IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TENNESSEE, AT KNOXVILLE
JUDY WILLIAMS,
Plaintiff,
vs. No.: 3:06 cv 400
PHILLIPS/GUYTON
REDFLEX TRAFFIC SYSTEMS INC.,
CITY OF KNOXVILLE, TENNESSEE,
BILL HASLAM as MAYOR OF THE JURY DEMAND
CITY OF KNOXVILLE, TENNESSEE,
KNOXVILLE CITY COUNCIL,
REDFLEX TRAFFIC SYSTEMS INC., d/b/a
WWW.PHOTONOTICE.COM,
MICHAEL L. SULLIVAN, GORDON CATLETT,
JOSEPH BERNARD, and UNKNOWN,
Defendants.
AMENDED COMPLAINT
COMES NOW the plaintiff Judy Williams ("Plaintiff"), by and through counsel, and having filed suit against the above-styled defendants (collectively, the "Defendants"), hereby makes this amended complaint ("Amended Complaint") to replace the original complaint ("Complaint") made against the Defendants, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and responsive to Defendants "vague allegations" as follows:
OVERVIEW
1. This Amended Complaint is responsive to Defendant Redflex, which in a December 1, 2006, letter (concerning another matter and threatening to impose Rule 11 sanctions against counsel for the Plaintiff in this matter) complain that the original Complaint in this action was “frivolous” and contained “vague and conclusory allegations.”
2. This Amended Complaint also is responsive to the Municipal Defendants (defined below), which in their Answer complain that the Plaintiff’s Complaint contains “vague allegations,” and coyly and repeatedly state that they are “without knowledge or information sufficient to admit or deny” allegations in Plaintiff’s original Complaint, deny that Plaintiff has “standing” to assert or any “factual” basis for asserting, the causes of action set forth in the original Complaint, and claim that Plaintiff “has failed to state a claim upon which relief may be granted.”
3. The Municipal Defendants, in their Answer, repeatedly state that the Ordinance (defined below), Contract (defined below), Citation (defined below), and certain statutes and other things, “speak for themselves” because they know that to review each of such things in isolation would produce an obfuscatory result and would, as they intended, mask the true illegal and unconstitutional nature of said things, the Program (defined below), and the acts of the Defendants alleged herein; consequently, this Amended Complaint sets forth an integrative analysis, viewing the said acts of the Defendants in the totality of the contexts in which they were taken, for the purpose of shedding light on the true nature of said acts, the Program, Ordinance, Contract, and Citation.
4. As alleged in this Amended Complaint, the federal statutory or constitutional civil rights of the Plaintiff which the Defendants violated were clearly established, because a reasonable person, and a reasonable, similarly situated City official, would have known or understand, that the conduct of the Defendants being challenged by the Plaintiff, violated the civil rights of the Plaintiff.
5. This Amended Complaint also states additional causes of action and addresses certain of the answers, averments, and defenses of the Municipal Defendants which are contained in the Answer.
6. The Defendants acted and conspired to knowingly and intentionally devise a scheme of acts, practices, policies, customs, and other things all of which were calculated, designed, and implemented to evade, defeat, interfere with, and hinder, if not summarily abrogate, the fundamental constitutional and statutory civil rights of citizens and residents of the United States, including the Plaintiff, for the sole and wrongful purpose of illegally extracting money from said citizens and residents in a manner that the Defendants intended would minimize or eliminate any legal challenge, by depriving, hindering, and impairing the unconditional and clearly established fundamental constitutional rights of said citizens and residents, including the Plaintiff, to, among other things, due process of law and to access the courts, so that they might fairly and unconditionally defend themselves against what, under the Tennessee Code Annotated and the Knoxville Code of Ordinances is a crime, but under the Ordinance is a civil violation punished by the imposition of what is called a civil penalty that in substance is a penal Fine (defined below).
7. The aforesaid scheme is now known as The Knoxville Red Light Photo Enforcement Program includes, but is not limited to, the Ordinance, Contract, Citation, Notice, the policies and customs of the City concerning and all actions taken by the Defendants under, in connection with, and pursuant to the Ordinance, Contract, Citation, and Notice (collectively, the “Program”) and deprives citizens and residents of the United States, including the Plaintiff, of the clearly established unconditional fundamental civil rights secured to them by the constitutions and statutes of the United States and Tennessee, by, among other things, abrogating due process and the presumption of innocence, and moreover, denying access to the courts by charging or imposing what the Defendants have termed a $67.50 “court processing fee” as a precondition for any of said citizens or residents even scheduling a court date to defend themselves against alleged violations of the Ordinance enacted to implement the Program and the imposition of the related $50 fine imposed, and by expressly requiring ex parte communications to take place between one or more of the Defendants and personnel of the court with jurisdiction over the hearings provided for in the Ordinance, concerning the technological and technical aspects of how the Program works, a priori and with no case sub judice, so as to make all potential hearings of violations irreparably biased, tainted, and devoid of due process.
8. Certain aspects of the Program, the policies and customs of the City, and the relationship between Defendants Redflex and the City are embodied in a written contract (as used in this Amended Complaint, the contract and all of its exhibits, schedules, addenda, and attachments are referred to collectively as the “Contract”). Exhibit C.
9. That the Program’s sole goal is to make money is illustrated by the fact that the reasons given for its existence are so pretextual that they are not even consistently stated within the Program: the Contract states the goal of reducing “the incidence of vehicle collisions” whereas the Citation states that its goal was to “reduce the number of red light running violations.” If the stated goal of the Program was to reduce the incidence of vehicle collisions, this reason would be pretextual, because a number of studies have shown that the number of collisions does not decrease where cameras have been installed, and rather, sometimes increase. If the stated goal of the Program was to reduce the incidence of vehicle collisions, this reason would be pretextual too, because, based upon information and belief, it appears that the timing, duration, and fixed nature of the red, yellow, and green lights where cameras are installed may have changed so as to maximize violations and thus receipts from the Program, and because at intersections where cameras are installed, they are generally only installed to capture violations occurring on the highest- traffic-volume one of the two intersecting streets.
10. As outrageous as the Program and Ordinance are generally, as enforced in the form of customs and policies of the City, they are most egregious in the case of the Plaintiff, because she has not even violated the Ordinance.
11. The Ordinance and Program, facially and as applied, are unconstitutional under U.S. Constitution and otherwise violates the laws of the United States.
