MESSAGE
| DATE | 2017-01-16 |
| FROM | mrbrklyn
|
| SUBJECT | Subject: [Hangout-NYLXS] Cameras and the Law
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http://www.thepublicdiscourse.com/2017/01/18093/
That Time I Turned a Routine Traffic Ticket into the Constitutional
Trial of the Century
by Adam J. MacLeod
within Constitutional Law
January 13th, 2017
77.6K 10.1K 94.7K
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.
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).
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