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Court strikes down law limiting cities’ use of red-light cameras

I have been writing in opposition to traffic cameras for a few years now.  There has been some recent activity in Ohio (see here) but it seems Ohio has taken a step backward on this issue; to that end, a recent article on this subject is reproduced below and can be found here.

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By DAN SEWELL, Associated Press

CINCINNATI (AP) — The Ohio Supreme Court on Wednesday upheld cities’ use of traffic camera enforcement for a third time, striking down as unconstitutional legislative restrictions that included requiring a police officer to be present.

The ruling was 5-2 in support of the city of Dayton’s challenge of provisions in a state law that took effect in 2015. The city said it improperly limited local control and undercut camera enforcement that makes cities safer by reducing red-light running and speeding. Dayton and other cities including Toledo and Springfield said the law’s restrictions made traffic cameras cost-prohibitive.

The court Wednesday ruled illegal requirements in the law that an officer be present when cameras were being used, that there must be a lengthy safety study and public information campaign before cameras are used, and that drivers could be only ticketed if they exceeded the posted limit by certain amounts, such as by 6 mph in a school zone.

A majority opinion written by Justice Patrick Fischer found those three restrictions “unconstitutionally (limit) the municipality’s home-rule authority without serving an overriding state interest.”

The state’s highest court has twice previously ruled for cities on cameras.

Justice Patrick DeWine wrote a dissenting opinion, saying the legislation was “a compromise” meant to deal with concerns that cameras were being misused to generate revenue while allowing municipalities “some opportunity” to employ cameras.

“Today’s decision has the unfortunate impact of further muddling a body of law that is already hopelessly confused,” DeWine wrote. Justice William O’Neill also dissented.

The state had contended that the law was within the legislature’s powers as a “statewide and comprehensive” way to regulate enforcement of traffic. Supporters said officers were needed to detect camera malfunctions and situations that clearly call for an exemption from ticketing.

An Ohio state senator who helped write the law called the decision a “Pyrrhic victory” for home-rule cities and villages and pledged Wednesday that legislators will keep fighting “policing for profit.” Cincinnati Republican Sen. Bill Seitz said the Legislature has “other tools in the tool kit,” such as reducing amounts cities and villages receive through the state’s local government fund

Dayton police, whose use of traffic cameras goes back nearly 15 years, were already planning to soon resume using officer-manned fixed cameras at certain sites, saying traffic crashes had shot up after camera enforcement halted. Dayton is also among cities equipping some officers with new hand-held cameras to record violations.

City spokeswoman Toni Bankston said Dayton is pleased with the court’s decision.

“In light of this ruling, we will begin the process of reviewing and analyzing the best way to proceed with our enforcement program,” Bankston said in a statement.

Ohio has been a battleground for years in the debate across the United States over camera enforcement. Critics say cities use them to boost revenues while violating motorists’ rights. Supporters say they increase safety and free up police for other crime fighting.

Attorney General’s spokesman Dan Tierney said Wednesday the case couldn’t be appealed to the U.S. Supreme Court because it involved a solely state law.

 

Associated Press reporter Mark Gillispie in Cleveland contributed.

Follow Dan Sewell at http://www.twitter.com/dansewell

Copyright 2017 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

 

 

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Speed Cameras Ruled Unconstitutional, City Has to Pay Back Ticketed Drivers

I have been writing in opposition to traffic cameras for a few years now (see below) and it now seems that the tide is beginning to turn and they are slowly falling into disfavor.  A couple of weeks ago I posted about a case in Alabama (the last link in the list below) and now a Court in Ohio has now declared the cameras unconstitutional!

A recent article on this subject is reproduced below and can be found here.

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Judge orders Ohio village to pay back $3 million to lead-footed drivers

Speed cameras became a cash cow for the small village of New Miami, Ohio.

The town, with a population of about 2,200, collected over $3 million in revenue from heavy-footed motorists after it installed stand-alone speed cameras along one of its major throughways, US 127. The speed cameras in New Miami, which is less than one square mile, automatically fined motorists $95 if they drove faster than 50 miles per hour.

It proved to be a lucrative venture for the village just 35 miles north of Cincinnati. Flush with cash, it raised its annual budget from roughly $1.5 million to $2.5 million in 2013.

But now, the Village of New Miami must pay back every cent of the $3 million it collected from the speed cameras, which were ruled “unconstitutional” in 2014 when drivers filed a class-action lawsuit against the village.