12. The Ordinance and Program, facially and as applied, also are unconstitutional under the Tennessee Constitution and otherwise violate the laws of the State of Tennessee, as they, among other things, illegally decriminalize state criminal violations, violate the Tennessee Rules of Evidence, violate the Tennessee Public Records Act, spoil, withhold or never capture exculpatory and other evidence of violations, exceed and violate the scope of authority delegated to municipalities under the Tennessee Code, and expressly provide for ex parte communications between one or more of the Defendants and personnel of the court with jurisdiction over the hearings provided for in the Ordinance concerning the technological and technical aspects of how the Program works, a priori and with no case sub judice, so as to make all potential hearings of violations improperly and irreparably biased, tainted, and lacking in due process.
13. No aspect of or act undertaken in performance of the Program is authorized by any State of Tennessee enabling act.
14. The acts of Defendant the City of Knoxville in, inter alia, decriminalizing state statutory crimes, are ultra vires and exceed its home rule and other lawful authority as defined and limited by its charter and the Tennessee Constitution, Tennessee Code, and Tennessee common law.
15. It was foreseeable to all the Defendants that the Defendants likely would be liable as a result of the Program and Ordinance, as is evidenced, inter alia, by the fact that under the Contract, Redflex agreed to indemnify and hold harmless the City, Council, Mayor, Sullivan, and the Other Unknowns from and against liability imposed upon the City as a result of the operation of the Program, and the facts that, in order to make good on its said indemnification agreement and otherwise under and incident to the Contract, Redflex carries a total of $20 million in liability insurance and has named as additional insureds the “City of Knoxville, its elected officials and appointed boards, officers, agents, employees and volunteers.”
16. By its own terms, it is impossible that there could have been any violation of the Ordinance.
17. The extent and scope of the illegal and unconstitutional aspects of the Program, unfortunately, are extensive.
PARTIES & JURISDICTION
18. Plaintiff Judy Williams is a resident of Knox County, Tennessee.
19. Upon information and belief, Defendant Redflex Traffic Systems, Inc. (“Redflex”), is a Delaware corporation wholly-owned by non-United States owners, maintaining principal offices in Scottsdale, Arizona, and other offices, among other places, in Knoxville, Tennessee; Reflex’s registered Agent is National Registered Agents Inc., 1900 Church Street, Ste. 400, Nashville, Tennessee, 37203.
20. Upon information and belief, Redflex Traffic Systems, Inc. d/b/a photonotice and/or photonotice.com, is a Delaware corporation wholly-owned by non-United States owners, maintaining principal offices in Scottsdale, Arizona, and other offices, among other places, in Knoxville, Tennessee; Reflex’s registered Agent is National Registered Agents Inc., 1900 Church Street, Ste. 400, Nashville, Tennessee, 37203 (collectively, “Photonotice”).
21. While it is believed, based upon materials contained in stock-exchange filings of a foreign country, that photonotice and/or photonotice.com is/are owned by Reflex and operated as a division thereof, ownership thereof could not be precisely established because Reflex or its representatives, agents, common-owners or friends, a lá Enron, went to great lengths to hide the ownership of the web site www.photonotice.com, by paying fees to a company known as Domains by Proxy which hides the ownership of websites, and even boasts of doing so by strenuously fighting legal process, orders, and subpoenas: accordingly, if it is shown that photonotice and/or photonotice.com are subsidiaries of Reflex or are stand-alone separate entities, then the Plaintiff reserves the right to add such entity or entities as Defendants, and until such proof is adduced, will refer to such entity or entities as Defendant “Unknown1.”
22. Defendant, the City of Knoxville, Tennessee and all of its departments, divisions, agencies, courts, boards, and instrumentalities (collectively, the “City”), is a municipal corporation established and existing under the laws of the State of Tennessee, and it may be served through it’s Mayor, Bill Haslam, at the City-County Building, Knoxville, Tennessee.
23. Defendant Bill Haslam, in his official capacity as Mayor of The City of Knoxville (collectively, “Mayor”), may be served at the City-County Building, Knoxville, Tennessee.
24. The Knoxville City Council (“Council”) is the legislative branch of The City of Knoxville, and may be served through Mayor, Bill Haslam, presiding officer of the Counsel, at City County Building, Knoxville, Tennessee.
25. Defendant Michael L. Sullivan (“Sullivan”), a police officer in the City of Knoxville Police Department may be served at his place of employment, The City of Knoxville Police Department, Knoxville, Tennessee.
26. Defendant Joseph Bernard, an employee of Defendant Redflex, may be served at his place of employment, 900 E. Hill Ave., Ste. 110, Knoxville, Tennessee.
27. Defendant Gordon Catlett (“Catlett”), a police officer in the City of Knoxville Police Department may be served at his place of employment, The City of Knoxville Police Department, Knoxville, Tennessee.
28. Upon information and belief, there may be unknown defendants in addition to Unknown1, which or whom may be discovered during discovery, including but not limited to all Knoxville Police officers signing citations, and contractors, affiliates, representatives, agents, and others which or whom may be proven to be individually, jointly and severally, or separately subject to liability in this civil action, including, but not limited to, Aaron M. Rosenberg (a registered lobbyist and Redflex vice president of Sales and Marketing) one unknown Knoxville Police officer (collectively, the “Other Unknowns”).
29. Plaintiff’s claims include claims under 42 U.S.C. § § 1983 and 15 U.S.C. § 1692k, and this District Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), 42 U.S.C. § 1988, and 15 U.S.C. § 1692k(d). Supplemental jurisdiction over the state law claims of the Plaintiffs is proper under 42 U.S.C. § 1983 and 28 U.S.C. § 1367.
FACTS
30. Every word, term, phrase, clause, sentence, paragraph, and section (and any portion or subdivision or aggregation of the foregoing) contained in this Amended Complaint, wherever occurring or placed, is intended to be a factual statement, allegation or averment if under any construction or interpretation it could be taken as a factual statement, allegation or averment, and all such factual statements, allegations and averments are incorporated by reference into this Fact section of the Amended Complaint, as fully as if stated in this Fact section verbatim, including but not limited to everything contained in all the paragraphs of this Amended Complaint which precede this paragraph.
31. On information and belief, Defendants intentionally acted, failed to act, and conspired, through the Program, Contract, Citation, Notice, and other things alleged in this Amended Complaint, to deprive or interfere with the clearly established fundamental civil rights of United States citizens, including Plaintiff, to petition the courts, to have due process of law, and to access to the courts, and by such deprivation and interference, damaged the Plaintiff by preventing her from defending herself against what under the Tennessee Code is a crime and, unlawfully under the Ordinance, is the imposition of a penal Fine.
