entirety.
    The material facts that have been agreed upon by the parties are set forth as follows:
         1. Mr. LaTour has an electronic sign, eight inches by seventy-two inches, mounted inside his office window, facing outward, and visible from Sixth Street, ',1 Fayetteville, Arkansas. (LTA, Item K; June 19, 2003 Memorandum Opinion, p.2)
        2. Mr. LaTour's sign can only accommodate twenty-one characters at a time. Id.
        3. The sign can be programmed so that it displays those characters for fifteen seconds, goes blank for five seconds, then displays a different group of characters for fifteen seconds, etc. Id. Mr. LaTour desires to use his sign to display messages, some of which require several different displays to complete the message.
        4. Mechanically, Mr. LaTour's sign functions in the same manner as several signs in Fayetteville that alternate a display of time and temperature.
        5. Mr. LaTour's sign can also be used without the flashing or blinking option, operating simply as a static
                                                                                           4                                                                                            illuminated sign.
        6. Mr. LaTour has used his sign to display his political and religious opinions, such as "choose life," "God listens," "stop abortion," and "recall coody. com" Id.
        7. None of the political or religious messages displayed on the sign have been obscene or threatening. !.9-:- (June 19, 2003 Memorandum Opinion, p. 2-3)
        8. On June 16, 2000, Mr. LaTour was charged with violating the Sign Ordinance, found at Section 174 of the Unified Development Ordinance ("UDO") of the City. (June .19, 2003 Memorandum Opinion, p. 3)
        9. Mr. LaTour was convicted in Municipal Court of violating the Sign Ordinance and paid a fine and costs in connection with that conviction. Id.
        10. Mr. LaTour appealed his conviction to the Circuit Court and the matter was eventually settled on terms that allowed Mr. LaTour to change the message on his electronic sign no more often than every three hours.
        11. As a result of the settlement, Mr. LaTour's fines and costs were returned to him. Id.
        12. The City has not attempted to regulate what message Mr. LaTour displays on his electronic sign, so long as
                                                                                        5
the message does not flash or blink.
        13. During the fall of 2002, Mr. LaTour had a painted sign installed on the west side of his office, visible from Sixth Street, on which he displayed his political opinions, and the City made no attempt to regulate the content of that sign. ~

14. The City's purpose, reflected in its Sign Ordinance prohibiting flashing or blinking signs, is to promote aesthetics and safety.

SUMMARY OF THE ARGUMENT

    In this case, Mr. LaTour contends that the provision of the Sign Ordinance in question is unconstitutional in how it is applied to him and his electrical sign. Mr. LaTour contends that the provision in question is a content based restriction that results in a violation of his right to Freedom of Speech and also violates his right to Equal Protection. Moreover, Mr. LaTour contends that Mr. Warrick and Mr. McKimmey are not entitled to immunity in this case and that he is entitled to punitive damages from them for their acts in enforcing the Sign Ordinance.
    The City contends that the prohibition against flashing or blinking signs is a valid time, place, or manner restriction
                                                                                6
that is content-neutral and that does not result in a constitutional violation as applied to Mr. LaTour and his sign. Mr. Warrick and Mr. McKimmey contend that they are entitled to immunity for their acts in enforcing the provision of the Sign Ordinance in question.
    The District Court correctly rejected Mr., LaTour's contentions, holding instead that the provision of the Sign Ordinance in question was content neutral, that it was not unconstitutional as applied to Mr. LaTour and that Mr. Warrick and Mr. McKimmey were entitled to immunity. This Court's precedent and United States Supreme Court precedent compelled the District Court to interpret and apply the law in the manner that it did, just as it compels this Court to affirm the result below.

ARGUMENT

I. The District Court did not err in holding that the challenged provision of the Sign Ordinance, regulating the operation of flashing or blinking signs, is constitutional.

