Opening Brief 8th

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS

This case involves my claims that the City of Fayetteville (“City”), Mr. W. Brant Warrick and Mr. Perry Michael (Mike) McKimmey violated my First Amendment right to Free Speech and my Fourteenth Amendment right to Equal Protection. The District Court found that the City did not apply its prohibition against my changing electronic sign in a content-based manner. The District Court also ruled that the deputy prosecutor and the Sign Inspector were probably immune from liability resulting in violation of 42 U.S.C. §1983.

Oral argument is appropriate because of the importance of both the First and Fourteenth Amendment violations. I request 30 minutes of oral argument to address these important issues.

Table of Contents
Table of Authorities
Jurisdictional Statement
Statement of Issues and Standard of Review
Statement of the Case
Statement of Facts
Summary of Argument
Argument

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3
4
6
9

A. The District Court erred in concluding that the Fayetteville Sign Ordinance was not applied to my sign in a content- based manner......... 9

B. The District Court erred in not applying strict scrutiny to the Ordinance.......... 14

C. The District Court erred in allowing time and temperature displays more protection than signs communicating

D. The District Court erred in not allowing additional evidence invalidating the rationale behind the prohibition.......... 17

A. The District Court erred in ruling that my right to Equal Protection was not violated by the
application of the Ordinance......... 18

A. The District Court erred in assuming immunity would be granted to Mr. Warrick and
Mr. McKimmey.......... 21

B. The District Court erred in not granting punitive damages under § 1983.......... 27

Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993)......... 21
Buckley v. Fitzsimmons, 509 US 259 (1993)......... 22,24
Burns v. Reed, 500 U.S. 478 (1991)......... 21,23,30
Burson v. Freeman, 504 U.S 191 (1992) 14,16,17,19,20,21,22
Butz v. Economon, 438 U.S. 478 (1978)......... 21,27
Carey v. Brown, 447 U.S. 455 (1980)......... 19,21
City of Cincinnati v. Discovery Network, Inc, 507 U.S. 410 (1993)...... 10,11,12,13,15,17
City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)...... 15,19,20
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)......... 19
FCC v. League of Women Voters, 468 U.S. 364 (1984)......... 16
Forrester v. White, 484 U.S. 219 (1988)......... 22
Harlow v. Fitzgerald, 457 U.S. 800 (1982)......... 21,24,26
Imbler v. Pachtman, 424 U.S. 409 (1976)......... i,22
City of Ladue v. Gilleo, 512 U.S. 43 (1994)......... 14
Marbury v. Madison, 1 Cranch 137. 163 (1803)......... 27
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)...... 18
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)......... 14
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)...... 16
Olmstead v. United States, 277 U.S. 479 (1928)...... 9
Police Dept. of Chicago v. Mosley, 408 U.S. 92, (1972)... 19
Plyler v. Doe, 457 U.S. 202 at 216 (1982)......... 19
R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)...... 16
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105(1991)...... 11
Smith v. Wade, 461 U.S. 30 (1983)......... 28
Stromberg v. California, 283 U.S. 359 (1931)......... 16
Tower v. Glover, 467 U.S. 914 (1984)......... 21
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)......... 10
United States v. Lee, 106 U.S. 220......... 27
Ward v. Rock Against Racism, 491 U.S. 781 (1989)......... 10,14
Village of Willowbrook v. Olech, 528 U.S. 562 (2000)......... 18

Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir.1990)......... 19
Weiler v. Purkett, 137 F.3d 1047 (8^th Cir. 1998)......... 19
Whitton v. City of Gladstone, 54 F.3d 1400
. (8^thCir. 1995)...... 10,11,13,14,15,21
Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997)......... 26,27,29

North Olmsted Chamber of Com. v. North Olmsted, 86 F.Supp.2d 755 (N.D. Ohio E. Div. 2000)...... 21

42 U.S.C §1983... i, 1
28 U.S.C. § 1331....... 1
28 U.S.C. § 1291....... 1
U.S. Const. Amend. I 6
U.S. Const. Amend. XIV............. 18

. (Sup. Ct. KY, 1996) 13,14,15,17
Fayetteville, Arkansas UDO 174.08 B.. 19
Springdale, Arkansas City Code of Ordinances Chapter 98 § 2... 19

This case involves claims under 42 U.S.C §1983 filed in the United States District Court for the Western District of Arkansas on January 3, 2002. Due to the federal question presented, jurisdiction was proper in the District Court pursuant to 28 U.S.C. § 1331 .

This appeal involves a final ruling by Hon. Jimm Larry Hendren, United States District Court Judge for the Western District of Arkansas on June 19, 2003 and an order on February 3, 2003. Respectively, the District Court ruled that the City was not applying its Sign Ordinance unconstitutionally and denied my Motion Requesting Leave of the Court to Amend Complaint. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 , which provides for jurisdiction over a final judgment from a U.S. District Court. A timely appeal was filed on July 11, 2003.

