La Tour

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.

“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 law, and are bound to obey it.”

IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS
AND
IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

In their Motion to Dismiss, the Defendants captioned above have misrepresented facts of this case, misapplied law to the misrepresented facts and have generally sought to mislead this court. Their motion to dismiss is founded on misapplied law and their analysis demonstrates a fundamental misunderstanding of the legal doctrines this analysis purports to scrutinize.

In short, the Defendants Motion to Dismiss should be summarily dismissed itself.

1. I am not holding the defendants liable for enforcing the Fayetteville sign ordinance but for breaching my right to free expression and due process by devices of content regulation, perjury, and witness intimidation.
         2. The defendants make the amazing claim that my question has been adjudicated and decided by a number of Arkansas Supreme Court Cases. Defendants base this erroneous conclusion on their very on misstatement of this case, namely that I am challenging the ordinance’s prohibitions against “flashing, blinking or animation” of signs located in the city.
        On the contrary, I am NOT challenging the ordinance on its face but rather I am challenging the manor in which it is applied which results in content regulation.
        The city’s strategy reminds one of a skilled politician’s ability to avoid an embarrassing question as follows:
Q. Did you have sex with that woman?
A. I didn’t do anything wrong.

Notice how the skilled politician didn’t answer the question that was asked? Neither did the city.
        Along with other questions, my complaint posses the question of content regulation. Instead of answering this question, the city argues the collateral issue of sign ordinance prohibitions. I wonder why the city didn’t address the issue.
        3. My place of business is 112 Center Street, Suite 560, Fayetteville, AR 72701. My accounting practice has been located in this same building for over 21 years. The building is currently named E.J. Ball Plaza and was formally named First Place.
        I own a building at 2285 West Sixth Street where the controversial sign is located. The business that is operated at this address is owned and operated by Sprint Tax, Inc., not myself. However, I am a shareholder in Sprint Tax, Inc. and I am allowed too operate my sign at this location as part of my rental agreement with Sprint Tax, Inc..
        4. Contrary to the City’s assertions, I have never argued that commercial speech should enjoy as much constitutional protection as noncommercial speech. See Central Hudson Gas & Electric v. Public Service Comm’n, 447 U.S. 557 (1980) My sign only displays the noncommercial speech of my political and religious opinions and has only displayed these types of messages since well before June 16, 2000, the beginning date of my alleged criminal activity as contained in the City’s Criminal Summons (Plaintiff’s Exhibit A).
        5. There is nothing in the code that exempts time and temperature displays from the provisions that prohibit flashing, blinking, or animation. The exemption is from the permit requirement alone. The city is apparently attempting to mislead this court into believing that time and temperature signs are exempt from these prohibitions.
        This is a very important point.
        This is precisely why the City sign ordinance is unconstitutional as applied. As applied, time and temperature signs can change their noncommercial messages as frequently as they wish but other noncommercial message signs, like mine, cannot.
        6. The City seeks to mitigate the effects of its illegal content regulation by attempting to convince this court that time and temperature signs are not really signs. This effort is quite impressive given the exhaustive and all-inclusive City definition of a sign:

“Every device, frame, letter, character, mark, plane, point, design, picture, stroke, stripe, trademark, or READING MATTER, which is used or intended to be used to attract attention OR CONVEY INFORMATION (emphasis supplied) … UDO Ch. 151.

I have two college degrees and I am working on a third and yet I don’t know what is meant by a “mark”, “plane”, “point”, “stroke”, or “stripe”. However, it sounds like it includes just about everything except the kitchen sink (but, of course, only if the sink has no “mark” on it).

The City has gone to such gross extremes to include every conceivable method of visual communication. It can hardly argue now that a time and temperature sign is not a sign!

Time and temperature signs have “marks” and “characters”, they are meant to be read, they probably are meant to attract attention, and they do “convey information”. Accordingly, based on the City’s very own definition, such devices are signs, plain and simple.

This Court should not be taken in by the City’s desperate yet flimsy arguments that time and temperature signs are not signs.

Moreover, the City argues that time and temperature signs need to change their message in order to function and serve the public by informing the public of the time of day and the temperature of the outside air, i.e., noncommercial information.

Likewise my sign needs to change in order to perform its function of expressing political and religious ideas, also noncommercial information, to the public on private property.

Indeed, my sign can only accommodate three or four words at one time. It is very difficult to offer compelling arguments with the use of only three or four words for every three hour time period.

The U.S. Supreme Court has ruled that state or city governments cannot distinguish between the value of noncommercial speech interest where it plainly stated:

“Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.

With respect to noncommercial speech, the city may not choose (emphasis added) the appropriate subjects for public discourse: ‘To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth’.” Metro Media v. City of San Diego, 453 U.S. 490 (1981).

Thus, where the city allows time and temperature signs to change their message at will yet restricts my ability to do the same, the City is choosing “the appropriate subjects for public discourse”. This choosing is patently illegal and unconstitutional.

7. The City maintains that my sign distracts passing motorist but time and temperature signs do not. I’m flattered. City’s counsel considers my opinions of more interest to the public than time and temperature!

Indeed, as the city itself implies in its very own argument, and the U.S. Supreme Court has adjudicated, my noncommercial opinions ARE at least as important to the public as time and temperature and, as such, deserve the same level of protection and operation as time and temperature noncommercial message signs.