32. Unless expressly stated otherwise in any particular numbered paragraph hereof, all the conspiratorial and independent acts or failures to act of all or any of the Defendants set forth in this Amended Complaint are hereby alleged to have been done intentionally and/or with reckless or callous indifference to the federally protected rights of others, and the Defendants knew or should have known that the damages suffered by the Plaintiff were certain or likely under the circumstances.
33. To the extent that it is in any manner alleged in this Amended Complaint that any or all of the Defendants acted or failed to act intentionally, such Defendants cannot avoid liability under the shield of the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., or any common law.
34. Despite any immunity which they may or may not have, all the Defendants are subject to being sued in this Amended Complaint under 42 U.S.C. § 1983.
35. Plaintiff received a “Notice of Violation/Citation” issued under the auspices of the police department of the City (and Redflex) and bearing number KR00009126 (the “Citation”). The Citation is attached hereto as Exhibit A.
36. Defendant City enacted an Ordinance authorizing automated enforcement on February 1, 2005. Exhibit B.
37. Defendant City did enter into a Contract with Defendant Redflex on or about December 8, 2005. Exhibit C.
38. Defendant Redflex, in a press release did claim that it did enter into a Contract with Defendant City to “build-own-operate-maintain . . . the red light photo enforcement program.” Exhibit D.
39. Defendant Redflex has released or caused to be published graphic in the KnoxNews, a local newspaper, related to the program. Exhibit G.
40. On information and belief, Joseph Bernard, directs and supervises all Defendant Redflex activity in support of the Contract and directly participated, or supervised, all of the actions by Defendant Redflex in the harm suffered by Plaintiff.
41. On information and belief, every instance of conduct by Defendant Redflex herein is attributed to Defendant Bernard.
42. On information and belief, Defendant Bernard did draft, or participated in the drafting of the Citation, attached at Exhibit A, and the Notice, attached at Exhibit E.
43. The Citation contained a jurat signed by Defendant Sullivan, Knoxville Police Badge Number 1300, stating that “I [Sullivan] declare under penalty of perjury under the laws of the State of Tennessee the foregoing [contents of the Citation] is true and correct.” (emphasis added).
44. Redflex, in accordance with the Contract (defined below), issued the Citation in the name of the City as a result of Sullivan’s jurat, under Knoxville City Ordinance Section 17-210(c)(1) (hereinafter, the “Ordinance”), which was enacted by the Council and signed into law by the Mayor.
45. Because the Citation stated that it was issued under the purportedly valid Ordinance and jurat, it was issued under color of law, as the Municipal Defendants admit in their Answer.
46. Pertinently among the “foregoing” of the Citation that Sullivan declared to be true and correct, is the fact that a box entitled “Ordinance” contained the entry “17-210(c)(1),” the declaration that “I STATE THAT A VIOLATION OF 17-210(c)(1) DID OCCUR,” the statement that “a vehicle registered in your name . . . appears to have run a red light” and the assertion that “RECORDED IMAGES DO CONSTITUTE EVIDENCE OF A VIOLATION OF KNOXVILLE CITY ORDINANCE SECTION 17-210(c)(1).” (emphasis added).
47. Pertinently among the other contents of the Citation were the 3 statements that “[a]s the registered owner of the vehicle described in the notice, you [the Plaintiff] are responsible for paying this fine . . . .,” Plaintiff “[a]s the registered owner . . . of the vehicle described in this notice, we [Redflex] have no choice but to hold you responsible for paying this civil penalty,” and Plaintiff, “[a] vehicle registered in your name was photographed running a red light . . . . This is a violation of the . . . Ordinance . . . .” (emphasis added).
48. The vehicle which allegedly “violated” the ordinance and is the subject of the Citation is used by the Plaintiff for personal, family, and household purposes.
49. Section (c) of the Ordinance, by stating that, “[i]t shall be unlawful for a vehicle to cross the stop line at a system location per subsection 17-506(a)(3)(a), or for a vehicle to violate any other traffic regulation specified in chapter 17 (motor vehicles and traffic) of the Code of Ordinances of the city” and that “[t]he owner of a vehicle shall be responsible for a violation,” imposes criminal (Municipal Defendants repeatedly denied any decriminalization in their Answer) liability or a penal penalty upon the Plaintiff merely for occupying the status of owner of a vehicle that, as nonsensical as it sounds, violated the Ordinance. (emphasis added).
50. Predicating criminal or civil penal liability for running a red light, which as a moving violation can only be achieved through an affirmative act, upon the mere status of being owner of an automobile, which the Defendants have done and conspired to do here as evidenced by the aforesaid allegations, is clearly illegal and unconstitutional under the constitutions of Tennessee and the United States, among other reasons, because it violates the presumption of innocence and the evidentiary requirement that the City prove the Plaintiff guilty beyond a reasonable doubt with evidence which counters the presumption.
51. The statement of Redflex that it had “no choice but to hold you [Plaintiff] responsible for paying this civil penalty,” is patently untrue as all violators of laws and constitutions have a choice whether to commit such violations, such as Redflex knowingly did as discussed herein.
52. Notwithstanding the invalidity of the Ordinance, Plaintiff did not violate its provisions for reasons which she need not assert here as it is the City which must prove her guilt of a state law violation with admissible evidence and beyond a reasonable doubt.
53. Conspicuously, nowhere is it alleged in the Citation (as it could not be for lack of evidence) that it was the Plaintiff whom, or an act of the Plaintiff which, violated the Ordinance or that it was the Plaintiff operating the vehicle; the language of the Citation merely states that a car “registered” in the name of the Plaintiff, as opposed to the Plaintiff acting while operating said car, “appears to have run a red light.” (emphasis added).
54. Because the statement “appears to have run a red light” conflicts with the statement that “A VIOLATION OF 17-210(c)(1) DID OCCUR,” the Citation does not clearly charge the Plaintiff, and therefore it is unconstitutionally vague and violates federal and state constitutional due process protections guaranteed to the Plaintiff. (emphasis added).
55. On information and belief, notwithstanding that several other images existed, the only images relied upon by Sullivan are the few images which Sullivan stated were reviewed in the jurat, which were only those images selected by Defendant Redflex for printing in the Citation.
56. The Citation does not contain a date of issuance, (although it is far from clear, the Citation likely was issued on or after August 8, 2006, as that was the putative date of the alleged violation), and upon information and belief, no definitive, verifiable, independent proof exits of the date of the alleged violation.
57. The Citation also does not contain any proof whatsoever, let alone any definitive, verifiable or independent proof, that Plaintiff was the operator of the vehicle on the date of or at the location of the alleged violation.
