UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_________________________________________

Case No. 03-2824

_________________________________________

John S. La Tour, CPA,

Appellant,

vs.

City of Fayetteville, Arkansas,

W. Brant Warrick, and

Perry Michael McKimmey

Appellees.

_________________________________________

APPELLANT’S REPLY BRIEF

_______________________________________________________

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

Case Number 02-5001

John S. La Tour, CPA

112 West Center Street

Suite 560

Fayetteville, AR 72701

(479) 443-7878 Appellant Appearing Pro Se

________________________________________________________________

Table of Contents ………………………………………………………….…. i

Table of Authorities ………………………………………………………….. ii

Introduction ……………………………………………………………………1

City Ignores As-Applied Challenge …………………………………………...1

City's Reliance on Turner is Misplaced ……………………………………….2

City's Flashing Prohibitions Are Not Narrowly Tailored ……………………..5

Only………………………………………………………………………….. 7

City's Reliance on Adult Business Publication is Misplaced ………………… 8

Inaccurate Statement by the City …………………………………………….. 9

Absolute Immunity …………………………………………………………..12

Qualified Immunity ………………………………………………………… 13

Conclusion …………………………………………………………………. 15

Certificate of Service ………………………………………………………...16

Certificate of Compliance ……………………………………………………17

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)………………………………………….12

1993)…….………………………………………………………………………….…...4,5

City of Ladue v. Gilleo 512 U.S. 43, (1994)………………………………………….4,5,6

Elrod v. Burns, 427 U.S. 347 (1976)…………………………………………………….11

North Olmsted Chamber of Com. v. North Olmsted, 86 F.Supp.2d 755 at 768 (N.D. Ohio

E. Div. 2000)……………………………………………………………………………..12

Malley v. Briggs, 475 U.S. 335 at 341 (1986)…………………………………………...13

R.A.V. v. City of St. Paul, 505 U.S. 377 at 422 (1992)…………………………………...4

Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501,

508-509 (1991)……………………………………………………………………………5

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)……………………….2,3

Whitton v. City of Gladstone, MO, 54 F.3d 1400 (8th Cir. 1995)………………………..4

Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530 at 537 (1980)………………………………………………………………..8

Flying J v. Kentucky, 928 S.W.2d 344 (Sup. Ct. KY, 1996)…………………………11,12

City of Fayetteville v. S&H. Inc., 261 Ark. 148, 547 S.W.2d 94 (1977)…………………6

INTRODUCTION

In its Opening Brief, the City engages in a classic argumentative technique by shifting the scope of its arguments to emphasize the wrong point of law. Instead of presenting arguments supporting the District Court's ruling that the Sign Ordinance was applied to me constitutionally, the City, interestingly, argues that the Ordinance is constitutional on its face. These "shifted" arguments are close but not on point. Indeed, a law can be drafted and stated in a constitutional manner, but if it is applied unconstitutionally, Civil Rights are violated and constitutional wrongs are perpetrated.

The City also peppered its brief with inaccurate statements and misapplied conclusions.

1. I object to the City’s Statement of Issues. In its very first Issue, the City misconstrues my Constitutional challenge and builds its entire brief on this misconstrued argument.

The City frames the issue as a facial challenge to the actual printed law but that is not my issue at all. My issue is how this flashing prohibition can be applied constitutionally when the City routinely allows some flashing devices to function. At the same time, it won’t allow my political speech sign to similarly function in spite of the fact that political speech enjoys the highest degree of First Amendment protection.

Because the City’s first issue is the foundation of each of its other two issues, I object to its entire Statement of Issues. I respectfully request that this Court consider the City's Statement of Issues irrelevant.

The City frames the question as it does because the City cannot win the as-applied challenge. Under an as-applied challenge, the City is at a complete loss to explain why a functioning time and temperature sign is any more or less aesthetically pleasing than a changing “Elect Smith” sign. Likewise, the City has not and cannot explain why one of these signs might cause public safety concerns and not the other.

By refusing to argue my as-applied issue, the City has apparently conceded this point.

