Federal Complaint:
IN THE UNITED STATES DISTRICT COURT
FOR
THE WESTERN DISTRICT OF ARKANSAS
JOHN S. LA TOUR Plaintiff
v.
File Number:
02-5001
CITY
OF FAYETTEVILLE, ARKANSAS
BRANDT WARWICK
CASEY JONES
KIT WILLIAMS
BOB ESTES
MIKE MCKIMMEY
Defendants, in both their individual and official capacities.
_________________________________________
Justice
Louis Brandeis,
Olmstead v. United States,
277 U.S. 479 (1928)
John S. La Tour states the following complaint:
1.
This is a civil rights action brought under U.S.C.
§1983 seeking declaratory and injunctive relief and punitive damages against
the Defendants captioned above for the unconstitutional application of the
Fayetteville city sign ordinance. The
manner in which the City of Fayetteville (“City”) sign ordinance is
enforced amounts to nothing less than content-based regulation of signs.
2.
I
own and operate and electronic message sign
[1]
mounted inside my office window at 2285 West Sixth Street in
Fayetteville, Arkansas. My sign
can accommodate only three or four words at a time.
The screen displays its three or four words for approximately fifteen
seconds, then the screen goes blank. The
screen remains blank for approximately five seconds and then reappears with
the next three or four words which are different from the last three or four
words. This process is repeated
until a complete sentence is displayed. My
sign functions exactly like numerous time and temperature signs located around
Fayetteville
[2]
.
3.
Time
and temperature signs function in the following manner:
time of day is displayed; screen goes blank; temperature of outside air
is displayed; screen goes blank; time is displayed; screen goes blank; etc.
4.
In
short, time and temperature signs function exactly like my sign. The only difference in these two types of signs is the
content of the messages displayed. Time
and temperature signs display, as their name implies, time and temperature.
My sign displays my political and religious opinions
[3]
.
5.
On
January 3, 2001 Judge Rudy Moore presiding in the Fayetteville Municipal Court
found me guilty of a crime and fined me $1025.00.
My crime was that I changed my sign’s message more frequently than
once every 24-hour period.
6.
I
appealed my conviction to the Washington County Circuit Court.
The city prosecutor’s office decided to settle the appeal, refund my
fine, and allow me to change my sign’s message once every three hours in an
apparent effort to preclude the court from ruling on the constitutionality of
the city’s sign ordinance.
7.
The
city’s policy of prohibiting my sign from functioning in the same manner as
time and temperature signs breeches my right of free speech and equal
protection under the law. The
city’s scheme is based on official government policy and the city’s
actions were taken under color of state law.
JURISDICTION AND VENUE:
8.
Jurisdiction in this case is based upon 25 U.S.C.
§1331, §1343 (3) and (4).
9.
Venue
for this case is properly in the Western District of Arkansas, pursuant to 25
U.S.C. §1391, in that all acts alleged occurred herein.
PARTIES:
A.
Plaintiff:
10.
JOHN S. LA TOUR is a resident of Fayetteville,
Arkansas and has resided in the city for over twenty years.
I am a practicing Certified Public Account and am currently working,
slowly, on a law degree. I will be pursuing this action on a Pro Se basis.
My wife,
Elizabeth, and I are the thankful parents of seven children, so far, ages
eight and under. These seven
children and the safeguarding of their civil liberties are the primary reasons
this suit is being brought.
B. Defendants:
11.
The
Defendants in this case are the City of Fayetteville and the local
governmental officials under whose watch I was prosecuted.
Early on in the proceedings, the city was placed on notice that their
sign ordinance was being applied in an unconstitutional manner.
Not withstanding this notice, the city continued to prosecute this case
against me and my interests seeking additional fine amounts of nearly
$100,000.00.
12.
The
CITY OF FAYETTEVILLE is a governmental entity charged with applying and
administering the Fayetteville city sign ordinance.
The City is organized and established under the constitution and laws
of the State of Arkansas.
13.
In the application of its sign ordinance
[4]
the City restricts electronic signs, such as described above,
based on their content. If an
electronic sign is displaying the noncommercial message of time and
temperature, it is allowed, under official Fayetteville policy, to change the
wording and characters on its sign-face at will.
If, however, the electronic sign is displaying the political and
religious beliefs of it’s owner, the sign cannot similarly function.
14.
The City sign ordinance is completely silent as to how frequently an
electronic sign can change its message. However,
Judge Rudy Moore presiding in the Fayetteville Municipal Court on January 3,
2001, ruled that an electronic sign inside the city limits of Fayetteville
could only change its displayed message once in a twenty-four hour period.