1. Whether the District Court erred in holding the application of the City of Fayetteville’s prohibition against changing electronic signs not displaying the government-approved message was not an unconstitutional content-based restriction.

Whitton v. City of Gladstone, 54 F.3d 1400 (8^thCir. 1995)
Cincinnati v. Discovery Network, Inc, 507 U.S. 410 (1993)
City of Ladue v. Gilleo, 512 U.S. 43 (1994)
Flying J Travel Plaza v. Commonwealth of Kentucky, 928 S.W.2d 344 (Sup. Ct. KY, 1996)

2. Whether the District Court erred in not allowing me to amend my complaint to include Mr. Warrick as defendant based on absolute immunity.

Burns v. Reed, 500 U.S. 478 (1991)
Kalina v. Fletcher, 522 U.S. 118 (1997)
Buckley v. Fitzsimmons, 509 U.S. 259 (1993)
Anderson v. Larson, 327 F.3d 762 (8^th Cir. 2003)

3. Whether the District Court erred in not allowing me to amend my complaint to include Mr. McKimmey
or Mr. Warrick as a defendant based on qualified immunity.

Anderson v. Larson, 327 F.3d 762 (8^th Cir. 2003)
Howard v. Suskie, 26 F.3d 84 (8^th Cir. 1994)
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Behrens v. Pelletier, 516 U.S. 299 (1996)

4. Whether the District Court erred in not allowing punitive damages against Mr. Warrick and
Mr. McKimmey based on the ruling to grant absolute and qualified immunity, respectively.

Walters v. Grossheim, 990 F.2d 381 (8th Cir. 1993)
Smith v. Wade, 461 U.S. 30 (1983)
Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir. 2002)
Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997)

5. Whether the District Court erred in finding there was not a deprivation of Equal Protection when a speaker discussing suspect classes of speech is criminally prosecuted for engaging in this expressive activity.

Police Dept. of Chicago v. Mosley, 408 U.S. 92, (1972)
Carey v. Brown, 447 U.S. 455 (1980)
Burson v. Freeman, 504 U.S 191 (1992)
Weiler v. Purkett, 137 F.3d 1047 (8^th Cir. 1998)

6. As the issues in this appeal are exclusively ones of law, the standard of review is de novo.

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The City of Fayetteville (“City”) is a municipal corporation in Washington County, Arkansas. Appellee Mr. Warrick is the Deputy City Prosecutor for Fayetteville and appellee Mr. McKimmey was the Sign Inspector for the City at the time I was charged with violating the City Sign Ordinance.

I am a Certified Public Accountant and businessman who has lived and practiced in Fayetteville for over 20 years. As part of my lease agreement with Sprint Tax, Inc., I am allowed to display an electronic sign in the window of the Sprint Tax building located at 2285 West Sixth Street in Fayetteville. I was charged and convicted of violating the City’s Sign Ordinance. I filed a federal suit in the US District Court for the Western District of Arkansas on January 3, 2002 asking the Court to rule the Sign Ordinance’s prohibition against changing signs unconstitutional as applied and seeking punitive damages from the City and the other defendants.[1]

Filings and responses arguing for the inclusion of both Mr. Warrick and Mr. McKimmey as defendants in my lawsuit followed this complaint.[2] On February 3,

2003, the District Court entered an order denying my request to amend my complaint in order to include Mr. Warrick and Mr. McKimmey as defendants. The District Court supported its Order by declaring that the Mr. Warrick was probably entitled to absolute immunity and Mr. McKimmey was probably entitled to qualified immunity.[3] After I waived my right to a jury trial, the Court entered a judgment and memorandum opinion declaring the “flashing and blinking” prohibition of the Sign Ordinance constitutional as applied.[4]

I purchased an $1,800.00 changing electronic sign measuring eight inches by seventy-two inches to display my political and religious opinions[5] from inside the Sprint Tax window located at 2285 West Sixth Street, facing outward and visible from Sixth Street. None of the opinions displayed were obscene or threatening. The sign can be programmed to display up to twenty-one characters for a few seconds, go blank for a few seconds, then display another set of characters, etcetera. Mechanically, my sign functions in the same manner as several signs in Fayetteville that alternate a display of time and temperature.