An Ohio judge ruled in favor of drivers, who claimed they were unfairly ticketed.

“Any collection or retention of the monies collected under the ordinance was wrongful,” Butler County Ohio Judge Michael Oster wrote in his decision last week.

The village reportedly cited almost 45,000 people and collected $1.8 million during the 15 months the cameras were tracking drivers. The village paid another $1.2 million to Optotraffic, the company that ran the speed camera program.

“We’re gratified and we’re getting closer to being able to show the drivers that we’re going to be able to put some money back into their pockets,” Mike Allen, attorney for the plaintiffs in the class-action suit told, Fox News. “Any municipality that enacts speed camera legislation can expect their budgets to swell.”

The village has reportedly spent over $100,000 in taxpayer dollars on lawyer fees defending itself in the case. A lawyer for New Miami told Fox News that it planned to appeal the decision.

“We could see the direction that this was going and we’re disappointed in the outcome,” James Englert, the village’s outside counsel, told Fox News. “We think the village has it right.”

Josh Engel, who is also representing the drivers, told Fox News that despite Englert and the village’s efforts to appeal, he is “confident” the decision will be upheld.

“Judge Oster upheld a basic constitutional principal that municipalities have to provide due process to people, and if they don’t do that, they have to refund the money,” Engel told Fox News. “The village has spent a huge amount of public money trying to defend this statute and at some point, someone in the community has to say, ‘we need to stop spending money on lawyers and just own up to our responsibilities.’”

The judge asked the attorneys representing the motorists to provide the court with a spreadsheet detailing how much their clients had to pay in tickets.

On March 3rd, Allen and Engel will ask the judge to order the immediate return of the money to the wrongfully ticketed drivers.

“This is a big victory,” Allen told Fox News, “on the way.”

By Brooke Singman

Published on February 13, 2017 on foxnews.com

 

That Time I Turned a Routine Traffic Ticket into the Constitutional Trial of the Century

As my readers know, I have been a rather loud critic of traffic cameras and have written extensively about them; the links to those pieces are listed below.  Traffic cameras come in at least two forms: red light cameras and speeding cameras.  I think they are antithetical to, and offend the norms, customs, and traditions of, the American legal system.  You can read my thoughts on this subject in my other posts which are linked below, I will not reiterate them here.

One of the difficulties in challenging traffic camera laws is that the out-of-pocket costs for a legal challenge far outstrip the cost of the fine for a ticket from those cameras.   As a result, people do not think the challenge is worth the expense and, unfortunately, these laws go unchallenged.

Well, as it turns out, an attorney in Alabama did challenge the traffic camera law in his state and it had a surprising result.

His story is below, enjoy!

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Laws that give municipal officials and their private contractors power to issue tickets via traffic cameras confer powers of both criminal and civil law while excusing them from the due process duties of both criminal and civil law.

The traffic-camera ticket: like a parking ticket, it looks lawful enough. When they receive one, most people simply write the check. It seems like the sensible and law-abiding thing to do.

But this is not a parking ticket. In legal terms, it is not a proceeding in rem—against your car. It is a legal action against you personally. And before you pay the fine, you might want to hear my story.

My story is not legal advice. I offer it only to show how our ruling elites have corrupted the rule of law and to suggest why this matters for the American experiment in self-governance.

The Ticket

My story begins with a confession: I got a traffic-camera ticket. An affidavit signed by a Montgomery City police officer, it averred that I had committed a particular traffic violation on a certain date, at a certain time and location. It showed a photograph of one of our family vehicles. It charged me with a “civil violation” of “criminal law.”

I wasn’t driving the car. In fact, at the time I was in a faculty meeting at the law school where I teach. Thus, I decided to challenge this injustice on the principle of the thing.

Municipal Court

On the appointed day, I tromped over to municipal court and sat down among those accused of armed robbery, drug dealing, and other misdeeds. After an hour, a bailiff emerged to herd into a corner of the courtroom those of us who had appeared for the slightly more respectable offense of owning a speeding vehicle. We waited some more, first for the clerk, and then to be called individually to meet the clerk. Those of us who requested a hearing (evoking an exasperated, poor-idiot-thinks-he’s-Perry-Mason expression) then waited for a magistrate to show up. Then we each waited our turn to appear before the magistrate.

After a summary hearing, the magistrate ruled against me. So I appealed to the county-level Circuit Court.

