A Proffer as to the Unconstitutionality of the “Mark Wandall Traffic Safety Act” a/k/a Florida’s Red Light Camera Law

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Resolved:
The “Mark Wandall Traffic Safety Act” (Florida’s Red Light Camera Law), codified within Chapters 316 and Chapter 318 Florida Statutes, is unconstitutional as being in violation of Citizens Rights under Article I; Section 9 (Due Process) and Article I; Section 12 ( relating to illegal Searches and Seizures) of the Florida Constitution.

The “Mark Wandall Traffic Safety Act” is the State of Florida version of the ‘Red Light Camera’ photo enforcement law, enacted by Chapter 2010-80 of the laws of Florida. In the city of Cocoa Beach, it’s Ordinance Number 1494, relating to “Intersection Safety”. Palm Bay’s version is the “Dangerous Intersection Safety Act”, codified as Chapter 75 of Palm Bay’s Code of Ordinances. The city of Melbourne had contracted with GATSO USA to install five Red Light Cameras in August of 2012, but according to the Florida Today article “Melbourne hit the brakes on red-light cameras” dated August 26, 2013 by Stacy Barchenger, Melbourne has canceled that contract due to changes made in state law that requires cities to use their Chapter 162 Florida Statutes administrative code enforcement procedures for the collection of contested violations (see Chapter 2013 -160, Laws of Florida).

These Red Light Cameras or “Photo Enforcement” devices have been in use in the United States for over a dozen years. The argument as to whether or not these “photo enforcement” devices are installed as a matter of public safety or as a revenue stream for the government entities that have them installed has been debated since there use in the United States began . The unconstitutionality of the laws that allow them to operate has also been hotly debated since their début. In fact, in his opening statements for the July 31, 2001 Hearing before the Subcommittee on Highway and Transportation for the United States House of Representatives, Chairman Thomas Petri framed the question of the day as “whether or not red light cameras are a valuable safety tool or an attractive revenue stream…” (See “AUTOMATED ENFORCEMENT—RED LIGHT CAMERAS (107-40) HEARING Before The SUBCOMMITTEE ON HIGHWAYS AND TRANSPORTATION Of The COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, HOUSE OF REPRESENTATIVES (hereinafter referred to as the 2001 Hearing).

In addition, in his submitted “Prepared Testimony”, then House Majority Leader Dick Armey, stated his axiom that “The politics of greed always comes wrapped in the language of love.” and that “In this case, the government says its higher motive is safety”. Representative Johnson from Illinois decried the use of these red light cameras as having nothing to do with safety, insisting they were being used as a source of revenue for cities and contractors “at the expense of citizens’ civil liberties” (see page 4 and 5 of the printed 2001 Hearing report). Representative Johnson offered that these laws were violating people’s rights to presumed innocence and the right to face ones accuser, with a Mr. Hurley (an expert witness invited to testify at the hearing) stating “Red light cameras combine the worst traits of government arrogance and corporate greed, where the grab-happy hand of the bureaucracy is strengthened by the insatiable appetite for money (at page 24 of the 2001 Hearing report).

The type of “corporate cronyism” surrounding red light cameras is nothing new. It has been recognized as occurring at least since the 1850 publication of “The Law” by French economist and political philosopher, Frederic Bastiat. This book starts by exclaiming “The law perverted! And the police powers of the state perverted along with it! …The law [has] become the weapon of every kind of greed! Instead of checking crime, the law itself [has become] guilty of the evils it is supposed to punish!”

In an effort to evade having to comply with protecting a citizen’s rights, governmental entities label violations of these red light laws as “civil” violations of law, imposing monetary fines as the penalty. However, in the 1958 case of Miami v. Gilbert, the Florida Supreme Court ruled that while ‘a prosecution for the violation of law’ may be called “a civil case”, they are in the nature of criminal rather than civil proceeding, labeling these type of violations “quasi-criminal”. In the 1967 case of In re Gault, (387 US 1, at pages 49, 50), The United States Supreme Court struck down Arizona’s juvenile delinquency laws stating “To hold otherwise would be to disregard substance (of the proceedings) because of the feeble enticement of the ‘civil’ label-of-convenience…”. Furthermore, in 1971, The Florida Supreme Court ruled in State v. Llopis that “The law of Florida is well settled that statutes penal in nature must be strictly construed …in favor of the person against whom the penalty is sought to be imposed”. As these red light laws impose a penalty, Llopis  and the other cited cases, mean the law should be interpreted in favor of the citizen and their rights.

