IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

JOHN S. LA TOUR                                 PLAINTIFF

            COME NOW the Defendants, and all of them, and for their Motion Requesting Leave from the Court to File a Reply to Plaintiff s Brief "In Opposition to Defendants
Motion to Dismiss and In Opposition to Defendants Motion for Summary
 Judgment(s)" (hereinafter "Response"), state as follows, to-wit:
        1. That the Plaintiff has filed a Response to the Defendants' Motion to Dismiss.
        2. That the Plaintiffs Response is voluminous and composed of blatant and
 barefaced inconsistencies, inaccuracies, and misapplication of law and fact. Additionally,
the Response contains numerous exhibits that bear little on the matter at hand and are seldom referred to or properly cited in his Response.
        3. That at best the Plaintiffs Response is an unfortunate misapplication of
the law to the facts at hand and at worst is a form of chicanery invoked to cloak his otherwise fatally flawed complaint with an air of legitimacy.
        4. That a Reply is necessary to further illustrate the flaws in the Complaint that the Plaintiff has brought before this Court.

        5. That a Reply to Plaintiffs Response is attached hereto for review by this Court.
        WHEREFORE, PREMISES CONSIDERED, the Defendants, and all of them, pray that this Court will grant their Motion Requesting Leave from the Court to File a Reply to Plaintiffs Brief "In Opposition to Defendants Motion to Dismiss and In Opposition to Defendants Motion for Summary Judgment" and thereby incorporate this Reply into the record, and further pray for any and all other relief to which they may be entitled

 CITY OF FAYETTEVILLE, ARKANSAS, et al
BY: ____________________________________

WOODY BASSETT (#77006)
BASSETT LAW FIRM
P. O. Box 3618
Fayetteville, AR 72702
  (501) 521-9996
 

CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for all parties in the foregoing ~ matter with a copy of this pleading by depositing in the United States mail a copy
I properly addressed with adequate postage thereon.
This 11^th day of February, 2002.

 

                Abraham Lincoln once said, "The thing that kills a skunk is its own publicity." And that is precisely what the Plaintiff does to himself by virtue of his conduct, his statements, and what he has written during the course of his dispute with the City of Fayetteville (hereinafter "City"). What emanates from the pages of his Complaint and his Brief "In Opposition to Defendants Motion to Dismiss and In Opposition to Defendants Motion for Summary Judgment(sic)" (hereinafter "Response") is a scent so odorous and so mean-spirited that any reasonable and fair-minded person should be and would be astonished by the depths to which the Plaintiff sinks. The tone, tenor, and content of what Plaintiff La Tour has written is offensive and, in the final analysis, inexcusable. His lawsuit is without merit and should be summarily dismissed with prejudice.                                                                                      

