Research relating to possible class action involving red light cameras.

479.050 requires that all traffic fines and costs “shall be paid into the municipal treasury.  Are these people paying the municipality or are they paying the camera company?  Also, is camera company keeping a percentage or are they remitting only a percentage to the municipal treasury?

 

479.080. 1. In the prosecution of violations of municipal ordinances before a municipal judge, all fines and costs shall be paid to and deposited not less frequently than monthly into the municipal treasury.

 

SECTION 305.010:     CITY TRAFFIC ENGINEER

A.     The office of City Traffic Engineer is established.  The City Administrator or other designated City Official shall serve as City Traffic Engineer in addition to his/her other functions and shall exercise the powers and duties with respect to traffic as provided in this Title. 

B.     The City Traffic Engineer shall make recommendations regarding the installation and proper timing and maintenance of traffic control devices, conduct engineering analyses of traffic accidents and devise remedial measures, conduct engineering investigation of traffic conditions, plan the operation of traffic on the streets and highways of the City, and cooperate with other City Officials in the development of ways and means to improve traffic conditions, and carry out the additional powers and duties imposed by ordinances of the City. 

D.     Authority To Install Traffic Control Devices.  The City Administrator or his/her designated representative shall place and maintain traffic control signs, signals and devices when and as required under this Chapter to make effective its provisions and may place and maintain such additional traffic control devices as are deemed necessary to regulate traffic under this Chapter or State law or to guide or warn traffic.  (R.O. 2008 §16-55--16-75; Ord. No. 977 §1(2.3--2.4, 2.6--2.23, 8.7), 1-5-81)

          State Law References--Similar provisions, §§300.130, 300.200(1), 300.220(1), 300.225, 300.250, 300.260, 300.265, 300.465, 300.480, 300.485, RSMo.

SECTION 315.010:     MANUAL AND SPECIFICATIONS FOR TRAFFIC CONTROL DEVICES

All traffic control signs, signals and devices shall conform to the manual and specifications approved by the State Highways and Transportation Commission or resolution adopted by the City Council of the City.  All signs or signals required hereunder for a particular purpose shall so far as practicable be uniform as to type and location throughout the City.  All traffic control devices so erected and not inconsistent with the provisions of this Title shall be official traffic control devices.

SECTION 315.020:     OBEDIENCE TO TRAFFIC CONTROL DEVICES

The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto placed in accordance with the provisions of this Title, unless otherwise directed by a traffic or Police Officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this Title.

SECTION 315.140:     VIOLATION OF PUBLIC SAFETY AT INTERSECTIONS AND THE AUTOMATED PHOTO ENFORCEMENT OF TRAFFIC CONTROL SIGNAL REGULATIONS

A.     Definitions.  For the purpose of this Section, the following words and phrases shall have the meaning given herein:

AUTOMATED PHOTO TRAFFIC ENFORCEMENT SYSTEM:  A system that:

     1.     Consists of camera(s) and vehicle sensor(s) installed to work in conjunction with an electrically operated traffic control signal; and

     2.     Is capable of producing high resolution color digital recorded images that show:

          a.     The traffic control signal while it is emitting a steady red signal for a direction of travel through an intersection;

          b.     A motor vehicle entering or in the intersection in that direction of travel; and

          c.     The license plate and number of the motor vehicle; and

     3.     Is not designed to take recorded images of the faces of occupants of a motor vehicle.

MUNICIPAL COURT:  The Municipal Court of the City.

OPERATOR:  Any person who operates or drives a motor vehicle and has the same meaning as "driver".

OWNER:  The owner(s) of a motor vehicle as shown on the motor vehicle registration records of the Missouri Department of Revenue or the analogous department or agency of another State or country.

RECORDED IMAGE:  A still image digitally recorded by an automated photo traffic enforcement system.

SYSTEM LOCATION:  An intersection at which an automated photo traffic enforcement system has been installed.

TRAFFIC CONTROL SIGNAL:  A traffic control device that displays alternating red, yellow and green lights intended to direct traffic when to stop at or proceed through an intersection.  (See Section 301.010, RSMo., for statutory definitions of owner and operator.)