On December 23, 1999, Mr. McKimmey told me that indoor signs were not regulated. Based on this and other information obtained from City officials, I purchased and installed the aforementioned sign at 2285 West Sixth Street in February 2000. I received a letter on May 25, 2000 from the deputy prosecutor, Mr. Brant Warrick (dated May 16, 2000) ordering me to remove my sign.[6]

Per a phone conversation between Mr. Warrick and myself on May 25^th, I wrote a letter[7] to Mr. Warrick explaining why I thought my sign was legal. Around June 2, 2000, I called Mr. Warrick and asked his opinion of my May 26^th letter, but Mr. Warrick asked me to call back in a week or so while he was “looking into it.” Approximately one week later, I phoned the deputy prosecutor’s office, and Mr. Warrick said that Mr. McKimmey had confirmed the facts in my May 26^th letter, but that I had not specifically mentioned that the sign would be electronic. On June 13, 2000, Mr. Warrick sent a letter to me demanding that the sign’s message be changed only once every twenty-four hours or else face “criminal prosecution.”[8] On July 5, 2000, the City filed a Criminal Summons charging me for operating my sign from June 16, 2000 through June 29, 2000 because I refused to comply with the unconstitutional demands made of me. The
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Fayetteville Police Department notified me on August 21, 2000 that they held an “active warrant for [my] arrest”.[9]

Following a trial and conviction in Municipal Court, I appealed to Washington County Circuit Court. The City, in a settlement conference, agreed, to allow me to change the message on my sign once every three hours and refunded my fines and court costs. In order to receive answers to my federal questions of Free Speech, Equal Protection and Due Process, I filed suit seeking civil damages in Federal District Court on January 3, 2002.

The District Court ruled several sections of the Sign Ordinance unconstitutional and unenforceable. However, it declined to rule the application of the “changing” prohibition unconstitutional[10] and it chose to remove Mr. Warrick and Mr. McKimmey as defendants along with all recourse to punitive damages.[11] This appeal follows the final order of the Court on June 19, 2003.

The United States Constitution guarantees certain rights to every U.S. citizen. Among these rights are Freedom of Speech and Equal Protection under the law. So fundamental are these liberties that Government may not infringe upon them without compelling interests.

In the arena of Free Speech, certain safeguards have been put into place in order to secure open channels of communication among the people. Any prohibition on speech using content-based criteria to determine applicability is presumed unconstitutional and is analyzed with strict scrutiny. Specifically, Government is barred from regulating speech on the basis of content absent some compelling justification. In addition to stating and validating such a compelling reason for content-based regulation, state actors must also draft legislation resulting in a “good fit” between the restrictions on speech and the goals of an ordinance. Without clearing these demanding hurdles, content-based regulation has no place in a free society.

My argument, given these legal conditions, is that since the prohibition of changing illumination in the Fayetteville Sign Ordinance is applied in a content-based manner, the Court must use strict scrutiny when examining it under both First and Fourteenth Amendment analysis. The City has not and, indeed, cannot prove a compelling state interest to justify the content-based application, nor does the application fit the City’s stated goals. In fact, the City has put forth the rationales of traffic safety, aesthetics and economic growth encouragement. While these are substantial interests, they are not compelling interests. Additionally, the

ordinance, as applied, does not achieve a logical fit between its objectives and its provisions.

The District Court held that the Ordinance application is not content-based and, therefore, receives only intermediate scrutiny. The District Court erred in determining that a regulation is content-based only if it directly censors or tries to control the message a citizen wishes to communicate. This argument has been specifically rejected by both the U.S. Supreme Court and the Eighth Circuit Court of Appeals.

Intimately linked to the idea of content-based regulation is the concept of equal protection. Government treating similarly situated people differently based solely on what they are saying is an affront to equal protection. Necessarily, any prohibition made based on the content of speech requires drawing a distinction between what citizens are saying. Any such regulation is, thus, subjected to the same strict scrutiny mentioned above in the First Amendment analysis.

When the City chooses to apply prohibitions based only on what a citizen chooses to put on his sign, it is violating its citizens’ First and Fourteenth Amendment guarantees.

Involved in my conviction under the flawed ordinance application, state agents acting under the color of state law violated these fundamental rights of Free

Speech and Equal Protection. The City’s deputy prosecutor infringed upon these rights while he was investigating claims against me. Since he was not acting in his role as advocate for the City, he is not entitled to absolute immunity. Based upon their own testimony, the deputy prosecutor and the Sign Inspector should have been fully aware the application of the Sign Ordinance constituted content-based regulation denying both First and Fourteenth Amendment protection. Having this knowledge and choosing to look the other way with callous disregard when it comes to fundamental rights disallows them the protection of qualified immunity and makes them liable for punitive damages under § 1983.

Experience should teach us to be most on our guard to
protect liberty when the government’s purposes are beneficial.
Men born to freedom are naturally alert to repel
invasion of their liberty by evil-minded rulers. The greater
dangers to liberty lurk in insidious encroachment
by men of zeal, well-meaning but without understanding.”

A. The District Court erred in concluding that the Fayetteville Sign Ordinance was not applied to my sign in an unconstitutional content-based manner.