8. My U.S.C Section 1983 arguments were never made in the District Court and city officials perjured themselves during those proceedings. In passing, I mentioned in my testimony that I didn’t think the sign ordinance was constitutional. That was the extent of the argument, one verbal sentence. I very briefly raised the constitutional argument as a criminal defense. Civil damages for a denial of constitutional rights were never even mentioned much less, adjudicated with a final ruling on the merits.

Moreover, the chilling of my constitutional right to a fair trial was never discussed at the District Court level. Indeed, it wasn’t until the district court trial that my right to due process was breached. The breach occurred when Mr. Mike McKimmey and Mr. Bob Estes both proffered perjured testimony during the District Court trial.

9. The only plea I entered in the appeal of my criminal conviction was that the city ordinance was unconstitutional, and if it wasn’t, I was entrapped! The District Court apparently didn’t reject my arguments entirely. After all, it did reduce my fine from $7500.00 to only $1025.00.

However, I doubt if the District Court was expressing benevolence by reducing my fine. More likely it was lowering the fine in order to persuade me not to appeal because appealing the case would normally cost many thousands more in legal cost than the fine. In this way, the city was apparently cynically hoping that I would simply pay the fine and go away. These proceedings to wit, I hope to prove that is not likely to happen.

10. The issues I raise in this proceeding have never been adjudicated on their merits. District Court was invalidated by the Circuit Court de novo trial, and the Circuit Court never reached the merits of the case.

Moreover, the District Court and the Circuit Court actions were criminal proceedings where civil damages cannot be awarded. This proceeding is a civil action to compensate me for the breaching and deprivation of my guarantee of free speech, due process and equal protection. The city and all officials involved should be called to account for such breeches.

11. Again, I am not challenging the constitutionality of the prohibition against fluctuation, animation or blinking. On the contrary, these provisions, on their face, are perfectly legal and pass constitutional muster as the state cases cited clearly demonstrate. However, the city sign ordinance is facially flawed in other areas, i.e., the removal of campaign signs within 72 hours after a campaign, SEE below City of Ladue v. Gillio, but not this one.

Still, the city sign ordinance is unconstitutional as applied. Specifically, the city applies restrictive standards of operation to my noncommercial electronic sign which it refuses to apply to other electronic signs. The city maintains that I cannot change my message any more frequently that once every three hours but other electronic signs can change their messages at will.

The different standard is determined by referring to the content of the signs and thus this application of the sign ordinance cannot pass constitutional muster. See City of Cincinnati v. Discovery Networks 507 U.S. 410 (1993) and Metromedia, Inc. v. San Diego 453 U.S. 490 (1981).

By any common sense understanding of the term, the city is doing nothing less than regulating on the basis of content.

The state courts, in the numerous cases cited, never considered content regulation. In its brief in support of its motion to dismiss, the City completely argues the wrong point of law. I am not challenging the constitutionality of the flashing prohibition, but only the manner in which the city applies these prohibitions.

The city fails to argue the correct point of law because, they have no case to argue. The city has blatantly breached my right to free speech, with full notice, visa vi this unconstitutional application of its sign ordinance, hauled me into court, convicted and fined me, all on the basis of this unconstitutional application of the ordinance. For this the city and its officials should be called to account.

RES JUDICATA

12. The City makes the incredible claim that because the flashing prohibition have been litigated by other parties under separate causes of actions, I should be bared from the courtroom by the doctrines of res judicata and/or collateral estoppel.

Professor Glannon’s myrmidons[1] may mindlessly and doggedly bar entrance to the courthouse door in proper cases, but not in this one.

With regard to res judicata, its four prerequisites do not exist between this case and the cases tried by the Arkansas Supreme Court as suggested by the city. Further, these prerequisites do not exist between this case and my criminal case that was terminated in state court on November 5, 2001 as the city further asserts.

With regard to collateral estoppel my constitutional issues of U.S.C. Section 1983 civil damages, due process deprivation, and equal protection under the law, were never actually litigated, in any court through out human history, and therefore cannot be barred under any collateral estoppel analysis. Indeed, collateral estoppel only bars the relitigation of issues actually litigated in a prior suit. See, In Re Marlar, 267 F.3d 749.

In the Arkansas Supreme Court cases, the issue of content regulation was never addressed and I was never a party to those proceedings. Moreover a chilling of a plaintiff’s right to due process brought about by the perjured testimony and witness tampering by the defendants was also never addressed in theses cases.

Accordingly, two of the res judicata prerequisites do not exist. Specifically, the same claim or cause of action requirement is missing as well as the requirement that the parties in the second action must be the same as those in the first.

In my criminal trial and its de novo appeal, my constitutional arguments of civil damages and deprivation of due process were never adjudicated or ruled on. The appeal was settled before the Washington County Circuit court addressed my constitutional arguments as a defense to a criminal prosecution. However, the constitutional arguments we raise in this case were never raised in the criminal case NOR COULD THEY BE RAISED. Thus there was no final judgment on the merits of my arguments, a critical element in res judicata analysis.

My state law cases were criminal. This case is civil. Civil damages cannot be awarded in a criminal trial. According if res judicata barred me from this court, there would be absolutely no redress for my grievances and the city would once again get away with breeching the constitutional rights of its citizens.

Indeed, res judicata precludes the re-litigation of a claim on grounds that were raised or might have been raised in a prior action. See Klipsch, Inc. v. WWR Technology, Inc., 127 F.3d 729. My claim for civil damages was not and could not have been raised in the state criminal trials. Thus, my claims cannot be barred from this court under a res judicata theory.