          Cross Reference--Definitions and rules of construction generally, §100.020.

B.     Violation Of Public Safety At Intersections.  Except as otherwise provided in this Section, a person commits the infraction of violation of public safety at an intersection when a motor vehicle of which that person is an owner is present in an intersection while the traffic control signal for the intersection is emitting a steady red signal for the direction of travel or orientation of that vehicle in or through the intersection, unless the motor vehicle is in the process of making a lawful turn or unless the motor vehicle entered the intersection while the traffic control signal for the intersection was emitting a steady yellow signal for the direction of travel or orientation of that vehicle in or through the intersection and the motor vehicle did not obstruct the passage of other vehicles or pedestrians.  Provided however, that an infraction shall be excused upon submission of a sufficient sworn statement that the presence of the motor vehicle in the intersection was justified because:

     1.     The traffic control signal was not in proper position and sufficiently legible to an ordinarily observant person;

     2.     The operator of the motor vehicle was acting in compliance with the lawful order or direction of a Police Officer;

     3.     The operator of the motor vehicle violated the instruction of the traffic control signal in order to yield the right-of-way to an immediately approaching authorized emergency vehicle;

     4.     The motor vehicle was being operated as part of a funeral procession pursuant to Section 194.503, RSMo.;

     5.     The motor vehicle was being operated as an authorized emergency vehicle as defined and in compliance with Section 304.022, RSMo.;

     6.     The motor vehicle was a stolen vehicle and being operated by a person other than the owner without the effective consent of the owner (but this shall not be a justification for such an operator) and the theft was timely reported to the appropriate law enforcement agency;

     7.     The license plate and/or tags depicted in the recorded image(s) were stolen and being displayed on a motor vehicle other than the motor vehicle for which they were issued (but this shall not be a justification for the operator of the motor vehicle) and the theft was timely reported to the appropriate law enforcement agency;

     8.     Ownership of the motor vehicle had in fact been transferred prior to the violation (provided State records substantiate this statement);

     9.     The motor vehicle was present in the intersection because it was inoperable.

Liability hereunder is based on ownership, without regard to whether the owner was operating the motor vehicle at the time of the violation, except that, as provided in Section 304.120.4, RSMo., no liability shall be imposed on the owner of a motor vehicle when the vehicle is being permissively used by a lessee if the owner furnishes the name, address and operator's license number of the person renting or leasing the motor vehicle at the time the violation occurred to the City within thirty (30) days from the time of receipt of written request for such information.

C.     Automated Photo Traffic Enforcement System Authorized.  An automated photo traffic enforcement system is hereby authorized to be installed and operated within the City for the purpose of detecting violations of public safety at intersections.  Specific system locations shall be determined from time to time by the City Administrator.  Recorded images shall constitute sufficient basis for citation if alone or in combination they clearly show that the traffic control signal for an intersection is emitting a steady red signal for the direction of travel or orientation of a motor vehicle in or through the intersection, the motor vehicle present in the intersection and the license plate and license number of the motor vehicle.  Recorded images may also be used as evidence of other violations to the extent permitted by applicable law.

D.     Enforcement Procedures.

     1.     Except as otherwise provided herein, upon review of recorded image(s) showing an infraction under this Section, a Police Officer of the City Police Department shall complete a citation in a form approved by the City Administrator (which form may be completed electronically or online) and the City shall cause the completed citation to be mailed to the owner at its last known address by first class U.S. mail, postage prepaid, within thirty (30) days after the date the recorded image(s) were taken.

          a.     Based upon the information obtained from the recorded image, the Police Officer may obtain any additional information about the owner, which is necessary to complete or mail the citation, from the records of the Missouri Department of Revenue or any other legal means; or, if the motor vehicle is registered in another State or country, from the motor vehicle registration records of the department or agency of the other State or country analogous to the Missouri Department of Revenue or any other legal means.

          b.     If there is more than one (1) owner of the motor vehicle, a citation may be completed and addressed to any or all of them and such owner shall be jointly and severally liable hereunder.