58. No Knoxville Police Officer or other known person who could be called as witness personally witnessed the events ostensibly in violation of the Ordinance and which resulted in the issuance of the Citation to the Plaintiff.
59. Plaintiff received the Citation and was being held “responsible for paying” the imposed Fine, merely as a result of her status “[a]s the registered owner of the vehicle described in” the Citation, which description was based upon a certain incomplete set of film or photographic images recorded by Redflex, none of which captured the face of the driver of said vehicle.
60. Plaintiff was not given unambiguous guidance as to how or whether to perform any of the Citation Options A, B, or C, because there were discrepancies as to the identity of the proper payee or return-addressee in the Citation, in that the “Payment Coupon,” “Affidavit,” and “Hearing Request” coupons specified the Knoxville Red Light Photo Program, whereas the pre-addressed addresses provided for responding to Options A, B, and C stated that all responses must be made to The Knoxville Photo Enforcement Program Payment Center (sans Red Light) in Cleveland, Ohio, or The Knoxville Photo Enforcement Service Center (sans Red Light and sans Program), Option A specified the payee to be the Knoxville Red Light Photo Program which is not and does not contain the name of the City or any validly constituted agency or instrumentality of the City such as the Police Department or City Court, and “City of Knoxville, Tennessee” are the first words that appear at the top of page 3 of the Citation.
61. The Citation, which provides that all non-cash payments must be remitted to Redflex (whether under the rubric of The Knoxville Photo Enforcement Program or The Knoxville Photo Red Light Enforcement Program) or online by credit card via Photonotice (Unknown1), is unenforceable because it violates the Ordinance, which provides only that civil penalty payments must be made “directly to the city court.”
62. The Citation, which allows cash payments to be made to “city court,” restricts such payments to in-person payments only and expressly prohibits cash payments by mail, violates the Ordinance because the aforesaid restriction and prohibition are not contained in the Ordinance.
63. The Citation violates the Ordinance, which provides that Plaintiff must pay her penalty “in accordance with instructions on the citation, directly to the city court,” whereas the Citation provides that all non-cash payments must be remitted to Redflex (whether under the rubric of The Knoxville Photo Enforcement Program or The Knoxville Photo Red Light Enforcement Program) or online by credit card via Photonotice (Unknown1), and does not indicate that any non-cash payment could be made “directly to the city court.”
64. On or about October 20, 2006, Plaintiff received a “Default Notice” demanding payment of the fine of $50.00 and “processing fee of $67.50” signed by Defendant Gordon Catlett. Exhibit E.
65. On information and belief, the “processing fee of $67.50” is not authorized by Knoxville Code, nor is the sum addressed within the contract.
66. On information and belief, Defendant Bernard selected $67.50 as a charge.
67. On information and belief, Defendant City receives some portion of the $67.50 “processing fee.”
68. On information and belief, the “processing fee of $67.50” is an illegal fee or charge not authorized.
69. On information and belief, Defendant Redflex, and Bernard have drafted the Citation and Default Notice and receive most or all of the $67.50 fee demanded.
70. On information and belief, Defendant City benefits from the $67.50 processing fee and Defendants Sullivan and Catlett have directly participated in the effort to collect the sum.
71. Tennessee Rules of Evidence Rule 101 states that “[t]hese rules shall govern evidence rulings in all trial courts of Tennessee except as otherwise provided by statute or rules of the Supreme Court of Tennessee.”
72. The Knoxville City Court is a trial court, and no exception to the application of the Tennessee Rules of Evidence has been made by statute or Supreme Court rule abrogating their application in said court.
73. While Rule 803(8) of the Tennessee Rules of Evidence allows the admission into evidence of “matters observed pursuant to a duty imposed by law as to which matters there was a duty to report” as an exception to the hearsay exclusionary rule, all police reports are nonetheless specifically excluded in both civil and criminal cases, and such reports are also inadmissible under Sections 55-10-114(b) and 55-12-108(b), even if based upon personal observation.
74. The Citation, the Citation jurat, the declarations set forth in said jurat, and the images and other evidence of the violation set forth in the Citation and otherwise (including, but not limited to, all Violations Data as defined in the Contract), wherever existing, are all less reliable than even police reports in that they are derivative and hearsay evidence no part of which was personally or contemporaneously observed by any of the Defendants (or anyone else), and therefore all of said things are and should be ruled inadmissable in any civil or criminal action against the Plaintiff.
75. The statement in the Citation jurat that “recorded images do constitute evidence of a violation of the” Ordinance, is untrue under Tennessee law and is an intentional misrepresentation made by the Defendants for the purpose of dissuading Plaintiff from contesting the Citation, and all such evidence is and should be ruled inadmissible in any civil or criminal action against the Plaintiff. (emphasis added).
76. The statement in Option B of the Citation that “[i]t (sic) is sufficient evidence of the (sic-omission in original) . . . [O]rdinance that the person registered as the owner of the vehicle was operating the vehicle at the time of the violation,” while nonsensical, also is untrue under Tennessee law and is an additional intentional misrepresentation made by the Defendants for the purpose of dissuading Plaintiff from contesting the Citation, and all such evidence is and should be ruled inadmissible in any civil or criminal action against the Plaintiff. (emphasis added).
77. The provision in Section (b) of the Ordinance that “[a] citation or warning alleging that the violation of . . . [the Ordinance] occurred, sworn to or affirmed by officials or agents of the city, based on inspection of recorded images produced by a traffic control photographic system, shall be evidence of the facts contained therein and shall be admissible in any proceeding alleging a violation under this section,” is untrue under Tennessee law and is an additional intentional misrepresentation by made by the Defendants for the purpose of dissuading Plaintiff from contesting the Citation, and all such evidence is, is known by the Defendants to be, and should be ruled inadmissible under Tennessee law and court rules in any proceeding as against the Plaintiff.(emphasis added).
78. The warning contained in Section (a) of the Ordinance, which is required to be in the Citation, but is not, that “failure to contest in the manner and time provided shall be deemed an admission of liability,” shows that the Defendants intended that a legal presumption would operate in their favor and that the Plaintiff would be deprived of her civil rights by thinking that a legal presumption would operate against her, so as to dissuade her from making any legal challenge, when in fact no such legal presumption exists or could result from the Ordinance, because evidentiary presumptions can only result from the Tennessee Rules of Evidence, the Tennessee Code Annotated or Tennessee common law, and it is the case and should be ruled that no such presumption exists under said authorities. (emphasis added).
79. Similarly, the Citation advised the Plaintiff that she had made a “waiver” of her “right to contest the violation,” notwithstanding that the warning that “failure to contest in the manner and time provided shall be deemed an admission of liability” which was required to be in the Citation under Section (a) of the Ordinance, in fact was not set forth in the Citation; accordingly, it should be held that there was no such waiver or admission of liability made by the Plaintiff.