                A. The challenged provision. of the Sign Ordinance is content-neutral.
    It is well established that an ordinance is content- neutral if it is "justified without reference to the content of the regulated speech." Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997); citing: Ward v. Rock Against Racism, 491 u.s. 781, 791 (1989) An
                                                                                     7
ordinance can be content neutral "even if it has an incidental effect on some speakers or messages but not others." Id. citing: Ward 491 u.s. at 791
    In this case, the District Court correctly found that the provision of the Sign Ordinance that prohibits flashing or blinking signs is content neutral. Mr. LaTour contends that the District Court erred in its interpretation of Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622(1994) and Ward, supra. (LaTour Brief (hereinafter (LTB") , p. 10) Interestingly, Mr. LaTour asserts that the reasoning set forth in Turner was rejected by a case that actually came before it. However, even if Mr. LaTour's assertion that the Turner reasoning was rejected by City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993), is correct, his reliance upon that case and the case of Whitton v. City of Gladstone, MO, 54 F.3d 1400 (1995), is incorrect.
    In Cincinnati and Whitton, the prohibited speech and the applicability of the ordinance depended upon the message to be conveyed. In the case at bar, flashing or blinking signs are prohibited regardless of their content. As such, Mr. LaTour's reliance upon Cincinnati and Whitton for the proposition that he asserts is misplaced. Through the course of this
                                                                                      8
litigation, Mr. LaTour has alleged that his rights have been infringed upon because of what his sign says - religious and political opinions. However, in May of 2000 when he explained the purpose of his sign to City personnel, Mr. LaTour never once mentioned that he intended to display political or religious opinions. (LTA, Item B) To the contrary, he indicated that he was interested in obtaining sign permits so that

as traffic was approaching the building ... people could easily see the signs and identify the business located new building. However, I was concerned that if ... traffic was stopped right in front of the building, there was no sign facing the north and people stopped in traffic would not know about our business.

(LTA, Item B, p.l) (emphasis added)

    Notably absent from Mr. LaTour's explanation for the need for his sign is any assertion that he intends to do anything except advertise his business. Throughout the course of this litigation, Mr. LaTour has failed to grasp that regardless of the content of his sign, if it flashes or blinks, and an exemption or exclusion to the permit process does not apply to his sign (as it does to time and temperature signs), then his sign violates the ordinance no matter what message is conveyed.
    As correctly noted by the District Court, the Turner Court acknowledged that the "principal inquiry in determining
                                                                                     9
content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government adopted a regulation of speech because of disagreement with the message it conveys." (May 12, 2003 Memorandum Opinion, p. 19) citing: Turner and, supra. In this regard, this case is very similar to Turner. In Turner, Congress passed an Act that required cable television systems to devote a specified portion of their channels to the transmission of local commercial and public broadcast stations. Turner, 512 U.S. 622 Shortly thereafter, the Act was challenged as a content based regulation that required strict scrutiny to be applied. In Turner, the Court first identified that the regulations were neutral on their face because the distinction is based "only upon the manner in which programmers transmit their messages to viewers, not the message they carry." rd. at 623,644-645 (emphasis added)
    Likewise, in this case, the prohibition against flashing or blinking signs is based solely upon the manner in which the message is conveyed, not the content of the message. As noted by the District Court:

the evidence does not support a finding that the Sign Ordinance prohibits flashing or blinking signs because the City favors or disfavors any message a citizen might want to convey by use of such a sign.

(June 19, 2003 Memorandum Opinion, p. 19-20) (emphasis added)

    Clearly, the provision of the ordinance in question is not unconstitutional on its face. As such, it must be determined whether the provision is unconstitutional as applied to Mr. LaTour. Mr. LaTour contends that because the City allows the existence time and temperature displays, the Sign Ordinance is unconstitutional as applied to him. Even a content neutral provision, such as the one in question, can be an unconstitutional content based restriction "if its manifest purpose is to regulate speech because of the message it conveys." Id. at 645-646; citing: U.S. v. Eichman, 496 U.S. 310, 315 (1990)
    In this case, the manifest purpose of the sign is to limit the number of flashing or blinking signs and to control the way that those signs function because of concerns about aesthetics and public safety. The prohibition against flashing or blinking signs absolutely nothing to do with the content of such a sign. The provision in question applies to all non-exempt signs, does not require or prohibit the expression of any ideas or expressions on the signs, does not penalize the owner of the sign
                                                                                        11
because of the views expressed on the sign. This fact is not lost on Mr. LaTour who states "I do not purport ... that the city is directly regulating the content of my sign." (LTB, p. 12)
    There has been absolutely no evidence put forth by Mr. LaTour that indicates that, by allowing time and temperature displays to function, the City is favoring one form of speech over another. Likewise, there has been absolutely no evidence put forth by Mr. LaTour that indicates that his political and religious messages are disfavored because their content.
    Mr. LaTour asserts that simply because a sign inspector must look at his to determine if the sign complies with the Sign Ordinance it is a content based provision. Moreover,

content neutrality ... [is] to be determined by looking at the ordinance's purposes, as well as its terms. If its purpose was unrelated to the suppression of speech, and if it. was viewpoint neutral, then it may be considered content neutral.