2. The City’s reliance on Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) is completely misplaced. (City's Opening Brief p. 21 Hereinafter “COB”). By quoting Turner, the City implies that the issue relates to the difference between electronic signs and other signs. However, in this case, we are talking about only one medium, electronic signs (devices), and the City’s official policy of allowing some to function but not others. Turner deals with different media while this case deals with only one, electronic signs.

The City attempts to convince this Court that my sign has a characteristic that is different from time and temperature signs. However in its very own statement of facts, the City admits that,

Time and temperature signs and my sign are both part of the same medium, electronic signs. The City’s contrary assertions are completely incorrect.

The City, on the other hand, distinguishes, in its application of the Ordinance, between functioning electronic signs solely on the basis of the message conveyed. Time and temperature signs and carnival lights can function without limitation, while other electronic signs and devices conveying other messages cannot similarly function . Thus, the application of the Ordinance is content-based. The District Court erred by failing to see this aspect of content regulation.

3. The City maintains that its flashing prohibitions are based "solely" on the manner in which a sign operates and not on the content of the sign (COB, pp. 10 - 11).

However, the Fayetteville City Attorney, Mr. Kit Williams, admitted in open Court, that the regulations ARE applied in a content-based manner:

“A restriction on speech is content-based when the message conveyed determines whether the speech is subject to the restriction.” Whitton v. City of Gladstone, MO, 54 F.3d 1400 (8^th Cir. 1995) at 1403.

If my sign is displaying time and temperature, I can operate it. If, however, as Mr. Williams so candidly admits, my sign is displaying core political speech, I cannot similarly function. Thus, the content of the sign determines if the restriction applies.

In its attempts to cloud this as-applied issue, the City completely misses a major point of Discovery Network, Inc. v. City of Cincinnati, Ohio, 507 U.S. 410 (1993) . In Discovery the U.S. Supreme Court stated,

Similarly, the City’s regulation of electronic signs, as applied, is determined by the content of the message resting on the sign’s face. Thus, by any commonsense understanding of the term, the application of the City’s sign regulation is “content-based.” The District Court erred by failing to recognize this. Furthermore, because of this failure, the District Court is affording greater protection for time and temperature speech than core political speech. This is impermissible. See, R.A.V. v. City of St. Paul, 505 U.S. 377 at 422 (1992) .

"With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one (emphasis

supplied). Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501, 508-509 (1991). City of Ladue v. Gilleo, 512 U.S. 43 (1994) at Justice O’Connor, concurring.

While my sign was not being displayed from my home, it was being displayed from inside of a building I own. Thus the political speech I was displaying was on private property and I am a private citizen. Additionally, the City did engage in content discrimination in that it prohibits my sign from functioning, based solely on its content, but allows time and temperature signs to function. Thus the City’s regulation is “presumptively impermissible.”

4. The City cannot prove that its Ordinance is narrowly tailored when the Ordinance and its application allow for the existence of an unlimited number of flashing time and temperature signs. See the Ordinance provisions generally where there are no limits placed on the number of time and temperature signs.

Just as in Discovery, the City, under its Ordinance and application scheme, has not reduced the number of changing electronic signs at all, but it has reduced the number of changing electronic signs that express core political speech, to zero. See Discovery at 426.

Of course, the City could remedy this content-based application of their Ordinance by simply eliminating all electronic signs. For the reasons expressed by the Ladue Court, this would be eliminating an entire method of speaking, electronic signs, which is constitutionally impermissible. See Ladue at 55.

It is also important to note the U.S. Supreme Court’s reasoning in Ladue . Here the Court reasoned that even for the affluent, the additional cost or effort involved in

communicating via alternate channels of communications, (i.e., TV ads, picketing, radio, newspaper) often times makes the difference between participating or not in a public issue debate. See Ladue at 57.

What was true in Ladue for Gilleo’s hand stenciled anti-war sign is also true of electronic signs. Because of their ability to change their messages quickly and easily, electronic signs are uniquely equipped to respond to hour-by-hour events in the life of a community. See Ladue at 54. Billboards and painted signs cannot respond to daily headlines on an hour-by-hour basis like electronic signs. Electronic signs are an important and distinct method of speaking. Prohibiting them would be prohibiting too much speech. Ladue at 55.

5. The City presents seven Arkansas cases that are completely irrelevant to the issues before this Court. Each of these cases address a facial challenge to the Ordinance while NONE of them discuss my as-applied challenge.

