Would it not be perfectly reasonable to believe that the saga of Faulkner Law School associate professor Adam MacLeod’s travails in the battle against his traffic cam ticket was true? Of course it would, and why not?
Adam MacLeod, law professor at Faulkner University, was the recipient of a traffic cam speeding ticket. The problem was that he wasn’t driving the vehicle when the infraction occurred. So, it was his vehicle being ticketed, but he was being held responsible for someone else’s infraction.
He decided to fight it, and that fight uncovered just how crooked the traffic cam system is. Not only are traffic camera manufacturers receiving a cut of every ticket issued, but tapping into this new revenue stream has prompted municipalities to undermine the judicial system.
Well, maybe. Traffic cams invoke significant legal issues as a strict liability offense borne by the owner of a vehicle without regard to who committed the offense and how it’s proven. Their justification is to be a “silent cop” to prevent traffic violations, but their value as a revenue raiser for localities is a far more convincing explanation. In other words, the traffic cam system is, as Tim Cushing says, “crooked.” But that doesn’t mean MacLeod’s story is the real deal.
This first came on my radar when Orin Kerr wrote about it, concluding that “hilarity ensues.” And MacLeod’s story is, indeed, hilarious, though perhaps not for the reasons he intended. Orin’s beef was with MacLeod’s going full Constitution on the unnamed Alabama court.
It’s a pretty amusing post, although I wouldn’t necessarily rely on some of the legal arguments MacLeod makes. For example, MacLeod argues that it is unconstitutional for a municipal government to issue a ticket for a civil speeding offense because the government was not injured and therefore lacks Article III standing. He calls this “American Constitutionalism 101:”
That’s not right.
No, that’s not right, but that wasn’t the only thing.
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.”
What’s the first thing a lawyer does when he gets an accusatory instrument? MacLeod didn’t do that. Instead, he writes about how he goes to court and asks the prosecutor.
On the appointed day, I tromped over to municipal court and sat down among those accused of armed robbery, drug dealing, and other misdeeds.
Armed robbers? Drug dealers? In local city court? Maybe they just looked that way to a lawprof.
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.
Could the city attorney be such a bonehead when confronted with a scholar’s piercing questions? Well, sure. She could. But that’s not the way a lawyer would try to find out the answer to a basic question. Presumably, a lawprof could figure this out as well. Instead, a lawyer would spend the three minutes necessary to read the friggin’ ordinance.
Sec. 27-604. – Administrative adjudication hearing.
(a) A person who receives a notice of violation may contest the imposition of the civil penalty by submitting a request for an administrative adjudication of the civil penalty, in writing, within 15 days of the tenth day after the date the notice of violation is mailed. Upon receipt of a timely request, the department shall notify the person of the date and time of the hearing on the administrative adjudication. The administrative adjudication hearing shall be held before a hearing officer appointed by the mayor.
Holy cannoli, it’s an administrative proceeding! Who could have imagined? And shockingly, the administrative officer wasn’t overwhelmed by MacLeod’s argument, so he appealed.
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.
First, clerks may not be brilliant legal scholars, but they tend to know the rules. The job is repetitive, and they’ve been there before. It might be new to a litigant, but it’s old to the clerk. They do not tend to make basic mistakes, such as the amount required for the appeal bond.
But more importantly, there’s that friggin’ ordinance again. The one that actually tells someone what is procedurally required. And guess what? It answers this question too!
A person who is found liable after an administrative adjudication hearing may appeal that finding of civil liability to the Circuit Court of Montgomery County, Alabama by filing a notice of appeal with the clerk of the municipal court. The notice of appeal must be filed not later than the 14th day after the date on which the administrative adjudication hearing officer entered the finding of civil liability. Unless the person, on or before the filing of the notice of appeal, posts a bond in the amount of the civil penalty and any late fees, an appeal does not stay the enforcement of the civil penalty. An appeal shall be determined by the circuit court by trial de novo.
Did it happen as MacLeod describes, where the clerk first told him to bond the amount, then twice the amount? It’s hard to imagine, but possible. On the other hand, had he done what any freshly-minted lawyer would do, he would have known the answer. Because they were kind enough to write it down for him.
Short of making this post law review length,* let’s cut to the chase.
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.
Fascinatingly peculiar, but irrelevant. MacLeod explains how he kicked butt by crossing the cop on the witness stand:
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.
Impressive or what? Except for one tiny, itty-bitty detail. Again, that silly ordinance:
A notice of violation issued under this article shall contain the following:
(1) A description of the violation alleged;
(2) The date, time, and location of the violation;
(3) A copy of recorded images of the vehicle involved in the violation;
(4) The amount of the civil penalty to be imposed for the violation;
(5) The date by which the civil penalty must be paid;
(6) A statement that the person named in the notice of violation may pay the civil penalty in lieu of appearing at an administrative adjudication hearing;
(7) Information that informs the person named in the notice of violation:
a. Of the right to contest the imposition of the civil penalty in an administrative adjudication;
b. Of the manner and time in which to contest the imposition of the civil penalty; and
c. That failure to pay the civil penalty or to contest liability is an admission of liability.
(8) A statement that a recorded image is evidence in a proceeding for the imposition of a civil penalty;
(9) A statement that failure to pay the civil penalty within the time allowed shall result in the imposition of a late penalty of $25.00; and
(10) Any other information deemed necessary by the department.
What don’t you see here? That’s right. An affidavit. There is no complaint. There is no indictment. There is no affidavit. There is a notice of an administrative violation which need not allege that Adam MacLeod was driving the car, because the ordinance holds the owner of the vehicle strictly liable for the actions of whoever is driving his car.
Does this make traffic cams lawful or constitutional? Nope. But what it does is suggest that this was a funny story that emitted the unpleasant odor of bullshit and incompetence, perhaps to be taken seriously if not literally.
Update: After this post was written, Ars Technica republished MacLeod’s post, thus assuring that far more people would be stupider than before. This devolves the lowest level possible at reddit. If you find it hard to understand how and why people end up more legally ignorant than would seem humanly possible, this is why.
*A choice had to be made to parse the original post line by line, which could go on for a very long time, or selectively address snippets. I chose the latter, because I care about you.