(December 23) A legal challenge to the legality and constitutionality of Victorville’s red light camera system – and by extension to all such programs throughout California – is entering a crucial stage after surviving a welter of efforts by the city to have the case dismissed.
Last week, Bob Conaway, the attorney in the proposed class action suit which has not yet been certified on behalf of three clients sought to convince the Fourth Appellate District Court in Santa Ana to allow him to move on to the discovery phase of the case to allow him to gather evidence from the system’s operators and Victorville to show the video images captured on the cameras are not always authentic and or reliable.
Conaway’s clients originally filed the case in San Bernardino County Superior Court in February 2012, naming the City of Victorville and Australian-based Redflex Traffic Camera Systems, which has a corporate office for the United States in Phoenix, Arizona.
Filed in Victorville Superior Court on February 14, 2012 on behalf of lead clients Carole Jaquez, Michael Curran, John Macias and who received red-light tickets issued as a consequence of the Redflex Traffic Systems camera devices mounted in Victorville, the suit propounded that in order for a peace officer to issue a citation for a misdemeanor or infraction, the offense must occur in that officer’s presence. Removing that requirement, as does the arrangement in Victorville, violates the California Penal Code, according to Conaway. Declarations for the red-light camera citations from the Redflex system issued in Victorville are certified under “information and belief,” which the lawsuit maintains is akin to hearsay, not a police officer’s personal knowledge.
The officer(s) who issued Jaquez, Curran and Macias their citations did not contemporaneously witness the alleged red light violations, rendering the tickets they received invalid, according to Conaway. In addition, according to the lawsuit, the proofs of service was signed by a Redflex computer operator and was bulk mailed, further rendering the tickets invalid.
Utilizing a computer controlled camera to initiate and carry out the citation process, Conaway asserts, deprives defendants of the opportunity to confront their accuser in court, a guarantee granted all citizens under the Bill of Rights. Beyond the Constitutional issue, Conaway contends Australia-based Redflex violated the California Business and Professions Code Sec. 17200 by engaging in unfair business practices that unjustly enriched the company. Moreover, according to Conaway, Redflex should be held accountable under the product liability doctrine because of the flaws in the design and operation of its system.
The suit sought $9 million in damages and more in punitive damages for the roughly 5,000 motorists impacted by the system.
That case was removed to federal court where the Redflex defendant was able to convince a federal trial court that California’s so-called anti-Slapp statute prevented the action from proceeding. SLAPP is an acronym for strategic lawsuit against public participation. In its anti-SLAPP motion the city claimed Redflex was exercising its first amendment commercial speech rights by taking pictures and selling the images to the city. The federal trial court indicated it would remand the case to State Court for the handling of the remaining claims against the city.
After the case was remanded, the action filed on February of 2012 was dismissed without prejudice and refiled in State Court making further allegations under 42 USC 1983 of the federal civil rights act and under a declaratory relief count that the Victorville system, which relies upon strobes to operate, was illegal under the California and federal Manual on Uniform Traffic Control Devices and that the due process rights of the plaintiffs and those similarly situated were violated by the way the citations were being processed.
Conaway argued that the prosecutions were handled by unsworn peace officers with no personal knowledge of the offense having been committed, that the citations were served by a private corporation and not the citing entity, the confrontation right was being violated by there being no one actually observing the offense who could be cross examined and the so-called evidence was otherwise inadmissible on hearsay and foundational grounds. The trial court in the second case dismissed the case on the contention that none of the plaintiffs had standing to sue.
After the second case was briefed, the California Supreme Court handed down its decision in People v Goldsmith, another automated traffic light citation case in California, which the Court of Appeal asked for further briefing on.
In that briefing Conaway’s clients contended that Redflex edits and processes data in a backroom, compiles secret software whose reliability can’t be challenged in infraction trials due to Redflex and the city claiming it to be proprietary information and a trade secret that they do not have to (or want to) disclose.
In addition, Conaway argued that the city was able to change the duration of its yellow signals to increase citation volume. With regard to the integrity of the evidence the city and Redflex have been relying upon to make cases against defendants, Conaway asserted in his brief dated December 9 , “The photo is not just taken and retrieved. It is a product of three pieces of identified software. Is the image which is being shown the same as was created? That is not a trivial distinction considering what is known about the non-man-caused failures of software being used.”
.In the brief, he also raised questions about possible problems related to degrading software, image compression, image warping [which can change location of objects like cars in an intersection] and data corruption.
On behalf of his clients, Conaway also noted Redflex relies on the Window XP operating system, which is no longer supported by its creator, Microsoft, and is therefore vulnerable to outside manipulation, hacking, viruses and breakdown.“Windows XP data corruption can occur when the buffers in the computer get overrun,” Conaway wrote, and he noted that the ”data loss can occur with Windows XP even when attempting to reinstall, repair or upgrade.”
Assumptions are being made about the reliability and accuracy of the system that Redflex and the city have in place, Conaway asserted, but those assumptions have not been tested. He said the discovery he is requesting would allow such tests and verifications of the system’s accuracy to be carried out. Not allowing that verification to be made, he said, would entail a violation of the due process right & equal protection rights of those cited and adjudicated guilty under the red light camera system. He said such reliability verification and standards have been recognized by the courts and other branches of the government in similar and different contexts.
“Courts have compared computer animations to classic forms of demonstrative evidence such as charts or evidence that illustrates expert testimony,” Conaway’s brief states. The Supreme Court, he said, has required judges “to make a preliminary finding on reliability and that analysis effectively mirrors federal due process and confrontation clauses set out in appellants’ opening brief.”
One major issue to explore in discovery, Conaway said, is the editing that is done with the video images and whether exculpatory evidence is edited out. “Editing is such a problem and so difficult to detect the United States Postal Inspector commissioned Johns Hopkins University’s Applied Physics Lab to write software to detect editing,” Conaway wrote.
Under the way Redflex and Victorville have been operating their camera and citation system, Conaway said, the “burden of proof is reversed” such that guilt is presumed. That approach is compounded by the inability of those cited to examine and bring into question the evidence being used to convict them, Conaway said.
“The notion that computer-generated data and stored information is presumed to be infallible and therefore any citizen-defendant is guilty discriminates against lower income citizens, seniors or fixed income and minority communities,” Conaway wrote. “The court is telling poor and low income people on fixed incomes who do not believe they ran a red light to just plead guilty as common sense as the City is well aware that most people cannot hire a lawyer and certainly don’t have the money in an infraction case for discovery with an out of state corporation (Redflex) to produce software, code, input procedures, batch controls, verifiable processes, input edit routines, system controls, library handling procedures and controls, accuracy of input method, proper conversion of machine readable data, capacity, reliability, software checks, samples tests of processing of source documents/data–all of which must be obtained to prove operational defects in or tampering of the system–making it even worse is the fact the city has agreed with the out of state vendor (Redflex) that the information needed on the software and processing in the backroom is proprietary. It’s an authentication issue because ‘is this the same photo?’ ” he said. “We’ve got to address that 500-pound gorilla in the glass shop.”
Redflex maintains that its processes are legal and constitutional and contribute to public safety. In a corporate statement, Redflex said “There’s no good excuse for running red light.”
The Court of Appeal indicated from the bench that plaintiffs had standing and then stated that they were taking the matter under submission to review presumably the other potential independent grounds to support the dismissal of plaintiffs’ claims.
The appellate court is tentatively scheduled to rule on Conaway’s clients’ appeal to open discovery by late March.