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Red light cameras: innocent but guilty: a variety of theories have been advanced to challenge automated traffic enforcement. Thus far, the challenges have largely failed.

Automated traffic enforcement schemes employing cameras are increasingly used by local governments. In some schemes, as in Chicago, traffic violations are pursued against vehicle owners as well as drivers. Here, there may be no mens rea requirements that typically accompany crimes. Strict liability for owners is justified because of their ability to control the drivers and because traffic accidents will be reduced.

While likely to continue to anger many citizens, automated traffic enforcement schemes are likely to spread. Many schemes will employ administrative processes like those in Chicago, which free traditional courts for the more significant civil and criminal cases. Many vehicle owners will be fined for the driving of others whose bad acts they did not condone and may even have discouraged.

There are limits to such local enforcement schemes. Besides public outcry, there are possible state and federal limitations. Notwithstanding these limits, judicial precedents suggest there is much room for expanding local enforcement schemes aimed at vehicle and other property owners. Such expansions will likely be significantly pursued by governments seeking not only greater deterrence of bad acts but also new nontax revenues.

Chicago traffic laws

Chicago's automated traffic enforcement scheme employs "cameras at traffic intersections" throughout the city designed to photograph vehicles "that either enter an intersection against a red traffic light or make a turn in the face of a red light when turning is prohibited" (quoting Idris v Chicago, 2008 WL 182248 (ND Ill), aff'd, 552 F3d 564 (7th Cir 2009)). Thus, a registered vehicle owner is liable for a $90 fine if a red light is run.

The fine does not apply if the owner "is either a motor vehicle dealership or a manufacturer and has formally leased the car pursuant to a written lease agreement." The owner can also avoid responsibility if the vehicle or plates were stolen, the vehicle was sold, the signal was obscured, the vehicle was yielding to an ambulance, or there was an otherwise valid defense under state law. But it is not enough to show that someone else was in control of the vehicle at the time of the violation.

Enforcement hearings are administrative. The Chicago Traffic Code on red light enforcement incorporates the city's administrative scheme for parking violations.

Limits on automated traffic enforcement

The Idris courts sustained the Chicago scheme while noting limits on possible new laws aimed at "innocent" vehicle owners.

Preemption. One limit is the extent to which local regulations are preempted. Preemptions of local traffic laws occur where the general assembly seeks uniformity statewide or designates the regulated conduct to be matters of exclusive state authority.

The Illinois Vehicle Code defines an "automated traffic law enforcement system" as "a device with one or more motor vehicle sensors working in conjunction with a red light signal to produce recorded images of motor vehicles entering an intersection against a red signal indication in violation of Section 11-306 of this Code or a similar provision of a local ordinance." 625 ILCS 5/11-208.6.

The Code recognizes that local schemes may originate in a "county or municipality including a home rule county or municipality." But it declares that the "regulation of the use of automated traffic law enforcement systems to record vehicle speeds is an exclusive power and function of the State." Id at (c).

The Code sets standards for local schemes directed at nonspeeders, including mandates on written notice of alleged violations to vehicle owners; confidentiality of recorded images; the manner of proving certain defenses; limits on civil penalties; and notices about the placements of motor vehicle sensors at intersections.

Equal protection. The Chicago scheme was challenged in Idris because it distinguished between car dealerships and manufacturers and all other car owners. Only dealers and manufacturers escaped liability for violations involving their vehicles by proving their vehicles were leased.

Because no "suspect class" or "fundamental right" was alleged, the district court in Idris employed "the rational basis test," which allows any sound reason to validate a challenged law. The necessary rationale here was that dealers and manufacturers, but not other owners, "turned over regular, active possession and use" of their cars, thus having no "day-to-day control over who drives." Idris at *4.

Such a reason would suffice even if local regulators had no "legitimate purpose in mind" when they acted, since "retrospective logic" can justify a law challenged under a rational basis test. The appeals court also found no inappropriate inequality, as a legitimate goal involves fines on those who are "in charge of the cars."

In another federal case, Akbar v Daley, 2009 WL 3055322 (ND Ill), the Chicago scheme was also challenged on equal protection grounds because the central business loop/downtown areas are "exclusively segregated from these lights being equally and proportionately placed, as they are in other parts of the city," thus distinguishing drivers by where they drive. This challenge was also rejected as there is "no identifiable group of people who drive exclusively in the downtown areas" and no "separate and distinct group whose driving is limited to the outskirts." Id at *3.