Actually, I tried to appeal. The clerk’s office made me wait in the lobby. When they finally saw me, they insisted that I provide a criminal appeal bond. But I wasn’t convicted of a crime, I protested. No matter. No appeal bond; no appeal.

No, we don’t accept checks. Come back with the amount of your ticket in cash. I found an ATM and returned, only to be left waiting in the lobby again. When I was readmitted, I saw a different employee who insisted on twice the amount of the ticket in cash. I left and returned again.

More waiting.

The City Attorney

Next, I called the City Attorney to see if she really wanted to go through with this. She did.

One does not expect municipal officials to be paragons of lawfulness. But it is a bit jarring to encounter a City Attorney who evinces no interest in, much less knowledge of, her constitutional duties.

I asked her whether this was a criminal action or a civil action. She replied, “It’s hard to explain it in those terms.” I asked whether she intended to proceed under criminal procedural rules or in civil procedure. We would proceed under the “rules of criminal procedure,” she answered because this is a criminal case. I asked when I could expect to be charged, indicted, or have a probable cause determination. She replied that none of those events would occur because this is “a civil action.” So I could expect to be served with a complaint? No, no. As she had already explained, we would proceed under the criminal rules.

(For the record, the Montgomery City Attorney never studied law with me.)

She asserted that I had violated the “rules of the road” and explained, “You were caught on camera speeding.” I asked her for any evidence. She replied that she did not need evidence. I was deemed liable because an automobile that I own “was caught speeding.” But the complaint is against me, I noted, not my car. But I am liable, she insisted, because I loaned my vehicle to “someone who speeds.”

I asked where in the laws it prohibits me from loaning my vehicle, and how I am to know in advance that any particular person is going to speed using my car. Agitated by my “semantics,” she advised me to raise any due process issues with the trial court.

[*click*]

This was going to be fun.

The Trial

Before the trial, I moved to dismiss the case. I wanted the judge to pay attention, so I tried to make the motion interesting. Okay, maybe “interesting” isn’t the best word. It was over the top. I alluded to Hobbes and Locke. I quoted the Declaration of Independence. I suggested the success of the American experiment was at stake. I resorted to superlatives. You know: all the stuff I teach my law students never to do.

We proceeded to trial. The city produced one witness, the police officer who had signed the affidavit. On direct examination, he explained how the traffic camera system works. A corporation in another state called American Traffic Solutions operates the camera system, chooses the photographs on which to predicate enforcement, recommends the Montgomery police department initiate an action against a vehicle’s owner, and is paid for its work.

On cross-examination, I established that:

– He was not present at the time of the alleged violation.

– He has no photographic evidence of the driver.

– There were no witnesses.

– He does not know where Adam MacLeod was at the time of the alleged violation.

And so on. I then asked the question one is taught never to ask on cross—the last one. “So, you signed an affidavit under the pains and penalties of perjury alleging probable cause to believe that Adam MacLeod committed a violation of traffic laws without any evidence that was so?”

Without hesitating he answered, “Yes.” This surprised both of us. It also surprised the judge, who looked up from his desk for the first time. A police officer had just testified under oath that he perjured himself in service to a city government and a mysterious, far-away corporation whose officers probably earn many times his salary.

The city then rested its case. I renewed my motion to dismiss, which the judge immediately granted.

Vindication! Well, sort of. When I tried to recover my doubled appeal bond, I was told that the clerk was not authorized to give me my money. Naturally, the law contains no procedure for return of the bond and imposes on the court no duty to return it. I was advised to write a motion. Weeks later, when the court still had not ruled on my motion, I was told I could file a motion asking for a ruling on my earlier motion. Bowing to absurdity, I did so. Still nothing has happened now several months later.

Why This Matters

Traffic camera laws are popular in part because they appeal to a law-and-order impulse. If we are going to stop those nefarious evildoers who jeopardize the health of the republic by sliding through yellow lights when no one else is around and driving through empty streets at thirty miles per hour in twenty-five zones, then we need a way around such pesky impediments as a lack of eyewitnesses.

Yet traffic cameras do not always produce probable cause that a particular person has committed a crime. To get around this “problem” (as a certain law-and-order president-elect might call it), several states have created an entirely novel phylum of law: the civil violation of a criminal prohibition. Using this nifty device, a city can charge you of a crime without any witnesses, without any probable cause determination, and without any civil due process.

