IN THE UNITED STATES DISTRICT COURT
FOR
THE WESTERN DISTRICT OF ARKANSAS
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.
_________________________________________
Justice
Louis Brandeis,
Olmstead
v. United States,
277 U.S. 479 (1928)
“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.”
United States v. Lee
106 U.S.
at 220
“Liar, Liar, Pants on Fire”
Unknown Source of
Common Knowledge
INTRODUCTION
In the Defendants’ Reply to Plaintiff’s Brief “In Opposition
to Defendants Motion to Dismiss and in Opposition to Defendants Motion for
Summary Judgment” (“reply”) the Defendants put forth irrelevant,
redundant, grossly misleading and false information in their continuing
campaign to mislead this Court and cover up the unconstitutional activities of
the Fayetteville City government (“City”)
and its officials.
I respectfully request that such inflammatory materials be stricken
from the record or alternatively that this Court grant me leave to file this
brief as an explanation and substantiation of that irrelevant, redundant,
grossly misleading and false information provided by the City.
POSITION
AND ARGUMENTS
1. False Statement Number One:
The Fayetteville sign ordinance unequivocally
states:
“Exemptions shall not be construed as relieving the
owner of such signs from the responsibility of complying with …this chapter.
The exemptions shall apply to the requirement for sign permit ONLY
(emphasis supplied). UDO Sect.
158.08
And,
It shall be unlawful for any person to erect
additional attraction devices or signs or to continue in operation of an
attraction device or sign which flashes, blinks, or is animated.
Illumination of attraction devices or signs located in the city that
fluctuates in light intensity shall be prohibited.
UDO Sect. 158.40
The one and only item that exempt signs are exempted from is the sign
permit requirement. The
exemption, as stated above in the actual regulation, does not exempt any signs
in the city limits from any other provisions of the sign ordinance. This is plain and simple from even a tertiary reading of the
Ordinance.
The Defendants, however, state that,
“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 marques or
other flashing or blinking signs, such as the Plaintiff’s sign.”
City Brief at Page 3.
This statement is blatantly false.
The sign ordinance specifically states that the exemption applies to
the sign permit requirement ONLY. Yet
the City states in a bold face lie that the exemption applies to the
prohibition against flashing, blinking or animation.
Moreover, my sign does not scroll or flash or blink.
My sign functions just like time and temperature signs.
The City is lying to this court when they maintain otherwise.
Such malicious pandering should not be tolerated and should be severely
sanctioned. At the very least
these false statements should be struck from the record.
2. False Statement
Number 2: The Defendants further
assert that,
“…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.”
City Brief at Page 3.
As
demonstrated above, the restrictions found in the ordinance apply to all
signs. The only exception to this
rule is the permit requirement for exempted signs.
ALL OTHER RESTRICTIONS APPLY TO ALL SIGNS according to the Ordinance.
Thus, the prohibitions against flashing, blinking, and animation as
written in the Ordinance do apply to time and temperature signs.
However, as I have continually maintained, the City applies the Ordinance by restricting my sign and not time and temperature signs. The only rational basis for this distinction is the noncommercial content of the sign. If my sign said nothing more than time and temperature, there probably would be no controversy surrounding my sign.
Thus, it is the content of my sign that “triggers” the city’s
unconstitutional application of its sign ordinance, and the above quote should
be struck as it, too, is grossly misleading and false.
3. False Statement Number
3: The Defendants assert that
they have addressed the issue of content regulation by reciting the litigious
history of the Ordinance. Indeed
this Ordinance has been hauled into court on numerous occasions. However, no court has had the opportunity to rule on the
constitutionality of the Ordinance as applied rather than as written and stated. This case is one of first impressions dealing with this sign
ordinance in this manner.
The Defendants assert the amazing claim that,
“[b]ecause 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.” City
Brief at Page 4.
As drafted, the Ordinance prohibits ALL signs, exempt and non-exempt, from flashing, etc., but the City, amazingly, would have us believe that only non-exempt signs are restricted. This is patently untrue. As stated above, the exemption applies ONLY to the permit requirement. Thus the written prohibition against flashing signs applies to all signs including time and temperature signs.
However, in applying their Ordinance, the City only applies the restriction to my noncommercial message sign while allowing time and temperature signs to change at will. This is the unconstitutional application of the Ordinance. This is the breech of my guarantee to free expression AND equal protection under the law.
Thus, the Ordinance may be constitutional as written, but as applied,
it is patently unconstitutional because the only rational basis to distinguish
my sign from time and temperature signs is the content of the noncommercial
message displayed.
Indeed, if exempt signs are not restricted by the flashing
prohibitions, as the City maintains, the business community of Fayetteville
will greatly rejoice. I count 17
categories of exempt signs listed at UDO Section 158.08; everything from
professional name signs to fuel price signs, to freestanding bulletin board
signs. I am sure this new rule,
that exempt signs can flash, promoted by the City, will be welcomed with open
arms. Almost every business in
Fayetteville will qualify for some sort of flashing sign!
Oh what tangled webs we weave when at first we seek to deceive.
This statement, as well, should be struck as false and grossly
misleading.