The scheme was rational in that "high priority intersections are not located in the downtown area" and that local officials were looking "to get the most 'bang for their buck' by concentrating on the most notable lawbreakers." Id. Equal protection concerns would arise, however, if the cameras "were placed in certain neighborhoods with a distinct racial character or areas heavily populated with individuals of similar national origin." Id at *4, FN4.

Due process. Because no fundamental rights and no suspect classes were involved, the Chicago scheme was sustained on appeal. It was rational because it improved "compliance with traffic laws" and could not be "called unconstitutionally whimsical." A $90 fine did not constitute federal constitutional property interests demanding more than rationality. The district judge in Idris, in fact, opined there could be "fines and fees of over $500 on car owners" who had no "innocent-owner defense."

Procedural due process challengers to traffic enforcement schemes need to show that either before or after fines are levied, violators are not afforded adequate opportunities to contest. The Chicago scheme was sustained upon a procedural due process challenge.

The district court approved existing procedures that included "use of hearsay evidence (i.e., the photographs captured by the automated cameras);" the withholding by the City of exculpatory evidence at initial hearings; the unavailability of an opportunity to cross examine the custodian of the photographs; the lack of juries; and the use of evidence that would be inadmissible in criminal proceedings.

The appellate court agreed, finding "photographs are at least as reliable as live testimony, that the due process clause allows administrative decisions to be made on paper (or photographic) records without regard to the hearsay rule." The appeals courts also observed that "the procedures Chicago uses are functionally identical to those it uses to adjudicate parking tickets."

Possible new local regulations of property owners

The Chicago automated traffic enforcement scheme can be employed in other vehicle, as well as other property, settings as long as the new laws are rational, implicate no fundamental right or suspect class, permit only inexcessive fines, and provide fair hearing procedures. Local laws must also avoid state law preemption.

Additional laws can be aimed at vehicle owners who are only guilty of failing to exercise adequate control over those who use their vehicles. As the appeals court noted in Idris, owners typically have "sole authority" to set restrictions and can choose users "carefully" by exercising "vigilance." The trial judge opined that only "a tenuous relationship" between owner and user could not support owner liability for a user's bad acts.

New vehicle laws need not rely upon automated enforcement. In upholding the Chicago red light scheme, the trial judge noted that the seventh circuit had earlier sustained two Chicago municipal ordinances making vehicle owners absolutely responsible for up to $500 in fines when illegal drugs or firearms were found in their vehicles. The appeals court reasoned that the owners "must have given some degree of consent to the use of their cars."

Additional laws aimed at innocent property owners who are guilty only of failing to exercise "diligence" in property matters could also cover homeowners, tenants, students, landlords, businesses and workers. Who might be held absolutely responsible in civil and administrative proceedings for illegal firearms in residences and nightclubs? For alcohol in dorm rooms? For drugs in school lockers or backpacks? For contraband in office desks?

In sustaining the Knoxville, Tennessee "Red Light Photo Enforcement Program," a federal judge observed that Redflex, an Australian corporation, operates and maintains the Knoxville operation and similar schemes "in more than 100 cities in the United States." Williams v Redflex Traffic Systems, Inc, 2008 WL 782540 (ED Tenn). It then noted that technological "advances raise the Orwellian spectre of a future where traffic control is regulated by a corporate 'Big Brother.'"

Conclusion

Automated traffic enforcement schemes and ticket writers alike can target property owners responsible for failures to control others who misuse their properties. Property owners can be punished when others misuse cars, litter sidewalks, or abuse liquor.

Federal and state constitutional objections to fining owners have largely failed. Innocent but guilty property owners are especially easy targets when governments seek new nontax revenues as well as safer and cleaner communities.

By Professor Jeffrey A. Parness

Jeffrey A. Parness is a professor emeritus at the Northern Illinois University College of Law, where he taught as a regular faculty member from 1982-2006 and where he still teaches.
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Title Annotation:CIVIL PRACTICE
Author:Parness, Jeffrey A.
Publication:Illinois Bar Journal
Date:Mar 1, 2010
Words:1584
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