Apparently, Judge Moore found me guilty of breeching the sign ordinance
because I changed my sign’s message more frequently.
Judge Moore fined me a final amount of $1025.00 which I dutifully paid
and appealed.
15.
I appealed my criminal conviction to Washington County Circuit Court.
Two days before trial, the city prosecutor, Mr. Casey Jones, decided to
settle the appeal by refunding the fine I had paid and allowing me to change
my sign’s message once every three hours instead of once every twenty-four
hours as had been previously adjudged.
16.
The final result of our legal excursions through the state court system
is that electronic signs that display the noncommercial message of time and
temperature can still change their sign-face message at will while electronic
signs that express other noncommercial messages cannot.
Such duplicity surely amounts to nothing less than
content regulation.
17.
In
violation of the Civil Rights Act of 1866, 42 U.S.C. §1983, the Defendants
have acted under color of state law to deprive the Plaintiff of my right to
freedom of speech guaranteed under the First Amendment to the U.S.
Constitution by charging and convicting me of criminal activity when in fact
it was the Defendants that acted unlawfully.
18.
Plaintiff repeats and realleges Paragraphs 1 through 17.
19.
Defendant’s policy and practice of regulating electronic signs on the
basis of their content violates the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution.
20.
In restricting the expression my political and religious opinions, the
City has based its actions on a suspect classification (religion) and
infringes on fundamental rights (freedom of speech and free exercise of
religion). Because the City’s
application of its sign ordinance is based on a suspect classification and
infringes on fundamental rights, it violates the Equal protection Clause of
the Fourteenth Amendment to the U.S. Constitution.
21.
Plaintiff
repeats and realleges Paragraphs 1 through 20.
22.
Before I purchased and installed my electronic sign, I asked
Fayetteville public officials about the regulations that governed indoor
signs. The officials I asked were
Mr. Mike McKimmey and Mr. Bob Estes. Mr.
McKimmey is the city sign inspector for the city of Fayetteville and Mr.
Estes, at the time, was a member of the City Planning Commission.
Currently, Mr. Estes chairs that commission.
23.
On December 23, 1999, the day after my son Nate was born, in a
conversation with Mr. McKimmey in front of the inspections desk in the
Fayetteville administration building, Mr. McKimmey told me that indoor signs
were not regulated by the Fayetteville sign ordinance.
24.
Again, on January 5, 2000, some two weeks later, I called Mr. Estes and
asked about the regulation of indoor signs.
He told me that he wasn’t sure about the rules, but he would “call
the city” and then call me back. I
placed my call to Mr. Estes at 2:17pm, he called me back at 2:48pm.
Mr. Estes told me that “they”, meaning the city, said that if the
sign was located “behind the glass”, meaning indoors, no regulations applied and I could do as I pleased.
At this point I placed a $6000.00 order for the sign.
25.
After I was served with my criminal summons, I employed an attorney,
Mr. Jim Rose, to represent me in Municipal Court.
Even though there is no formal discovery process at this level, Mr.
Rose telephoned Mr. Estes and asked how he would testify if called as a
witness. This conversation took
place in December of 2000 around the middle of the month.
26.
Mr. Estes told my attorney the same things he told me on January 5,
2000 and added that the person he spoke with at the City, was the planning
director, Mr. Tim Conklin.
27.
Because he had a witness to support my version of the facts, Mr. Rose
decided to take this case to trial.
28.
At trial Mr. Estes testified that he really couldn’t remember the
specific contents of the conversation with me on January 5, 2000 where he told
me indoor signs were not regulated. He
did note, however, that under the city sign ordinance, it was his opinion that
indoor signs were under the same regulations as outdoor signs!
29.
After
I was tried, convicted, and fined in Fayetteville Municipal Court, I began
preparing my appeal to Washington County Circuit Court.
I began investigating some
form of proof that I could present to the jury showing the Mr. Estes has an
excellent mental capacity and that it was very unlikely that he could not
remember our conversation on January 5, 2000 in which he told me that indoor
signs were not regulated.
30.
In my investigation, I contacted the city personnel office and acquired
a copy of Mr. Estes resume and job application letter where Mr. Estes was
applying for the job of Fayetteville city attorney.
His letter of transmittal requesting consideration for the job was
dated, none other than, January 3, 2001, the very day of my trial in municipal
court!
31.
At trial, Mr. Estes testified, when asked by Mr. Rose, that he could
not recall facts that he had repeated to Mr. Rose, only two weeks earlier.