4. False Statement Number
4: The Defendants state that,
“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
” City Brief at
Page 4.
The City now states its false premise and continues to build its entire
anti content regulation case on this very sandy and foolish erroneous
foundation. As stated
above, this statement is a half-truth meant to mislead this Court, or the
next, and it should be struck.
The statement only tells half of the story.
While it is true that “all non-exempt” signs are restricted, as
demonstrated supra, ALL signs, exempt and non-exempt, are restricted (i.e.,
prohibited from flashing, etc).
The City has to draw this deceptive conclusion in order to build its
anti content regulation case. Without
this deception, the City has no case to argue.
Indeed, it is a contrived smoke-screen approach to legal debate.
Because the City applies its Ordinance so that my sign is prohibited
from functioning but time and temperature signs are not and because both types
of signs are under the very same restrictions, except the permit requirement,
the City is regulating on the basis of the content of the signs. This is the plain and simple truth the City and its legal
counsel fail to grasp or worse, choose to ignore.
Thus, the City completely fails to meet the Donrey Communications
three prong test. The first prong
of the test is NOT complied with because the ONLY way to distinguish my sign
from time and temperature signs is to look at the content of the signs.
Under the City’s scheme, time and temperature signs communicate the
“approved” message while my sign communicates otherwise.
When the City decides which messages are approved and which are not, it
is breeching its citizens right to free speech.
The City’s assertions to the contrary are false and should be struck.
Specifically, the last paragraph on page 3 of the City’s reply
through first paragraph on page 5, which ends on the top of page 6, is false.
Moreover, the City asserts that,
“ .. prohibitions against flashing and blinking
signs were 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
pose to passersby and to prevent the unwanted proliferation of signs in the
City.” City Brief
at Page 4.
The point regarding the prohibitions against flashing and blinking as
written in the Ordinance is irrelevant to this case.
I am not attacking the Ordinance as written but I am challenging the
Ordinance as applied. Thus, the
wording used in the ordinance is irrelevant and should be struck.
By
arguing this point, however , the City tacitly admits the weakness in its own
case. It has never even
contradicted, much less refuted, my claims that the Ordinance is being
unconstitutionally applied. Instead
it argues the collateral issue of the constitutionality of the Ordinance as
drafted.
The Ordinance can be drafted constitutionally, but if it is applied
based on the content of the signs it purports to regulate, it is a severe
breech of civil rights which should be compensated for in damages under U.S.C.
Section 1983.
Also, since the City brought up the point, I will address it here
rather than later. The City
maintains that the Ordinance was enacted to prevent hazards to motorist and
proliferation of signs.
Under the Ordinance’s scheme, tens of thousands of time and
temperature signs can be erected and function without so much as the issuance
of even one sign permit. At the
same time, not even one sign, such as mine, that expresses true personal
opinions can operate at the same level.
This
provision in the scheme flies in the face of the City’s assertion that it is
attempting to limit the “proliferation” of signs.
Indeed, the Ordinance does nothing to limit the number of
time and temperature signs or even the number of signs like mine.
Moreover, because my sign functions exactly like time and temperature
signs, the City has never explained to me, or this Court, why the functioning
of my sign is a hazard but the functioning of time and temperature signs is
not
[1]
.
Cities
all across Arkansas allow signs like mine to fully function, including several
cities in our Northwest Arkansas region.
The city does not offer, nor even assert, evidence that the functioning
of these signs has caused injury or damage.
The assertion is not made because the evidence does not exist.
Indeed,
the Arkansas State Highway Department uses this very type of sign to warn
motorist of approaching construction zones up and down Interstates 40 and 30. If this type of sign was hazardous to passing motorists,
particularly at interstate speeds, would the State of Arkansas be endangering
our citizens in this way?
Of
course not. The State is not
endangering its citizens by using this type of sign and neither am I!
The City’s assertions to the contrary are false and should be struck.
All
of this demonstrates that the stated reason for the applied
restrictions on my sign, proliferation and hazards, is in all likelihood not
the real reason for restricting the operation of signs like mine.
This makes the City’s scheme highly suspect from a free speech
perspective and an equal protection perspective.
Apparently, the City is attempting to “control the search for
political truth” a dubious activity strictly prohibited by the United States
Supreme Court. See, City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113, S.Ct. 1505,
1516-17, 123 L. Ed.2nd 99 (1993); Also, Metromedia,
Inc. v. City of San Diego, 453 U.S. 490 (1981).
Moreover, the messages displayed on my sign when I was charged with a crime by the City were as follows:
1. Every Baby is a Life. When
You Have a Choice, Choose Life.
2. God Listens.
3. Jesus Said Come Unto Me and I’ll Give You Rest.
4. So, You’ve Been Waiting for a Sign from God, Well, here it
is.
My
speech was mostly religious in content and therefore my speech is in a highly
suspect class for equal protection under the law analysis.
5. False Statement Number
5: In its previously filed Brief
in Support of Motion to Dismiss, the City stated and claimed that a time
and temperature sign is NOT a sign (i.e., “a ‘tool’ and nothing more”).