80. The Defendants intentionally fashioned the Ordinance and made the Citation and Notice to be the equivalent of a confession of judgement, or cognovit, which is illegal and unconstitutional for what the Municipal Defendants have effectively admitted in their Answer is a criminal violation that was asserted against the Plaintiff, and consequently, the Ordinance, Citation, and Notice all should be ruled null, void, unenforceable, and of no legal effect.
81. The Citation, which provides that the greatly circumscribed types of exculpatory affidavits which may be submitted by the Plaintiff must be submitted to Redflex (under the rubric of The Knoxville Photo Enforcement Program or The Knoxville Photo Red Light Enforcement Program), thereby violates the Ordinance, which provides that exculpatory affidavits be furnished “to the city court.”
82. Upon information and belief, Redflex did and under the Contract must, preprocess and prescreen evidence of all potential violations of the Ordinance, and only thereafter does Redflex present to the City Police Department evidence of only those violations which Redflex prescreened and preselected, including evidence of Plaintiff’s purported violation.
83. The Contract is indivisible in terms of the performance obligations of Redflex, because it states that Redflex will be paid a contingent fee for its services, only upon and “[f]or the satisfactory performance of all services under this Agreement.”
84. Redflex has breached the Contract which specifies that Redflex shall provide a customer service office within the limits of the City of Knoxville “Monday through Friday from 8:00 a.m. to 4:00 p.m.,” because it maintains a Redflex business office and customer service center, which is open for less than the number of hours required in the Contract and restricts its service to “appointments only.”
85. Redflex has breached the Contract which specifies that Redflex shall provide a toll-free telephone number for the purposes of answering Knoxville citizen questions and concerns, because while some toll-free number is provided on the Citation (1-877-847-2338), that number is for “The Traffic Enforcement Center” rather than Redflex and is used for several states many of which, other than Tennessee, are named by name in the recorded answer, and because Redflex does not provide any real-time answering of Knoxville citizen questions and concerns by any live person; in the Notice, Redflex even had the audacity to tell the Plaintiff that by calling the 1-877-847-2338 number, she would contact the “Knoxville Red Light Photo Enforcement Program Customer Service Call Center,” when clearly no such call center exists. (emphasis added).
86. Because of the use of the word Customer by Redflex in its Notice and efforts to extract and collect money from the Plaintiff, Redflex should be estopped from denying that the Plaintiff is its Customer for all purposes under all applicable federal and Tennessee laws.
87. Exhibit D to the Contract, which was executed in November 2005, provides in pertinent part that Redflex “will collect all payments on Citations” and “shall be responsible for handling the collection of delinquent Citation Fines” and thereby conflicts with the Ordinance, which was enacted in January 2005, and provides in pertinent part that the City “may establish procedures for . . . the collection of civil penalties and may enforce the penalties by a civil action in the nature of a debt.” Exhibit C.
88. Redflex is a debt collector for purposes of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the “FDCPA”) because, among other things, as a legal “person” with a legal identity separate from the City, it sent the Citation and Notice through the mails, and thereby and otherwise regularly acted to fulfill its duties under the Contract by collecting and attempting to collect as a noncommercial “civil debt,” unpaid Fines, Processing Fees, Citation Processing Fees, and other civil penalties, costs, and amounts of interest, which were imposed upon the Plaintiff and others and were asserted to be owed or due to the City under the putative authority of the Ordinance, Citation, and Program); Redflex also is a creditor under the FDCPA to the extent that in the process of collecting its own business debts, uses any name other than its own, such as the name of the City or its Police Department, which would indicate a third person is collecting the debts.
89. Redflex violated the FDCPA because, among other things, Redflex: did not include the FDCPA required disclosures in the Citation and Notice (that Redflex, as the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and for communications subsequent to the initial communication, that the communication is from a debt collector); used false, deceptive, or misleading representations or means in connection with the collection of, and misrepresenting the character, amount, or legal status of, Plaintiff’s putative debt (in that Redflex was attempting to collect as a debt an amount which it knew was not an extant and/or legal debt and which amount was imposed upon the Plaintiff in a manner that was unlawful and invalid); attempted to collect as a debt amounts not expressly permitted by law; failed to send a notice of debt within five days after the initial communication with the Plaintiff; threatened to take action against the Plaintiff that cannot legally be taken or that is not intended to be taken; made the false representation or implication that the Plaintiff committed a crime; used and distributed a written communication which created a false impression as to its source, authorization, or approval; and used in the Notice one or more names other than the true name of Redflex.
90. Based upon information and belief, “The Traffic Enforcement Center” and the “Knoxville Red Light Photo Enforcement Program Customer Service Call Center,” are not entities created under the laws of any government, are not registered as assumed names or foreign entities in any state, and are, if and to the extent that they exist, owned and operated by Redflex.
91. Because, as set forth herein, Redflex has breached the Contract by not providing all of the services which it is obligated to provide under the Contract, and because the Contract is an indivisible one, Redflex is not entitled to the payment of any amount of fees, and to the full extent of any fees paid to Redflex under the Contract heretofore, Redflex must repay all of those fees to the City.
92. Under the Contract, Redflex is obligated to “[p]rovide reasonable public relations resources and media materials to the City” and to “assist the City in public information and education efforts, including but not limited to the development of artwork . . . [and] press releases”
93. Pursuant to its obligations under the Contract, Redflex, in conjunction with the City, provided information and “public relations resources and media materials” to the Knoxville News-Sentinel (“News-Sentinel”), some of which were incorporated into an annotated illustration (the “Redflex Graphic”) published by the News-Sentinel on pages B-1 and B-8 of its February, 22, 2006 newspaper. The illustration, entitled “SMILE, YOU’RE ON RED LIGHT CAMERA,” attributed its information sources as “Redflex; city (sic) of Knoxville.”
94. The Reflex Graphic states, among other things, that “[e]ach camera produces digital images” which “include the traffic signal, vehicle and license plate number [but not the face of the driver]” and are “viewed by Redflex employees who determine which images have captured a potential violation” and only those images so pre-screened by Redflex are “then passed on to the Knoxville Police Department.” (emphasis added).
95. The Reflex Graphic states, among other things, that Redflex “issues the citation” which it also “mails.”
96. The Reflex Graphic states, among other things, that the “[v]ehicle owner [rather than the driver] must pay fine to Redflex [rather than to the City Court or the City].”