With respect to Floridians fundamental Due Process rights under Article I, section 9, (which is commensurate to Amendment V in the Federal Constitution) and citizens protections against unreasonable searches and seizures (which is commensurate to Amendment IV within the Federal Constitution), “We the People” of Florida are supposed to be protected by the 4th and 5th Amendments to the Federal Constitution. In 1886 the U. S. Supreme Court ruled in Boyd v. United States; the sentinel case concerning the protections of the 4th and 5th  Amendments that: “If the government…elects… to file a civil [charge instead of a criminal charge] — can [the government by] this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them [evidence against themselves], or, as an alternative, a confession of guilt? This cannot be! The [charge], though technically a civil proceeding, is in substance and effect criminal …therefore, suits for penalties …, incurred by the commission of offences against the law, are of this quasi-criminal nature,… they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself;…  [w]e are further of opinion that a compulsory production of …[evidence from a citizen]…, in such a suit is compelling  him to be a witness against himself within the meaning of the Fifth Amendment…, and is the equivalent of … an unreasonable search and seizure… within the meaning of the Fourth Amendment” (Emphasis added by this writer).

To understand how and why these red light laws are unconstitutional under Boyd and the other cases cited above, an analysis of these photo enforcement laws is in order. Florida Statutes sections 316.074 and sections 316.075   require drivers to obey “traffic control devices” and that drivers shall stop at red lights. The red light camera laws, found within section 316.0083 Florida Statutes—the Mark Wandall Traffic Safety Act—the  guide for the cities of Cocoa Beach and Palm Bay’s red light laws, makes thirteen (13) references  to the “driver” of a vehicle violating the law by failing to stop at red light. However, the same statute requires that that notification of a violation “…be sent to the registered owner of the motor vehicle…” (emphasis added by this writer). But than, the same law contradicts itself by stating “that the violator must pay the penalty…”. Despite these contradictions, these laws state the photographs taken of a vehicle running a red light are “proof” of the owner of the vehicles guilt. Is there any other law that makes one person pay a fine for a violation of law that someone else committed?

These red light camera laws also dictate the “statutory defenses” the owner of a vehicle mailed a ticket may use. These allowable defenses include; The owner wasn’t the driver when the red light was ran, a police officer wrote you a ticket for the same offence or directed you through a red light, the car was stolen, you were dead, etc. After being mailed a ticket, the vehicle owner has to prove their innocence by submitting a sworn affidavit establishing one of the allowed defenses. If the owner was not the driver, they have to provide the name, address, and driver’s license number of the person driving the vehicle at the time the red light was ran. How can a dead person swear–out an affidavit? And note, submitting a false affidavit is the crime of perjury, which can result in jail time.

Again, the 4th Amendment to the Federal Constitution and Article I, section 12 of the Florida Constitution protect us from illegal searches and seizures. The government cannot seize property (money paid as a fine) without proving the identity element of probable cause. In the 1878 case of Stacy v. Emery, the U. S. Supreme Court stated that “probable cause” is where “the party is guilty of the offence with which he is charged (emphasis added by this writer).” In the 1950 case of Dunnavant v. State the Florida Supreme Court held:  “probable cause” is “that the person accused is guilty of the offense with which he is charged (emphasis added by this writer).”  Florida’s red light photo-enforcement laws make absolutely no attempt to identify the driver of a vehicle running a red light.

The 5th Amendment to the Federal Constitution and Article I, section 9 of the Florida Constitution protect citizens from being convicted of a violation of law without due process of law. The sentinel case for the doctrine of presumed innocence is the 1895 case of Coffin v. United States, where the U.S. Supreme Court adopted this doctrine into American jurisprudence by holding “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration” of American justice.