               In an effort to avoid wasting the Court's valuable time, this Reply Brief will not address or point out each and every falsehood, inconsistency, inaccuracy, mistake, implausible notion, irrelevant or immaterial assertion, slanderous contention, and / or misapplication of law, precedent, or fact contained in the Plaintiff’s Response. However, some assertions and allegations contained in that Response are so egregious and so inconsistent with law or fact that a Reply is warranted for an accurate understanding of the issues now before this Court. In his Response, the Plaintiff attempts to cloud the actual issues with a haze in hopes that the haze cannot be penetrated, and the actual issues found, by the most powerful of search beacons. This Reply is submitted by all the Defendants for the purpose of assisting the Court in cutting through that haze and with the belief that shining some light on what the Plaintiff has done and said will compel this Court to bring this case to a merciful conclusion, now rather than later.
            Despite the fact that the Plaintiff has filed a voluminous and expansive Response, the allegations, bald assertions, and "application" of law and precedent contained therein do not in any way correct the factual and legal issues that are fatal to his Complaint. As such, based on the information briefed at length and discussed fully in the Defendants' pending Motion to Dismiss and Brief in Support, this Court should dismiss with prejudice the Plaintiff's Complaint and further grant the Defendants any and all other relief to which they may be entitled.
                                    The Ordinance in question, discussed at great length in the Brief in Support of Motion to Dismiss (hereinafter "Brief'), provides that time and temperature displays, and other exempted signs, are exempt from the permitting requirement that is imposed upon all other signs (regardless of content) that are erected in the City of Fayetteville. This type of sign is exempt because it functions more like a tool and because it is inherent to proper function of the sign that it be allowed to change (a fact not present here). Additionally, time and temperature signs are exempt because they are not the type of sign that was found to be distracting or hazardous to passersby. Unlike time and temperature signs, scrolling marquees, by their very nature, entice or lure someone to anticipate the coming message and potentially distracts them from the task at hand, i.e. driving an automobile. As laid out in the Brief, for these reasons the Ordinance has been found to be a valid and content-neutral regulation of signs within the City of Fayetteville. Because of the express exemption, the regulations regarding flashing, blinking, or animated signs do not apply to time and temperature signs but they do apply to signs such as scrolling marquees or other flashing or blinking signs, such as the Plaintiff s sign. Since the Plaintiff s sign does not fall within an exempted class of sign, it is subject to restrictions and other requirements as are all non-exempt signs, regardless of their content. Despite this simple definition based (exempt v. non-exempt) distinction, the Plaintiff attempts to thwart the provisions of the Ordinance by challenging it based on content regulation when it is not, in fact, content that triggers the restrictions found in the Ordinance.
On page three of the Plaintiff's Response, the Plaintiff mistakenly asserts that his content-based argument is not addressed in the Defendants' Brief. Throughout pages seven to fourteen of the Defendants' Brief, the Defendants strive to provide the history and background of the Ordinance, including all previous challenges, so this Court can properly evaluate the Ordinance and, as the Defendants believe is warranted, come to the conclusion that the Ordinance is not content based regulation. As laid out in the Brief and herein, numerous courts have already determined that the Ordinance is a valid content-neutral regulation of signs that Provides alternative channels of communication and Promotes legitimate and rational Public interest. (See Brief, P.7-14). The Supreme Court of Arkansas has addressed this issue in Donrey Communications, which among other things found that the exact ordinance in question is content neutral because it only restricted the size and location of signs. (See Brie( PoI3).
As the Plaintiff pointed out in his Response, the Donrey Communications factors for determining the validity of a restriction on speech apply to this case. (See Response, P .11; See also Brief, P .13). The Plaintiff then mistakenly asserts that the first prong of the Donrey Communications test is not met, to assert otherwise would be fatal to his cause of action. The Plaintiff s position is notably misplaced. As stated in the Brief, the first prong of the Donrey Communications test states that restrictions on speech are permissible if they are justified without reference to content. (See Brief, P 013). Here, numerous Arkansas cases have found that the prohibition against flashing and blinking signs was not enacted because of the content such signs may or may not contain but was, in fact, enacted because of the hazards that type of sign poses to passersby and to prevent the unwanted proliferation of signs in the City.

            As indicated by Donrey Communications, the justification for the prohibition against signs such as the one owned by the Plaintiff is not based on the content of the sign. Because the Ordinance restricts all non-exempt signs, we need not look to the content of a sign when determining the validity of the Ordinance. In fact, the content of the non-exempt signs has no bearing at all on the restrictions found in the Ordinance. After realizing that all non-exempt signs are restricted, we must next look to the Donrey Communications factors to determine if the Ordinance is a content neutral restriction on speech. Here, the Ordinance is justified without ever mentioning the content of the signs governed by it (i.e. prevent proliferation of signs / prevent distracting &/or hazardous signs), serves a significant governmental interest (i.e. reasonable regulation of signs within the City limits / protects the aesthetic value of the City), and leaves ample alternative channels of communication open (face sign inward / keep sign static). Clearly, the Donrey Communications factors have been met and the Ordinance is a valid content neutral regulation of speech.
            The Plaintiff intimates that there is not any alternative channel of communication. He draws this assumption on the fact that he wants to influence public thought and he believes that to require him to face the sign inward (i.e. toward his own patrons) prevents him from doing so. However, if that is his purpose he may accomplish the same exact purpose by keeping the sign static or complying with the plea agreement. As such, his argument that there is no viable alternative is fatally flawed. Pursuant to the guidelines set forth in Donrey Communications, the Ordinance is a valid form of restriction upon signs and the content of messages contained on the signs, no matter what that content may be. To resolve this issue we must only look to the content of the Ordinance and the policy reasons for its enactment, not (as purported by the Plaintiff, Response P.12) the content of the Plaintiff's non-exempted sign. A plain and common sense reading of the Ordinance and its prohibition against blinking, flashing, or fluctuating illumination signs, indicates that it restricts all signs that are not exempted from its provisions, not because of their content (as the Plaintiff asserts) but because of the unwanted proliferation of signs in the City and potential hazards created by signs of that nature. A restriction is no content based unless one has to refer to the ordinance or regulation to find out what content is restricted, if the ordinance or regulation may be enforced without inquiry into the content of the regulated sign then it is content neutral. Thorburn, infra. As such, the narrowly drawn Ordinance is a content neutral regulation of signs and the Plaintiff has failed to state a claim upon which relief can be granted. Thus, his Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

