Saturday, February 06, 2010

Will new Toledo law violate Constitutional due process?

Well, it's official. The City of Toledo is seeking a law to either immobilize or impound vehicles with unpaid red light or speed camera tickets.

And here I thought the cameras were all about safety - not money. Apparently not.

Toledo has so many of these unpaid tickets that they're using it as an excuse for part of their budget woes. Recent news reports quote Police Chief Mike Navarre as saying the total amount due (dating back to 2000) is around $6 million, though not all of that money would go to the city. Some would go to the red-light camera company, RedFlex, which has a contract with the city to provide the cameras.

Last year, Toledo budgeted $2.5 million (more than they budgeted in 2008) in revenue from these cameras, but they only collected $874,308, leaving a significant shortfall. Of course, the fact that they over budgeted in 2008 should have given them their first clue about the problem.

They've tried a collection agency, but that's not working out too well. The problem isn't that the collection agency (a local law firm) isn't very good - it's that no court has ever issued a judgment in favor of the city for these civil fees, so people are ignoring them.

Under the current law, the photograph from the camera is prima facie evidence of a civil (not criminal) violation. The only way to appeal the violation is to request a hearing before a person hired by the city to serve as a hearing officer. The way the law is written, if the camera shows a vehicle and you are the owner, you are guilty. So when you appeal, the only way to get out of the presumption of guilt is to name another person as the driver.

It's no wonder this is a civil violation and not enforced under the traffic laws. If a person accused of hit-and-run were presumed guilty with the only way out being to present the actual offender, could you imagine how quickly various groups and citizens would be expressing their outrage? There's a reason why we have a presumption of innocence and due process procedures in the United States.

But when it comes to red light and speed camera violations, all those protections are thrown under the bus, ignored and flouted.

Now, without benefit of court adjudication, the city wants to confiscate property as a penalty for the violation.

Here is what the two ordinances relating to the immobilization/impoundment proposal say:

SECTION 5. That a new Toledo Municipal Code Subsection 313.12 (d)(6) is hereby enacted to read as follows:

“In lieu of assessing an additional penalty, pursuant to subsection (d)(5) above, the City of Toledo may (i) immobilize the vehicle by placing an immobilization device( e.g. a “boot”) on the tires of the vehicle pending the owners compliance with the Notice of Liability, or (ii) impound the vehicle, pursuant to TMC Section 303.08(a)(12). Furthermore, the owner of the vehicle shall be responsible for any outstanding fines, the fee for removal of the immobilization device (i.e., $75), and any costs associated with the impoundment of the vehicle.

and:

SUMMARY & BACKGROUND:

Toledo Municipal Code Section 303.08 provides authority for the City of Toledo Police to remove (i.e., impound) a vehicle under certain circumstances specified. Likewise, the Section provides a mechanism for an owner to redeem his or her impounded vehicle. This proposed legislation amends, specifically, Toledo Municipal Code Section 303.08(a) by enacting a new Subsection, i.e., TMC Subsection 303.08(a)(12), to include authority to impound a vehicle of an owner who has refused or failed to comply with the civil penalty imposed pursuant to the City’s automated red light and speeding photo enforcement Sections; i.e., TMC Section 313.12,et.al.

NOW, THEREFORE,

Be it ordained by the Council of the City of Toledo:

SECTION 1. That Toledo Municipal Code Chapter 303, and specifically Section 303.08(a), is hereby amended by enacting Section 303.08(a)(12) to read as follows:

“When any vehicle against which two or more notices of liability has issued, pursuant to TMC Section 313.12, and the vehicle owner, as defined by TMC Section 313.12(b)(4), has failed or refused to comply with the civil penalty assessed, but after the appeal period has expired, pursuant to TMC Section 313.12(d) (4).”

Yes, that's correct. They want to come and take your vehicle - or put a 'boot' on it, depriving you of its use - without ever having gone to court.

Your failure to cater to their desire for more income will result in the confiscation of your property.

The 5th Amendment to the Constitution states:

No person shall ... be deprived of life, liberty, or property, without due process of law;

So how is this proposed law NOT a deprivation of property without due process? You don't even have a way to appear before a judge under Toledo's current law and this new authority for the city doesn't change that fact.

Where are all the civil liberties groups on this issue? Are they even aware of the proposed law?