Local Regulation of Adult Businesses, Jules B. Gerand, West Publishing Company, 2001 Ed. (p. 186) (emphasis added)

    The Turner Court rejected this line of reasoning by stating that simply because the regulation has a preference for one
                                                                                   12
station over another that does not "automatically entail content requirements." Turner, 512 U.S. at 649 This is the same argument put forth by Mr. LaTour but for the reasons set forth in Turner and in the District Court's Memorandum Opinion, Mr. LaTour's argument is misplaced.
    Similarly, Mr. LaTour has also spent a significant amount of time arguing that because of the nature of signs, any restriction placed upon signs has to be content based because an inspector must look at or read the sign to determine if it is in compliance with the Ordinance. (LTB, p.11; Transcript, p. 43) Mr. LaTour's position is misplaced.

Since the one and only purpose of any sign is to communicate a message, the I question becomes: How can a regulation : of signs possibly be 'unrelated' to the suppression of speech? The answer the Court gave was that the governmental interest, not the regulation, must be 'unrelated.'

Local Regulation of Adult Businesses, Jules B. Gerand, West Publishing Company, 2001 Ed. (p. 186) (emphasis added) (referring to Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1989))
Here, the governmental interest, safety and aesthetics, is clearly unrelated to the contents of a message placed on an electronic sign. For all of these reasons, the District Court did not err in finding that the challenged portion of the Sign
13
Ordinance was content-neutral.

B. The challenged provision of the Sign Ordinance is narrowly tailored to serve a significant government interest.

    The requirement that the ordinance be narrowly tailored is met so long as the regulation promotes a significant government interest that would be achieved less effectively without the regulation or ordinance and the means chosen does not burden substantially more speech than is necessary to further the City's interest. Excalibur, 116 F.3d 1216; citing: ~, 491 U. S. at 799 "[A] City's interest in attempting to preserve the quality of urban life is one that must be accorded high respect." Ambassador Books & Video Inc. v. City of Little Rock, 20 F.3d 858 (8th Cir. 1994)quoting: City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 50 (1986) (emphasis added) Further, to be narrowly tailored, the regulation does not have to be the least restrictive means of furthering the City's interest Id.; citing: , 491 U.S. at 797 Finally, "the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, on the extent to which it furthers the government's interests in an individual case." , 491 U.S. at 801
    The fact that the Sign Ordinance is narrowly tailored to further a significant government interest is illustrated by a line
                                                                                 14
of Arkansas cases beginning with Osage Oil and Transportation Inc. v.. City of Fayetteville. 258 Ark. 91, 522 S.W.2d 836 (Ark. 1975) In fact, no fewer than six cases have challenged the sign ordinance in one form or another. Each of these courts found that the Ordinance was enacted to promote the reasonable, orderly and effective display of signs and as a tool to promote safety, recreation, public travel, to preserve the natural beauty of the City, and to promote tourism and economic advancement within the City. See generally: Osage Oil and Transportation Inc. v. City of Fayetteville, (Osage I) 258 Ark. 91, 522 S.W.2d 836 (Ark. 1975), affirmed Osage II 260 Ark. 448, 541 S.W.2d 922 (Ark. 1976); City of Fayetteville v. S&H, Inc., 261 Ark. 148, 547 S.W.2d 94 (Ark. 1977); City of Fayetteville v. McIlroy Bank & Trust Company, 278 Ark. 500, 647 S.W.2d 439 (Ark. 1983); Hatfield v. City of Fayetteville, 278 Ark. 544, 647 S.W.2d 450 (Ark. 1983); Donrey Communications Co. Inc. v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983); Fisher Buick, Inc. v. City of Fayetteville, 286 Ark. 49, 689 S.W.2d 350 (Ark. 1985). In these cases, the Ordinance was found to be constitutional with regard to flashing or fluctuating illumination signs and the Court also found that the challenged provision of the Sign Ordinance furthers a significant government interest.                                                                                                                                                                                                                 15
    The validity and purpose of the Sign Ordinance was first upheld in Osage I, supra., affirmed Osage II, 541 S.W.2d at 922. The next challenge to the Ordinance came in S&H, Inc., supra., which focused on the applicability of the Ordinance to signs that already had fluctuating illumination in place when the Ordinance went into effect. There, the Arkansas Supreme Court affirmed the portion of the Trial Court decision that found that "flashing and blinking signs were inimical to the safety of the traveling public" and allowed regulation by ordinance of such signs. 547 S.W.2d at 95 (emphasis added) The Arkansas Supreme Court, when ruling on the validity and purpose of the Sign Ordinance, held:

The prohibition against flashing or blinking signs falls within that area of police regulation that is exercised for the protection of the health and morals of the people. On its face the portion of the ordinance prohibiting the use of flashing and blinking signs would appear to be a matter that could affect the safety or health of the city.

Id. at 98 (emphasis added) .

Concurring Justices agreed with the majority and stated that the regulation of flashing or blinking signs was, in fact, a proper exercise of governmental authority. Id. at 98 McIlroy, supra., which relied in large part on the language and ideas set
16
forth in S&H, Inc., supra., questioned the validity and constitutionality of the Ordinance as applied to signs, such as the one in question, that were erected after the Ordinance was enacted. In that case the Arkansas Supreme Court stated that it "could hardly be doubted that an ordinance such as this one valid as to signs to be erected in the future." 647 S.W.2d at 440. (emphasis added). Clearly, that is exactly the question before this Court. As seen in McIlroy, the Arkansas Supreme Court has held that, absent an exemption (a fact not present here), Mr. LaTour's sign, regardless of the message contained falls squarely within the parameters of the Ordinance. Going further, the Court opined:

If the inhabitants of a city or town want to make the surroundings in which they live and work more beautiful or more attractive or more charming, there is nothing in the constitution forbidding the adoption of reasonable measures to attain that goal.

As the concurring opinion in S&H stated: 'The regulation of signs' by cities is long overdue.' If an ordinance as moderate as this one before us cannot be sustained, the possibility of effective regulation becomes almost non-existent.

17

Id. at 440-441.
Perhaps the most telling opinion on this matter is Donrey Communications, supra., where the Supreme Court of Arkansas addressed First' and Fourteenth Amendment challenges to the Ordinance. There, based on prior United States Supreme Court reasoning, the Court stated that because the Ordinance only restricted the size and location of signs, the Ordinance was content neutral. 660 S.W.2d at 902 Further, that Court held that the Ordinance "seeks to implement a substantial government interest and they directly advance that interest." rd. citing Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) & Metromedia Inc. v. San Diego, 453 U.S. 490 (1981) (emphasis added). The Court stated that the "twin goals" behind the Ordinance are substantial governmental goals. 660 S.W.2d at 903(emphasis added) Finally, the Court held

The ordinances under attack are as narrowly drawn as is practically and legally possible and the city has gone no further than necessary to meet its goals. This type of ordinance directly advances legitimate governmental interests in traffic safety, the aesthetic landscape and the tourism industry.

18

Id. (emphasis added)

The Donrey Court found that the Ordinance is, in fact, content neutral and narrowly tailored. Donrey, 660 S.W.2d at 902. Furthermore, the Court found that the Ordinance was a reasonable regulation of signs that promoted a legitimate and rational government interest. generally: Donrey, McIlroy, and S&H, Inc., supra.
The Sign Ordinance furthers its overall goal of promoting safety and aesthetics, which is another valid consideration under Ward. supra. In this case, the District Court held, based upon the same logic and reasoning set forth above, "that both the aesthetic and traffic safety rationales are sound, and that the prohibition is narrowly tailored to prevent traffic risks and to promote aesthetic considerations that motivated its passage." (LTA, Item, K; May 12, 2003 Memorandum Opinion, p. 25) For all of these reasons, this Court should affirm the findings of the District Court.