Indeed, the District Court concluded these cases were NOT on point when asked by the City to dismiss this case on a theory of res judicata. In response to that request the District Court stated:

Defendants first argue that preclusion is called for because previous cases decided by the Arkansas Supreme Court have upheld the constitutionality of the Ordinance. Fatal to this argument is that none of those cases addressed the precise constitutional issue raised by the case at bar. They addressed the constitutionality of sign ordinances in general, as regulations promoting traffic safety and municipal beauty, and most of them also addressed the constitutionality of amortization provisions for nonconforming signs that predated the Ordinance. While City of Fayetteville v. S&H. Inc., 261 Ark. 148, 547 S.W.2d 94 (1977) did, as defendants assert, uphold the constitutionality of an ordinance prohibiting flashing or blinking signs, ….. it did not consider whether it is

constitutional to allow a flashing or blinking sign which displays time and temperature, while prohibiting a flashing or blinking sign which displays some other message. The Court concludes that none of the cases cited by defendants will sustain their preclusion argument. (District Court Order Dated July 18, 2002, p. 8). (Emphasis Supplied).

Moreover, none of these cases involved over-zealous City employees who admitted knowing that other signs and attraction devices were flashing with impunity while they were prosecuting me for operating in the same manner.

For these reasons, the City’s discussion of these cases should be ignored by this Court as irrelevant.

6. At several points in its brief, (COB, pp. 9, 11,17, and 26) the City states or implies that time and temperature signs are exempt from the Ordinance’s flashing and blinking prohibitions. This is incorrect.

“Exemptions shall not be construed as relieving the owner of such signs from the responsibility of complying with …this chapter. The exemptions shall apply to the requirement for sign permit ONLY (emphasis supplied). Unified Development Ordinance “UDO” Sect. 174.08

It shall be unlawful for any person to erect additional attraction devices or signs or to continue in operation of an attraction device or sign which flashes, blinks, or is animated. Illumination of attraction devices or signs located in the city that fluctuates in light intensity shall be prohibited. UDO Sect. 174.40

The one and only item that exempt signs are exempted from is the sign permit requirement. The exemption, as stated above in the actual regulation, does not exempt any signs or attraction devices in the City from any other provisions of the Sign Ordinance. This is plain and simple from even a casual reading of the Ordinance. The City, however, implies otherwise. (COB, pp. 9,11,17, and 26).

Furthermore, even if the City’s “exemption” assertions were true, which I specifically deny, the Ordinance would then be invalid on its face, since it makes distinctions among signs based solely on their content. Indeed, in its Final Report and Order, the District Court struck down eleven other sections of the Ordinance as impermissible regulation for this very reason.

7. Likewise, the City fails to address my as-applied question when it recites quotes from Local Regulation of Adult Businesses, by Jules B. Gerand sic. (COB, pp. 12, 13). The City’s quotes deal directly with the manner in which an ordinance is written or drafted. Thus, it is not on point. Moreover, the authorities have repeatedly stated that viewpoint neutrality does not equal content neutrality. See Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530 at 537 (1980) . This Court should disregard the City’s quoted material as completely irrelevant.

8. The City states, “In the case at bar, flashing or blinking signs are prohibited regardless of their content”. (COB, p.8).

This statement is incorrect. The City allows flashing and blinking signs if they state time and temperature and has allowed this for the last 30 or so years. The City also

allows other flashing or blinking attraction devices at commercial carnivals that come to town every year. When I attempted to introduce evidence of these carnival flashing-light devices, the City objected and the District Court erred when it sustained the objection.

9. In my Statement of Facts, I make no fewer than four references to documents that are part of the Record. The references plainly point to copies of these documents that I included in my Addendum. Thus, it is inconceivable that my brief “does not contain …any citations to the Record …” (COB p. 3) or that I somehow misled this Court by these references.

The City would like to have my facts replaced by the stipulated facts precisely because the stipulated facts were formulated AFTER the District Court denied my request for damages. These stipulated facts do NOT show any culpable activity on the parts of Mr. Warrick and Mr. McKimmey. My Statement of Facts, conversely, demonstrates that these state actors were ordering me to stop speaking, via my sign, under threat of criminal prosecution and arrest, while they knew other signs and attraction devices in town were operating like mine. Moreover, these state actors used various forms of intimidation in an effort to silence me and rid themselves of my appeals. For these reasons, my Statement of Facts is necessary for the consideration of this Court.