                The latter portions of the Response are devoted to his assertions that the Ordinance is a form of content regulation. However, a plain reading of the Ordinance, case law interpretation of the Ordinance, and case law interpretation of similar ordinances clearly indicates that the Ordinance in question is not content-based regulation. The restrictions set forth in the Ordinance have absolutely nothing to do with the content of the sign is or is not. The exemptions, on the other hand, are based on content, utility, and function. Thus, it is completely irrelevant that the Plaintiffs sign functions like or similar to other signs. This point is illustrated by a recent Eighth Circuit Federal Court decision from Nebraska that was critical of the Cincinnati approach relied heavily upon by the Plaintiff herein and heavily criticized by other courts. (Response, P.36-38).
                In Thorburn v. Roper a United States District Court in Nebraska found that a restriction such as the one created by the Ordinance was in fact valid. 39 F.Supp.2d 1199 (Nebr. 1999). That court found that the ordinance and facts before it were distinguishable from Cincinnati because it did not have to look at the content of the speech to determine if the speech was prohibited. In Cincinnati it was impossible to determine if the item was prohibited without looking to its content, a fact not present here. The Thorburn Court held that an ordinance which did not require police officers or other  officials charged with enforcing the ordinance to look at the content of picketing signs to determine if they were in violation of the ordinance was content neutral. 39 F.Supp.2d at 1206. Since the content of the message contained on the pickets was not the controlling factor in enforcing the ordinance, the Thorburn Court held that it was not a content-based regulation. Id. Much like in Thorburn where a violation of the ordinance occurred merely by picketing without regard to the message contained on the picket, the violation that the Plaintiff was prosecuted for was because he violated the Ordinance without any reference whatsoever to the message contained on his sign. In fact, the officers did not even have to look at the content of the Plaintiff’s sign to determine if it was in violation of the Ordinance, the mere fact that it flashes, blinks, and/or is animated is all that is necessary for it to violate the Ordinance. As laid out in Thorburn and numerous other cases, these types of ordinances are valid restrictions of speech without reference to content and any attempt by the Plaintiff to assert otherwise are notably misplaced, as his is reliance on the Cincinnati decision which does not present the same type of ordinance as the one in question. As an aside, once it is established that the restrictions created by the Ordinance are not based on content all of the Plaintiffs remaining arguments, specifically his reliance on Metromedia are misplaced as well.
                   The Plaintiff seemingly fails to grasp the applicability of Finch v. Neal, Kulbeth v. Purdom, and the principles of res judicata, collateral estoppel, and claim preclusion. He first asserts that since (by his own choice and volition) constitutional arguments were not reached at the Municipal and Circuit Court level, he is not barred from bringing this action. Conversely, the Plaintiff later asserts that he raised his constitutional arguments as a defense. (Response, P .17). (This is but one of numerous inconsistencies that plague the Plaintiff’s pleadings.). The Plaintiff chose to agree to the plea entered in the Circuit Court. As such, the Plaintiff affirmatively chose to terminate that proceeding and be bound by its findings. The Plaintiff now seeks to negate that choice and bring this cause of action. To allow such an act would defeat the purposes of the doctrines all together and would open the flood gates to claimants who initially agreed to settlement and then later decide that they no longer wanted to abide by that settlement. This case is based on the same actions, events, circumstances and subject matter as the previous cases involving the Plaintiff, and purports, albeit erroneously, to raise new legal issues and seek additional remedies. When that is the case, a trial judge is justified in finding that the claim is barred by the doctrine of res judicata. Ein£h.. 873 S. W .2d at 522 (See Brier, P.14). These principles are so strong that they extend to questions of law and fact that may have been, but were not (as is the case herein), presented in a former action. Kulbeth, 805 S.W.2d 622 (See Brier, P.15). As such, the Plaintiff has failed to state a claim upon which relief may be granted and, as such, his Complaint should be dismissed.
                   Despite the fact that he agreed to the guilty plea entered by the Circuit Court, the Plaintiff goes to great length to assert that he did not plead to the charge of violating the sign ordinance. (See Response, P.16). Presumably and contrary to common practice and procedure in this area, the Plaintiff would have you believe that he did not get the opportunity to review the plea that was entered and that Judge Storey and Defendant Warrick drafted the plea without informing him of the language contained therein. However, as clearly evidenced by Exhibits F and G to the Brier, that is clearly not the case. (Another factual inconsistency found in the Plaintiffs pleadings.). In clear, plain, and unambiguous language contained in the Order and the record of the proceeding during which his plea was taken, language is found which clearly indicates that the Plaintiff did plead to the charge of violating the ordinance. (See Brief, Exhibits F&G). As Exhibit G to the Brief indicates, the Plaintiff did, in fact, agree and have knowledge of the plea agreement.
                    All of the Plaintiff s claims against the individual Defendants rest solely upon his argument that they somehow unconstitutionally prevented his successful affirmative defense to the charge of violating the Ordinance. The Plaintiff slightly misquotes this statutory defense on Page 31 of his Response. The actual statutory language is below:
        It is an affirmative defense to a prosecution that the actor engaged in the conduct             charged to constitute the offense 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 contained in:
 (3) An official interpretation of the public servant or agency charged by law with the responsibility for the interpretation or administration of the law defining the offense. Ark. Code Ann. & 5-2-206(c).
            Under the facts openly admitted to by the Plaintiff, this affirmative defense was never legally available to him. Regardless what might have been said to the Plaintiff prior to his installation of the sign, the only "official interpretation of the public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense" was presented to the Plaintiff prior to the date of his charged violations of the Ordinance. This fact was admitted by the Plaintiff on Page 27 of his Response where he states "April 7, 2000 Mike McKimmey files a 'Code Enforcement Officers     Violation Notice' on my sign."
The Plaintiff was then officially informed by the City Prosecutor's Office by letter of May 16. 2000, (Response, Exhibit B) that his sign violated the Ordinance. The Plaintiff admits receiving this letter on May 25. 2000. (Response, P .27)
            The Plaintiff admits being informed by the City Prosecutor's Office on or about June 9. 2000, that the earlier statements about the indoor sign permit regulation by Defendants McKimmey and Estes was prior to their knowledge that his sign was going to be an electronic sign, a fact which the Plaintiff did not disclose when he inquired about regulation of indoor signs. (Response, P .28; LaTour Affidavit Para. 6; See also Exhibit F)