Although the wording used in the actual brief indicated that time and
temperature “displays” were not speech, the City was attempting to
mitigate its unconstitutional content regulation by claiming that time and
temperature signs are not really signs. In that brief, the City stated,
“It is the defendants’ position that the display
of time and temperature is merely the display of a ‘tool’ and nothing
more (emphasis supplied) a display that does not arise to the level of
expression such as protesting, political signs or messages, commercial
advertising, and/or nude dancing .”
City Brief In Support of Motion to Dismiss at Page 22-23 .
So in the prior filing, the City stated that time and temperature signs
are not signs (i.e., “and nothing more”).
Now in the current reply, the City admits that time and temperature
signs are indeed signs where it states,
.”[A
time and temperature 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. Additionally,
time and temperature signs are exempt because they are not the type of sign
that was found to be distracting or hazardous to passerby (emphasis supplied).
Reply at Page 2-3 .
These
positions are inconsistent and should be struck.
In the earlier filing, a time and temperature sign is not a sign; in
the current reply filing a time and temperature sign is a sign. Such inconsistent reasoning should be eliminated from the
record.
Additionally,
at least one of the City’s positions should be struck as false. They can’t both be true.
6. False Statement Number
Six: The City maintains that I
can influence the public by keeping my sign’s message static or by changing
its wording only once every three hours.
This sort of operation relegates a very useful tool to “step-child”
status and almost totally eliminates the sign’s unique ability to respond to
daily headlines and public events, local and national.
As noted in earlier filings and contrary to the representations of the
City, restricting my sign’s operation in either of these ways would almost
completely eliminate my ability to influence the public.
Indeed, it is nearly imposable to offer compelling arguments with the
use of only three or four words for every three hour time period.
Suppose I were to tell you that you had the complete right of free
expression and you could say anything you wanted to but you could only use
three words every three hours. Would
you feel free? Or would you feel
restricted?
Electronic signs have the unique ability to change their messages in a
matter of seconds. Painted signs
do not enjoy this same flexibility. Thus,
electronic signs have the ability to respond to daily events in the life of a
community and help shape the search for political truth.
This perhaps more than anything else is why the City is attempting to
restrict this medium of speech.
If the City is successful in relegating this medium of speech into
step-child status, it can effectively silence many potential sources of
dissenting opinions. This is the
real reason the City is fighting so hard to restrict electronic signs.
Its claims of attempting to limit the number of signs or eliminate
public hazards ring hollow in the face of its own sign ordinance provisions
and traffic statistics.
Indeed,
as discussed supra, under the Ordinance’s scheme, ten of thousands of time
and temperature signs can be erected without the issuance of even ONE sign
permit; so much for the City’s claim that this portion of the Ordinance’s
scheme is to limit the number of signs.
Additionally, many Arkansas communities, including Little Rock,
Springdale, and Rogers, allow electronic signs to function.
Under the City’s reasoning, you would expect thousands of automobile
crashes because of the distractions of these signs.
However, such is not the case and the city has not offered one iota of
evidence to support its naked assertion.
Indeed, most Americans (men, anyway) would consider a static “Hooters”
advertisement much more distracting than a changing electronic sign saying “Vote
for Smith” or “Eliminate Wasteful Spending”.
Yet the City, inconsistently, does not object to this potential hazard.
Moreover, if time and temperature signs do not create this sort of
hazard, other electronic signs, similarly functioning, will not either.
Thus the first four sentences of paragraph one on page 5 should be
struck as false, misleading, and confusing.
7. False Statement Number
Seven: The City states, at
paragraph one, page 5,
“To resolve this issue [of content regulation] we
must only look to the content of the Ordinance and the policy reasons for its
enactment, not the content of the Plaintiff’s non-exempt sign.”
Reply at page 5.
Again, the City pretends that I am challenging the Ordinance as written
when if fact, I am challenging the Ordinance as applied.
Here the City attempts to mislead this court by offering this false
conclusion.
The Ordinance, as applied, results in content regulation as described
supra. This is why the City
insists on falsely stating that we must only look to the content of the
Ordinance. On the contrary, to
determine if the City is engaging in unconstitutional behavior, we must look
at both the Ordinance as written AND the Ordinance as applied.
The City is attempting to mislead this Court by implying that this
Court should not look at how the Ordinance is applied.
Thus, this misleading statement should be struck as well.
8. False Statement Number
Eight: The City maintains that,
“A restriction is not content based unless one has
to refer to the ordinance or regulation to find out what content is
restricted[.] [I]f the ordinance
or regulation may be enforced without inquiry into the content of the
regulated sign then it is content neutral.”
Reply at Page 5, Paragraph 1, Continued on Page 6.
This news from the Nebraska District Court will come as quite a surprise to the U.S. Supreme Court because Supreme Court has decreed that,
“The
argument is unpersuasive because the very basis for the regulation is the
difference in content….. 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.’ City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 113, S.Ct. 1505, 1516-17, 123 L. Ed.2nd 99
(1993).
Thus, the Supreme Court has
decreed that the content regulation does not have to be drafted into the
Ordinance but it is enough that content regulation results from the
application of the Ordinance.
In Discovery Networks, the City of Cincinnati had to look at the
content of the publications inside of the news racks to determine if the news
rack was legal. Likewise, the
City of Fayetteville, contrary to its assertions, has to look at the content
of my sign to determine if it is operating legally.