10. The costs of my sign and my original intentions have nothing to do with the issues in this appeal. Such smokescreen arguments can only divert attention away from the real issues.

11. The City’s Opening Brief title page, is confusing because it lists Appellees that I did not include in my appeal. Does the City want to add these additional Appellees?

12. Further, in its request to strike parts of my brief, the City is unclear. The City first states that it objects to my Statement of the Facts. (COB p. 3) It then continues by arguing, in the same paragraph, that the first sentence in my Statement of the Case should be struck. Such inconsistency is difficult to argue, prejudicial, and further evidence that the City’s strike request should be denied.

13. Contrary to the City assertions regarding Section D in my opening brief beginning on page 17 (COB, p. 22), I make at least two references to evidence that is included in the Record. As such, the City’s position is not prejudiced nor is my argument difficult to respond to. The City would simply rather this Court not know about all of the flashing attraction devices allowed by the City. Thus I strongly oppose the City’s efforts to strike Section D of my Opening Brief.

The additional evidence centers around the irrational reasoning behind the flashing prohibitions in the first place. If neighboring cities allow changing electronic signs without adversely affecting aesthetics and safety, this Court can logically conclude that Fayetteville may be able to do the same. In similar fashion, if Fayetteville allows commercial carnivals to flash and blink thousands of lights and attraction devices without adverse affects, why would my functioning political sign cause these effects?

This evidence is vital to the fair determination of this case in that it strongly suggests the irrational nature of the Ordinance.

“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.” (COB, p. 12).

The basis for this entire proceeding is the fact that I was criminally prosecuted and convicted for operating a sign that operates just like time and temperature signs. I have introduced manifest evidence of this prosecution and conviction. (La Tour Addendum (hereinafter “LTA”), Items D and E; District Court June 19, 2003 Order, p. 3; COB, p. 5). There is also ample support in the record to indicate that time and temperature sign operators are not criminally prosecuted. See District Court Statement at 5 above. Therefore, time and temperature speech electronic signs are favored while political speech electronic signs are disfavored, by criminal prosecution, no less.

Thus, the City’s argument is misplaced or, worse, misleading. The operators of time and temperature signs have been operating for nearly thirty years within the City without interference or prosecution from the City. The City cannot maintain otherwise because it did not present proof of such prosecutions at the Trial Court level. I operated my sign for about four months before I was criminally prosecuted. That is disfavored.

15. The City has not and, indeed, cannot produce evidence that the functioning of electronic signs and attraction devices has caused any harm to aesthetics, public safety or economic progress. Indeed, the City bears the burden of proving this nexus. See Flying J v. Kentucky, 928 S.W.2d 344 (Sup. Ct. KY, 1996) and Elrod v. Burns, 427 U.S. 347 (1976). After allowing flashing and blinking time and temperature signs for nearly thirty years, the City can hardly claim now that they cause harm. If that were so, why didn’t the City introduce evidence of this harm when it had the opportunity in District Court?

Surely, a sign that alternates a display of “Vote for Smith” and “Secure Liberty” is no more harmful than a sign that alternates of a display of “Time: 9:40am” and

11

“Temperature: 99 Degrees”. See Flying J v. Kentucky and North Olmsted Chamber of Com. v. North Olmsted, 86 F.Supp.2d 755 at 768 (N.D. Ohio E. Div. 2000).

16. While the City’s opening brief completely ignores the absolute immunity standards established in the U.S. Supreme Court case of Buckley v. Fitzsimmons, 509 U.S. 259 (1993), it does cite several other cases. However, all of the cited cases, interestingly, were decided prior to Buckley. In this appeal, Buckley is particularly significant precisely because it is dealing with the functions of a prosecutor.

The public policy position in Buckley is also applicable here. The Supreme Court has plainly stated that constitutional wrongs cannot be tolerated and persons, under color of state law, who breach the Civil Rights of others, should answer in damages. Indeed, the Buckley Court put it this way,

A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as “preparation” for a possible trial; every prosecutor might then shield himself from liability for a constitutional wrong against innocent citizens by ensuring that they go to trial. When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same.” Buckley at 276 (1993).