          c.     The citation shall direct the owner to respond within thirty (30) days of the date of mailing of the citation either by paying the fine specified in this Section 315.140 at the appropriate time and place in the City or by providing a sufficient sworn statement of applicability of one (1) of the justifications for presence of the motor vehicle in the intersection set forth in this Section 315.140.

          d.     A copy of the recorded image(s) upon which the citation is based shall be sent to the owner with the citation.

          e.     The citation shall include a request that the name, address and operator's license number of any person renting or leasing the motor vehicle at the time the violation occurred be furnished to the City within thirty (30) days of receipt of the request.

     2.     Any sworn statement provided by an owner shall be examined by the City prosecuting attorney.  If the City prosecuting attorney determines that a statement is sufficient, then the citation shall be withdrawn and a letter to that effect shall be sent to the owner by the City.  If the City prosecuting attorney determines that a statement is insufficient including, but not limited to, a determination based upon a comparison of the statement to the recorded image(s), then a letter shall be sent to the owner (any or all of them) at its last known address by first class U.S. mail, postage prepaid, by the City indicating that the statement was insufficient and the fine specified in this Section 315.140 must be paid at the appropriate time and place in the City within thirty (30) days of the date of the letter.  If the statement timely provides the name, address and operator's license number of any person renting or leasing the motor vehicle at the time the violation occurred, then the citation shall be withdrawn, a letter to that effect shall be sent to the owner by the City and a new citation shall be issued to the identified person together with a copy of the identifying statement, which person shall be liable hereunder as if an owner.  If the operator of a stolen vehicle or a vehicle bearing stolen license plates or tags that violates this Section is identified, such person shall be liable as if an owner.

     3.     In lieu of completing a citation, the Police Department may send a warning notice to the owner if the system location was established within one (1) week of the violation or if the reviewing officer determines that the recorded images are inconclusive or that it is more likely than not that a justification applies to the violation.

E.     Notwithstanding any other provision of the City Code of Ordinances, the fine for the infraction of violation of public safety at an intersection shall be set by the Municipal Court from time to time on the schedule for the Violations Bureau (VB) and under no circumstances may a person be imprisoned for such an infraction.

F.     Warning Signs.  An automated photo traffic enforcement system may be identified by advance warning signs posted at entrances to the City and/or at specific system locations, if the City Administrator determines that such signs will enhance the efficacy of the system.  Absence of such signs shall not provide justification for a violation.

G.     Failure To Respond To Citation.  Any person who shall fail to respond to a citation or letter issued under this Section by timely payment of fine or by timely and sufficient statement as described herein or who shall submit a false sworn statement hereunder shall be subject to prosecution for failure to respond to citation in the Municipal Court for violation of this Section subject to the general penalty provisions of Section 100.090 in addition to any other applicable liabilities or sanctions.  (R.O. 2008 §16-398; Ord. No. 4024 §1, 6-12-06; Ord. No. 4078 §1, 9-23-07; Ord. No. 5016 §1, 1-14-08)

42 U.S.C. § 1983, commonly referred to as "section 1983" provides:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 

(iv) ". . . [any person to] the deprivation of rights . . ."

Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.  Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes.  It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].

 

The Supreme Court has held that the Due Process Clause was not intended to supplant tort law, or to become "a font of tort law to be superimposed upon whatever systems may already be administered by the states."  Against this backdrop, to state a claim for a deprivation of Due Process, a plaintiff must show: (1) that he possessed a constitutionally protected property interest; and (2) that he was deprived of that interest without due process of law.  Due process property interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understanding that secure certain benefits and that support claims of entitlement to those benefits."  To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it.  He must have more than a unilateral expectation of it.  He must, instead, have a legitimate claim of entitlement to it."  While the existence of a protected property interest is decided by reference to state law, the determination of whether due process was accorded is decided by reference to the Constitution.  Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case,'" but the state does not have to provide the same remedies available under section 1983 in order to satisfy due process.

In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause, and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts.  However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available, and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause.