The District Court first went astray when it determined that the Ordinance, as applied to me, is content-neutral by relying on incomplete readings of Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) and Ward v. Rock Against Racism, 491 U.S. 781 (1989) wherein the U.S. Supreme Court announced that

"[the] principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government had adopted a regulation of speech because of disagreement with the message it conveys.” (emphasis added) Ward at 791.

This reasoning was advanced and rejected in at least two post-Ward cases; City of Cincinnati v. Discovery Network 507 U.S. 410 (1993) and Whitton v. City of Gladstone, MO, 54 F.3d 1400 (8^th Cir. 1995). In Discovery, the High Court stated that,

“The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondent’s publications, but just last Term we expressly rejected the argument that ‘discriminatory … treatment is suspect under the First Amendment ONLY when the legislature intends to suppress certain ideas.’ Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of news racks that distribute ‘commercial handbills’ but not ‘newspapers.’ Under the city’s news rack policy, whether any particular news rack falls within the ban is determined by the content of the publication resting inside that news rack. Thus, by any commonsense understanding of the term, the ban in this case is ‘content based.’” (emphasis added) Discovery at 429, quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105.

The Eighth Circuit, likewise, refused this same rationale in Whitton where it stated,

“We reject this argument. We do not read Ward to mandate that reviewing courts are required to accept legislative explanations from a governmental entity regarding the purpose(s) for a restriction on speech without further inquiry. Ward merely instructs reviewing courts to give controlling weight to what the court determines is the government’s true purpose for enacting it.” Whitton at 1406.

The City, via the application of the Sign Ordinance, does not prohibit changing signs in general[12] -- just changing signs that do not display the government-approved message of time and temperature. As in Discovery, whether or not a sign falls within the “functioning” restriction is determined solely on the basis of what is displayed on the face of the sign. Thus, by any commonsense understanding of the term, the Ordinance is being applied in a content-based manner.

On the other hand, an inspector charged with enforcing a content-neutral ordinance should be like a man from Mars who understands neither our system of written language nor our numerical system. This person is completely content-neutral for he cannot distinguish at all on the basis of content; he must judge differences between signs based solely on other characteristics. Such an inspector
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could not look at my sign and the time and temperature signs in Fayetteville and distinguish a content-neutral reason why my sign is illegal and the time and temperature signs are not. The City, on the contrary, looks at the content of my sign to determine its legality.

The District Court continues to fail to see this facet of content-based regulation where it explains,

If the facts showed that others were being permitted to flash time and temperature on their signs and plaintiff was not, like situations would be under scrutiny. Similarly, if the facts showed that others were being permitted to flash political or religious messages on their signs and plaintiff was not, like situations would be compared.[13]

I do not purport, as the Court’s straw man argument suggests, that the City is directly regulating the content of my sign. Rather, I argue that the Ordinance, as applied, regulates on the basis of the content of my sign. The City engages in a more subtle form of content-based regulation than direct censorship by allowing more latitude for the government-approved message than my core political opinions.

Indeed, if the Discovery Court had applied the District Court’s logic, Discovery Network would have lost the case. The Discovery Court, however, did
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NOT apply this logic. Instead it stated plainly that it rejected this logic. Also, the Whitton Court concluded,

“A restriction on speech is content-based when the message conveyed determines whether the speech is subject to the restriction.” Whitton at 1403.

The District Court distinguishes my sign from time and temperature signs[14]. The distinguishing elements, however, have nothing to do with size, location, height, color, materials, etc. (i.e. time, place and manner). The District Court was able to distinguish my sign only on the basis of content. Thus, the unconstitutional application of the law is content-based.

Furthermore, other courts have recognized this important factor when it comes to content-based regulation. In a case with facts nearly identical to those in this case, the Supreme Court of Kentucky ruled that legislation distinguishing between time and temperature displays and other signs (whether commercial or non-commercial speech) are unconstitutional content-based regulations. See Flying J Travel Plaza v. Kentucky, 928 S.W.2d 344 (1996).

Unable to reach the same understanding of content-based regulation, the District Court misconstrued my arguments by stating that they compare apples to oranges. However, if one is changing apple signs or changing orange signs, he is
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still changing signs and the effect on aesthetics and public safety will be identical. Indeed, the City has not introduced any evidence to show that my changing political sign deleteriously affects aesthetics or public safety any more than changing time and temperature signs. See Id. at 349.

B. The District Court erred in not applying strict scrutiny to the Ordinance Application.

Given that the Sign Ordinance was applied to my sign in a content-based manner, the proper level of scrutiny is strict scrutiny since “under either a Free Speech or Equal Protection theory, a content-based regulation of political speech in a public forum is valid only if it can survive strict scrutiny.” Burson v. Freeman, 504 U.S 191 at 197 (1992). See also City of Ladue v. Gilleo, 512 U.S. 43 (1994).