97. The Reflex Graphic falsely states that the fine can be paid by “e-mail” or “in person at the local Redflex customer service office,” when such payment options were not in fact available, presented to the Plaintiff, or provided in the Citation.
98. The Reflex Graphic states, among other things, that “Redflex deposits all fines into a ‘lockbox account’ that is [merely] accessed [rather than owned by] the city.”
99. The Reflex Graphic correctly portrays, among other things, that City only and for the first time gets possession of its share of the Program revenue via a funds transfer from Redflex (except in the likely rare case of payments made directly to the City or City Court, which under the Contract must after receipt be remitted to Redflex).
100. Because only those images so pre-screened by Redflex are “then passed on to the Knoxville Police Department” and even what images are passed on to the Police constitute an incomplete and noncontinuous view of any supposed violations, Defendant Sullivan could not have, as he has affirmed in his jurat, correctly stated that “a violation” of the Ordinance “did occur.” (emphasis added).
101. In a further attempt to dissuade Plaintiff from choosing Option C and thereby contesting the Citation in court, both Citation Options A & B state that “[n]o record of this violation will be sent to your insurance company or to the Department of Public (sic) Safety Division of Motor Vehicles,” whereas Option C does not, thereby implying that the Citation will be reported to the applicable said insurance company and governmental department only if Option C, the contesting of the Citation in court, is chosen.
102. The said statement in the Citation that “[n]o record of this violation will be sent to your insurance company,” is deceptive, false, and misleading, because none of the Defendants can take any action (including the enactment of the Ordinance) which could abrogate the rights of insurance companies to access public records of Ordinance violations, which violations are moving violations and crimes (as the Municipal Defendants effectively admit in their Answer through their multiple denials of “decriminalization”).
103. The said statement in the Citation that “[n]o record of this violation will be sent to . . . the Department of Public (sic) Safety Division of Motor Vehicles,” is deceptive, false, and misleading because none of the Defendants can take any action (including the enactment of the Ordinance) which could abrogate the absolute and non-delegable duty imposed by the Tennessee Code Annotated upon the City and its Court and Judge, to report to certain departments of the State of Tennessee the violations and official actions taken thereupon and with respect thereto, and accordingly, the Municipal Defendants in their Answer “admit that moving violations data is reported to the State of Tennessee in accordance with state law.”
104. Section (d)(2) of the Ordinance is similarly false, misleading, and deceptive, providing in pertinent part that a “violation . . . may not be recorded by the police department or the state department of safety on the driving record of the owner or driver of the vehicle and may not be considered in the provision of motor vehicle insurance.”
105. The only plausible reason why the Defendants would have made the aforesaid false, misleading, and deceptive statements is so they would get the Plaintiff and other United States citizens and residents to just pay the Fine without legal challenge, because the Defendants knew that if what was at stake for a given violator, such as the Plaintiff, exceeded the amount of the Fine, like a permanent insurance premium increase, then the Plaintiff and other violators would legally challenge the Fine.
106. On information and belief, Defendant City of Knoxville failed to monitor, train, control, or otherwise take appropriate steps to supervise Defendant Sullivan, and others assigned similarly.
107. On information and belief, Defendants City, Mayor, and Council did intentionally assign its Police Department employees including Defendant Sullivan and the Other Unknowns, and through the Contract, Redflex, duties intended to deprive citizens, including Plaintiff, of their unconditional fundamental rights to due process and to access the courts for the purpose of defending themselves against what under the Tennessee Code is a crime and, invalidly under the Ordinance, is the imposition of a penal Fine.
108. On information and belief, by signing the affidavit, Defendant Sullivan, by signature and oath, intended to enter an equivalent to a judgment of conviction, as such oath of the occurrence of a violation of Knoxville Code Section 17-210 is not intended to be reviewed judicially, and he was trained by Defendant Redflex to effect the intent of Defendant Redflex.
109. On information and belief, Defendant Sullivan intended that Plaintiff Williams be deprived of $50.00 and that if she wished to dispute his judgment, that she would need to appeal to Knoxville City Court, all in accord with the contract between Defendant City and Defendant Redflex, as codified in Knoxville Code § 17-210.
110. On information and belief, more than 10,000 Photo Enforcement Program Notice of Violation/Citation have been issued.
111. On information and belief, all except one of the more than 10,000 Photo Enforcement Program Notice of Violation/Citation have paid the $50.00 Fine or have been assessed the $50.00 Fine and/or the $67.50 Processing Fee and Citation Processing Fee, whether any or all of the same were paid. Further, all sums collected as Fines, Processing Fees, and Citation Processing Fees, were imposed or obtained under the color of and in violation of law, and constitute a depravation of property without due process of law, and Defendants should be required to disgorge all the said sums actually collected since the inception of the Contract, repaying the same to ostensible violators of the Ordinance as the true and lawful owners thereof; for the same and other reasons, any said sums imposed but not collect should be expunged.
112. The Citation stated that Plaintiff “Must Select” one of the following options: (A) pay the $50.00 fine (“Fine”) imposed (“Option A”); (B) prove herself not in violation, but only by three limited means (i.e., disallowing other forms of clear proof of lack of violation, such as proof of being in another city or state at the time of the alleged violation) from among numerous available theoretical means, by submitting an affidavit stating that the vehicle was sold, stolen or driven by another driver whose identity must be provided (“Option B”); or (C) be assessed a $67.50 court processing fee (“Citation Processing Fee”) as a precondition to her availing herself of the fundamental constitutional right of scheduling a hearing to defend herself against the Citation (“Option C”).
113. The Citation Processing Fee imposed for scheduling a hearing is nonrefundable (e.g., nowhere in the Citation or anywhere else is it discussed that there is any circumstance or condition under which a refund of the Citation Processing Fee would or could be made), and is not conditioned upon any finding of liability on the part of the contesting person, unlike other traffic-camera jurisdictions where either nothing is imposed for scheduling a hearing, or if anything is charged, it is in the form of a bond which would be refunded upon a finding of no liability.
114. Section 1.7 of “Exhibit ‘B’” to the Contract, inter alia, obligates Redflex to “[d]evelop the Photo Red Light Violations Criteria in consultation with the City” and Section 1.8 thereof obligates Redflex to “develop Enforcement Documentation for approval by the City . . . .” (emphasis added).
115. In accordance with the foregoing, the City is obligated under the Contract to “[r]eview, and if appropriate, approve the Enforcement Documentation,” but is only obligated to “[a]ssist Redflex in developing the Photo Red Light Violation Criteria.”