If my sign is displaying the noncommercial message of time and
temperature, I can change its message whenever I please but if my sign is
displaying another noncommercial message, I can only change my sign’s
message once every three hours. Thus,
under the Fayetteville scheme, whether
or not an electronic sign falls within the ban and restrictions on functioning
is determined exclusively by examining the content on the sign’s face.
Hence, by any common sense understanding of the term, the Fayetteville
sign ordinance, as applied, is content based.
As discussed supra, time and temperature signs are exempt from the
permit requirement ONLY and accordingly, are under the same flashing and
blinking prohibitions as my sign. Thus,
where the City allows time and temperature signs to function and not my sign,
they are regulating on the basis of content.
Moreover, just as in Discovery Networks, it is impossible to
determine if the functioning of my sign is prohibited without first referring
to its contents. This fact is
VERY present in this instant case, contrary to the City’s assertions in
paragraph 2, page 6 of its Reply.
As applied, the restrictions in the Ordinance make my sign’s
functioning illegal but not time and temperature signs’ functioning.
Thus, as applied, the restrictions have EVERYTHING to do with the
content of the sign in question. The
city is completely attempting to mislead this Court when it asserts otherwise.
Thus, both paragraphs 1 and 2 of page 6 are false and very misleading
and should be struck.
Moreover, even if the decision of a District Court could overrule the
U.S. Supreme Court, the rule established by Thorburn v. Roper still does not apply to this case. In Thorburn enforcement personnel did not have
to look at the content of the picketing signs to determine if they were legal.
In our case, enforcement personnel do have to look at the
content of the sign to make the same decision.
Contrary assertions by the City are completely false.
For these reasons, the City’s reliance on Thorburn is
completely misplaced and its arguments based on Thorburn are irrelevant
and should be struck.
9. False Statement Number
Nine: The Issues of Res
Judicata and Collateral Estoppel:
1. There are no
inconsistencies in my arguments, contrary to the City’s assertions.
In my state court criminal trials, I raised the constitutionality of
the Ordinance as a defense to a criminal charge.
I never raised the issue, NOR COULD I HAVE RAISED THE ISSUE, of civil
damages under U.S.C. Section 1983 in that criminal proceeding.
Thus, I raised some constitutional issues as a defense but now I am
asserting different constitutional arguments in this civil suit.
Although some of the arguments are similar, the issues being judged are
distinct. Perhaps City’s
counsel will recall from civil procedures class that civil damages cannot be
raised or awarded in a criminal trial. Thus,
the rules of law barring entry into the courthouse established in Finch
and Kulbeth do not apply to this case because the issue of civil
damages could NOT have been raised in the earlier cases.
Moreover, there was never a final ruling on the merits of the other
constitutional issues raised in those earlier cases.
I seriously doubt if City’s counsel fails to understand the doctrines
involved here. Thus I suspect
City’s counsel deliberately chooses to ignore the requirement of these
doctrines so that the City can continue this vain campaign of half-truths and
false statements which contribute nothing of value to the record in this case
but adds enormously to the number of billable hours the City’s counsel can
amass. This Court should not fail
to take notice of such dubious activity.
This is particularly true where, as here, the City is attempting to
make me pay their legal bills! See, Rule 11 Motion for
Sanctions filed by the City on February 15, 2002.
The City’s discussion of res judicata and collateral
estoppel is completely false and misleading and should be struck from the
record. Specifically the first
paragraph on page 7 should be struck in its entirety through its conclusion on
page 8.
10. False Statement Number
10: Again, I never pleaded guilty
to violating the sign ordinance. As
clearly spelled out in the Steven Hardgrave affidavit, no one ever asked me to
plead guilty and no one ever mentioned anything about me pleading guilty in
exchange for the city’s concessions. It
simply did not happen.
Every person present during that settlement conference can testify to
the truth of this assertion. I
submitted sworn affidavits indicating that I did not plead guilty. The wording used by Defendant Warrick in drafting the final
order is very misleading and I never saw it before it was filed with the
court.
The City, on the other hand, offers nothing but naked assertions to the
contrary. Indeed, from the record
cited by the City, I only agreed to the terms of the settlement agreement; I
never agreed to plead guilty to anything.
The terms of the settlement agreement were that I would drop my appeal
and the City would refund my fine and allow my sign to change once every three
hours.
I was only settling a criminal charge.
I was not releasing civil claims against the defendants, and I was
never asked to release those claims.
Of course, the best way to settle this factual dispute is to have a
trial and present witnesses. Although,
I’m not at all sure the City would agree.
The City would like to bury this case and never have these issues be
reached by the constitutional light of day.
I have indeed raised issues upon which relief can be granted, and I
respectfully submit that this case should be given its day in court.
11. False Statement Number
Eleven: The City argues that the
affirmative defense of mistake of law based on an official interpretation is
unavailable to me. Again the City
argues the wrong point of law. This
is a civil proceeding, not a criminal one.
Thus, criminal defenses are irrelevant in this forum.
Because of this irrelevance, the City’s reply from the first
paragraph on page nine through the last paragraph of page 11 should be struck.
