The Elmwood Place Village Traffic Cameras continue to generate debate. One of the big questions is whether these cameras violate the Federal Constitution.
In other words, is Elmwood Place violating the civil rights of drivers.
Drivers in other states challenging traffic similar cameras have attempted to assert various Constitutional claims related to criminal procedure. The claims include the right to a trial with strict rules of evidence, the right to counsel, and the right to confront witnesses. These claims have been rejected because the scheme – as the Ohio Supreme Court noted in a case from Akron – is civil in nature. See Bevis v. City of New Orleans, 2011 U.S. Dist. LEXIS 77399 (E.D. La. July 15, 2011).
The best possible argument is that the scheme adopted by the Village violates the procedural due process guarantees of the federal constitution. The closest case on point from this area is Mendenhall v. City of Akron, 374 Fed. Appx. 598, *; 2010 U.S. App. LEXIS 6454 (6th Cir. 2010). This is an unpublished opinion, so its actual value as binding authority is somewhat limited.
The plaintiff’s complaint in Mendenhall alleged, inter alia, that the speed camera ordinance in Akron violated Due Process and Fifth Amendment rights guaranteed by the United States Constitution. The court found that the ordinance provides for notice , an opportunity for a hearing, provision for a record of the hearing decision, and the right to appeal. The Sixth Circuit said that, for this reason, “the ordinance and its implementation, . . . satisfy due process.” Citing Idris v. City of Chicago, No. 06-C-6085, 2008 U.S. Dist. LEXIS 3933 (N.D. Ill. Jan. 16, 2008), aff’d, 552 F.3d 564, 566-68 (7th Cir. 2009); City of Knoxville v. Brown, 284 S.W.3d 330, 338-39 (Tenn. Ct. App. 2008); Gardner v. City of Columbus, 841 F.2d 1272, 1280 (6th Cir. 1988) (civil penalties for parking violations).
The best argument against the cameras is based on the dissent by Judge Clay.
Judge Clay was particularly concerned that “the ordinance does not indicate that proof that the owner was not in fact driving the vehicle at the time of the violation can provide a basis for avoiding liability at the administrative hearing.” Judge Clay explained:
The Akron civil speeding enforcement system fails to satisfy this due process test. . . . Akron does not provide an owner with a mechanism to avoid an erroneous deprivation of her property interest by proving that she was not driving at the time the violation occurred. Rather, Akron holds a driver liable regardless of whether she was the person who committed the act in question. The ordinance does provide an accused owner with the right to an administrative appeal, at which the hearing officer must consider all testimony, documents or other evidence in determining liability and is not limited to whether the vehicle is leased or stolen. . . . [I]t is clear that the type of evidence the hearing officer may consider when determining liability concerns whether a violation occurred in the owner’s car, not whether the owner was the person who committed the violation. Thus, an owner may be held liable for someone else’s actions.
Judge Clay suggested that this problem could rectify this deficiency in process by allowing an owner to present evidence at an administrative hearing that he or she was not the driver. The Village appears to have adopted a procedure in which an alleged driver can complete a “Transfer of Liability Affidavit” that must be signed not only by the person who receives the citation, but also by the alleged driver.
There is a good argument that the Transfer of Liability process is not sufficient, because it requires the identification of an alternate driver, rather than just the possibility of the person who received the citation of proving that they were not the driver. This argument is especially strong if the civil appeals process does not permit the person facing liability to use a subpoena to compel the attendance of the alleged driver.
This argument is also strong if the person has a good reason not to identify the driver. For example, in Ohio one spouse cannot be compelled to provide testimony against the other spouse. It’s not hard to imagine a situation where husband is driving a car registered in wife’s name. Wife gets the citation even though she wasn’t; driving. She can only avoid payment under the Elmwood Place scheme by fingering her husband – something she has a privilege not to do under Ohio law.
But a word of caution for those who don’t like the cameras. Other courts have not been troubled by having the owner, but not the driver, fined. In Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir. Ill. 2009), Judge Easterbrook wrote:
Is it rational to fine the owner rather than the driver? Certainly so. A camera can show reliably which cars and trucks go through red lights but is less likely to show who was driving. That would make it easy for owners to point the finger at friends or children–and essentially impossible for the City to prove otherwise. A system of photographic evidence reduces the costs of law enforcement and increases the proportion of all traffic offenses that are detected; these benefits can be achieved only if the owner is held responsible.
This need not mean that the owner bears the economic loss; an owner can insist that the driver reimburse the outlay if he wants to use the car again (or maintain the friendship). Legal systems often achieve deterrence by imposing fines or penalties without fault.
The bottom line is that this issue has not been resolved by the courts in any comprehensive manner. There may not be a satisfactory answer until a case gets in front of the Supreme Court.
