La Tour's Motions Requesting Leave of the Court
To Amend Complaint (Third Amendment) filed 121902.
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
Defendant
_________________________________________
1. The plaintiff in the case captioned above comes now for the purpose of filing my Motion Requesting Leave of the Court to Amend the Complaint, states as follows, to-wit:
2. I come to the Court under the authority of Rule 15(a) of the Federal Rules of Civil Procedure for the express purpose of amending my complaint.
3. This request is made in the furtherance of justice and the protection of significant constitutional rights.
4. In my original complaint and its first two amendments I have challenged the Fayetteville sign ordinance as it is applied to me and as it is drafted on its face. In that complaint I admittedly failed to allege a proper case for punitive damages under U.S.C §1983 and this Court, accordingly, dismissed the punitive damage count as pleaded in the original complaint.
5. Since that time, I have deposed two former defendants, Mr. Mike McKimmey and Mr. Brandt 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
See Exhibit 1 for a Complete Copy of
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. SEE 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 enforce 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.
7. In affect, Mr. McKimmey admits that he was knowledgeable of the time and temperature sign on North College and its functioning AND he was aware, from a conversation with his boss, that he had to enforce the sign ordinance equally.
8. Moreover, Mr. McKimmey admits that he knew of a legal statement from the City Attorney that stated indoor signs could not be legally regulated.
9. Mr. McKimmey’s willingness to swear that my indoor sign was in violation of the sign ordinance while he ignored the functioning of the time and temperature signs demonstrates a reckless or callous disregard for my constitutional right of free speech. At a very minimum, Mr. McKimmey should have made a further inquiry into enforcing the sign ordinance against an indoor sign, since, by his own admission, he believed such enforcement was not legal. Additionally, Mr. McKimmey should have inquired further into why the time and temperature sign, which he was so familiar with, was allowed to function but my sign was not.
10. Mr. McKimmey’s failure to make these inquires certainly should present a genuine issue of material fact for the jury to decide. Indeed, the jury should be allowed to decide whether such omissions by one charged with equally enforcing the sign law amounted to a reckless or callous disregard for my civil rights.
11. Moreover, Mr. McKimmey cannot claim that he was “reasonably relying on existing law” when he knew that time and temperature signs were functioning without violating the sign ordinance. His willingness to assert that my sign was in violation of the ordinance could not be reasonable in light of this knowledge.
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 constitutional 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.
13. Similar to Mr. McKimmey, Mr. Warrick readily admits that he had seen the time and temperature sign on North College function on “numerous” occasions. Yet he was willing to prosecute me for operating my sign in a substantially similar fashion.
14. At a bare minimum, this similarity should have prompted Mr. Warrick to investigate the constitutional issue of sign regulation on the basis of content. Instead Mr. Warrick decides to file criminal information on me and launch a full-scale criminal prosecution. Moreover, and perhaps most significantly, in a letter to me dated May 16, 2000 (Plaintiff’s Exhibit 12 in evidence, Exhibit B in this writing) Mr. Warrick ordered me to remove my sign all together. This order to remove was issued by Mr. Warrick long before the criminal prosecution began or the criminal summons was issued. Indeed, Mr. Warrick admits that he was still “looking into the issue” long after he ordered me to stop speaking. In affect he told me I could NOT express my opinions with my sign! This was the beginning of the breech of my constitutional rights.
15. Mr. Warrick’s willingness to order the removal of my sign and prosecute me for its operation while he ignored the functioning of the time and temperature signs demonstrates a reckless or callous disregard for my constitutional right of free speech. At a very minimum, Mr. Warrick, a trained and practicing attorney, should have made a further inquiry before prosecuting me for changing my sign’s message. At this time, by his own admission, he knew other signs were functioning in a substantially similar fashion and their owners were not being prosecuted.
15.1. Additionally, Mr. Warrick admits that he completely failed to research the constitutionality of the sign ordinance or the constitutionality of the manner in which it was being applied. Such wholesale failure to research these issues before ordering the sign removed is further evidence of reckless or callous disregard for my constitutional right of free speech.