C. The challenged provision of the Sign Ordinance leaves open ample alternatives channels of communication.

Mr. LaTour is afforded ample alternatives channels of communications to express his opinions and beliefs. For example, Mr. LaTour could keep his sign static so that it does not change or Mr. LaTour could, in accordance with his plea in the Circuit
19
Court of Washington County, Arkansas, change his message once every three hours. As stated by the District Court,

Content-neutral regulations of non- commercial speech are permissible if they serve a significant governmental interest; are narrowly tailored to serve that interest; and leave open ample alternatives channels for communication of the same information.

(LTA Addendum, Item K; June 19, 2003 Memorandum Opinion, p. 23) quoting: Pursely v. City of Fayetteville, Ark., 820 F.2d 951 (8th Cir. 1987)
    There is no doubt but that there are alternative channels of communication available to Mr. LaTour. In fact, during the course of this litigation, Mr. LaTour displayed large static painted signs to express his religious and political beliefs. (Transcript, p.1S3) Mr. LaTour is allowed to operate his sign in conformity with the ordinance or the agreement he reached as a result of his plea before the Circuit Court. Moreover, the City operates a public access television station that allows citizens the opportunity to express their ideas or opinions; and the City Council meetings offer an opportunity for public comment on issues that go before the Council. Clearly, there are many other alternative channels of communication that Mr. LaTour could use to express his message and the provision of the ordinance in question is not an unconstitutional restriction upon Mr.LaTour's rights
                                                                                    20
in any way whatsoever.
    For these and the aforementioned reasons, the District Court did not err in finding that the Sign Ordinance was constitutional as applied to Mr. LaTour.

D. Because the challenged provision of the Sign Ordinance is a valid content neutral time, place, or manner restriction, strict scrutiny does not apply.

    For the reasons set forth in Subsections A. through C., the provision of the Sign Ordinance in question is a valid content neutral time, place, or manner restriction and is entitled to intermediate scrutiny, ~ strict scrutiny as erroneously asserted by Mr. LaTour.
    Moreover, as stated in Turner "it would be error to conclude ... that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium but not others." Turner, 512 U.S. at 660 This is the exact argument advanced by Mr. LaTour. Moreover, heightened scrutiny is "unwarranted when the differential treatment is 'justified by some special characteristic of' the particular medium being regulated." Id. at 660-661; internal citations omitted In this case, as the City has asserted from the beginning of this action and as found by the District Court, the restrictions placed upon Mr. LaTour's sign are
                                                                                        21
a direct result of the "special characteristic" of his sign - its flashing and blinking - ~ the content of the messages contained thereon. As such, the appropriate level of scrutiny is the intermediate level, which is applicable to content-neutral restrictions that impose an incidental burden on speech. Turner, 512 u.s. at 663 For these reasons, the District Court did not err in applying intermediate scrutiny to this action.