 

In addition to protection against deprivations of procedural due process, the Due Process Clause has two substantive components--the substantive due process simpliciter, and incorporated substantive due process.  In order to state a claim for a violation of the substantive due process simpliciter, the plaintiff must demonstrate that the defendant engaged in conduct that was "arbitrary, or conscience shocking, in a constitutional sense."  This form of due process has very limited application, but, in contrast to certain procedural due process claims, the existence of adequate post-deprivation remedies does not bar a substantive due process claim.  With respect to incorporated substantive due process, the plaintiff may state a claim by proving a violation of one of the Bill of Rights.  The Supreme Court has held that one of the substantive elements of the Due Process Clause protects those rights that are fundamental--rights that are implicit in the concept of ordered liberty, and has, over time, held that virtually all of the Bill of Rights protect such fundamental rights and has likewise held that they apply to the states through the "liberty" interest of the Due Process Clause.  However, the Court has held that when a specific provision within the Bill of Rights already provides protection, the more generalized notion of due process should not be used to define constitutional rights.

 

[33]. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979); Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).  Section 1983 does not provide for the vindication of rights secured by state law.  Id. at 145-146; Almand v. DeKalb County, 103 F.3d 1510, 1513 (11th Cir. 1997).

34.  U.S.Const. amend. XIV, §1.  The Fourteenth Amendment Due Process clause is a limitation on state power, while the Fifth Amendment Due Process clause limits federal power.  Halinger v. Davis, 146 U.S. 314, 319 (1892).

35. Paul v. Davis, 424 U.S. 693, 701 (1976).

36. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Baker v. McCollan, 443 U.S. 137, 145 (1979).

37. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972);  See also, Bishop v. Wood, 426 U.S. 341, 344 (1976).

38. Board of Regents, 408 U.S. at 576.

.39 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

40. Loudermill, 470 U.S. at 542.

41. Parratt v. Taylor, 451 U.S. 527, 543-544 (1981).

42. Daniels v. Williams, 474 U.S. 327 (1986).

43. Hudson v. Palmer, 468 U.S. 517, 533 (1984)("[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the due process clause of the 14th amendment if a meaningful postdeprivation remedy for the loss is available.  For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.").  The Court later held that negligence does not constitute a "deprivation."  Daniels v. Williams, 474 U.S. 327 (1986).  See also, Zinermon v. Burch, 494 U.S. 113, 132 (1990).

44. Zinermon, 494 U.S. at 132.

45. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989); Santamorena v. Georgia Military College, 147 F.3d 1337, 1339-1340 (11th Cir. 1998).  As with all actions predicated upon a violation of the United States Constitution, in order to state a claim for a deprivation of due process, "state action" must be present.  The eleventh circuit has recognized three primary tests to determine whether the actions of a private entity constitute state action: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test.  National Broad Co. v. Communications Workers of Am., 860 F.2d 1022, 1026 (11th Cir. 1988).

46. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 128 (1992); Rymer v. Douglas County, 764 F.2d 796, 801 (11th Cir. 1985).

47. Collins, 503 U.S. at 125("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.").  See also, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(high speed police chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability for violation of substantive due process); Albright v. Oliver, 510 U.S. 266, 271-272 (plaintiff could not make out substantive due process claim for alleged prosecution without probable cause because Fourth Amendment is more appropriately considered); Graham v. Connor, 490 U.S. 386, 394 (1989)(claims of force arrest by police officer during arrest or detention cannot state a substantive due process claim--it is more appropriately analyzed under Fourth Amendment); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994)(in non-legislative cases, only procedural due process claims are available to pretextually terminated employees).

48. See note 46, supra, and accompanying text.

49. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994).

50. Palko v. Connecticut, 302 U.S. 319, 325 (1937).  For example, the Supreme Court has held that the Fourth Amendment proscription against unreasonable searches and seizures, Mapp v. Ohio, 367 U.S. 643 (1961), and the Sixth Amendment right to a speedy public trial, Klopfer v. North Carolina, 386 U.S. 213 (1967), apply to the states.

51. Albright v. Oliver, 510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989).