Chris Finney, an attorney and co-founder of COAST, Coalition Opposed to Additional Spending and Taxation, has been very vocal in opposing these cameras and might even be partially responsible for the failure of the city's budget projections.

He has advised individuals to ignore the tickets because the city has no ability to enforce them. He has also advised people that letters from attorneys threatening collection have no force unless adjudicated in a court of law. During my fill-in for Brian Wilson on WSPD yesterday, I talked to him about the plan to immobilize/impound vehicles and his response was that this was a lawsuit waiting to happen. He continued to tell people that unless they get a summons or notice from a court, the fines are unenforceable.

Obviously, he's not well-liked by the politicians, especially because he's going to mount another campaign in Toledo to repeal the law allowing cameras in the first place, with collection of signatures for the ballot measure scheduled to begin in about a month.

My hope is that individuals, attorneys and groups who believe in the Constitution and the protection of rights will vigorously oppose these two measures. Here is contact information to help you in this goal:

City Council phone: 419-245-1050

City Council emails:

phillip.copeland@toledo.oh.gov

rob.ludeman@toledo.oh.gov

joe.mcnamara@toledo.oh.gov

adam.martinez@toledo.oh.gov

george.sarantou@toledo.oh.gov

Steven.Steel@toledo.oh.gov

wilma.brown@toledo.oh.gov

dmichael.collins@toledo.oh.gov

mike.craig@toledo.oh.gov

michael.ashford@toledo.oh.gov

tom.waniewski@toledo.oh.gov

lindsay.webb@toledo.oh.gov

7 comments:

Dave said...

Hi Maggie, this Dave White, I worked on the red light camera campaign last year and will be leading the charge this year to get rid of them. We will be using a military style chain of command organization to rid this city of this tyrannical abuse of the Constitution. Semper Fidelis - Marines, your best friend, your worst enemy.

Maggie Thurber said...

Dave - thanks so much for taking a leadership role on this issue. I'll do my best to help in any way I can.

And thanks, also, for your service. While my Dad and my brother were Navy, I do love Marines!

Thomas said...

If that is the Dave White who owns the car dealership, I know where I will be buying my next car.

What if the person has gotten a new car? Will they just impound/boot any car in your driveway? What if the person has a different license plate? What if the license plate is the same but the car is different?

Bad idea, partially because enforcing this thing will not be easy.

marc said...

Maggie, I do not live in the city limits, but I do own rental property in the city. When it is time to sign a petition, I am going to take a copy to my renters and have them sign. I will make sure they are registered voters first. I for one, am no longer going to stand on the side lines.

lookingforlogic said...

Maggie,
I have been going to as many City Council Meetings as possible. I have been monitoring and reporting all the "tid-bits" of information to COL. I've also go to as many different committee meetings as I can. I was present at the finance meeting when the members revealed how much money was uncollected from the red light cameras. Councilman Sarantou couldn't understand why the DMV or the Police department wasn't involved. Councilman Collins reminded him that these were "civil" cases, and those actions can't be done. Then they hemmed and hawed about the collection agency and how much "revenue" they would actually accrue. My husband has had one of these tickets and refuses to pay it. Now I have one. I wasn't driving (my husband was), but I'm guilty. Now this. The more I go to these meetings, the more I have to rely on migraine meds. Stupidity reigns, and common sense and logic goes right out the window. Dave tried to talk me into working on the red light camera campaign last year. I declined. Hey Dave, you can count on me.
Sherry

Mad Jack said...

From The Blade: Toledo City Council last night authorized police to tow or immobilize a person's vehicle by putting a "boot" on it if the owner fails to pay red-light or speed-camera tickets.

Critics of this decision are quick to point out that this is unconstitutional, and the critics are quite correct. Many critics wonder, with a great deal of frustration, just why city councilmen don't understand the Constitution and specifically question why councilmen have this incredible blind spot. The critics don't get it. The Toledo City Council understands perfectly well. The City Council doesn't care. Even the two who voted against this high handed violation, Ludeman and Webb, don't care about the citizen's Constitutional rights.

Read the rest of my acerbic wit.

Karen SHANAHAN said...

Hello Maggie, I go to my protest hearing for a red light camera ticket.. my offense, right turn on red.. however the paperwork does not list the citation for the offense, I'm just guessing. Ever know anyone who protested a fine? Ever succeed? What per cent protest in Toledo, any idea? 4:30 Lucas County office in One Government center.

Google Analytics Alternative