E. The District Court did not err in not allowing additional evidence to invalidate the rationale behind the ordinance.

    The City would suggest that this Court should strike the entire portion of Mr. LaTour's Brief that is styled as his Subsection D, starting on page 17 and ending on page 18 of his Brief. (LTB, p. 17-18) Contrary to Rule 28(a) (9) (A) of the Federal Rule of Appellate Procedure this portion, and other the other portions of Mr. LaTour's Brief, do not contain any citations of authority and do not contain citations to sections of the record upon which he is relying. As such, it is somewhat difficult for the City to reply to these arguments, it is also prejudicial to require the City to respond to an argument that is not based upon any authority or citation to any portion of the record or transcript. The Court of Appeals is not a forum to assert shotgun type
                                                                                          22
arguments, especially in a case involving a constitutional challenge, and that is what Mr. LaTour has done through a large portion of his Brief and it is- the City's position that all portions of the Brief that are not supported by a cite to authority and that all portions of the Brief that do not properly cite to the sections of the transcript or Orders that he is challenging should be stricken in their entirety from Mr. LaTour's Brief and not considered by this Court.
    Without waiving the foregoing, the City suggests that all of the additional evidence Mr. LaTour is seeking to introduce was presented in an untimely fashion, is wholly irrelevant to the case at bar, or is unduly prejudicial.[2] In the fist instance, Mr. LaTour identified a purported expert witness, Steven Smith, one week before trial of this matter and this purported expert was going to testify about various other signs or scoreboards in the area that do not come within the province of the Ordinance. (Transcript, 106-112) As noted by the District Court, Mr. LaTour identified this purported expert several months after the
                                                                                       23
expert disclosure deadline and it would be unfair surprise and unduly prejudicial to have allowed him to testify. Moreover, Mr. LaTour presented this alleged expert after the parties and the District Court had a hearing and a teleconference to discuss any disputed facts and potential witnesses. For all of these reasons, the District Court did not err in refusing to allow Mr. LaTour to present Mr. Smith as an expert. Even if Mr. Smith's testimony was relevant, which is denied, the Court has the authority to preclude the presentation of such evidence under Rule 403 of the Federal Rules of Evidence.
    Next, the City believes that Mr. LaTour seeks to introduce evidence of the manner in which neighboring towns regulate flashing and blinking signs. (Transcript, p. 44- 45) That evidence is wholly irrelevant to the case at bar and is unduly prejudicial to the City. It is irrelevant in that the only ordinance in question is the Fayetteville Sign Ordinance and no other. The manner in which neighboring communities regulate electronic signs has no bearing on the resolution of this matter, is not likely to make the existence of any fact that is of consequence to this action more or less probable. [3] Moreover, it is unduly prejudicial because
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it could result a decision upon an improper basis or comparison. For these reasons, pursuant to Rules 401 and 403 of the Federal Rules of Evidence this evidence is inadmissible.

II. The District Court correctly determined that Mr. LaTour's right to Equal Protection was not violated by how the Sign Ordinance is applied to him.

    Mr. LaTour asserts that the District Court "seems to reason that he dropped his Equal Protection claims." (LTB, p. 20) Whether or not the District Court did so is irrelevant because the .District Court still engaged in an Equal Protection analysis and correctly determined that, because the provision of the Sign Ordinance prohibiting flashing and blinking lights is content neutral, it does not interfere with the exercise of a fundamental right. (LTA, Addendum, Item K, p. 27; June 19, 2003 Memorandum Opinion, p. 27) As such, the District Court correctly determined that Mr. LaTour's equal protection challenge is fatally flawed. at p. 28
                                                                                                    25
    Mr. LaTour attempts to overcome this by analogy to two business owners who operate side-by-side. (LTB, p.20) While entertaining, Mr. LaTour's argument does not overcome the fact that time and temperature displays are exempt or excepted from the provisions of the Ordinance and that ~ other electronic signs, regardless of their message, are regulated. Mr. LaTour paints his argument in terms of religion and political speech and completely glosses over the fact that if the sign stayed static then there would not be any problem under the Sign Ordinance. Also glossed over by Mr. LaTour is the fact that he can put whatever message he wants on his sign so long as it does not flash or blink. It is Mr. LaTour's choice to try to display messages that are too large for his sign. However, the City should not have to bear the burden of his buying a sign that does not fit the size of his desired messages.
    Finally, it should, again, be pointed out that when Mr. LaTour was first alerted about his non-compliance with the Sign Ordinance, he did not express that he purchased the $1,800 [4] sign to display his religious and political opinions. (LTA, Item B) To the contrary, Mr. LaTour indicated that he wanted to use the sign to attract attention to his business and did not indicate
                                                                             26
any intention to display his religious and political opinions on the sign. This is significant because Mr. LaTour now cloaks his argument in political and religious rights when no one has ever told him that he could express those opinions on his electronic sign, so long as he could fit them on the sign that he ordered without having to make the sign flash or blink messages.

III. The District Court did not err in holding that Mr. Warrick and Mr. McKimmey are entitled to immunity and, as such, Mr. LaTour is not entitled to punitive damages.