16. Mr. Warrick’s failure to make these inquires certainly should present a genuine issue of material fact for the jury to decide. Indeed, the jury should be allowed to decide whether such omissions by one charged with enforcing the sign law amounted to a reckless or callous disregard for my civil rights.
17.
In my earlier pleadings, I failed to bring allegations against Mr.
Warrick, and the Court correctly addressed this issue in its ruling dated July
18, 2002. However, I have today introduced charges based on evidence entered in
depositions. So, I turn to the other issue the Court raised regarding Mr.
Warrick’s immunity based on Imbler v. Pachtman, 424 U.S. 409 (1976).
18.
Imbler affords immunity to prosecutors “intimately associated
with the criminal phase of the judicial process,” Imbler, 424
U.S., at 430. However, Imbler has not been extended to include absolute
immunity under §1983 charges, See Burns v. Reed, 500 U.S.
478, 494 (1991). Furthermore, I contend that Mr. Warrick was not functioning in
a prosecutorial capacity when he breeched my civil rights. Rather, he was acting
as an investigator. Burns, supra, states that the protection of immunity
only extends to prosecutors who are performing prosecutorial functions.
Moreover, when acting outside of these functions, the Court has only extended
qualified immunity to prosecutors much like police and other state officers are
immune from prosecution and punitive damages.
19. I received a letter dated May 16, 2000 from Mr. Warrick on May 25, 2000 (Exhibit B) ordering me to remove my sign. His letter stated that I had fourteen days to “remove the sign” and if I didn’t I would be arrested. That same day, I phoned Mr. Warrick and explained that two independent sources had told me my sign was not regulated before I purchased the sign. He said he “would look into it.”
20.
I contend that Mr. Warrick was acting as an investigator while he was
“look[ing] into” my situation. He has a responsibility to investigate claims
before he moves to prosecute them. He
completely failed in this regard. Indeed,
he orders me, under threat of arrest, to remove my sign BEFORE he investigates
“the situation”. This is the
time when a reasonable attorney in his place should have been asking
constitutional questions regarding the functioning of my sign vis-à-vis the
time and temperature signs located around the City that he admits seeing several
times before my sign case came up.
21.
According to Burns, 500 U.S. at 495,
“Almost
any action by a prosecutor, including his or her direct participation in purely
investigative activity, could be said to be in some way related to the ultimate
decision whether to prosecute, but we have never indicated that absolute
immunity is that expansive. Rather, as in Imbler, we inquire
whether the prosecutor's actions are closely associated with the judicial
process.”
22. The correspondence and timeline of events clearly reveal Mr. Warrick’s actions were fulfilling the role of an investigator and NOT that of a prosecutor when he violated my constitutional rights by ordering the removal of my sign altogether on May 16, 2000. The decision to prosecute was not made until circa July 5, 2000, some fifty days later. Thus, while he is functioning as an investigator, he is covered only by an investigator’s immunity. Investigators have only qualified immunity, not absolute.
23. The qualified immunity standard is such that Mr. Warrick need only be shown to have breached clearly established, federally protected rights that a reasonable person in his position should have known.
24. According to his own words, he knew and had indeed seen the North College time and temperature sign functioning substantially like mine. However, my sign was judged illegal because it did not display the same message as time and temperature signs. As a trained lawyer, Mr. Warrick reasonably should be expected to know about First Amendment rights and the concept of content-regulation. This is particularly true where, as here, this trained lawyer is operating in the sensitive area of First Amendment rights.
25. Mr. Warrick ordered my sign removed under threat of physical arrest and prosecuted me for a crime under an unconstitutional application of the sign ordinance. A reasonable attorney would have investigated the constitutional nature of the ordinance prior to filing criminal charges and he would have fully investigated the facts and law before ordering the sign removed. Thus, Mr. Warrick completely failed to act reasonably. Again, Mr. Warrick was still “looking into the situation” long after he threatened to arrest me if I didn’t remove my sign.