However, there are at least two points that should be made here.
1.
Notice: The City states
that I was clearly given notice of my Ordinance violation on at least three
occasions prior to the criminal summons being filed.
What the City fails to recognize is that both Defendant Estes and
Defendant McKimmey first told me that indoor signs were not regulated.
[2]
This could
easily create confusion. First I
am told one thing by City officials and then another.
What was I supposed to believe?
Defendants Estes and McKimmey
told me, with no qualifications, that indoor signs are not regulated.
I went out and spent approximately $6000.00 and installed the
controversial sign. Then
Defendant McKimmey tells me that the sign is illegal, after I had spent the
money. Later, Defendant Warrick
gives me notice of his “position” and informs me that I can operate my
sign so long as I don’t change my message any more frequently than once
every 24 hours.
Mr. Warrick, indeed, gave me notice, but notice of what, his opinion?
You can search the sign ordinance from start to finish and there is
absolutely nothing that states an electronic sign can only change its message
only once every 24 hours. That rate of change is not even implied much less clearly
expressed with bright-line definitions.
This is the nonsense that the City of Fayetteville is famous for. The city officials make up laws as they go along and impose
them on the citizens.
Courts have continually ruled that before a law can prohibit an
activity, the law has to be written in such a plain manner that a person of
ordinary intelligence can read the law and understand what is being
prohibited. This rule is particularly strict when it is applied in
sensitive First Amendment areas of the law.
Here, the courts have defined a “bright line” standard for
determining when an ordinance is sufficiently clear.
Hill v. Colorado, 560 U.S. 703 (2000).
Here, the City claims that I was given notice of the Law. Really? What
law? Where in the sign
ordinance does the law state that an electronic sign can change only once
every 24 hours or even once every three hours for that matter?
This “law” was never debated or voted on.
It was never passed by a city counsel but merely hatched in the back
room of the city prosecutor’s office.
Hence, the City can hardly claim that I was given notice on any
occasion but the first. Indeed,
does fairness and justice prevail where a citizen makes two inquiries, is
given the same unqualified answers by both officials, relies on the answers by
spending approximately $6000.00 just to have other City officials come along
later and declare that my sign is illegal based on “our position”?
This Court is the wrong forum to argue criminal defense issues. It is, however, the correct forum to argue equity and justice
in the application of regulations to sensitive areas of First Amendment rights.
2. Perjury/Witness
Tampering: The City mistakenly
concludes that because, as it alone alleges, my affirmative defense to a
criminal act is unavailable to me, the malicious behavior of Defendants
McKimmey, Estes, and Williams is
irrelevant.
Since when is proffering
perjured testimony and witness tampering irrelevant?
If Defendants McKimmey and Estes would have told the truth at my
municipal trial, the trial judge may have acquitted me on a simple equitable
estoppel theory. If one or more
of my witnesses for my Circuit Court appeal had not be tampered with, perhaps
I would not have agreed to settle the appeal.
Additionally, the decision I
made to settle the appeal was not entirely volitional.
I decided to settle only after Mr. Norbash had told me and my staff
that Mr. Williams had “raked me [Mr. Norbash] over the coals”.
With my witnesses being tampered with, my prospects of a fair trial
were dimming. Based on that
knowledge, I decided to settle the criminal charges.
Thus, it would be completely misleading to characterize my settlement
decision as volitional.
Furthermore, it is reasonable to
seek out information on the applicable sign regulations from the sign
inspector and then to act on what he tells you.
Conversely, it is completely unreasonable for the sign inspector to
tell you that indoor signs are not regulated and then to charge you with a
crime when you install one.
These are the aspects of this affirmative criminal defense the City
would rather this Court not hear about. However,
it is important that the whole truth be told and the complete story be made
known. It is also important for
the citizens of Fayetteville to become aware of the extreme malicious measures
their city government is willing to take in order to cover up the
unconstitutional behavior of its city officials.
It is this behavior that must be dealt with and discouraged.
12. False Statement Number
Twelve: In regards to Defendant
Warrick’s culpability the City maintains that,
“[Conversations with McKimmey
and Estes] are irrelevant once the Plaintiff had been officially
informed that his conduct with the sign was violating the Ordinance.” Reply at page 12.
At my municipal trial, Defendant Warrick knew that Defendants McKimmey
and Estes had “verified” that they had told me indoor signs are not
regulated by the City. Thus
Defendant Warrick was under a constitutional duty to turn over and admit this
information in Municipal Court. Defendant
Warrick’s failure to do so could have easily been the one missing factor
that tilted Judge Moore’s judgment and resulted in my criminal conviction. Therefore, Defendant Warrick breeched my right to a fair
trial by failing to disclose this potentially exculpatory information.
Defendant Warrick’s later denial of possessing exculpatory
information in Circuit Court is certainly relevant as he was attempting to
cover up his unconstitutional failure to disclose in Municipal Court.
Moreover, the conversations with Defendants McKimmey and Estes are
relevant because it was their statements that I relied on to purchase
and install the sign. Later
correspondence from Defendant Warrick did not operate as notice because he was
only providing his offices’ “position” and “opinions”.