A. Mr. Warrick is entitled to Absolute Immunity.

    In bringing his action, Mr. LaTour sought equitable and legal remedies from both the City and individual employees or representatives of the City. Mr. LaTour's claims are based upon the Sign Ordinance itself and the application of the Sign Ordinance to Mr. LaTour by employees of the City.
    The promulgation of zoning ordinances is a legislative function. Horizon Concepts, Inc. v. City of Balch Springs, 789 F.2d 1165 (5th Cir. 1986) It is established that state, regional, and local legislators are absolutely immune for actions taken solely in
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the sphere of their legislative activity. Similarly, the law allows absolute immunity for persons carrying out duties that may be interpreted as ministerial or judicial in nature, such as the activities of Brant Warrick, when the functions of the person are closely associated with the judicial process. Cleavinger v. Saxner, 474 U.S. 193 (1985) If such judicial processes are closely akin to the functions of the persons whose activity is being reviewed, then those persons are entitled to absolute judicial immunity, absent bad faith. .!2. Moreover, prosecutorial immunity protects public officials serving in their official capacity as a public prosecutor from civil suit in administering the duties of their office. Ark. Code Ann. Section 19-10-305 (Supp. 2002); Imbler vs. Pachtman, 424 U.S. 409 (1976); Culpepper vs. Smith, 792 S.W.2d 293 (1990). Prosecutorial immunity is also absolute, even if malice is alleged.
    In this case, the District Court correctly found that Mr. Warrick was entitled to immunity. For the reasons set forth in that Opinion and herein, this Court should affirm the decision of the District Court.

CONCLUSION

The District Court correctly applied all applicable law to the issues at bar herein, and correctly determined that the challenged portion of the Sign Ordinance was a constitutional time, place, and manner restriction and that Mr. LaTour's rights had not been violated in any way whatsoever by the challenged portion of the Sign Ordinance. For the reasons set forth herein and contained in the District Court Opinion, this Court should affirm the findings of the District Court.

Respectfully submitted:
Woody Bassett (AB#77006)
Paul E. Thompson; Jr. (AB#2002111)
BASSETT LAW FIRM P.O. Box 3618
Fayetteville, AR 72702 (479) 521-9996
Attorneys for Appellees

CERTIFICATE OF COMPLIANCE

I. The undersigned hereby certifies that this Brief complies with Federal Rule of Appellate Procedure 32 (a) (7) (C) and Eighth Circuit Rule 28 (A) (c) .

II. The undersigned hereby certifies that this Brief was prepared with Microsoft Word 2000, and was prepared in Courier New Font Face, in Font Size 12. The text is monospaced and the Brief contains 903 lines. As such, this Brief is in compliance with Federal Rule of Appellate Procedure 32(a) (7) (B) (iii).

III. The undersigned hereby further certifies that the digital version of this Brief submitted herewith has been scanned for viruses and is saved in Word format.

Wood Bassett

CERTIFICATE OF SERVICE

This is to certify that I have on this day served counsel for all parties in the foregoing matter with a true and correct copy of this pleading by depositing in the United States mail a copy properly addressed with adequate postage thereon.

Dated this 15th day of September, 2003.

TO: Mr. John S. LaTour, CPA
112 Center Street, Suite 560 Fayetteville, AR 72701

ADDENDUM

In his Brief, Mr. LaTour cites to certain portions of Mr. Warrick's and Mr. McKimmey's depositions. (LTA, Item G) It is the City's position that the summary of these gentlemen's testimony does not accurately reflect what they testified to and that, specifically, their actual testimony does not support the propositions put forth by Mr. LaTour in his Brief. Their actual testimony follows.

Relevant Excerpts of Mr. Warrick's Deposition.

Questioning by Mr. LaTour:

Q: It is very small. It's not nearly as noticeable as the one on North College. So you've been by the time and temperature display on North College numerous times and you've seen it functioning; is that correct?

A: Yes, sir.

Q: Had you been by there before you prosecuted my case?

A: Yes, sir.

Deposition of Brant Warrick, p. 27, 1. 19-25

Q: If you're going to pull somebody into court and prosecute them for criminal activity, it seems to me like it would be due diligence on your part to make sure that the law you're enforcing is constitutional. Did you look up anything? Did you do any research on the sign ordinance to make sure that what you were enforcing was, indeed, constitutional?

A: I reviewed the ordinance and read it and it appeared to be a valid ordinance, and I made the decision to file charges.

Q: SO in your opinion the law was constitutional when you filed charges? In your opinion I suppose it's still legal; right?

A: Yes, sir.

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Q: That's still your opinion? So you didn't look up any cases? You didn't do any what we call legal research, per se, get on-line or go to a set of law books and look up things like prior restraint or content regulation?

A: I did not look it up for this case, no, sir.