26. Turning to the question of reasonably relying on existing law, even a cursory reading of the sign ordinance shows that it exempts time and temperature signs from the permit requirement ONLY. Therefore, Mr. Warrick cannot maintain that he was reasonably relying on existing law to justify the functioning of time and temperature signs because the ordinance makes no such allowance.
27.
In conclusion, Mr. Warrick knew or should have known that
Fayetteville’s sign ordinance regulates on the basis of content and that such
regulation is not constitutional. He had, at the very least, a responsibility to
investigate the constitutionality of the ordinance before ordering the removal
of my sign and beginning to prosecute me for violating this unconstitutional
provision of the ordinance. This is a responsibility he admittedly denied where
he states that he did NOT research the constitutionality of the ordinance;
therefore, qualified immunity cannot apply.
28. On February 1, 2001 my wife and I attended a Fayetteville Town Hall Meeting sponsored by the City Planning Department. The subject of this meeting was how to limit the number of persons living in a dwelling. The subject had become relevant to my neighborhood because we live right next door to the U of A campus. Students tend to gang-up in a house to cut living expenses or sometimes for less laudable objectives.
29. Jerry Rose, the City
Attorney at the time, gave us the legal framework in which we would have to
work. Mr. Rose instructed us the
courts had ruled that the number of persons living in a house could not be
limited on a basis of marriage or blood relationships.
30. One of my neighbors stood and said, “Let’s do it anyway and make them (poor students) take us to court!”
31. My neighbor unknowingly
expressed one idea that punitive damages are intended to combat; namely to
preempt the breaching of civil rights. This
is why punitive damages in this case are important to all citizens of
Fayetteville.
32. The Fayetteville
government officials know constitutional legal challenges are usually costly to
mount. Thus, it is unlikely that a
citizen will go to the expense and effort necessary to mount such an offensive.
Accordingly, the City can get away with enacting and enforcing
unconstitutional ordinances. Indeed, for nearly thirty years, no one has bothered to
challenge the sign ordinance as an illegal prior restraint or on the basis of
content regulation. This is so even
though the sign ordinance clearly produces both of these maladies.
33. The Courts, in a long
line of cases, have gone to great lengths to ensure the “vigorous exercise”
of First Amendment freedoms of expression.
To ensure these same freedoms for the citizens of Fayetteville, I
respectfully submit that punitive damages are a very useful and essential tool.
34. If the City is simply
slapped on the hand with declaratory judgment and injunctive relief, the City
will remedy by simply rewriting its sign ordinance.
Such will not sufficiently deter the City from breaching the civil rights
of the next citizen that dares to speak his mind.
Surely the authorities support, or better, demand, the use of punitive
damages in this sensitive First Amendment context.
CONCLUSION
35. Punitive damages are
needed here to ensure that City officials will thoroughly investigate the
constitutional nature of an ordinance BEFORE they drag a citizen into criminal
court and issue warrants for his/her arrest or order him to remove his sign. Without the deterrent of punitive damages, City officials
will, in all likelihood, continue to exercise brute power in the circumvention
of our First Amendment freedoms.
36. For all of these
reasons, I pray and plead with this Court to allow this amendment.
No citizen of these United States should be subjected to the treatment I
obtained from this most illiberal city. If
the City wants to go around breaching civil rights, that’s their business;
when those civil rights are mine, the penalties for such behavior is mine and
this Court’s business.
37. Because after all, a
city with every street, avenue, and boulevard lined with pretty flowers, lovely
shade trees, and singing song birds would still be a very ugly place to live if
the people there weren’t free to express themselves.
Respectfully
submitted,
JOHN S. LA TOUR
_______________
John S. La Tour, Pro Se
December
18, 2002
JOHN
S. LA TOUR
Certified Public Accountant
112 Center Street, Suite 560
Fayetteville, AR 72701
(479)443-7878
Certificate
of Service:
I, John S. La Tour, the undersigned, have mailed a true and correct copy of the attached complaint today via US mail, first class, prepaid, to the legal counsel of the opposing parties.
John S. La Tour
Date