He never cited an actual ordinance section that indicated how
frequently an electronic sign could change its message.
Additionally, Mr.
Warrick may not have been under oath, but as an officer of the Court, surely
he had an affirmative duty to tell the truth.
His failure to do so when specifically asked, is a severe breech of due
process and the U.S. Constitution. See,
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).
Therefore, paragraph 1 on page 12 should be struck as false,
misleading, confusing, or irrelevant.
13. False Statement Number
Thirteen: The City States,
“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
Plaintiff’s ignorance or mistake defense.”
Reply at page 12, second paragraph.
This statement contains several misstatements and half truths as
follows:
1. The City asserts the
Mr. Norbash was a “client” of Mr. Williams.
In my Circuit Court case, Mr. Norbash was giving testimony as a
self-employed business man not as a city employee.
Mr. Norbash’s testimony centered around facts from when he owned a
frozen yogurt shop on North College Avenue and what he was told by sign
inspectors regarding indoor signs. Mr.
Norbash’s testimony had nothing to do with his job in the city engineering
department and thus Defendant Williams was not “his attorney”.
2. From what Mr. Norbash
described to me and my staff, Mr. Williams was not “advising” him but
rather shouting at and demanding action from Mr. Norbash.
In Mr. Norbash’s own word, “He raked me over the coals”.
In
a conversation just a few weeks ago, Mr. Norbash informed me that he could NOT
file an affidavit in this case because he had “agreed” with Mr. Williams
that he, Mr. Norbash, would not discuss this case with me anymore.
Mr. Norbash did, however, assure me that he would testify truthfully if
asked at trial. Mr. Williams
actually solicited Mr. Norbash’s silence in a direct attempt to limit my
access to vital evidence in this case in another direct breech of my right to
due process.
If the City doubts Mr. Norbash’s representations to me and my staff,
let’s have a trial, and we can all ask Mr. Norbash AND Mr. Williams what
actually took place.
From what Mr. Norbash described, Mr. Williams was acting like Mr.
Norbash’s employer or superior. The
“advising” didn’t sound like a client/attorney relationship.
Indeed, I doubt if Mr. Norbash knew the Mr. Williams was his attorney
and that he was giving him “advice”.
Moreover, Mr. Williams demanded that Mr. Norbash “never speak with me
again” with or without an attorney. This
conversation was no client attorney counseling session.
Rather
it was a desperate City employee strong-arming a potential witness.
While
Mr. Williams did not expressly threaten Mr. Norbash, economic retaliation
could certainly be implied by Mr. William’s tone and volume of voice.
Additionally, because, as discussed supra, the only relevant and actual
notice I received and relied on was given to me by Defendants McKimmey and
Estes, Mr. Norbash’s testimony would be important to help establish a
pattern of advice that city sign inspectors had been giving to the public
[3]
for years.
All of this considered, the above quote from the City’s reply is
extremely misleading and false. As
such, it should be struck.
14. Irrelevant Statement
Number 1: On page 13 of its
reply, the City criticizes my reliance on Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971). The
main criticism is that Bivens was only intended to extend a U.S.C. Section
1983 type cause of action to federal officials.
Indeed U.S.C Section 1983 causes of action only apply to persons
operating under color of state law. Each
individual defendant named in my law suit was acting under color of state law.
In my discussion of immunity theories I cite no fewer than thirteen
cases of substantial law to validate the legal principles which I applied to
each defendant. The City completely fails to even address, much less refute,
the principles that were presented from this large number of cases.
Instead the City makes a very strong argument that Bivens does
not apply to this case but completely fails to refute the principles included
in the other twelve cases.
Indeed, Bivens may not directly apply here but its principles
certainly do. All officials, federal and state, need every incentive
possible to respect the constitutional rights of the public. This most illiberal Fayetteville city government needs, in
the worst way, to learn this lesson.
Thus, the entire text of page 13 through the top of page 14 should be
struck as irrelevant.
15. False Statement Number Fourteen: Though eloquently argued, the City’s discussion of various immunity theories completely fails to analyze the various activities and functions of Defendants Warrick, Jones, and Williams.
For
instance, Mr. Warrick performs the separate functions of advocate,
administrator, investigator, and counselor to enforcement personnel.
Indeed, in his letter to me dated June 13, 2000 (Plaintiff Exhibit C in
previously filed Motion in Opposition to Defendants Motion to Dismiss and
in Opposition to Defendants Motion for Summary Judgment), Mr. Warrick
candidly admits that he has reviewed my letter and spoken with
Similar
analysis must be presented for each of the
Defendants so that a determination can be made as to which of their functions
should be protected by absolute immunity and which by qualified immunity.
The City completely glosses over this analysis and makes the amazing
claim, completely defying the very cases it cites, that Defendants Warrick,
Jones, and Williams are all entitled to absolute immunity! (Reply
at page 14, paragraph 1).
Such
arguments do NOT reflect the legal principles of this area of the law and
should be struck as false, misleading and/or confusing.
16.
False Statement Number 15: The
City plainly misquotes my brief (previously
filed Motion in Opposition to Defendants Motion to Dismiss and in
Opposition to Defendants Motion for Summary Judgment) where it states
that,
“[LaTour] 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” Reply at page
1, first paragraph.