Strict scrutiny requires the City to prove a compelling interest behind any content-based restriction of speech, and there must be a good fit between the regulation and its stated end. Ward v. Rock Against Racism, 491 U.S. 781 (1989); Whitton v. City of Gladstone, MO, 54 F.3d 1400 (8^th Cir. 1995).

On the first leg of this test, the City can show only substantial interests of aesthetics and public safety. Metromedia v. City of San Diego 453 U.S. 490 at 507 and 508 (1981); Flying J Travel Plaza v. Kentucky. Because the City has not even asserted, much less proved, a compelling interest, it cannot pass this test.

On the second leg of the test, the City cannot show a good fit between the application of the Ordinance and the objectives the regulation is meant to achieve. Under the current application scheme, thousands of changing signs can be erected that express time and temperature. However, under the same scheme, not even one sign that expresses political thought can fully function. Contrary to the assertions of the District Court, I have never predicted that thousands of changing signs would be erected. I simply asserted, as above, that the ordinance, and its current application, allow for these erections. Thus, the Ordinance and its application can hardly achieve a “good fit”. See Whitton v. City of Gladstone, MO, 54 F.3d 1400 (8^thCir. 1995); City of Cincinnati v. Discovery Network, Inc, 507 U.S. 410 (1993); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984); Flying J Travel Plaza v. Kentucky, 928 S.W.2d 344 (1996).

In summary, the City of Fayetteville has applied its Sign Ordinance to me in a content-based fashion. The City’s sign scheme, for the reasons above, cannot pass strict scrutiny in that the City cannot demonstrate and justify a compelling interest and the Ordinance’s application does not achieve a good fit between the regulation and the objectives of the Ordinance.

Therefore, the application of the Sign Ordinance to me was unconstitutional, breeching my First and Fourteenth Amendment rights.

C. The District Court erred in allowing time and temperature displays more protection than signs communicating core political speech.

Even if the City can somehow justify this unconstitutional application of its Ordinance, which I specifically deny, it would still have to explain why time and temperature is more highly protected than core political speech.

The District Court’s ruling will not allow my political sign to fully function but it will allow time and temperature signs to fully function. Under First Amendment analysis, political speech is given the highest degree of protection. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 at 422 (Stevens, White and Blackmun, JJ. concurring) (1992) “Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position….”; Burson v. Freeman, 504 U.S. 191 at 196, (1992) "There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."; FCC v. League of Women Voters, 468 U.S. 364 at 381, (1984) "Expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values."; New York Times Co. v. Sullivan, 376 U.S. 254 at 270, (1964) "debate on public issues should be uninhibited, robust, and wide-open"; Stromberg v. California, 283 U.S. 359 at 369, (1931) "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful
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means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”

It stands to reason then that time and temperature signs would enjoy a lesser form of protection than my core political speech. The District Court erred in that it provides greater protection to time and temperature signs by allowing more operational latitude than it did to my political and religious speech sign.

D. The District Court erred in not allowing additional evidence invalidating the rationale behind the prohibition.

Another point this Court should consider is that the District Court was mistaken by refusing to hear evidence of other changing signs and “attraction devices” in and around the City of Fayetteville.

When I attempted to illicit testimony from Officer Shannon Gabbard of the Fayetteville Police Department regarding the Washington County Fair, the Court sustained the objection of the City. I was attempting to show that the rationale behind the Ordinance prohibitions on “flashing” signs and devices is irrational as well inconsistent.

Indeed, Murphy Brothers Expositions, Inc. of Tulsa, Oklahoma, a private for-profit corporation, operates tens of thousands of flashing lights and attraction devices that can be seen across town at the annual Washington County Fair inside Fayetteville city limits. The University of Arkansas operates transit buses with scrolling (i.e. “flashing” under the Ordinance scheme) marquees, in traffic, all
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around town. The University also operates one of the largest animated signs or attraction devices in the entire country with its SmartVision big-screen display of all home (Fayetteville) football games.

All of these devices can be seen by the passing public and all of these devices are prohibited by the specific language of the Ordinance.[15] In spite of the Ordinance prohibitions, all of these devices are allowed to fully function without causing public safety hazards or adversely affecting the surrounding aesthetics. Additionally, surrounding towns and cities allow changing signs without any evidence of public safety or aesthetic problems.[16]

The excluded evidence could easily convince a fact finder of the irrational nature of the Ordinance and/or its application.

A. The District Court erred in ruling that my right to Equal Protection was not violated by the application of the Ordinance.