Deposition of Brant Warrick, p. 16, 1. 9-15 & p. 17, 1. 1-2

Relevant Excerpts of Mr. McKimmey's Deposition. Questioning by Mr. LaTour:

Q: Okay, and I realize I'll have a better memory of it than you would because it's my money at stake. It's my name at stake through all this, but I specifically remember asking you, "Can I have a

sign in my window?" and you said, "Inside?" and I said, "Yes," and you said, "If it's inside, I won't mess with it," or something to that effect.

A: I can - I've said that many times.

Q: Does that sound -

A: Yes.

Q: And I pressed you. I was surprised that there was a sign the City of Fayetteville would not mess with, and I said to you, "Even if it's facing outward, meant to attract attention outside?" and you stood by your statement and said, "If it's inside, I don't mess with it." Do you think that's correct?

A: That's very likely correct.

Deposition of Mike McKimmey, p. 21, 1.19-25 & p.22, 1. 1-7

Q: Okay. Probably not. I don't think I would describe it as a flashing light or a blinking light. I would describe it as a red light or a stoplight. I wouldn't agree with me either if I did that. Have you ever believed that indoor signs are not regulated or that they were not your responsibility as a sign inspector? Have

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you ever held that belief any time during your life, let's say professional life? Do you have a recollection of that? Were you ever under the impression that indoor signs were outside the realm of your responsibility as sign inspector?

A: Yes.

Q: Do you think you had that impression on December 23rd 1999?

A: Certainly.

Q: Certainly. Okay. You were under that impression that indoor signs were outside your area of responsibility? Okay.

A: That's a restatement of what - I didn't say that.

Q: Okay. Has it ever been in your - one of your beliefs or one of your impressions that indoor signs are not regulated by the Fayetteville city sign ordinance, and, as such, they're outside of your responsibilities to enforce?

A: My practice and my training, signs that were inside the window were routinely not enforced.

Q: Okay. Your practice and your training. So you were trained by the city not to enforce the sign ordinance against signs that are inside the window?

A: Correct.

Q: I guess the next question would be - it's not on my script, but what was different about my case? My sign was inside the window.

A: Your sign violated the ordinance that prohibited flashing, moving lights.

Deposition of Mike McKimmey, p. 26, 1. 11-25 & p. 27, 1. 1- 20

Q: Okay.

A: And as always by practice, and I need to add furthermore that this was - every policy that I express here was run through previous administrations, through the city attorneys. This is not something I did.

Q: SO the whole city infrastructure, legal and otherwise, political and legal, trained you to ignore signs or to say that they were not under the -

A: I wouldn't say it like you said it, no.

Q: Okay. How would you say it?

A: It was found to be in a legal opinion from a previous city attorney to be an unenforceable section.

Deposition of Mike McKimmey, p. 27, 1. 1-12

Q: Okay. When you would go on these patrols, where would you patrol? Residential or commercial areas or both?

A: The affirmative answer to the previous question was based on memory. There was a complaint to the mayor's office about a banner, and we had a discussion with my boss that I could not be unequally enforcing it, and therefore, all the banners would have to be addressed, and I spent a week visiting every business from Cafe Santa Fe to the courthouse to the city limits and back. Five days.

Deposition of Mike McKimmey, p. 9, 1. 10-18

Q: Okay. While you were working at the City of Fayetteville as the sign inspector, did you ever have occasion to drive on North College?

A: Yes.

Q: Did you ever drive, say, from downtown to them all area on North College?

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A: Many times.

Q: And as you were driving, as was your habit when you were going out for field work and whatnot, you would observe signs?

A: Correct.

The agreed upon material facts are set forth in the "Statement of the Facts. II Infra. 2
Because Mr. LaTour did not cite to any portion of the transcript for his allegations on these issues it is impossible for the City to accurately respond to his contention in this area.
This is especially applicable in this case where, as reflected in the District Court's June 19, 2003 Memorandum Opinion, the parties have agreed upon all material facts.
In his initial correspondence with the City on this issue Mr. LaTour alleged that he paid $5,000 for his electronic sign. (LTA, Item B, p.2-3)
The actual text of the portions of the deposition that Mr. LaTour is citing to are set forth in their entirety in the City's Addendum.