                Finally, the Plaintiff admits he was provided another letter dated June 13. 2000 from the City Prosecutor's Office (Response, Exhibit C) in which Defendant Warrick informed the Plaintiff that after speaking with Defendant McKimmey "it remains our position that the fluctuating sign in the front window of Sprint Tax violates Cit Ordinance 174.08B." (Response, P.28; Exhibit C).
            Thus, by June 15. 2000. the Plaintiff had been notified at least three times by the city officials responsible for interpreting and administering the Ordinance that his sign was in violation of that Ordinance. At that point, the Plaintiff could no longer act "in reasonable reliance upon" whatever may have been said initially because the responsible official had politely, clearly, and repeatedly informed the Plaintiff in writing that the way he was operating his electronic sign was in violation of the Ordinance.
      If the Plaintiff had been charged with violations occurring before the official interpretations and warnings were communicated to him, he could have asserted the affirmative defense of ignorance or mistake. However, the City Prosecutor's Office did not charge him with any violation prior to June 16, 2000, after he had been officially notified at least three times in writing that his operation of his electronic sign violated the Ordinance. (Response, P .28).
            The Plaintiff asserts that "Mr. McKimmey (functioned) ... as the official City Sign Inspector..." (Response, P .22). The only official interpretation of Mr. McKimmey that concerned whether the Plaintiff’s sign operated in violation of the Ordinance was repeatedly and clearly communicated prior to the date the violations of the Ordinance were charged. As the Plaintiff readily admits, "June 16, 2000 (was) the beginning date of my alleged criminal activity as contained in the City's Criminal Summons." (Response, P .3).
               Since this affirmative defense for violations occurring ~ clear warnings by the responsible city officials is unavailable to the Plaintiff, all of his complaints and allegations against the individual Defendants are irrelevant and merit less.
               His scurrilous and wrongful allegations of perjury against Defendants McKimmey and Estes are not only factually wrong, but also totally irrelevant to any criminal defense. It is irrelevant what might have been said initially since the Plaintiff was later clearly informed of the official interpretation and position of the City and given a chance not to further violate the Ordinance. Instead of compliance with the official interpretation of the Ordinance, the Plaintiff, as he as admitted, intentionally refused to comply. (Response, P .28). As such, how can the Plaintiff now claim that his blatant violations are shielded by the affirmative defense of ignorance or mistake? Ark. Code Ann. § 5-2-206. It is the Defendants' position that he cannot.
The Plaintiffs wrongful allegation that Defendant Warrick perjured himself in open court is not only absolutely wrong but also directly related to his consultation with Defendants McKimmey and Estes about earlier conversations they had with Plaintiff LaTour. Any such conversations are irrelevant once the Plaintiff had been officially informed that his conduct with the sign was violating the Ordinance. Obviously, these consultations could not be found to be exculpatory, which was the implicit finding of Judge Storey (Response, Exhibit F) when he quashed the Plaintiffs subpoena of Defendant Warrick. (It is also obvious that Mr. Warrick was not under oath and thus could not be guilty of perjury).
            Similarly, any other "witness" that might relate whether they needed a permit for a sign in their window would be irrelevant to the Plaintiff s ignorance or mistake defense. As the City Prosecutor's letter of June 13,2000 (Response, Exhibit C) makes clear, it was how the Plaintiff operated and positioned his sign that caused his violation. No permit was required, but the sign could not be fluctuating. Therefore, when the City Attorney advised his client, Mr. Sid Norbash, not to speak without counsel being present with a person in litigation against the City, Mr. Norbash actually could present no relevant testimony in support of the Plaintiffs ignorance or mistake defense.