116. The Contract defines the “Photo Red Light Violation Criteria” (the “Violation Criteria”), which Redflex is obligated to develop and the City has no right under the Contract to approve, to mean “the standards and criteria by which Potential Violations will be evaluated by an Authorized Officer, which standards and criteria shall include, but are not limited to, the duration of time that a traffic light must remain red prior to a Violation being deemed to have occurred, and the location(s) in an intersection which a motor vehicle must pass during a red light signal prior to being deemed to have committed a Violation, all of which shall be in compliance with all applicable laws, rules and regulations.” (emphasis added).
117. The Contract defines the “Enforcement Documentation,” which Redflex is obligated to develop and the City has the right and obligation under the Contract to review and if appropriate approve, to mean “the necessary and appropriate documentation related to the Photo Red Light Enforcement Program, including but not limited to warning letters, Citation notices (using the specifications of the City), a numbering sequence for use on all Citation notices (in accordance with applicable court rules), instructions to accompany each issued Citation (including in such instructions a description of basic court procedures, payment options and information regarding the viewing of images and data collected by the Redflex Photo Red Light System), chain of custody records, criteria regarding operational policies for processing Citations (including with respect to coordinating with the Department of Motor Vehicles), and technical support documentation for applicable court and judicial officers.” (emphasis added).
118. By the intentional and considered use of the different phrases “in consultation with the City” and “for approval by the City” in Sections 1.7 and 1.8 of “Exhibit ‘B’” to the Contract, respectively, the City has expressly abdicated and transferred to Redflex, and deprived itself of, its sovereign police, lawmaking, and other powers to “[d]evelop the Photo Red Light Violations Criteria.” (emphasis added).
119. The foregoing shows that the City has expressly transferred and abdicated, and deprived itself of, its core sovereign police, law enforcement, lawmaking, and other powers, all of which are too central to the function of the City as a government to be entrusted to any non-governmental actor by, among other things, allowing Redflex to “[d]evelop the Photo Red Light Violations Criteria” and thereby to effectively determine what a violation is, and when and under what circumstances a violation has occurred and to develop criteria regarding operational policies for processing Citations; under Section 1.7. of “Exhibit ‘B’” to the Contract, the City has not even retained or sought to retain any right of “approval” with respect to the said Violations Criteria. (emphasis added).
120. As set forth throughout this Amended Complaint, the acts of the Defendants (including, but not limited to, through direct and indirect City action under color of law, depriving the Plaintiff of her clearly established fundamental rights, by taking actions not authorized by law and not set forth in the Ordinance to deprive the Plaintiff of her life, liberty or property without due process of law, and by denying or interfering with the Plaintiff’s right to access the courts), the Ordinance, the Program, the Citation, and the Notice, deprived the Plaintiff of her clearly-established fundamental civil right to “due process of law” which is guaranteed under the Fourteenth Amendment to the United States Constitution, which prohibit the City and Private Parties (defined below) acting in conspiracy or jointly with the City, from “depriving any person of life, liberty, or property, without due process of law.” (emphasis added).
121. One effect of the said Sections 1.7 and 1.8 of “Exhibit ‘B’” to the Contract is that Defendants the City and Redflex have violated, inter alia, Tennessee Constitution, Article I, Section I, and, for that and other reasons, those Defendants made an illegal Contract which is and should be held unenforceable under Tennessee law.
122. The Ordinance does not contain a severability provision.
123. Under Tennessee law, what constitutes a violation of law must be stated in the statute or ordinance which defines the violation.
124. The Defendants did not even comply with the express requirement in Section (a) of the Ordinance that the Citation contain “Information advising the person alleged to be liable” under the Ordinance “[w]arning that failure to contest in the manner and time provided shall be deemed an admission of liability and that a default judgment may be entered thereon.”
125. As set forth throughout this Amended Complaint, the acts of the Defendants (including, but not limited to, violating Section 8-1 of the Knoxville Code of Ordinances, taking actions not authorized by law or set forth in the Ordinance to deprive the Plaintiff of her life, liberty or property without due process of law, and denying or interfering with the Plaintiff’s clearly established fundamental right to access the courts), the Ordinance, Program, Citation, and the Notice, deprived the Plaintiff of her clearly-established fundamental civil right to “due process of law” guaranteed under Article I, Section 8 of the Tennessee Constitution by the “law of the land” provision, which provision the Tennessee Supreme Court has held provides due process protections which are identical and synonymous with those of the Fourteenth Amendment to the United States Constitution. (emphasis added).
126. As set forth elsewhere herein, the conduct of the Plaintiff is not covered by the Ordinance, as she in fact did not commit any violation.
127. The Ordinance, on the separate ground that it is unconstitutionally vague, also violates the “due process of law” provisions of the United States and Tennessee constitutions because it fails to provide sufficient objective notice of what is prohibited to the Plaintiff, thereby forcing her and other persons of common intelligence necessarily to guess at its meaning.
128. For example, although Section (b)(2) of the Ordinance provides that “[t]he city shall adopt procedures for the issuance of citations . . . under this section,” no such procedures are contained in the Ordinance, any other City ordinance, or any city regulation, because such “procedures for the issuance of citations” could affect or determine what is prohibited by the Ordinance, the Ordinance contains no sufficient objective notice to the Plaintiff of what is prohibited, thereby causing her and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions.
129. Additionally, although the Contract defines the “Violation Criteria” (which under the Contract Redflex is obligated to develop and the City has no right to even approve) to mean “the standards and criteria by which Potential Violations will be evaluated by an Authorized Officer, which standards and criteria shall include, but are not limited to, the duration of time that a traffic light must remain red prior to a Violation being deemed to have occurred, and the location(s) in an intersection which a motor vehicle must pass during a red light signal prior to being deemed to have committed a Violation, all of which shall be in compliance with all applicable laws, rules and regulations,” no such “Violation Criteria,” which as defined clearly could affect or determine what is prohibited by the Ordinance, are contained in the Ordinance, any other City ordinance, or any city regulation, and therefore the Ordinance contains no sufficient objective notice to the Plaintiff of what is prohibited, thereby causing her and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions. (emphasis added).
130. Section (c)(1) of the Ordinance defines what a violation is, by providing that “[i]t shall be unlawful for a vehicle to cross the stop line at a system location per subsection 17-506(a)(3)(a), or for a vehicle to violate any other traffic regulation specified in chapter 17 (motor vehicles and traffic) of the Code of Ordinances of the city.” (emphasis added).
131. Section (c)(1) of the Ordinance, because the common phrase “red light”is not contained or defined therein or elsewhere in the Ordinance while the Defendants operate what they hold out to be “The Knoxville Photo Red Light Enforcement Program” for the enforcement of what the Citation calls “red light running violations,” contains no sufficient objective notice of what is prohibited, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions. (emphasis added).