The policy behind the res judicata principles is finality of judgments and efficiency in judicial proceedings. These principles are in place to bar the courthouse entrance to parties that have already had a fair opportunity to have their grievances addressed. To date, I have not had THAT opportunity.

As stated above, my grievances have never been addressed by any court, much less adjudicated with a final judgment on the merits, where Fayetteville’s unconstitutional content regulation of signs, U.S.C. Sect. 1983 civil damages, or deprivation of due process and equal protection, via the devices of perjury and witness tampering have been an issue. This court is the proper forum for such a debate and as such, this court should rule that res judicata and/or collateral estoppel will not bar my entrance here.

13. City’s counsel is misreading and/or misapplying the doctrines established by the Arkansas courts with regards to the Fayetteville sign ordinance. Once again I am not challenging the prohibitions against flashing, blinking or animation. Indeed, I agree with the courts and opposing counsel, these prohibitions are legal.

The illegal aspect of the city sign ordinance is that it is applied in such a manner that my sign is called flashing while time and temperature signs are not! This is most incredible when both signs function in exactly the same manner.

This is the unfair, unjust, and unconstitutional application of the sign ordinance that I am referring to and complaining of.

14. The principles established in Donrey Communications v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (Ark. 1983), do apply to this case. However, the city fails the very first of the three prong test established by Donrey.

According to the application of the city sign ordinance, my sign is illegal and time and temperature signs are legal. The only difference in these signs is the messages displayed on the sign faces. Thus, in order to judge my sign illegal and time and temperature signs legal, you must refer to the content of the sign.

The Donrey court found the ordinance was content neutral only because my issue of content regulation has never come before it. That the city would allow time and temperature signs to function but disallow my sign to function is precisely the discrimination on content the US Supreme Court and the Donrey court have ruled against. See City of Cincinnati v. Discovery Networks 507 U.S. 410 (1993) and Metromedia, Inc. v. San Diego 453 U.S. 490 (1981).

No matter how narrow the ordinance is drawn or how substantial, as opposed to compelling, the governmental interest is, if the ordinance as applied discriminates on content, which this one does, the ordinance itself is illegal. This is apparently the primary reason the city does not address this issue. It is the apex of my arguments.

The city’s legal strategy is interesting and should be noted. Instead of arguing the issues we raise:

a. content regulation
b. civil damages
c. deprivation of due process and equal protection by perjured testimony and witness tampering,

the City restates our issue as the prohibition against flashing, blinking, or animation. In this way, they can cite all of the Arkansas case law that indicates these prohibitions are legal then draw the amazing conclusion that I have no real issue upon which relief can be granted!

Based on this unreal and false legal reasoning, the city amazingly concludes that I have to submit affidavits in order to keep my case alive! This is travesty and this court should not tolerate such nonsense.

14. The city maintains that there are ample alternative means of communication left open to me. What the city fails to recognize or worse, ignores, is that:

a. The entire purpose of the sign in the first place is to influence public thought and opinion. Turning the sign around so that it cannot be seen from the street is hardly a workable solution given that objective. Moreover, this objective, my right to influence those persons that pass by, is guaranteed by the First Amendment.

b. I have complied with my criminal charges settlement agreement. Currently, my sign does not change its message at all. It currently states, “Duggar US Senate” . This message will be displayed, hopefully until this fall’s election cycle.

It should be noted that the agreement reached in state court was in the settlement of criminal charges only. I did not check my civil rights at the door when I entered the settlement conference and, as near as I can determine, they were still well intact when I left.

c. By the terms of that very agreement, content discrimination and regulation is clearly oblivious. I can change my sign’s message, under the new rule, only once every three hours but time and temperature signs can change whenever they please[2]. This very rule is based on the content of the signs it purports to govern and must be struck down.

16. The city asserts the state cases[3], “when viewed as a group, were based on similar facts, events, circumstances and occurrences as the case at bar”. This statement is blatantly false. None of these cases ever raised the issue of content regulations, witness tampering, or perjured testimony.

Moreover, I was never a party to these earlier cases. As stated above, I was a party to my state criminal case but that case was never decided on the merits of the case. The courts have never reached my constitutional arguments and for obvious reasons, the city is attempting to keep it this way by depriving me of my day in court. This court should move quickly to reject and dismiss the city’s motion to dismiss this law suit and grant me my day in court.

16. The city asserts that the Donrey Court specifically refuted any argument that the Ordinance infringed upon anyone’s First or Fourteenth Amendment rights. The ordinance itself may not infringe on my right to due process, but city officials who proffer perjured testimony at my trial and maliciously tamper with my witnesses do! I doubt if the Donrey Court, or any other for that matter, would affirm the constitutionality of those activities!

17. The Fayetteville Municipal Court or its current incarnation, the Fayetteville District Court, is not a court of record, there are no jury trials there and trials are held without benefit of discovery and other trial mechanisms. The absence of these trial elements makes the Municipal Court an unfit forum for the debate of constitutional issues.

This is recognized by the fact that when a defendant appeals a conviction from Municipal Court into Circuit Court, the Circuit proceedings are tried de novo as though the Municipal Court trial had never taken place.

If I am barred from the federal courthouse because my issues were allegedly heard in Municipal Court, my right to due process will again be severely breached.

Moreover, as discussed above, my municipal trial was a criminal trial. Civil damages cannot be asserted in a criminal trial. Indeed, the city maintains that my issues have already been litigated. Really? The city should be required to produce the record of the trials where content regulation, civil damages, witness tampering and perjured testimony were debated and judged on the merits and I was a party to the case.