What
I actually stated was,
“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.” Motion
in Opposition to Defendants Motion to Dismiss and in Opposition to Defendants
Motion for Summary Judgment,
page 22, paragraph 6.
Thus, Defendant McKimmey did NOT “report” me to the city but
actually filed criminal charges against me!
Indeed, under the Ordinance, ALL SIGNS ARE PROHIBITED from flashing,
blinking, or animation and there IS NO SPECIAL EXEMPTION FROM THIS RESTRICTION
for any signs, exempt or non-exempt as the City has fathomed. A reasonable sign inspector would have know this about the
law which he had the responsibility to enforce.
Surely a reasonable sign inspector would have recognized that my sign
functioned exactly like time and temperature signs and if time and temperature
signs can function legally, surely my sign can function legally.
At the very least, Defendant McKimmey would have remembered that he
himself told me that indoor signs are not regulated and thus, criminal charges
would be inappropriate.
Thus Defendant McKimmey’s actions were unreasonable contrary to the
assertions of the City. Therefore,
the City’s misstatement of my representation and their erroneous conclusion
should be struck as false and misleading.
Specifically page 15, paragraph 1 should be struck.
17. False Statement Number Sixteen:
Defendant Estes, in all probability proffered perjured testimony in the
Municipal Court trial by claiming to not remember a conversation he had with
me a year earlier. He claimed to
not remember this conversation even though he had recalled the essential facts
of this conversation to my attorney at the time, Mr. Jim Rose.
Mr. Rose has submitted a sworn affidavit in support of this allegation.
In further support of this allegation, Mr. Estes applied for the job of
city attorney on the very day of my municipal trial.
He certainly had motive to lie under oath.
After all, he wouldn’t have wanted to dim his prospects of landing a
lucrative salary position with the City by testifying against his perspective
employer.
Moreover, Mr. Estes told me that indoor signs were not regulated and he
didn’t qualify the statement with size, height, flashing, or other
restrictions. He made an
exhaustive statement qualified only by the fact that the sign would be located
“behind the glass”, meaning indoors.
All of these facts are substantiated by Mr. Rose’s affidavit and my
filings. These facts can also be
verified by the testimony of Mr. Tim Conklin, the City of Fayetteville
Planning Director and Mr. Bob Estes, but only if these men will testify
truthfully. Discovery will give
all of us insight into their ability to do so.
The City, on the other hand, offers no evidence, whatsoever, to
substantiate its fantastic claim that Defendant Estes was referring only to
indoor signs that can’t be seen from the outside.
Moreover, the City intimates that indoor signs that can’t be seen
from the outside are exempt from the flashing prohibitions.
Here, the City continues to espouse and support the myth that exempt
signs are exempt from the flashing prohibitions when nothing could be further
from the truth.
Additionally, I have never admitted and I specifically deny, that my
sign was a fluctuating illumination sign.
This is another misstatement the City uses to mislead this Court.
Accordingly, the second
paragraph of page 16 of the City’s Reply should be struck in its entirety as
false and misleading.
18. False Statement Number
Seventeen: I assure this Court
and the opposing counsel that I had virtually no influence over the affidavits
of Judy Kendrick and Steven Hardgrave. They
testified to what they saw and heard or otherwise observed.
Specifically, Mr. Hardgrave was in the same room as Mr. Norbash while
Mr. Norbash was telling his story. Mr.
Hardgrave observed Mr. Norbash’s mood and demeanor and testified
accordingly. Apparently, from Mr.
Norbash’s story, Mr. Norbash’s encounter with Mr. Williams was not
light-hearted or pleasant. In Mr.
Norbash’s own words, he was “raked over the coals” and he wasn’t
kidding when he used that term.
Contrary to the City’s assertions, there is nothing professional
about pressuring a witness in a criminal trial.
In fact, it is not only non-professional, it can deprive a criminal
defendant, such as myself, of a fair trial.
Thus, it is downright illegal.
Here in lies the breech of due process.
I was pressured into settling my criminal appeal because I knew that my
witnesses were being pressured in this manor.
As they say, it is difficult to fight city hall, but not impossible.
Most of the witnesses in this case are city employees and as
demonstrated above, “agreements” such as the one entered into between Mr.
Norbash and Mr. Williams make people not want to tell what they know is true.
However, as stated supra, Mr. Norbash did assure me that he would tell
the whole truth at the trial that I am confident we will have.
Thus, I have presented evidence that Mr. Norbash was pressured.
Therefore, my allegations are NOT “unfounded” and they do indicate
that my right to a fair trial in Circuit Court was diminished by the pressure
Defendant Williams applied to Mr. Norbash and no telling who else.
Accordingly, page 16, paragraph 1 should be struck as misleading and
false.
19. False Statement Number
Eighteen: I will again consider
Defendants Warrick and Jones as essentially occupying the same position since
Defendant Jones is the City Prosecutor and Defendant Warrick is his assistant.
The very first correspondence I received from the Prosecutor’s office
was a notice commanding me to remove my sign, or else criminal prosecution
would ensue. The next notice
informed me that I can keep my sign if and only if I change my sign’s
message no more frequently than once every 24 hours.