According to a long line of cases from the U.S. Supreme Court and from the 8^th Circuit, the Fourteenth Amendment guarantees equal protection. U.S. Const. Amend. XIV, § 1. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). The purpose of equal protection is to ensure that all citizens are regulated in a similar fashion. Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
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Basically, the Equal Protection Clause of the Fourteenth Amendment is “a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 at 439 (1985); see also Plyler v. Doe, 457 U.S. 202 at 216 (1982); Weiler v. Purkett, 137 F.3d 1047 at 1051 (8^th Cir. 1998); Timm v. Gunter, 917 F.2d 1093 at 1103 (8th Cir. 1990). The violation of this “equality” of protection under the law is plainly obvious in the content-based way the City applies its Sign Ordinance to changing electronic signs. Content-based regulation has been found to violate the Fourteenth Amendment since regulating on the basis of content implies drawing a distinction between what citizens are saying. Burson v. Freeman, 504 U.S 191 at 197 (1992). See also Police Dept. of Chicago v. Mosley, 408 U.S. 92, (1972) (exemption of labor picketing from ban on picketing near schools violates Fourteenth Amendment right to equal protection). City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (suggesting that exception for political campaign signs from general ordinance prohibiting posting of signs might entail constitutionally forbidden content discrimination). “Under either a free speech or equal protection theory, a content-based regulation of political speech in a public forum is valid only if it can survive strict scrutiny.” Burson at 197 quoting Carey v. Brown, 447 U.S. 455 at 461 - 462 (1980).

An example may illustrate the point. Under the current Fayetteville application scheme, two businesses located next door to each other could purchase identical electronic signs and install them in the front windows of their businesses. The first sign displays “Six O’clock,” goes blank for five seconds, displays “Central Daylight Savings Time,” goes blank for five seconds, displays “Seventy-nine degrees,” goes blank for five seconds, displays “Fahrenheit” and starts the cycle again; this sign is permitted to change. However, if the second sign displays the messages “We’re Pro-life,” “Vote Libertarian,” “Support the Mayor,” and “Recallcoody.com” in the EXACT same time, place and manner as the first sign, the second sign is illegal because it is not displaying the government-approved time and temperature message. Surely, these identically situated sign operators are not equally protected under the application scheme.

The Court seems to reason that I dropped my Equal Protection claims.[17] Of course, I did argue the claim in my complaint, and it stands to reason that Equal Protection issues are implied in a content-based regulation. Burson at 197 (1992). The City and its agents must be held liable for these blatant violations of my right to Equal Protection.

A. The District Court erred in assuming immunity would be granted to Mr. Warrick and Mr. McKimmey.

In its order of February 3, 2003, the District Court misapplied law when it denied my motion asking leave of the Court to amend my complaint for the purpose of adding additional defendants that were liable for punitive damages. The Court erred when it reasoned that allowing the amendment would be futile because, in its opinion, both additional defendants would be entitled to some sort of immunity. The Court drew this conclusion without applying the analysis generated by the cases on point. Here I present this analysis.

Mr. Warrick, the Deputy City Prosecutor, may or may not be covered by absolute immunity depending upon his function. Burns v. Reed, 500 U.S. 478 at 486. State actors who assert absolute immunity have the burden of proving such immunity. Id.; Antoine v. Byers & Anderson, Inc., 508 U.S. 429 at 432, and n. 4 (1993). Qualified immunity is the norm. Harlow v. Fitzgerald, 457 U.S. 800 at 807 (1982); Butz v. Economou, 438 U.S. 478 at 508 (1978). Even when a common law tradition of absolute immunity can be identified for a given function, the Court considers “whether section 1983’s history or purposes nonetheless counsel against recognizing the same immunity in section 1983 actions.” Tower v. Glover, 467 U.S. 914 at 920. Not surprisingly, the Supreme Court has been “quite sparing”
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in recognizing absolute immunity for state actors. Forrester v. White, 484 U.S. 219 at 224 (1988).

Additionally, the Courts have recognized that state prosecutors will perform functions such as investigator, administrator, and advocate. Only the function of advocate is covered by absolute immunity. Imbler v. Pachtman, 424 U.S. 409 (1976).

Further, the U.S. Supreme Court has concluded that “a prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested”. Buckley v. Fitzsimmons, 509 U.S. 259 at 274

In my case, the record clearly shows that I was charged with the crime of operating a functioning sign from June 16, 2000 to June 29, 2000.[18] It logically follows that Mr. Warrick could not have possessed probable cause before the crime was committed. Thus, probable cause came into existence at some point during or after the thirteen day “criminal period”.

Mr. Warrick wrote me a letter dated May 16, 2000 where he ordered me to remove my sign altogether under threat of arrest and criminal prosecution!”[19]

Again on June 13, 2000 Mr. Warrick states in a letter that, “If, however, the message on the sign remains static, i.e. does not move, change color, alternate messages or between words and the time, or change in any fashion during each 24
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hour period, then it is our position that the specific sign would not violate the ordinance and the matter would not be subjected to criminal prosecution.”[20]. In his first letter, Mr. Warrick orders me to remove my sign altogether under threat of criminal prosecution. In his second letter, he explains that after some reflection, I can keep my sign but I can only change its message once ever 24 hours.