Such records will never be produced because those trials have never taken place and those final judgments have never been entered. Thus I must be granted entrance to this Federal Court in order to have a proper hearing for my issues.

18. Amazingly and deceptively, the city mischaracterizes the settlement agreement where the city and I settled the criminal charges leveled against my name.

The persons in the meeting were Mr. Brandt Warrick, Mr. Casey Jones, Mr. Steven Hardgrave, Judge William Storey, and myself. The meeting lasted about thirty minutes and I agreed to accept the offer the city made. NO ONE EVER ASKED ME TO PLEAD GUILTY TO ANYTHING, AND I NEVER AGREED TO PLEAD GUILTY TO ANYTHING, AND I NEVER PLEADED GUILTY TO ANYTHING.

The city prosecutor’s office drafted the Order that was included in defendants’ Exhibit F. That order can easily be misread because of the wording used by the prosecutor’s office. In pertinent part the Order states,

“That in exchange for Defendant’s plea to the charge of Violation of Fayetteville City Sign Ordinance, the fines … previously imposed by the Fayetteville District Court and court costs are all suspended …..

My main plea throughout our state court journey was that the sign ordinance unconstitutionally regulates signs based on their content. However, I did plead other affirmative defenses to the criminal charges, but I never pleaded guilty to anything. In the settlement conference, I certainly never pleaded guilty. The final order was written by the prosecutor and signed by the judge. I would never have agreed to the wording.

Moreover, if a criminal defendant pleads guilty to the charge, does the prosecutor and judge usually refund all of the fines collected? This is illogical.

The city was only willing to refund my fines and allow me more freedom in the operation of my sign in a vain and cynical hope that I would drop the issue and not challenge their sign ordinance. Again, that is not likely to happen.

My position has always been that the sign ordinance is unconstitutional and a defendant cannot be guilty of breaking a law that itself is illegal.

The element of this meeting that I found most interesting was, if the city really believed their sign ordinance would survive constitutional scrutiny, why were they so willing to refund my fine and allow me greater freedom in operating my sign?[4] I suspect they offered these terms in an attempt to shield their sign ordinance from the very constitutional scrutiny it so badly needs.

Moreover, a main motivation for me to agree to the settlement agreement was that there was a strong possibility that some or all of my witnesses would be intimidated by city officials or other witnesses would not give truthful testimony because of their political and financial ties to the city. Fighting city hall is not easy work.

19. In my municipal and circuit court proceedings, I raised the constitutional issue as a defense to a criminal charge. I never raised the issue of civil damages under U.S.C. Sect. 1983. Indeed, civil damages cannot be granted in a criminal trial. Thus, these damages were never debated in either proceeding, there were no pretrial motions made on these damages, and no court of law ever issued a final judgment based on the merits of the arguments that were never made.

Accordingly, the city’s naked assertions to the contrary and their erroneous conclusion that I should be barred from court, should be summarily rejected by this court, and so is my earnest prayer.

20. For all of these reasons, I have indeed stated a claim upon which relief can be granted. Moreover I HAVE a claim upon which relief may be granted.

21. Neither the City nor the officials whom I have listed as defendants to this suit are entitled to any form of absolute immunity in the final analysis. I will discuss each theory of immunity alleged and apply it to each individual Defendant.

22. The city once again argues the wrong point of law. It purposefully sets up a straw man argument and then defeats it, all the while missing the entire point of my law suit.

Once again, I am not challenging the ordinance as written or legislated but only as applied. Thus, I present no challenge to the legislative process but only to the unconstitutional application of the products of the legislative process[5] and the perjury and witness tampering that unconstitutionally deprived me of due process.

Indeed, absolute immunity does apply to the promulgation of ordinances. I have not sued any legislators of the city and thus this immunity does not apply. I agree with the city, “…City officials who promulgate city ordinances would in any case be entitled to legislative immunity”. See, City Brief in Support of Its Motion to Dismiss p. 18. However, the problem with this line of reasoning is that no city legislative officials have been sued here. None of the individuals that I have sued perform duties that are legislative in nature.

However, the individuals were sued because of malicious activity that showed bad faith on their part. The malicious activities range from perjury to failure to provide exculpatory information when required to do so by law. Each of these activities are discussed infra.

U.S.C. Sect. 1983 specifically provides that a person who deprives another of his rights under the U.S. Constitution, the old one, “shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Furthermore, monetary damages are allowed for Fourth Amendment breeches. The Supreme Court, quoting an early case noted,

[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).

We held that a violation of the Fourth Amendment …gives rise to a cause of action for damages consequent upon the unconstitutional conduct. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

The barrier of sovereign immunity is frequently impenetrable. Injunctive or declaratory relief is useless to a person who has already been injured. “For people in [Bivens’] shoes, it is damages or nothing.”

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.

The extension of absolute liability from damages liability to all ….officials would seriously erode the protection provided by basic constitutional guarantees.

The City officials that are Defendants in this suit have all contributed to depriving me of my Fourth Amendment guarantees of Due Process and Equal Protection by:

1. Appling a restriction to my sign that they refuse to apply to time and temperature signs (Mr. Jones, Mr. Warrick, and Mr. McKimmey), and by,

2. Proffering perjured testimony (Mr. Estes and Mr. McKimmey) and by tampering with a witness to a criminal trial (Mr. Williams).