In short, municipal officials and their private contractors have at their disposal the powers of both criminal and civil law and are excused from the due process duties of both criminal and civil law. It’s a neat trick that would have made King George III blush.

Standing and the Fundamentals of Constitutionalism

Equally troubling is that the municipality is authorized to make the owner answer a civil suit without any standing. Standing is a requirement for a person who wishes to enlist a state’s judicial power against another person. No fellow citizen can haul you into court without first alleging that you wrongly caused some particular injury to that person.

A city cannot lawfully do to you what your fellow citizen cannot do to you. And it has no standing if it has suffered no particular injury. If a driver rolls through a yellow light at an empty intersection and fails to cross the line before the light turns red, no one is injured, least of all the city.

In my case, the City Attorney argued that my city has standing because someone exceeded the speed limit while driving my car and thereby breached his or her duty to obey the law. Certainly, all citizens have a duty not to break criminal laws with culpable intent. But we owe that duty neither to the city nor to the state but to each other. If we breach the duty, the city prosecutes on behalf of the people and must afford us criminal due process.

That is American Constitutionalism 101.

The Mayor

The story continues. Lovers of liberty in Alabama kept political pressure on the state legislature, and earlier this year the legislature repealed the traffic-camera law. Yet Montgomery’s defiant mayor announced that the city would continue to operate the program. Curiously, he asserted that to stop issuing tickets would breach the city’s contract with American Traffic Solutions. One wonders how many tickets the city is contractually obligated to issue.

Finally, after the Attorney General told him to knock off the foolishness, the mayor backed down. Sort of. The city will no longer use car-based cameras, though it will continue to use stationary cameras mounted at intersections. In a fit of petulance, and belying his insistence that the program is motivated by safety concerns rather than revenue, the mayor announced that the amounts of fines for ordinary traffic violations will now be tripled.

A Small Inconvenience, a Big Problem for Self-Government

Traffic-camera laws seem like such minor, insignificant intrusions on liberty that few grasp their constitutional significance. But they reflect a profoundly mistaken view of American constitutionalism. One might say that the traffic camera is a sign of our times. Its widespread use and acceptance reveals how far we have drifted from our fundamental commitment to self-government. When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.

By:  Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason (Cambridge University Press).

You can find this article here.

Chicago Puts the Breaks on Red Light Cameras

As my readers know, I have written extensively on traffic cameras, and the links to those pieces are listed below.  Traffic cameras come in at least two forms: red light cameras and speeding cameras.

So far, speeding cameras seem to be a relatively positive development in traffic control, and I, of course, will be keeping an eye on that issue.  Red light cameras, by contrast, are a much bigger issue.  I have been very vocal in my opposition to red light cameras on practical, legal, and, indeed, constitutional grounds.  I have summarized those grounds in the links below, especially the articles.

It now seems Chicago is the latest battleground for red light cameras and, as it seems to be the trend across the country, the red light camera program is losing ground there too.  Evidently Chicago is being sued for its alleged denial of due process to motorists who were allegedly caught by the red light camera program.  The Court hearing this matter has voided all of the red light camera tickets, which means Chicago is potentially on the hook to refund hundreds of millions of dollars to motorists.  Now, due to this ruling (which will likely be appealed), a class action law suit regarding these red light tickets is now in the cards.

You can learn more about the Chicago case here.

So, it seems that the tide is certainly turning and is now decidedly moving against the red light program, and this latest ruling, described above, is the next step in that process.  I like to think that my initial opposition to this program several years ago as published in Upon Further Review (see here) helped begin to turn the tide, but, regardless, I am happy to see this latest development.  The red light program is simply bad policy and the sooner it ends the better.

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Speeding Cameras Slowing Traffic Down

Traffic light cameras are in the news once again.  My opposition to red light cameras is well documented, as you can see from the links to my articles and blog posts on the subject listed below.

In addition to red light cameras, many municipalities are now installing cameras which can, somehow, record the speed of cars passing it, take their photograph if they are speeding, and issue speeding tickets accordingly.  Now, I am not sure how these cameras work in each jurisdiction where they are found, but if it is anything like how Pennsylvania’s red light cameras work, where the owner of a vehicle is cited and not the driver, and the driver bears the burden to prove his innocence, then I think the same Constitutional issues that are found with red light cameras are present with speed cameras as well (see my two articles below for a description of the legal issues).

