JOHN S. LA TOUR                    Plaintiff

v.                                                                                File Number:  02-5001

CITY OF FAYETTEVILLE, ARKANSAS 
BRANDT WARWICK 
CASEY JONES
KIT WILLIAMS
BOB ESTES
MIKE MCKIMMEY
Defendants, in both their individual and official
Capacities. )

_________________________________________

INTRODUCTION

On February 19, 2002 I received a copy of the City’s Rule 11 Motion for Sanctions ("motion") via U.S. mail. The Certificate of Service noted that the motion had been mailed on February 15, 2002. In the motion, the City threatens to file the motion with this Court if I do not withdraw my complaint within 21 days.

This brief is being filed as my response to the City’s false and misleading accusations contained in the motion. By filing this opposing brief, I am assuming the City has filed this motion with this Court or will do so shortly.

With this motion, the City enters a new chapter in its novel approach to its current campaign of misleading and false information. The City again makes only naked assertions with no accurate factual information to substantiate the charges. Indeed, the City offers no affidavits or other evidentiary support for its most fantastic claims and assertions.

I unequivocally and categorically DENY, in the strongest of terms, that:

1. I filed a complaint which asserts claims or legal contentions which are not warranted by existing law or unsupported by facts and evidence.

2. My allegations and factual contentions are frivolous in nature or do not have evidentiary support or that they were presented for inappropriate or improper purposes and reasons.

3. My complaint was filed to harass the individual defendants or damage them in any way, form, or fashion.

4. I failed to make a reasonable inquiry or investigation into the circumstances as to each and every allegation of misconduct.

5. I should be sanctioned in any form or fashion.

6. My complaint is full of falsehoods, misstatements of fact and law, implausible notions, immaterial assertions or defamatory statements and contentions for hateful and harassing purposes.

POSITION AND ARGUMENTS

1. Defendant Warrick’s ability to claim the shield of immunity was fully investigated and analyzed in my previous filings. The success of his claim to absolute immunity will turn on what function he was performing when he breached my First Amendment right to free speech. His claim to qualified immunity will fail if he breached a fundamental constitutional right that is clearly defined, and a reasonable person in his position would have understood this.

Moreover, a government employee or official bears the burden of proving that he or she is covered by absolute immunity. Qualified immunity is the norm.

The City continues to gloss over these requirements by nakedly asserting that Defendant Warrick is entitled to "governmental and prosecutorial" immunity. The City, amazingly, offers little or nothing to support such fantastic claims.

As pointed out in earlier filings, Defendant Warrick failed to disclose exculpatory evidence which he apparently possessed. To conceal his failure to disclose, Defendant Warrick denied, in open court, that he possessed this information. Such a denial is a false representation by an officer of the Court. Whether this denial amounts to perjury, it was certainly a false statement in Court where Defendant Warrick had an affirmative duty to tell the truth.

2. Defendant Jones was Defendant Warrick’s supervisor. As such, Defendant Jones occupies essentially the same position as Defendant Warrick. For identical reasons, Defendant Jones’ claims to immunity will turn on the same issues as Defendant Warrick’s claim to immunity.

Thus, naked assertions of immunity ring hollow.

3. Defendant Williams shouted at one of my witnesses and made it clear to my witness that he, Defendant Williams, was displeased with my witness for having "talked" to me regarding what the witness had been told by City sign inspectors. The witness described to me and my staff the conversation in which Defendant Williams "raked me [the witness] over the coals".

I submitted affidavits of my staff where they described what they saw, heard, and observed in these regards. Whether or not Defendant Williams’ "conversation" with my witness will rise to criminal activity, it certainly had a chilling affect on my witness’ ability to testify truthfully and unencumbered. As I pointed out in prior filings, because of his "conversation" with Defendant Williams, my witness was reluctant to file an affidavit at this time but he did assure me that he would testify truthfully at trial if asked to. Thus, we need to have a trial to arrive at what actually took place during that "conversation".

I have never accused Defendant Williams of out-right criminal activity, but I continue to maintain that the pressure he applied to this witness contributed to my deprivation of a fair trial. Indeed, it was this knowledge that led to my agreement to settle the criminal charges against me in Circuit Court; specifically, inappropriate pressure was being applied to at least one of my witnesses. Thus, my prospects for a fair trial in Circuit Court were dimming.