Thus, monetary damages are available in this case, contrary to the assertions of the City.

Moreover, even though I did not allege wanton or reckless behavior, such can surely be implied by the malicious behavior of the Defendants. Lying and cheating by persons who know better, are certainly wanton.

ABSOLUTE OR QUALIFIED IMMUNITY

23. Before I discuss the application of the immunity theories to each defendants, I will make some initial observations regarding the nature of absolute and qualified immunities as promulgated by the courts.

a. The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Burns v. Reed, 500 U.S. [478,] 486 (1991); Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, and n. 4 (1993). Thus, a showing is required where, as here, naked assertions are insufficient. The City must prove that its officials are entitled to absolute immunity based on their functions, not their positions.

b. Most public officials are entitled only to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Butz v. Economou, 438 U.S. 478, 508 (1978).

c. 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. Fitzgeral, 457 U.S., at 818.

d. 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 counsels against recognizing the same immunity in section 1983 actions. Tower v. Glover, 467 U.S. 920. Not surprisingly, the Supreme Court has been “quite sparing” in recognizing absolute immunity for state actors in this context. Forrester v. White, 484 U.S. 219, 224 (1988).

e. In determining whether absolute or qualified immunity is applicable to particular defendants, the courts have taken a “functional” approach which makes the determination on the basis of the function performed, not the identity of the actor performing it or his position. Burns v. Reed, 500 U.S. at 486. Thus prosecutors don’t automatically qualify for absolute immunity.

Additionally, prosecutors will perform functions that qualify for both types of immunity. The question for this court is what type of immunity applies to which of the prosecutors functions.

Moreover, prosecutors are awarded absolute immunity ONLY for those functions which are “intimately associated with the judicial phase of the criminal process”. Imbler v. Pachtman, 424 U.S. 409 (1976).

1. Mr. Mike McKimmey: Mr. McKimmey was an employee of the City of Fayetteville’s Inspection Division at the time prior to my Municipal Court trial. Even though Mr. McKimmey had not been formally recognized as the official City Sign Inspector at that point, he functioned in this post.

In his position of sign inspector, Mr. McKimmey would inspect and police every sign that was installed in the city. As a sign inspector, Mr. McKimmey was not and is not “intimately associated” with the judicial process and as such can claim only qualified immunity.

Mr. McKimmey had seen my sign change its message and no doubt he had seen the time and temperature signs around town change their messages. A reasonable sign inspector would have realized that these two signs function in exactly the same manner. Moreover, a reasonable sign inspector would not have attempted to punish me, by filing criminal charges against me, for an activity which he knew to be legal for other electronic signs.

By filing criminal charges against me for the act of exercising my free speech rights, Mr. McKimmey has violated my constitutional rights. It would be difficult to imagine a constitutional right that is more clearly defined than the freedom of speech rights. Moreover, from the First Amendment discussion below, regulating signs on the basis of their content is clearly unconstitutional.

Mr. McKimmey knew, or should have known, that time and temperature signs functioned exactly like my sign. Thus, he was completely unreasonable in seeking out my prosecution for an act he knew was legal elsewhere.

Accordingly, Mr. McKimmey violated my clearly defined freedom of speech in an unreasonable manner. Thus Mr. McKimmey’s qualified immunity fails and he is libel to me for civil damages under U.S.C. Section 1983.

2. Mr. Bob Estes: Mr. Estes is a practicing attorney in the City and is currently the Chairman of the Fayetteville Planning Commission. At the time of the conversation where he told me indoor signs are not regulated, Mr. Estes was simply a member of the Planning Commission.

At my trial in Municipal Court, Mr. Estes claimed that he could NOT recall our conversation where he told me indoor signs are not regulated even though he had recalled the essential factual content of that conversation to my attorney, Mr. Jim Rose, only a few short weeks before my trial date. Couple this with the fact that Mr. Estes applied for the job of city attorney on January 3, 2001, the very day of my municipal trial, and it rigorously appears that Mr. Estes proffered perjured testimony at my trial ( a matter of fact for the jury to decide).

Even though Mr. Estes is a practicing attorney, he was not testifying as an officer of the court. He was testifying as merely a lay witness to a natural fact of what he remembered about our conversation.

Mr. Estes was not functioning as a public official or city employee. As such, Mr. Estes does not qualify for either absolute immunity or qualified immunity. Indeed, giving testimony about a conversation he had with an old friend is not part of Mr. Estes’ official duties on the Planning Commission. Legislative immunity and judicial immunity, of course, do not apply.

For Argument’s sake, even if Mr. Estes can achieve qualified immunity, a reasonable attorney in Mr. Estes’ position would have known that offering perjured testimony under oath is a breach of a defendant’s constitutional right to a fair trial.

Thus, Mr. Estes breached one of my fundamental constitutional rights. Most Americans, including the nine that sit on the U.S. Supreme Court, would probably agree that the right to a fair trial is a well defined and well understood constitutional right, especially to an attorney. At the very least, most Americans would understand that a witness should always tell the truth on the witness stand! Mr. Estes failure to do so makes him liable to me in civil damages under U.S.C Section 1983.

3. Mr. Kit Williams: Mr. Williams is the current City of Fayetteville city attorney, having been appointed by Mayor Dan Coody, and never elected to the position. Mr. Williams is not a prosecutor and was in no way connected to my criminal Municipal Court trial. However, after I appealed my Municipal Court CRIMINAL conviction to Circuit Court, Mr. Williams met with one of my potential witnesses who was also a city employee. In this meeting, Mr. Williams shouted at my witness and instructed him to “never talk to John La Tour again”.