132. Section (c)(1) of the Ordinance, because the full definition of a violation is not therein contained or defined and because it incorporates a violation merely by reference to Knoxville Code of Ordinances 17-506(a)(3)(a), contains no sufficient objective notice of what is prohibited, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions.
133. Section (c)(1) of the Ordinance contains no sufficient objective notice of what it prohibits, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions, because the Ordinance defines what is “unlawful” to be the “cross[ing of] the stop line at a system location per subsection 17-506(a)(3)(a),” because the word “per” means according to, because the phrases “stop line” and “at a system location” are not contained in said “subsection 17-506(a)(3)(a),” and because logically there cannot be any violation of the Ordinance according to “subsection 17-506(a)(3)(a)” if said subsection does not contain the phrases “stop line” and “at a system location.” (emphasis added).
134. Because, as set forth in the immediately preceding paragraph, there cannot have been any violation of the Ordinance by the Plaintiff or anyone else because, by the Ordinance’s own terms, any violation must be “per” or according to Knoxville Code of Ordinances “subsection 17-506(a)(3)(a)” and said subsection does not contain the phrases “stop line” and “at a system location,” the acts of the Defendants in enforcing or attempting to enforce the Ordinance (and other aspects of the Program) by, among other things, issuing the Citation and Notice, and collecting or attempting to collect the putatively resulting “civil debt,” all such acts constitute the policies and customs of the City and its police department which all violate the due process protections guaranteed under the Constitutions of the United States and Tennessee, and therefore the Ordinance should be held unconstitutional and unenforceable, and the said acts of the Defendants in putatively enforcing or attempting to enforce the Ordinance should be held void, ultra vires, and of no legal effect. (emphasis added).
135. Notwithstanding the repeated denials of “decriminalization” made by the Municipal Defendants in their Answer, Section (c)(1) of the Ordinance, by providing that violations result in “civil violators” being held liable for a “civil penalty” which may be enforced as a “civil debt,” is internally inconsistent and conflicts with other provisions of the Ordinance (and the Tennessee Code Annotated) which provide that violations are “unlawful” (a word indicating a criminal violation), and consequently, the Ordinance contains no sufficient objective notice of any criminal prohibition, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and as a result the Ordinance is rendered unconstitutionally vague under the United States and Tennessee constitutions and should be held unenforceable. (emphasis added).
136. Section (c)(1) of the Ordinance, because the uncommon phrase “stop line”is not defined in the Ordinance or anywhere in “chapter 17 (motor vehicles and traffic) of the Code of Ordinances of the city,” contains no sufficient objective notice of what is prohibited, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions. (emphasis added).
137. That the phrase “stop line” is unconstitutionally vague and renders the Ordinance unenforceable under the United States and Tennessee constitutions, is evidenced by the facts that, while the Plaintiff did not violate the Ordinance (as discussed elsewhere in this Amended Complaint), Defendant Sullivan guessed at its meaning and as a result affirmed in his jurat that Plaintiff committed a violation precisely because Sullivan used what he thought was, but which was not, the correct “stop line.” (emphasis added).
138. That the lack of definition of the phrase “stop line” renders the Ordinance unconstitutionally vague and unenforceable under the United States and Tennessee constitutions is evidenced by the facts that, while the Plaintiff did not violate the Ordinance (as discussed elsewhere in this Amended Complaint), the Ordinance failed to provide minimal objective guidelines to govern Defendant Sullivan (and other law enforcement officers and Redflex, among others) in determinations of Ordinance violations and enforcement, resulting in an impermissible delegation of basic policy matters to Defendant Sullivan (and other law enforcement officers and Redflex) for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application of the Ordinance and its undefined “stop line” phrase becoming manifest in Sullivan affirming in his jurat that Plaintiff committed a violation when in fact she had not. (emphasis added).
139. The uncommon phrase “[s]ystem location,” defined in Section (a) of the Ordinance as “the approach to an intersection toward which a photographic, video or electronic camera is in operation,” because the word “approach” is vague, arbitrary, nebulous, not fixed, geographically boundless, spatially boundless, and not defined in the Ordinance or anywhere in “the Code of Ordinances of the city,”the Ordinance contains no sufficient objective notice of what is prohibited and at which “traffic control sign, signal or device,” thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions. (emphasis added).
140. For example, the “approach” for a long “highway” (in the vernacular) like Henley Street or Clinton Highway, because the beginning point is boundless and not defined in terms of a fixed amount of distance, could encompass countless miles and traffic control devices, many of which are not even in the City. (emphasis added).
141. Because the phrase “[i]n operation” is defined in Section (a) of the Ordinance to mean “operating in good working condition,” the definition of a “system location” is boundless also because it could encompass any “approach” to an intersection toward which a “photographic, video or electronic camera” is “operating in good working condition,” said cameras could encompass all the digital cameras and cellular phone cameras contained in all the vehicles and carried by all the pedestrians approaching or passing by or through any intersection, wherever located; additionally, the phrase “toward which” is boundless and thus renders the Ordinance unconstitutionally vague, as it, for example, could include a camera located anywhere in the world, in a satellite, or elsewhere in outer space, so long as such camera is operating directionally “toward” any approach to an intersection. (emphasis added).
142. The Ordinance is unconstitutionally vague too because it is nonsensical, in that violations are based upon crossing stop lines at system locations any one of which is defined as “the approach to an intersection toward which a photographic, video or electronic camera” is “operating in good working condition;” that is, what in the world is “an intersection toward which” a camera is “operating.”
143. Section (c)(1) of the Ordinance, because the uncommon phrase “at a system location” has no fixed or ascertainable geographic definition and is not defined in the Ordinance or anywhere in “chapter 17 (motor vehicles and traffic) of the Code of Ordinances of the city,”contains no sufficient objective notice of what is prohibited, thereby causing the Plaintiff and other persons of common intelligence necessarily to guess at its meaning, and therefore the Ordinance is unconstitutionally vague and should be held unenforceable under the United States and Tennessee constitutions. (emphasis added).
144. The phrase “at a system location” is unconstitutionally vague and renders the Ordinance unenforceable under the United States and Tennessee constitutions because it failed to provide minimal objective guidelines to govern Defendant Sullivan (and other law enforcement officers and Redflex, among others) in determinations of Ordinance violations and enforcement, resulting in an impermissible delegation of basic policy matters to Defendant Sullivan (and other members law enforcement officers and Redflex) for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