I have in fact presented evidence that pressure was applied to at least one of my witnesses and who knows how many others. This evidence was in the form of affidavits of eye witnesses who heard my witness tell of what he experienced during his "conversation" with Defendant Williams.

Additionally, Defendant Williams, like the Defendants above, can claim immunity based only on the various functions of his job. In my analysis previously filed with this Court, I concluded that absolute immunity does not apply, and Defendant Williams’ claim to qualified immunity fails. These conclusions were reached only after a detailed investigation and analysis, contrary to the City’s assertions.

4. Defendant Estes was functioning as a City official and, thus, under color of state law. Indeed, I have many friends and acquaintances that I could have asked about the City’s regulation of indoor signs. I asked Defendant Estes specifically because of his position on the Fayetteville Planning Commission. In this position, he would know of such regulations. Defendant Estes telephoned the City Planning Director and got the information I was requesting. Defendant Estes was and is a Fayetteville city official, and he was functioning in his capacity as a Fayetteville Planning Commission member when he telephoned the Planning Director to get advice.

I suppose every City official could claim that his/her every act of advice was simply acting in his/her personal capacity and not under color of state law. Under such a scheme, U.S.C. Section 1983 would not apply to anyone.

5. The City continues to gloss over immunity requirements by nakedly asserting that Defendant McKimmey is entitled to "governmental and prosecutorial" immunity. The City, amazingly, offers little or nothing to support such fantastic claims. As discussed in prior filings, at length, Defendant McKimmey meets the criteria for only qualified immunity. Even this immunity theory fails because of Defendant McKimmey’s unreasonable filing of criminal charges against me when he knew that other signs functioned just like my sign and are legal under the City’s sign ordinance scheme.

6. The City of Fayetteville and its officials have breached my right to free speech, equal protection, and due process via the devices of content regulation, perjury, and pressuring a witness. All of this activity was produced by malicious, willful, wanton, or consciously indifferent behavior. Thus, there are certainly grounds to award punitive damages from the City and the city employees who carried out such behavior.

Moreover, my complaint asks for "such other and further relief as the Court may deem just and right". If there is some fault in my prayer for punitive damages, it is my further prayer that this Court would award monetary damages under U.S.C. Code Section 1983 as the Court may deem just and right.

7. My arguments against the application of the doctrines of res judicata and issue preclusion have been well researched and proven in my briefs. None of my arguments have been "frivolous" in the least, and I have offered relevant facts to support each argument.

The City, on the other hand, continues to offer false and misleading conclusions in an apparent effort to intimidate me. In case I have clouded this issue by my "voluminous" filings, let me unequivocally state, I will not be intimidated into silence. I will pursue every remedy available to me in law and equity until this unconstitutional application of the Fayetteville sign ordinance is corrected and just compensation for its infringements is paid. Indeed, the one and only way to ensure that this same sort of unconstitutional behavior is not pursued against anyone else in this city, is to hold the City and its officials accountable in money damages for their unconstitutional acts.

Indeed, all but one of the individual defendants are lawyers who have been trained in constitutional law. Each and every one of them knew or should have known better.

CONCLUSION

In all of my filings I have presented reasonable evidence that my allegations are true and correct. I have submitted logically related facts, affidavits, and relevant case sites. The City on the other hand, offers nothing but naked assertions and continues to argue the constitutionality of the ordinance as written and ignores the unconstitutional application of the ordinance. Thus, the City argues the wrong points of law and sites irrelevant cases to support its arguments.

Moreover, the City has made up fictitious rules that do NOT exist in the Ordinance in a vain attempt to mislead this Court and to justify its content-based application of the Ordinance.

Now, in its most recent move, the City seeks to impose sanctions on me when, in fact, they are the ones that should be sanctioned for their false and misleading statements which are offered for the improper and inappropriate purpose of intimidating me and misleading this Court. My prayer and request is that this Court would not fail to recognize this most malicious activity of the City’s counsel and would take appropriate steps to discourage such activity in the future.

Respectfully submitted,

JOHN S LaTour

BY: _________________________

John S. La Tour

THE LA TOUR ACCOUNTING FIRM

JOHN S. LA TOUR

112 Center Street, Suite 560

Fayetteville, AR 72701

(501) 443-7878

CERTIFICATE OF SERVICE

THIS is to certify that I have served counsel for the Defendants in the matter caption above with a true and correct copy of this pleading by depositing it in the US mail system, first class postage prepaid on this

__________ Day of March, 2002

______________________________________________

John S. La Tour

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