Although Mr. Williams apparently did not threaten the life or physical well being of my witness, his volume and tone of voice could certainly have a chilling affect on my witness’s ability to testify truthfully at trial.

Mr. Williams works closely with the Mayor’s office. The Mayor’s office will have the final say in job promotions and heavy influence on salary increases. The witness could easily imply that if he testifies negatively regarding the City or other city employees, his employment or compensation could be affected.

Even though Mr. Williams’ attempt to influence my witness may not rise to the level of felonious activity, it certainly should be discouraged and dealt with.

My fundamental constitutional rights to a fair trial and due process are wholly dependant on the unencumbered testimony of trial witnesses. Mr. Williams’ loud “talk” to my witness only encumbers that witness’s ability to speak freely without fear of economic reprisals and strikes at the very heart of a fair and impartial trial.

Mr. Williams is not a prosecuting attorney and was in no way, much less, intimately, associated with the judicial process.

A reasonable attorney in Mr. Williams’ position would probably know that attempts to influence witnesses in this manner are wholly inconsistent with a fair trial and due process. Thus Mr. Williams has deprived me of fundamental constitutional rights, due process and a fair trial. These right are very well established tenants of our legal system and they are well recognized. Accordingly, Mr. Williams is libel to me in civil damages under U.S.C. Section 1983.

4. Mr. Brandt Warrick and Mr. Casey Jones: Mr. Jones is the City of Fayetteville City Prosecutor and Mr. Warrick is his assistant, or Deputy City Prosecutor. These gentlemen have complete prosecutorial authority to prosecute a case or forego such prosecution. I will consider both of these gentlemen together since they occupy essentially the same position, prosecutors.

Also, Mr. Jones is Mr. Warwick’s supervisor and supervisors with more authority than their subordinates are just as responsible for the unconstitutional conduct of the subordinate. Butz v. Economou, 438 U.S. 478 (1978) at IV.

As prosecutors, Mr. Jones and Mr. Warrick engage in functions that are intimately related to the judicial process and that qualify for absolute immunity. They also engage in functions that are administrative and investigative in nature that qualify only for qualified immunity.

The Court judges each function to decide if it is protected by absolute immunity or only qualified immunity. Also, the burden of proof is on the defendant claiming absolute immunity; qualified immunity is the norm. 500 U.S. [478,] 486 (1991); Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, and n. 4 (1993).

Where the prosecutor is functioning as an advocate for the state, he is protected by absolute immunity; where he is functioning as an investigator or counselor to the police or enforcement agent, he is protected only by qualified immunity. Burns v. Reed, 500 U.S. 478, (1991).

Moreover, “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 (1993).

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.” Id. at A.

December 23, 1999	Mike McKimmey tells me indoor signs are unregulated.
January 5, 2000	Bob Estes talks to Tim Conclin and Tim tells Bob that signs located “behind the glass” are not regulated.
January 5, 2000	Bob Estes calls me on my cell phone and tells me that signs located “behind the glass” are not regulated.
February 2000	I install my electronic sign at a cost of $6000.00 and begin operating it.
April 7, 2000	Mike McKimmey files a “Code Enforcement Officers Violation Notice" on my sign.
May 16, 2000	Brandt Warrick letter to me ordering me to remove my sign. (Exhibit B)
May 25, 2000	I receive Brandt’s letter from May 16, 2000.
May 25, 2000	I telephoned Mr. Warrick and explained that Mr. McKimmey and Mr. Estes had both told me indoor signs were not regulated. He asked me to put it all in a letter and he would “look into it”.
May 26, 2000	I put it all in a letter and sent it to Brandt.
Circa June 2, 2000	I called Mr. Warrick to get his opinion of my letter. He told me that he hadn’t talked to Mr. McKimmey or Mr. Estes yet and that I should call back in about a week.
Circa June 9. 2000	I called Mr. Warrick back and he told me that he had spoken with McKimmey and Estes and that they had both confirmed my story but in their defense they said that I did not tell them that I was going to install an electronic sign.
June 13, 2001	Mr. Warrick writes letter demanding that I change my sign’s message only once in a 24 hour period in a direct application of the City’s content based regulations and admitting that he had “spoken” with Mr. McKimmey and Mr. Estes. (Exhibit C).
July 5, 2000	City files a Criminal Summons in Municipal Court when I refuse to comply with their unconstitutional demands (Exhibit D).

August 21, 2000	Fayetteville Police Department notifies me by mail that the “Police Department holds an active warrant for your arrest.” I am told that I can present myself to the City Jail located at 104-A West Rock Street at any time day or night! (Exhibit E)
January 3, 2001	I am tried in Municipal Court and found guilty [of exercising my guarantee of free speech].
February 1, 2001	I appeal my criminal conviction to Washington County Circuit Court.
May 30, 2001	Take sworn statements from witnesses for the record.
June 19, 2001	Pretrial Hearing with Judge William Storey and Brandt Warrick where Brandt states in open court that he has no exculpatory information that he is required to disclose under Arkansas law. Mr. Warrick, in all likelihood, perjured himself in open court.
November 5, 2001	I agreed to settle the criminal charges against my name.
January 3, 2002	I filed suit in Federal District Court seeking civil damages on Three counts: Free Speech, Equal Protection, and Due Process.