Mr. Warrick could not have had probable cause prior to my “criminal period” of June 16, 2000 through June 29, 2000 as stated in the Criminal Summons. SEE LTA, Item D. Thus his correspondence with me demanding that I, either remove my sign altogether or that I NOT function my sign like other signs and attraction devices were allowed to function, clearly occurred before the judicial phase of the prosecution. Mr. Warrick was certainly functioning as an investigator at this time and, thus, is not protected by absolute immunity.

17. With regard to qualified immunity, Mr. Warrick and Mr. McKimmey will be immune if they did not breach a constitutional right of which a reasonable person (objective standard) would have been aware. At least one of the City’s cases described this standard as,

In his deposition, Mr. Warrick candidly admits that he had “read the Ordinance” and that he had seen time and temperature signs functioning. (LTA, Item G) If two reasonably competent prosecuting attorneys had read the Ordinance, they could NOT disagree on the subject of flashing signs. The Ordinance plainly states that NO sign or attraction device can flash, blink or be animated. UDO Sect. 174.40. See above at 6.

Likewise, two reasonably competent attorneys could not read the Ordinance and disagree about what “exempt signs” are exempted from. The Ordinance plainly states that the exemption “shall apply to the requirement for sign permit ONLY (emphasis supplied). UDO Sect. 174.08 and quoted above at 6.

So, two reasonably competent attorneys would have to conclude that the City was regulating signs on the basis of their content by the fact that the City allows time and temperature signs to operate but not my core political speech sign. Also, these two attorneys would have to agree that the Ordinance was being applied in a content-based, manner just as Mr. Kit Williams, the current City Attorney, so frankly admitted at above at number 3. Accordingly, Mr. Warrick will not be immune.

Similarly, if two reasonably competent sign inspectors in Mr. McKimmey’s position could disagree over whether my sign was operating like time and temperature signs or that my sign was illegally operating while time and temperature signs were not, then Mr. McKimmey will be immune.

However, this is not the case. The two reasonably competent sign inspectors would have surely read and understood the Sign Ordinance. If this were the case, they would have known, like the attorneys above, that no sign or attraction device could flash, blink, or animate under the terms of the Ordinance. They would also know the official policy of the City has been, and is, to allow time and temperature signs to function.

Additionally, these inspectors in Mr. McKimmey’s position would have had a conversation with their supervisor about the fact that they could NOT unequally apply the Ordinance and they would have admitted seeing the time and temperature signs functioning before deciding to file criminal information on me. Thus, these inspectors could NOT disagree over whether my sign was legal. If they knew they had to apply the Ordinance equally and they knew that time and temperature signs functioned legally under official City policy, they would have concluded that the functioning of time and temperature signs must NOT be flashing, blinking, or animation.

Because my sign functions the same as time and temperature signs (COB p. 4, item 4) two reasonably competent sign inspectors could NOT have disagreed about filing criminal information on me. Indeed, they would have agreed that the functioning of my sign must be legal for the same reasons that the functioning of time and temperature signs is legal. Therefore, Mr. McKimmey will not be immune.

The City has chosen to ignore the as-applied issue in this appeal. It cannot sustain the constitutionality of its Sign Ordinance's content-based application scheme by arguing for the facial constitutionality of its Ordinance. Its arguments sound thoughtful and complete. They simply miss the point. Not withstanding this, the City continues to insist that nothing is wrong and I am not entitled to relief or damages.

Because our First Amendment freedoms have been fought for and died for, we cannot take them lightly. This is why I ask this Court to grant my requested relief by enjoining the enforcement of this Ordinance, by declaring its application content-based and unconstitutional, and by remanding this case for further proceedings on the issue of damages.

Certificate of Service

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

Certificate of Compliance

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 12 point typeface and contains 4,160 words. See F.R.A.P 32(a)(7)(B)(iii).

2. I further certify that the computer diskette provided herein contains two files named “03-2824.doc” and “title.doc”, that the diskette has been scanned for viruses using Norton Antivirus 2000 and is virus free.