In 1954 the Florida Supreme Court held in Boynton v. State ex rel. Mincer  that: “The protection against self-incrimination [guaranteed by due process] is applicable to any evidence, documentary or oral, that tends to convict one of crime or subjects him to penalty… ; whether the prosecution, penalty or forfeiture involves a civil or criminal act is not material.” (emphasis added by this writer).

In 2006, in Scippio v. State, the Florida 4th DCA held: “It is well settled that it is never a defendant’s burden to establish his innocence. Due process requires the state to prove every element beyond a reasonable doubt …[T]he defendant is not obligated to present any evidence that he is not guilty…(emphasis added by this writer). In the 1990 case of, St. George v. State , the Florida Fifth District Court of Appeal—with all nine judges sitting En Banc, in a unanimous decision, ruled an accused could not be forced or compelled to identify himself. Judge Dauksch, in his specifically concurring opinion, stated: “notwithstanding the fact that the state may be able to otherwise identify the accused, the compelled… self-identification of a…suspect violates that suspect’s constitutional right to remain silent” [and] “[O]ur … system of …justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth” (emphasis added by this writer). Further, in citing the 1971 U.S. Supreme Court case of California v. Byers,

Judge Dauksch recognized that: “A name linked with a motor vehicle is no more incriminating than the tax return [is] linked with disclosure of income … it identifies but does not implicate anyone in criminal conduct …” (emphasis added by this writer).

When Chief Livesay, a witness testifying at the 2001 Hearing, stated “Yes, sir, we do send a citation based on the registered owner of the car, Representative Johnson (at page 32 of the 2001 Hearing report) exclaimed “That is incredible to me, an incredible violation of every concept of ordered liberty that I learned when I taught and went to law school and practiced law for 32 years”! (emphasis added by this writer).

We the people cannot be forced or compelled to testify or provide evidence against ourselves. We have the right to face our accusers. The fact our name is on a vehicle registration is no evidence of guilt whatsoever. The government cannot legally seize our property in the form of a monetary penalty—a fine, without proving the identity element of probable cause! Our fundamental rights protect us from being extorted into paying illegal fines as unconstitutional seizures. These “Red Light Camera Laws” are perversions of law that violate YOUR constitutional rights for the purpose of plundering YOUR wealth!  Red light camera laws require the surrender of far too many constitutional rights—liberties, for the false sense of security (safety) they provide.

Benjamin Franklin once opined that “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”!

 

References/Works Cited

Case Authorities in Alphabetical Order[i]

 

Boyd v. United States, U.S. Supreme Court (1886), 116 US 616,625, 6 S. Ct. 524, 29 L. Ed. 746,

Boynton v. State ex rel. Mincer, Florida Supreme Court (1954), 75 So. 2d 211

California v. Byers, U.S .Supreme Court (1971), 402 U.S. 424, 434, 91 S. Ct. 1535, 1540, 29 L.Ed.2d 9

Coffin v. United States, United States Supreme Court (1895), 156 US 432, 15 S. Ct. 394, 39 L. Ed. 481

Dunnavant v. State, Florida Supreme Court (1950). 46 So.2d 871

In re Gault, United States Supreme Court (1967), 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527

Miami v. Gilbert. Florida Supreme Court (1958), 102 So.2d 818

St. George v. State, Florida Fifth District Court of Appeals (1990), 564 So. 2d 152

Scippio v. State, Florida Fourth District Court of Appeals (2006), 943 So. 2d 942, (Fla.4th DCA 2006)

Stacy v. Emery, United States Supreme Court (1878),  97 U.S. 642, 24 L. Ed. 1035,

State v. Llopis, Florida Supreme Court (1971), 257 So. 2d 17

Federal Constitution/Statutes in Numerical Sequence

 Amendment IV
The Declaration of Independence / The Constitution of the United States, The Heritage Foundation. 2010. ISBN: 978-0-89195-128-5