Mr. Warrick did not seek to have a criminal summons issued until July 5, 2001 and an arrest warrant was not issued until August 21, 2001. In applying the standards established by the courts, the earliest date that Mr. Warrick was acting as an advocate would be July 5, 2001 when the first criminal summons was issued. However, a strong argument can be made for an August 21, 2001 date when the arrest warrant was issued.

As described above, one basis used to determine when a prosecutor’s role changes from administrator/investigator to advocate for the state, was defined by the Supreme Court when it reasoned 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 (1993).

It is difficult to imagine that the crime of operating an eight inch tall sign in your office window would be an arrestable offence. On this line of reasoning, a prosecutor would never have probable cause to have someone arrested in a case such as this. Thus, Mr. Warrick’s role would have never changed from administrator/investigator to advocate. The only reasonable conclusion, then, would be that Mr. Warrick’s actions are protected only by qualified immunity.

Using either date, Mr. Warrick’s letters to me on May 16, 2001 and June 13, 2001 respectively, imposing unconstitutional restraints on my freedom of speech, would qualify as a “deprivation” of my rights. His dragging me into court and garnishing a criminal conviction based on perjured testimony only further exasperates this deprivation.

Using the Court’s two step approach in Saucier v. Katz, 533 U.S. 194 (2001), we must first ask the question: Taken in the light most favorable to the party asserting the injury, me, do the facts alleged show the conduct of Mr. Warrick violated a constitutional right. As discussed below, the courts have consistently held that content regulation is patently unconstitutional and my right to free speech is a constitutional right that was violated.

The second step of the Saucier analysis is to ask: Was the right violated clearly established?

The right to free speech, and particularly as it applies to signs, has been clearly established for nearly thirty years. In sign regulation ordinances, the courts have consistently shown great animus toward any regulation that is based on the content of signs. Thus, the right of free speech that Mr. Warrick deprived me of was clearly established. Indeed, it is difficult to imagine a more clearly defined area of the law. Ordinary laypersons know that in these United States, we all enjoy freedom of speech. It is completely unreasonable that a person in Mr. Warrick’s position would not understand how that applies to signs.

Moreover, the analysis requires us to ask if a reasonable person in Mr. Warrick’s position, given the particulars of his circumstances, would have made the same choice? Mr. Warrick, like most citizens of Fayetteville, Arkansas has probably seen the time and temperature displays on North College Avenue and on the corner of Mission Blvd. and Crossover Road. Because he is a lawyer and he practices a form of criminal law, he knew or should have known about the concept of equal protection under the law. A reasonable attorney in Mr. Warrick’s position would not have gone forward with a criminal summons (for an eight inch tall sign inside of an office window) and arrest warrant in light of this constitutional concern.

Mr. Warrick, however, was apparently out to prove himself as a prosecutor and proceeded headlong into this criminal court fiasco. His actions were well beyond reasonable and for this he and his supervisor, Mr. Jones, should give an account.

Mr. Warrick’s zealous prosecution of this case runs into constitutional trouble on at least one other point.

Law enforcement officers, like prosecutors, have a responsibility to criminal defendants to conduct their investigations and prosecutions fairly as illustrated by the Brady line of cases requiring the state to disclose exculpatory evidence to the defense. (emphasis supplied). Althought charged with investigating and prosecuting the accused with "earnestness and vigor," officers must be faithful to the overriding interest that "justice shall be done." United States v. Agurs, 427 U.S. 97, 110-11 (1976), overruled on other grounds, United States v. Bagley, 473 U.S. 667 (1985); see also Youngblood, 488 U.S. at 54-55. They are "the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.'" Agurs, 427 U.S. at 111 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)

Mr. Warrick had an affirmative constitutional duty to disclose to me or my counsel any exculpatory

Under Arkansas law, it is an affirmative defense to a criminal charge if the actor engaged in the prohibited conduct believing that the conduct did not, as a matter of law, constitute an offense, if he acted in reasonable reliance upon an official statement of the law by the public servant charged by law with responsibility for the interpretation or administration of that law. Ark. Code Ann. Section 5-2-206(c).

Before I ever placed the order for my sign, I contacted Mike McKimmey and Bob Estes. Both of these gentleman told me that indoor signs were not regulated. I related this information to Mr. Warrick in our phone conversation on May 25, 2001 and I restated this information in my letter to Mr. Warrick on May 26, 2001.

When I followed up my letter with a phone call to Mr. Warrick on or around June 9, 2001, Mr. Warrick told me that he had talked with McKimmey and Estes and that they had CONFIRMED my version of the facts[6]. Indeed, in his testimony in open court, in a Washington County Circuit Court pretrial hearing, he admitted to having these conversation with these two Fayetteville officials (Exhibit F). Thus, Mr. Warrick knew two City officials, the City sign inspector and a member of the Planning Commission, had both told me that indoor signs were not regulated.

This knowledge not withstanding, Mr. Warrick continued headlong in pursuit of a conviction which he knew or should have known was illegal based on the affirmative defense at Ark. Code Ann. Section 5-2-206(c). Not only did he continue to prosecute the case, he submitted jury instructions requesting that the jury fine me additional amounts totaling nearly $100,000.00!

This outrageous behavior was probably meant to intimidate me or disinterest me from pursuing my constitutional rights. Again, for such activity, Mr. Warrick and his supervisor should give an account.