             Therefore, all the wrongful and scurrilous allegations of perjury and tampering are not only factually unsupportable and affirmatively wrong, they also relate to an affirmative defense that the Plaintiff cannot even present since the "official statement of the law" that he was violating the Ordinance was clearly communicated to the Plaintiff in writing prior to the date his charged offenses began.
                 The Plaintiff unsuccessfully attempts to overcome the reality that the individual Defendants are entitled to immunity for their actions. The Plaintiff cites Bivens v. Six Unknown Federal Agents. presumably for the proposition that the immunity provided to the individual Defendants herein should be penetrated based on the same logic applied to federal agents in~. (Response, P .20). The Bivens case is well known in American jurisprudential history and has received varying interpretations by courts that have dealt with that issue. In Bivens, the United States Supreme Court implied a cause of action for damages against agents who allegedly violated the United States Constitution. The facts and circumstances surrounding the Bivens matter are diametrically opposed to any of the assertions by the Plaintiff in this matter, even if (which the Defendants specifically deny) those assertions were true. The Bivens theory has only been applied to limited circumstances (violation of prohibition against cruel and unusual punishment, violation against unreasonable searches and seizures, violations of Due Process clause by federal agents) and courts are loath to extend its scope, as the Plaintiff herein is seemingly requesting. Courts have always "responded cautiously to suggestions that Bivens remedies be extended into new contexts." FDIC v. Mexer. 510 U.S. 471; 484 (1994) citing Schweiker v. Chilick X, 487 U.S. 412 (1987). The Bivens logic was intended to create a Section 1983 type cause of action against federal agents. not state actors. Christian v. Crawford. 970 F.2d 808, 810 (8th Cir. 1990). Moreover, in Christian the Court affirmed dismissal by the District Court of a Plaintiff s pro se complaint without construing it liberally to determine if the allegations contained therein could provide relief under any possible theory against federal agents and in doing so, the Court refused to extend Bivens to an attorney who was appointed by the government to represent the Plaintiff. 907 F.2d 808, 809 (8th Cir., 1990). Finally, in a concurring opinion, Justice Scalia, with whom Justice Thomas joined, stated that Bivens should be interpreted narrowly and stated that it "is a relic of the heady days in which this Court assumed common-law powers to create causes of action." For these reasons, the Plaintiff s reliance upon Bivens for any reason is misplaced.
              Additionally, the Plaintiff attempts to overcome the reality that the individual Defendants are entitled to absolute and / or qualified immunity for their actions. As pointed out in the Brief and Response, government officials are immune from suits for actions that fall within the discretionary functions inherent to their role with said government agency. (Brief, P .18, Response P .21). Though citing the functional approach in his Response, the Plaintiff asserts that the actions of the individual Defendants are not protected by qualified immunity. The Defendants, and all of them, are being sued for acts that fall squarely within discretionary duties that must be performed as part of their official role. Clearly, the acts of Defendants Warrick, Jones, and Williams are closely related to the judicial process and akin to their discretionary functions. As such, they are each entitled to absolute judicial immunity. Cleavinger v. Saxner. 474 U.S.. 193 (1985); Ark. Code Ann. § 19-10-305 (Supp. 2001); Imbler v. Pachtman. 424 U.S. 409 (1976). The judicial immunity provided to these actors is so strong that it overcomes allegations of malice. Culpepper v. Smith, 792 S.W.2d 293 (1990). Government officials, such as all Defendants herein, are also shielded from liability based on qualified immunity insofar as their conduct does not knowingly violate clearly established statutory or constitutional rights. Harlow v. Fitzgerald. 457 U.S. 800 (1982); Ark. Code Ann. § 21-9-301; Brief, P.18-19