Now, I have written briefly on speeding cameras before (see the blog post blow regarding ABC News) and have relayed how much they have been abused by various municipalities.  Despite that, apparently a recent study (see here) out of Montgomery County, Maryland reveals, at least for that county, that the speeding cameras (not the red light cameras) have actually served to save lives, reduce injuries, and possibly reduce the frequency of car accidents.  Presumably these positive consequences are due to the drivers, fearful of being ticketed, actually driving slower.

So, at least for the speeding cameras in Montgomery County, Maryland, they seem to have had positive effects.  The same cannot be said for red light cameras, which have, on the whole, had adverse effects as described in my blog posts linked below.

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Suit Challenges Rules For Preaching On Boardwalk

This is from religionclause.blogspot.com which you can find here:

“A lawsuit was filed in New Jersey federal district court last week challenging the regulations governing preaching and distributing religious material on the Boardwalk at Point Pleasant Beach, NJ.  The complaint (full text) in Paoella v. Borough of Point Pleasant Beach, New Jersey, (D NJ, filed 10/24/2014), alleges:

Plaintiff, as an exercise of his Christian beliefs, intends to go to the public areas of the Boardwalk, hold a sign expressing a religious message, and speak about God and hand out religious literature to those who wish to receive his message.”

You can learn more about this issue here.

Hidden Pictures: Constitutional Issues with the Red-Light Program

In 2005, Philadelphia started its participation in the red-light camera program. Per this program, cameras have been set up at high-risk intersections in the city in order to effectively catch motorists running red lights. So far, the cameras have been set up around the city, including the intersections around City Hall and at a few intersections along Roosevelt Blvd. Presently, a debate is ongoing in Harrisburg as to whether to continue and/or extend the red-light program in Philadelphia and into about a dozen other Pennsylvania cities.

There is no doubt that the red-light program has brought millions of dollars to Philadelphia in traffic fines and arguably has made our roadways safer; however, the question as to whether the program is constitutional remains outstanding. I have written about this issue before, in 2009, and, since that time, there has been little discussion regarding the constitutional aspects of the red-light cameras.

The constitutional issues are pretty clear. A traffic violation is a summary criminal offense (see: 18 Pa.C.S.A. Section 106(c); Stumpf v. Nye, 2008 Pa. Super. 122 (2008), Commonwealth v. Henry, 2008 Pa. Super. 20 (2008), and Commonwealth v. Gimbara, 2003 Pa. Super. 394 (2003)). The burden of proof the commonwealth must meet, even for summary criminal offenses, is beyond a reasonable doubt (see Commonwealth v. A.D.B., 752 A.2d 438, Pa.Cmwlth. 2000 andCommonwealth v. Banellis, 452 Pa.Super. 478 (1996)). Logically speaking, then, the burden of proof for the commonwealth for the summary criminal offense of a traffic violation like running a red light is proving it beyond a reasonable doubt.

Despite the clear law described above, pursuant to 75 Pa.C.S.A. Section 3116(b), motorists caught by the red-light program are presumed to be liable and have to prove their own innocence. Clearly, the burden of proof under the red-light program turns the traditional American jurisprudence of “innocent until proven guilty” on its head. The single biggest reason for the constitutional issue is that the photographs taken are only of the rear of the car, as opposed to the face of the driver, capturing only the license plate and make and model of the car. At least if the photographs were of the driver’s face, there would be convincing proof of who the driver was who ran the red light. As it stands now, the ticket for running a red light under the red-light program is assessed to the owner of the car photographed from behind, regardless of who the actual driver was at the time of the violation, despite this not being the case for other traffic violations.

I have been told that the photographs are not taken of a driver’s face to protect his or her privacy, however that has no logical basis, as the license plate and make and model of the car reveals just as much information about the owner of the car as photographs from the front. Additionally, no one sees the photograph except for PennDOT, the owner of the car and perhaps the court and police. Somehow, I simply do not think opposing basic American constitutional jurisprudence is worth the cost of allegedly protecting privacy.

As the debate on the red-light program continues in Harrisburg, I hope that before any decision is made, some consideration is made of the constitutional issues described above and that our rights are protected. Allowing our rights to deteriorate in this limited way without opposition may be a harbinger for further erosion. Now that we have the opportunity to address this issue again, I hope the debate on the red-light program highlights this very important issue.

Originally published in the Legal Intelligencer Blog on April 17, 2012 and can be found here.

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