For this and other reasons discussed below, this case must be given its day in court. It is my earnest prayer and plea that this court will not allow the City to, yet again, get away with such a callous disregard for our basic freedoms which are written and guaranteed by our most basic and fundamental law, the U.S. Constitution.

All of the foregoing considered, it is entirely possible that the city officials listed as Defendants in this suite will not escape accountability for their constitutional wrongs through an ill placed and ill argued immunity theory. Thus summary judgment and certainly, dismissal of the case, would be overreaching and inappropriate. Once again, this case deserves the light of day only a courtroom trial can provide. The entire world should know, and more importantly, the citizens of Fayetteville should know, what this City has done to one citizen who would dare to stand up to their unconstitutional schemes.

Summary judgment is appropriate only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law Fed.R.Civ.P. 56(c). In my case there are numerous disputed issues. They are:

2. Does the city regulate other electronic signs different from time and temperature electronic signs?

3. Can the City demonstrate a compelling reason for its content based regulations if in fact, the City does regulate on the basis of content?

4. Which standard of constitutional scrutiny should be applied to the City’s content based regulations?

5. Did Mr. Warrick know that Mr. Estes and Mr. McKimmey had told me that indoor signs are NOT regulated when he, Mr. Warrick, filed a criminal summons and issued a warrant for my arrest? Did Mr. Warrick perjure himself in open court when he declared he did not posses exculpatory information.

6. Did Mr. Estes and Mr. McKimmey proffer perjured testimony at my Municipal Court trial?

7. Did Mr. McKimmey act reasonably when he filed a criminal complaint against me, knowing that other electronic signs in Fayetteville operate just like my sign and he has never complained about them?

9. Did Mr. Williams’ conversation with my witness amount to witness tampering and/or a chilling of my due process right to a fair trial.

On January 3, 2001 Fayetteville Municipal Judge Rudy Moore ruled that electronic display signs operating in the city limits of Fayetteville, AR could only change their display messages no more frequently than once every 24-hour period. At the same time, the city allowed and continues to allow time and temperature displays to change their displayed messages as frequently as the sign operator desires. Often these displays change their message as much as 8 to 15 times per minute!

Thus, our electronic sign is prohibited from functioning while time and temperature electronic signs are allowed to function. It is our contention that such differences constitute nothing more than good old fashion content regulation.

The application of the Fayetteville sign ordinance (the"ordinance") fails a content neutral test in that it illegally distinguishes between time and temperature displays and other electronic messaging devices solely on the basis of their content.

According to the ordinance at Section 158.08(I) time and temperature displays are not only allowed to operate but they are also exempted from the permit requirement.

It should be noted that time and temperature displays operate in the following manner:

Time display, screen goes blank for about one second, temperature display, screen goes blank for about one second, time display, screen goes blank for about one second, etc., etc..

When the time or temperature is displayed the characters of the sign do not move up or down, left or right. There is no scrolling or animation of the characters.

Our sign, at the center of this controversy, functions exactly the same as a time and temperature display.

The alphanumeric characters on our sign did not move up or down, or left or right when the sign was ruled illegal by the municipal court. The words on the sign simply appeared, then the screen would go blank, and then a new set of words would appear to complete the thought. This process was continued until an entire idea was communicated.

Presumably, our sign would have been perfectly legal if we would have only published the time of day and the temperature of the outside air. But because we choose instead to express our political and religious ideas, ie, something other than time and temperature, the sign was judged illegal under the Fayetteville sign ordinance Section 158.40.

Our case is almost completely analogous to City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113, S.Ct. 1505, 1516-17, 123 L. Ed.2nd 99 (1993). See also, Larry Whitton v. City of Gladstone, Missouri, 54F.3d 1400.

In Discovery Networks, respondents operated a series of newspaper racks that contained, and distributed for free, a variety of commercial handbills such as residential and commercial real estate offerings.

In an attempt to further its interest in the substantial objectives of public safety and environmental esthetics, the City of Cincinnati enacted an ordinance that prohibited the operation of these commercial handbill news racks but allowed the continued operation of news racks that distributed actual newspapers.

In its arguments, the city contended that its, "regulation of news racks qualifies as a [time, place, and manner] restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents’ publications. Thus, the argument goes, the JUSTIFICATION for the regulation is content neutral." Ibid.

"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 (emphasis supplied) Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S., at 117, 112 S.Ct. at 509.

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.’ Cincinnati at Section IV[5].

The Court concluded that there was no reasonable fit between the regulation and the legitimate interest of the city since newspaper news racks and commercial handbill news racks both caused the same problems. Moreover, the Court recognized that the intended ban on commercial handbill racks would remove only a mere sixty or so racks while the ban left unaffected between 1500 and 2000 newspaper racks.

In our case, the facts are almost identical in principle. The City of Fayetteville is apparently asserting its interest in regulating signs to achieve a pleasing result for public safety and esthetic concerns. However, just as in Discovery Networks above, the City of Fayetteville prohibits the functioning of our sign but fails to prohibit the functioning of time and temperature displays.

Both types of signs function in the exact same manner. The only difference between our electronic sign, and time and temperature displays, is the message contained on the sign. If our sign causes esthetic and public safety problems, then time and temperature displays cause the same problems. Yet the city prohibits our sign from functioning but not time and temperature displays.

Additionally, under the Fayetteville sign ordinance scheme, thousands of time and temperature displays can be erected without even the filing of a single sign permit application. However, under this same scheme, not even one electronic sign can be erected to express the political or ideological views of the sign’s owner.