             The Plaintiff attempts to side step the immunity provisions by making bald assertions against the Defendants. For example, he asserts that a reasonable sign inspector would realize that his sign functions like a time and temperature sign and would not have reported his non-conforming sign to the City. (Response, P .22). The truth is that Defendant McKimmey, acting as a reasonable sign inspector, identified that the Plaintiff's non-exempted sign was not in conformance with the Ordinance and duly reported it to the proper authorities, an act that is clearly reasonable and within his discretionary functions.
               The Plaintiff asserts that Defendant Estes, a member of the planning commission which is a body entitled to immunity under Arkansas law, is also not entitled to qualified immunity. The Plaintiff boldly asserts that the Defendant perjured himself and gave him an incorrect interpretation of the Ordinance, as it applied to his sign. However, he has put forth no real evidence of any such perjury and, in fact, if you take the language contained in his response as true (which the Defendants strongly deny), he illustrates that Mr. Estes gave him a proper interpretation of the Ordinance. On Page 23 of the Response, the Plaintiff states that Defendant Estes, acting as a member of the planning commission (despite the fact that he states to the contrary on Page 24), told him that the Ordinance did not apply to indoor signs. (Response, P.23). Indoor signs that cannot be seen from outside of the structure in which they are contained (again, a fact not present here) are exempted much like time and temperature displays. As such, even if such a conversation did occur (which is denied), Mr. Estes properly interpreted the Ordinance as applied to true indoor signs, which cannot be seen from outside the building. Moreover, as the Plaintiff has admitted, he did not inform Mr. Estes or any other Defendants that his sign was going to be a fluctuating illumination sign. (Response, Exhibit F). As such, based on the facts presented by the Plaintiff to Mr. Estes and Mr. McKimmey their rendered a proper interpretation of the Ordinance.
                On Pages 24 and 25 of the Plaintiff s Response, he makes direct attacks on the professionalism and candor of the City Attorney, Defendant Williams. These allegations (which the Defendants deny) are completely unfounded and do not point to any actual deprivation of the Plaintiffs rights. Since there are no references or citations to them in his Response, it must be assumed the Plaintiff submits the affidavits of Judy Kendrick and Steven Hardgrave for this proposition. In the Kendrick affidavit, there is nothing that indicates in any way whatsoever that Defendant Williams tampered with or otherwise influenced a witness. (Response, Kendrick Affidavit). Moreover, the Hardgrave if' affidavit, only reiterates the same uncompelling information contained in the Kendrick affidavit. (Response, Hardgrave Affidavit). Ironically, the witness who was allegedly "raked over the coals" and had an allegedly "unpleasant encounter" with the Defendant did not submit an affidavit telling his view of the encounter. These affidavits are wholly self-serving and do not in any way remove the immunity that Defendant Williams is entitled.    