Mr. Warrick’s letters were the beginning of the breach of my rights to Free Speech and Equal Protection. In the first letter, where he orders the removal of my sign, he is actually telling me to stop speaking altogether via the sign. In the second letter, he orders me to, “ [keep] the sign … static, i.e. does not move, change color, alternate messages or between words and the time, or change in any fashion during each 24 hour period.”[21] He does this knowing that time and temperature signs do “alternate messages…” every five seconds or so.[22]

In his deposed testimony, Mr. Warrick admits that he had driven by the time and temperature sign on North College “numerous times” and had observed it changing its message. Indeed, he had this knowledge prior to his decision to prosecute me and prior to writing his letters.[23]

Again, this is the unconstitutional application of the Sign Ordinance; time and temperature can change at will; my sign can change only once in 24 hours. In this way, my right to free speech is breached. Also, and again, my right to Equal Protection was and is breached because I am similarly situated to the owners of time and temperature signs yet the City treats us differently.

All of this occurred before June 16, 2000, i.e., before Mr. Warrick had probable cause. As such, he is not shielded by absolute immunity because, according to Buckley, he could not be acting as an advocate at this point.

Furthermore, as stated above, it is the burden of the state actor to prove the absolute immunity he/she asserts.

Under a qualified immunity theory, public officials are not subject to damages liability for the performance of their discretionary functions when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S., at 818.

In my case, the constitutional rights that were violated are Free Speech and Equal Protection. It would be difficult to imagine other basic rights that are better known by the American public. Even laypersons know that we Americans are free to speak our thoughts and we should be treated equally under the law. Surely a
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reasonable person practicing as a trained attorney would be aware of such basic rights.

Thus, Mr. Warrick breached basic constitutional rights of which a reasonable person in his position would have been aware. For this, he should answer in damages and he is not shielded by qualified immunity.

Mr. McKimmey was the Sign Inspector that signed the affidavit swearing that my sign was illegally changing its message. Since his functions as Sign Inspector were not “intimately associated with the judicial process” he is not entitled to absolute immunity.

As discussed above, Mr. McKimmey will be covered by qualified immunity if he did not breach a constitutional right that a reasonable person in his position would have been aware. However, this is not the case.

Mr. McKimmey admitted in deposition that he had a conversation with his supervisor about the fact that he could NOT unequally apply the Sign Ordinance. He also admitted that he had seen and driven by the time and temperature signs “many times” prior to filing criminal information on my sign.[24] Further, he admitted that, in a conversation with then City Attorney, Jerry Rose, Mr. Rose had
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given him a legal opinion that indoor signs could not be regulated and any portions of the Sign Ordinance that purported to do this were unenforceable.[25]

Thus, Mr. McKimmey breached my constitutional rights to Free Speech by regulating signs based on their content and he breached my right to Equal Protection by unequally applying the Ordinance when he knew I was similarly situated to the owners of time and temperature signs.

The Eighth Circuit ruled that where a defendant has knowledge that her behavior is impermissible, as here, yet still engages in it, such actions will constitute “callous indifference” giving rise to punitive damages. Williams v. Brimeyer, 116 F.3d 351 at 355 (8^th Cir. 1997).

If this knowledge gives rise to a punitive damage count under a callous indifference theory, surely this knowledge would constitute unreasonable behavior under an immunity theory.

The Trial Court erred by not considering the deposition of Mr. McKimmey where he admitted all of this knowledge. Instead, the Court relies exclusively on the evidence entered at the Preliminary Injunction hearing. Most, if not all, of this evidence is irrelevant to the issue of qualified immunity.

In summary, the District Court erred by not allowing my proposed amendment seeking to add these additional defendants and compensatory and
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punitive damages. As demonstrated above, neither Mr. Warrick nor Mr. McKimmey will be covered by any immunity theory in the final analysis.

Based on the admissions contained in their depositions and the correspondence from their respective offices, Mr. Warrick and Mr. McKimmey’s actions demonstrate a callous indifference to my federally protected rights of Free Speech and Equal Protection. Williams v. Brimeyer, 116 F.3d 351 (8^th Cir. 1997). Thus, these individuals should answer for their constitutional wrongs in damages.

[T]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws…. historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. Marbury v. Madison, 1 Cranch 137 163 (1803).

If, as the government argues, all officials exercising discretion were exempt from personal liability, a suit under the Constitution could provide no redress to the injured citizen, nor would it in any degree deter … officials from committing constitutional wrongs. Butz v. Economou, 438 U.S. 478 at 505.

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the

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law, and are bound to obey it. United States v. Lee, 106 U.S. 220 at 261 (1882).

