Excerpts of Proposed Amendment December 19, 2002 (P. 2-4)
I have deposed two former defendants, Mr. Mike McKimmey and Mr. Brant Warrick. The admissions contained in those depositions clearly present new evidence that this Court has not had an opportunity to consider. These new admissions indicate, at the very least, a reckless or callous disregard for my federally protected rights of free speech and expression.
Summary of Mr. Perry Michael McKimmey's Deposition
6. In his deposition, Mr. McKimmey admits that:
1. He has said "many times" that "If it's [a sign] inside, I won't mess
with it" or something to that effect. ~ McKimmey Deposition, Page 21, Lines 19 and following.
2. He held this belief about indoor signs even though these indoor signs were "facing outward, meant to attract attention outside" Ibid., Page 22, Lines 1 - 7.
3. On December 23, 1999, he was certain that he believed indoor signs were NOT regulated by the sign ordinance and they were "outside the realm of [his] responsibility as sign inspector." Ibid., Page 25, Lines 14 and following.
4. This belief was partly based on his practice and training as a City sign inspector. Ibid., Page 26, Lines 6 - 15.
5. This belief was also based upon a legal opinion of Jerry Rose, a former City Attorney and he, Mr. McKimmey was aware of this legal opinion. Ibid., Page 27, Lines 2 - 22.
6. He knew he could NOT "unequally enforc[ e the sign ordinance]" and he had a
conversation with his "boss" specifically about his inability to unequally enforce the sign ordinance, Ibid., Page 9, Lines 10-18.
7. He was sure that he had seen the time and temperature sign on North College more than once or twice prior to my prosecution for operating my sign in a substantially similar fashion and that he had driven by it "many times". Ibid., Page 10, Lines 4 and following.
8. He signed the affidavit swearing that I was in violation of the sign ~ ordinance. Ibid., Page 15, Lines 4 - 13.
Summary of Mr. Brant Warrick's Deposition
12. In his deposition, Mr. Brandt Warrick likewise admits that:
1. He had driven by the time and temperature sign on North . College "numerous times" and had observed it changing its ~ message. Moreover, he had this knowledge prior to his decision to prosecute me. SEE Brandt Warrick Deposition, Page 27, Lines
19 and following.
2. The time and temperature device on North College at First
Federal Bank is a sign according to the sign ordinance definition of a sign. Ibid., Page 32, Lines 1 - 24.
3. He read and reviewed the sign ordinance prior to prosecuting me, Ibid. Page 16, Lines 9 and following, and he saw that the sign ~ ordinance plainly states that exempted Signs" are ONLY exempted from one thing, the sign permit requirement. Ibid. Page
36, Lines 5 - 19.
4. Before he decided to prosecute me he made NO ATTEMPT to . research the constiti1'tional nature of the ordinance. He also did
not research the specific topics of content regulation and illegal prior restraint. Ibid. Page 16, Lines 9 and following.