 Amendment V
The Declaration of Independence / The Constitution of the United States, The Heritage Foundation. 2010. ISBN: 978-0-89195-128-5

Florida Constitution/Statutes in Numerical Sequence[ii]

 Article I, Section 9 of the Florida Constitution  The Florida Constitution, Online Sunshine. N.p., Accessed on 14 October 2013

Article I, section 12 of the Florida Constitution  The Florida Constitution, Online Sunshine. N.p. , Accessed on 14 October 2013

Chapter 316 Florida Statutes  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Chapter 318 Florida Statutes  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Chapter 162, Florida Statutes  The Florida Statutes, Online Sunshine. N.p., Accessed on 14 October 2013

Section 316.074 Florida Statutes, 2012  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Section 316.075(1)(c) Florida Statutes, 2012.  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Section 316.0083 Florida Statutes, 2012  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Section 775.082 Florida Statutes, 2012  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

Section 775.083 Florida Statutes, 2012  The Florida Statutes, Online Sunshine. N.p. , Accessed on 14 October 2013

 Laws of Florida 

 Chapter 2010-80 of the Laws of Florida; The “Mark Wandall Traffic Safety Act.”  Filed in Office Secretary of State May 13, 2010. Online Sunshine, http://laws.flrules.org/files/Ch_2010-080.pdf , Accessed on 14 October 2013

Chapter 2013-160, Laws of Florida, Filed in Office Secretary of State June 12, 2013. http://laws.flrules.org/2013/160 , Accessed on 14 October 2013

  Other Resources 

 “AUTOMATED ENFORCEMENT—RED LIGHT CAMERAS (107-40) HEARING Before The SUBCOMMITTEE ON HIGHWAYS AND TRANSPORTATION Of The COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE HOUSE OF REPRESENTATIVES,
One Hundred Seventh Congress, First Session, July 31, 2001  U.S. Government Printing Office, (74-392 PS) Washington: 2001, Superintendent of Documents, U.S. Government Printing Office, Internet: bookstore.gpo.gov

Barchenger, Stacey Melbourne hit the brakes on red-light cameras, Florida Today, August 26, 2013  http://www.floridatoday.com/article/20130816/NEWS01/308160019/ Accessed on October 14, 2013

Bastiat, Frederic, The Law, Original publication date 1850, BN Publishing, 2007

City of Cocoa Beach Code of Ordinances- Chapter 26- Traffic; Article III “Intersection Safety” Ordinance No. 1494, Adopted May 07, 2009  http://cocoabeach.granicus.com/MetaViewer.php?view_id=2&clip_id=730&meta_id=33185  Accessed on 14 October, 2013

City of Palm Bay Code of Ordinances- Chapter 75, “Dangerous Intersection Safety Act”  Ordinance No. 2010-31, Adopted August 5, 2010, http://www.palmbayflorida.org/citycouncil/meetings/documents/agenda/2010/rcm080510  Accessed on 10 October, 2013
Florida Rules of Traffic Court,
Florida Rules of Court Procedure,
The Florida Bar
http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/0FF693985C17374385256B29004BFA46/$FILE/Traffic.pdf?OpenElement, Accessed on 10 October 2013

State of Florida, Plaintiff v. Scott A Cuthbert, Defendant, Brevard County Court Case Number 05-TR- 045877-AXXX-XX , Public Record, Brevard County Clerk of Court, N.p., n.d.

State of Florida, Plaintiff v. Scott A. Cuthbert, Defendant, Brevard County Court Case Number 05-2012-TR-034200-AXXX-XX, Public Record, Brevard County Clerk of Court, N.p., n.d.

 

 [i]  The URL (web site address) for all case authorities were accessed through “Google Scholar” at http://scholar.google.com/  by clicking on the “Legal documents” icon and entering the case name in the “search” field, than performing the search.

[ii] The URL (web site address) for all references to the Florida Constitution and the Florida Statutes were accessed at Florida “Online Sunshine”  http://www.leg.state.fl.us/statutes/

 

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