The Courts’ reluctance to allow prosecutors to be sued is understandable. After all, what convicted criminal would not like to retaliate against the person that brought her to justice if that opportunity was available?

In all of the cases that I researched on the issue of immunity under U.S.C. §1983, all involved criminal activity that was malum in se. However, in this case, the crime I was tried and convicted of was that of speaking my political and religious opinions on my electronic sign that functions exactly like other electronic signs in and around Fayetteville.

Surely some line is crossed when a citizen is criminally prosecuted and convicted for expressing his opinions!

This is why we are asking this Court to award punitive damages in this case. See Smith v. Wade, 461 U.S. 30 (1983). This Court needs to send a clear message to prosecutors around the Eighth Circuit that criminal prosecution of expressive activity had better be on firm constitutional ground. Otherwise, First Amendment rights will be chilled, or worse, frozen, as in this case, by over-zealous government agents.

For all of these reasons, I ask this Court to please declare the application of the Sign Ordinance unconstitutional in that it breaches my rights to Free Speech and Equal Protection. Moreover, I ask this Court to enjoin the application of the Ordinance in this manner so as to allow me to freely express my political beliefs. I also request that this case be remanded for further proceedings consistent with the findings of this Court on the issues of immunity and damages.

After all, a beautiful city that has streets, boulevards, and avenues that are lined with beautiful flowers, shade trees and singing songbirds would still be a very ugly place to live if the people there were not free to express themselves.

John S. La Tour, CPA
112 Center Street, Suite 560
Fayetteville, AR 72701
(479) 443-7878
Appellant Pro Se

[1] See Relevant Excerpts of Complaint, January 3, 2002, Addendum Item F.

[2]See Excerpts of Proposed Amendment December 19, 2002, Addendum Item G.

[3] See District Court Order, February 3, 2003, Addendum Item H.

[4] See District Court Judgment, June 19, 2003, Addendum Item J.

[5] Exact messages included: “Every baby is a life. When you have a choice, choose life”; “Sprint Tax Time”; current time; “God listens”; “Duggar US Senate”; “Jesus said, ‘Come to Me you who labor and are heavy laden, and I will give you rest”; “So, you have been waiting for a sign from God. Well, here it is.”; “Hutchinson, Senate”; “Recallcoody.com”.

[6] See May 16, 2000 Warrick Letter, Addendum Item A.

[7] See May 26, 2000 La Tour Letter, Addendum Item B.

[8] See June 13, 2000 Warrick Letter, Addendum Item C.

[9] See August 21, 2000 Fayetteville Police Letter, Addendum Item E.

[10] See District Court Memorandum Opinion, June 19, 2003, Addendum Item K.

[11] See District Court Order February 3, 2003, Addendum Item H.

[12] My sign does not flash, blink or animate. It merely displays three or four words for approximately fifteen seconds, goes blank for four or five seconds, then reappears with different text for another fifteen seconds. This cycle repeats.

Under the City’s broad definition of flashing or blinking, it concludes that my sign was flashing when in reality it only changes. I introduced the Springdale, Arkansas (an adjoining city) Sign Ordinance into evidence to demonstrate a much more rational approach. In this ordinance, a distinction is made between flashing signs and changing signs; flashing signs are prohibited, while changing signs are allowed. See Addendum Item I.

[13] See Memorandum Opinion June 19, 2003 p. 21, Addendum Item K

[14] See, District Court Memorandum Opinion, June 19, 2003 at pp. 21 and 22. Addendum Item K

[15] See Relevant Sections of Fayetteville and Springdale, Arkansas City Sign Ordinances, See Addendum Item I.

[17] See Memorandum Opinion June 19, 2003 p. 27, Addendum Item K.

[18] July 5, 2000 Criminal Summons, Addendum Item D.

[19] See May 16, 2000 Warrick Letter, Addendum Item A.

[20] See June 13, 2000 Warrick Letter, Addendum Item C.

[21] See June 13, 2000 Warrick Letter, Addendum Item C.

[22] See Excerpts from Proposed Amendment, December 19, 2002, Addendum Item G.

I, John S. La Tour, do hereby certify that on the ____ day of ____________, _______ I caused a true and correct photocopy of the within and foregoing document, with exhibits, to be served on those persons shown below via U.S. First Class Mail, to wit:

1. This brief complies with F.R.A.P. 32(a) (7) (C) and local Rule28A (c). This brief was prepared and formatted in Microsoft Word 2000 (v. 9.0), with Times New Roman 14 point typeface and contains 6,287 words. See F.R.A.P 32(a)(7)(B)(iii).

2. I further certify that the computer diskette provided herein contains one file named “02-5001.doc”, that the diskette has been scanned for viruses using Norton Antivirus 2000 and is virus free.