Mr. Estes’ alleged memory failure seems all the more incredible and
very convenient when viewed in the light of his recent job application.
Mr. Estes’ reluctance to testify truthfully against his perspective
employer is understandable, but hardly justifiable when such a distortion of
the truth results in the miscarriage of justice and a gross chilling of my
right to due process. For this,
Mr. Estes should give an account.
32.
Under Arkansas law,
“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 responsibility for the interpretation or administration of
the law defining the offense.
Ark.
Code Ann. Section5-2-206(c)
33.
In an attempt to prove that Mr. McKimmey and Mr. Estes told me that
indoor signs were not regulated, I identified three Fayetteville citizens who
had been told the very same thing by Mr. McKimmey or other members of the
Fayetteville Inspections Division. One
of these citizens was and still is a current city employee.
34.
On
June 19, 2001 the Fayetteville city attorney, Mr. Kit Williams, called this
city employee, into his office and in the witness’ own words “raked
me over the coals”.
35.
The witness told me and my staff that Mr. Williams shouted at him and
told him to never speak to John La Tour again. The witness protested informing
Mr. Williams that I was his CPA. Mr. Williams responded by shouting in a loud
voice that, “I wouldn’t have a CPA like that”.
36.
Mr. Williams is in a position to greatly influence the decisions of the
mayor. Thus by his tone of voice, his voice volume, and words that he spoke,
Mr. Williams could easily have implied that if this witness did cooperate with
me by telling the truth at trial, pressure could be exerted to make certain
that the witness’ job and future with the City would be jeopardized.
While Mr. Williams did not threaten the witness’ life or family, he
did strongly imply by his actions and words that telling the truth at this
trial would be bad for the witness’ future with the City.
37.
Intimidation of a witness is a felony. While this conversation may not
rise to the level of felonious activity, it certainly approached it. Anything that resembles an encumbrance on a witness’
ability to tell the whole truth and nothing but the truth as he testifies,
strikes at the very heart of the entire judicial process itself and has had a
most chilling effect on my right to due process.
38.
In sum total, the actions of Mr. Estes and Mr. Williams, breeched my
right to due process by injecting the interference of apparently false
testimony and inappropriate witness tampering.
The right to due process is guaranteed by the Fifth and Fourteenth
amendments to the U.S. Constitution.
WHEREFORE, Plaintiff requests judgment against the Defendants for the
following relief:
INJUNCTIVE RELIEF:
Plaintiff does not have an adequate remedy at law, thus I seek
injunctive relief against the defendant City, ordering it and its personnel to
do the following:
a. The CITY OF
FAYETTEVILLE, ET AL, is ordered to permit the Plaintiff to operate his sign
under the same applied regulations that time and temperature signs are
regulated under and to fully express his religious and political opinions
unencumbered as to the frequency with which he may change his sign’s
message.
b. The CITY OF
FAYETTEVILLE, ET AL, is enjoined from
prohibiting the free operation of electronic display signs within its
jurisdiction so long as those signs communicate noncommercial messages
DECLARATORY RELIEF:
Plaintiff further requests declaratory relief against the Defendants
stating that the CITY OF FAYETTEVILLE’S content regulation of signs is
unconstitutional, violating my rights to freedom of speech, equal protection
under the law, due process of law, and 42 U.S.C. §1983.
PUNITIVE DAMAGES:
Plaintiff further requests punitive damages of not less than
$10,000,00.00 (ten million dollars) to provide the City and its officials with
ample incentive not to drag its citizens into court to defend against charges
based on the unconstitutional application of city ordinances.
Moreover, City officials that offer perjured testimony and/or attempt
to improperly influence witnesses, should be given every form of incentive not
to engage in such malicious activities ever again.
LEGAL AND OTHER COSTS:
For my reasonable legal costs, as provided for by 42 U.S.C. §1988, for
my costs and such other and further relief as the Court may deem just and
right.
January 3, 2002
Respectfully submitted,
JOHN
S. LA TOUR
BY: _________________________
John S. La Tour
JOHN
S. LA TOUR
112 Center Street, Suite 560
Fayetteville, AR 72701
[1] My electronic sign measures eight inches tall by seventy-two inches long.
[2] Time and temperature displays are located at the First Federal Bank of Arkansas at 3460 North College and Crossover Court strip center at the corner of Mission Blvd. and Crossover Road. Both of these locations are inside the city limits of Fayetteville, Arkansas.
[3] None of my published opinions are obscene or threatening.
[4] City of Fayetteville Unified Development Ordinance, Chapter 174