Finally, in settlement of my appeal, and in a direct effort to shield
the Ordinance from constitutional scrutiny, the City allows me to again keep
my sign and change my message once every 3 hours.
It appears that what the City argues is “reasonable” is simply a
sliding rule meant to accommodate the whims of the City.
Indeed, if the City is willing to allow me to change my message once
every 3 hours, was it reasonable for Defendant Warrick to order me to remove
the sign entirely? Or, was it
reasonable of Defendant Warrick to restrict me to only one change per 24 hour
time period when changing once every 3 hours is legal now?
Moreover, to comply with Defendant Warrick’s demands, I would have
had to sacrifice my constitutional guarantee to free speech.
The City is absolutely correct where it points out that I “willfully”
would not agree to that!
Again, this is the sort of nonsense the citizens of Fayetteville should
be protected against. In
Fayetteville, we apparently don’t have the rule of law but rather the rule
of the opinion of the administrator (or King).
It sure seems like we fought a war over that very issue back in 1776.
Indeed, the Fayetteville sign ordinance is completely silent as to how
frequently an electronic sign can change its message.
The ordinance, thus, is vague. This
vagueness allows city officials to just “make up” rules, as described
above, as they go along. Thus, I
can change my signs message once every 3 hours, once every 24 hours, and I
have to remove my sign entirely. All
of these pronouncements, each conflicting with the others, were all issued
from the city prosecutors. The
City would have you believe that our duty as citizens is to simply obey
whatever the city officials pronounce. Without
the requisite notice, the U.S. Constitution begs to differ.
Contrary to the City’s assertions, I do not personally attack any of
the defendants but I do evaluate their judgment as it applies to the City’s
decision to file and prosecute criminal charges against me for exercising my
right to free speech.
20. False Statement Number
Nineteen: In discussing the
affidavits I submitted, the City, of course, criticizes the affidavits. Here, the City continues its “exemption” myth where it
states,
“As such, it is imposable 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.” Reply
at page 18, Paragraph 1.
As discussed, supra, and contrary to the City’s assertions, the
Ordinance exemptions apply ONLY to the sign PERMIT requirement and nothing
else. Thus, whether a sign is
exempt or not is itself irrelevant and immaterial.
Moreover, Mr. Bowman specifically states,
“Mr. McKimmey told me that if
the sign was located inside of my shop, no regulations applied to it and my
sign was “OK”. See, Gerald Bowman Affidavit.
If there are special characteristics of signs that determine whether
the sign will be legal or not, shouldn’t the a reasonable sign inspector be
asking those question instead of making exhaustive statements like that quote
above? The point of Mr. Bowman’s
affidavit is that Mr. McKimmey is still going around misleading business
owners into installing signs which he later files criminal charges against. This is NOT reasonable.
OTHER
ISSUES
The City asserts that the case law I rely on is “overturned,
criticized, or is otherwise no longer controlling factually or legally”.
Really?
Amazingly, the City offers no evidence, case sites or other factual
information to substantiate this most amazing claim.
The City has cited no cases that make content regulation legal.
It has also cited no cases supporting a witness’ right to lie under
oath. It has also offered no
cases demonstrating that it is legal to pressure potential witnesses into “agreements”
of silence. Yet, the City
states that my cases are no longer valid.
Apparently, these assertions are further evidence of the misleading
campaign the City has embarked upon.
Although, sometimes, what is
left out of a filing speaks more about the issues than what is included in the
filing. The City, in all of its
voluminous filings, has never addressed the major issue of equal protection
under the law where a suspect class of speech has been restricted.
The City ignores this issue because, I suspect, they have no case to
argue. This important issue
should not be overlooked in this case.
Additionally, the Court should note that the copy of the City’s Reply
that was sent to me via prepaid US Mail was unsigned and the Certificate of
Service was incomplete. This
alone should be grounds enough for not granting the City’s Motion for Leave
to file this Reply.
CONCLUSION
In its Reply, the City begs for a “merciful conclusion” to these
proceedings. It is interesting
that the City would ask for mercy. The
guilty and wrongdoers always plead for mercy; the righteous, on the other
hand, ask for justice.
The City has resorted to the underhanded tactics of making up rules
that do not exist in the Ordinance and attempts to mislead this Court and the
public by arguing half-truths and out right false statements.
Abe Lincoln would be appalled by the level of deceptive practices
evident in the City’s filings. Indeed,
this City Skunk reeks with deception, out right lies, and attempts to mislead.
Such gross violations of ethics rules and Federal Rules of Civil
Procedure should not go unnoticed or unsanctioned by this Court or any other
Court in this land, Supreme or otherwise.
Moreover, what could be more mean-spirited and malicious than filing a
motion for sanctions against an innocent party who is simply attempting to
enforce his First Amendment guarantees to free speech? What could be more
mean-spirited than basing that motion on completely false statements?
It seems that this City will stoop to the lowest level necessary to win
this case at all costs.
My prayer and earnest plea is for my day in Court and the application
of constitutional daylight to the dark abyss of the Fayetteville sign
ordinance.
&n