                Finally, the Plaintiff attempts, yet again, to overcome the immunity provided to governmental officials; namely, Defendants Warrick and Jones. As the Plaintiff smartly states (a statement which actually reinforces the Defendants position), "when 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, he is entitled to qualified immunity." (Response, P.26, citing Burns v. Reed. 500 U.S. 478 (1991)). As such, both Defendants are entitled to immunity from actions against them at this time. (See also Brief, P .18-19).
                The Plaintiff devotes great time to personal attacks against the Defendants throughout his brief. Most notably, he attacks the reasonableness and skill of Defendant Warrick. However, it is the Defendants position that Defendant Warrick has acted with an excess of reasonableness. Defendant Warrick attempted to ~ legal action by corresponding with the Plaintiff and instructing him how to bring his sign into compliance, which the Plaintiff did not do. Defendant Warrick brought charges against the Plaintiff only after the Plaintiffs willful non-compliance with the Ordinance. Moreover, the Plaintiff s willful non-compliance continued after he was informed of the enforcement provisions of the ordinance. Defendant Warrick invoked the penalty provisions of the Ordinance to arrive at the sum the Plaintiff complains of as part of the proffered jury instruction (which was never actually submitted to any jury) and to determine the fines assessed by the judge against the Plaintiff. In an effort to appease the Plaintiff and avoid further waste of this or any other court's time, Defendant Warrick offered to reduce the fine and allow the Plaintiff to change his sign once every twenty- four hours, which was obviously not enough for the Plaintiff. Defendant Warrick ~~ to settle, by form of a plea, the criminal matter in the Circuit Court, in another effort to avoid undue waste of time and waste of judicial resources. By the terms of the plea that was reached and agreed to by the Plaintiff, Defendant Warrick and the City agreed to allow him to change the message on his sign once every three hours, which again was not enough for the Plaintiff. As such, it is not, in fact, Defendant Warrick or any of the other Defendants who have acted unreasonably, it is the Plaintiff who has acted and continues to act unreasonably by not availing himself of the many opportunities he was presented to either bring his sign into compliance or settle this matter without further intervention by the courts.
            In concluding, this Reply would not be complete without briefly mentioning the Affidavits attached to the Plaintiff s Responses. These Affidavits ostensibly support the Plaintiff s position and must be examined because of the unnecessary confusion they create, despite the fact there are no citations in the Response to assist the reader in determining when he or she should refer to them. The affidavit of Gerald Bowman does not indicate whether he inquired about pure indoor signs or non-conforming signs (i.e. the Plaintiff's sign) that are placed inside and visible from outside the facility nor does it indicate whether the sign he inquired about was a type of fluctuating illumination sign. As such, it is impossible to tell whether the affidavit relates to an exempted sign or non-exempted sign and it is, therefore, irrelevant and immaterial and only serves to cloud the issue. Similarly, the Kendrick and Hardgrave affidavits indicate that there is a scrolling marquee sign inside of city facilities. As discussed at length in the Brief and herein, indoor signs enjoy the same type of exemption as outdoor signs, unless they may be seen from the outside of the facility. Neither of these affidavits indicates that the sign they are reporting is visible from the outside of the building. Absent such information, the comparison to the Plaintiff s sign is, once again, irrelevant because it is impossible to tell, on their face, if they relate to the same facts and circumstances as gave rise to the Plaintiff s purported cause of action.
                Throughout his Response the Plaintiff relies on case law that has been overturned, criticized, or is otherwise no longer controlling factually or legally on this issue. Though this Brief did not attempt to point out each and every falsity or misstatement of law or fact contained in the Plaintiff s Response, it is an earnest effort to clarify some of the most egregious information found in the Response and further illustrate the validity of the Defendant's Motion to Dismiss and the reasons that this honorable Court should grant that Motion.
              WHEREFORE, PREMISES CONSIDERED, the Defendants, and all of them, pray that this Court will grant their Motion Requesting Leave from the Court to File a Reply to Plaintiff s Response to Motion to Dismiss and thereby incorporate this Reply into the record, dismiss the Plaintiff s Complaint with prejudice, and further pray for any and all other relief to which they may be entitled.
                                                                        

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