IN
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
JOHN
S. LA TOUR,
Plaintiff
v.
CITY
OF FAYETTEVILLE, ARKANSAS
File Number:
BRANDT WARWICK
02-5001
CASEY JONES
KIT WILLIAMS
BOB ESTES
MIKE MCKIMMEY
Defendants, in both their individual and official
Capacities.
_________________________________________
REPLY TO DEFENDANTS ANSWER TO FIRST AMENDED COMPLAINT
INTRODUCTION AND BACKGROUND
On July 31, 2002 I filed an amended complaint with leave of the Court. The Defendants have now answered my complaint and this is my reply to that answer.
POSITION AND ARGUMENTS
1. Defendants claim that my claim for punitive damages was dismissed WITH PREJUDICE and is thus “barred … in every respect”. When the Court ruled, it dismissed the punitive damages claims because it dismissed all claims against the individual defendants and punitive damages are only available against individual defendants, not city governments. The Court never stated that the punitive damage count was dismissed with prejudice.
2. Accordingly, the punitive damage count is not “barred in every respect”.
3. If my sign does not operate “exactly” like time and temperature signs, it certainly operates in a “substantially similar” manner. Time and temperature signs change their messages several times every minute and these changes are allowed under official city policy. However, when my noncommercial political opinion sign similarly functioned, I was drug into court and convicted of criminal activity!
4. When I was charged with a misdemeanor, the criminal summons stated that my sign was flashing, blinking, or animating during the week of June 16, 2000 through June 29, 2000. Since well before that week, my sign only displayed the noncommercial messages of my political and religious opinions.
5. Accordingly, the City prosecuted me for the crime of expressing my personal opinions on private property where they could be seen by the passing public on the streets and sidewalks.
6. As a side note, defendants have suggested that I could make my sign legal, under the City’s scheme, by simply turning it so that it could not be seen by the passing public. However, the courts have ruled exactly opposite:
Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely. Hudgens v. NLRB, 424 U.S. 507, 515 (1976)
And,
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions (emphasis supplied). Hague v. CIO, 307 U.S. 496, 515 (1939).
7. Accordingly, the constitutional stifling of such a scheme could never be upheld under even the slightest constitutional scrutiny.
8. In spite of this Court’s ruling, Defendants continue to promote the myth that I pleaded guilty to breaching the sign ordinance. Nothing could be further from the truth. Indeed, as the record clearly demonstrates, Judge Storey’s Order only states that I entered “a plea” but it does not indicate if I pleaded guilty or innocent. My argument and plea then, as it is now, is that the sign ordinance itself is illegal.
9. The Fayetteville sign ordinance is unconstitutional as it is being applied by official Fayetteville policy and, upon further investigation, on its face also.
10. The entire ordinance § 158.08, listing each class of exempt sign distinguishes each class by the very content of the sign, i.e., home occupation signs, memorial signs, election campaign signs, etc. Thus this entire section of the ordinance regulates on the basis of content.
11. Moreover, the Fayetteville sign ordinance burdens the citizens of Fayetteville with illegal prior restraint. The ordinance nowhere guarantees a brief and limited time frame in which the building inspector has to issue a sign permit. Also, there is no guarantee of a speedy judicial review if the sign permit application is rejected. Steele v. City of Bemidji, 257 F.3d 902, (8th Cir. 2001), FW/PBS, Inc., v. City of Dallas, 896 F.2d 864 (5th Cir. 1990) on remand from the U.S. Supreme Court.
12. Additionally, citizens are left to the “unbridled discretion of the local official”. Not only can the building inspector delay the issuance of a sign permit when he doesn’t approve of the speaker or the message, but he can also demand, “such other information (emphasis supplied) as the building inspector shall require to show full compliance with city ordinances” UDO § 158.21 (H). Apparently, the building inspector, under the UDO scheme, can ask for whatever information he/she desires. Such broadness of power surely amounts to unbridled discretion. Indeed it would be difficult to imagine a greater degree of unbridled discretion than the term of “such other information”.
13. The cases that we have cited in our prior filings and the new cases that we hope to file shortly plainly demonstrate the outdated and unconstitutional nature of the Fayetteville sign ordinance. The City’s continuing efforts to deny this truth are understandable but the cases will speak for themselves. The Fayetteville sign ordinance must be declared what it is, unconstitutional, and the City must be enjoined from enforcing such an illegal ordinance that breaches our most basic rights as Americans.
Respectfully
submitted,
JOHN
S. LA TOUR
BY: _________________________
John S.
La Tour
THE LA
TOUR ACCOUNTING FIRM
September
12, 2002
JOHN
S. LA TOUR
112
Center Street, Suite 560
Fayetteville,
AR 72701
Phone (479)443-7878