Camera opponents find support in Denver ruling
By Mike Leidemann
Advertiser Transportation Writer
Denver officials this week halted their traffic speed photo enforcement operation after a judge ruled it violated local and state law, raising new legal questions about a similar program in Hawai'i.
The Denver program, run by the same company that operates Hawai'i's program, is the second major municipal camera operation to be closed by legal problems in the past six months. San Diego's red-light enforcement program remains on hold since a court ruling there threw out the evidence used on hundreds of camera-generated tickets.
"The rulings are relevant to Hawai'i because they involve the same contractor running essentially the same profit-driven programs," said Brent White, legal director for the American Civil Liberties Union of Hawai'i.
Meanwhile, the O'ahu head of the State of Hawaii Organization of Police Officers raised new questions yesterday about the state's enforcement operations.
James "Kimo" Smith said SHOPO members are worried that the program is a means of privatizing law enforcement and that it does not require the private camera operators to meet the same standards that apply to Honolulu police officers when they issue tickets.
"Are we not enforcing the same laws? Should we not be following the same set of rules?" Smith asked in a letter to The Advertiser.
The private company's failure to follow the same rules that police officers use could lead to problems in court, he said. "If these protocols were not documented and later challenged in court, the case might be dismissed," he said.
The company and police rules differ on the use and calibration of speed-detection lasers. Police also differ from the company in citing drivers instead of the vehicle, recording posted speed limit signs, noting weather and road conditions on a citation, and requiring a notarized affidavit when a citation is canceled, he said. The differences were noted after company officials briefed SHOPO on the state program.
In Denver on Monday, the judge ruled that the camera system violates city law by giving police powers to a private contractor. The system violates state law, the judge said, by appearing to compensate the contractor on the basis of volume.
Denver's city police, who oversee the program run by ACS State and Local Solutions, stopped issuing photo tickets the next day pending a review of the court ruling.
In San Diego, the ACS-operated system to catch red-light runners is inactive, even though a city-
ordered audit released Friday recommends it be resumed and expanded. No new tickets are expected to be issued until San Diego's City Council holds a public hearing on the issue.
The program was halted late last year after city inspectors found that the company had changed sensors at three locations to increase revenue. A judge dismissed several hundred tickets, ruling that the per-ticket fee charged by a private contractor violated state law.
Neither case directly affects Hawai'i, where the month-old program for citations operates under its own state law approved by the Legislature in 2000. The first legal challenges to the Hawai'i program are not expected to be heard in state courts until Feb. 19, the first day those who receive citations are scheduled for an administrative hearing.
"We haven't seen the Denver decision yet, so it would be premature to comment at this point," said Jean Oshida, deputy director of transportation in Hawai'i. "Until we hear more, we don't know how the facts of the situation compare."
ACS officials did not return a request for comment yesterday.
The Mainland rulings do point up a number of problems and show ways that the system could be challenged in court here, the ACLU's White said.
"Everywhere they go, this company has problems," he said. "The company does everything based upon profit."
As in Hawai'i, Denver officials have defended the camera enforcement program as a safety measure. They say the number of cars driving 10 mph over the limit dropped dramatically as people became aware of the program. Drivers, however, have complained that the program results in arbitrary decisions that cannot be easily challenged in court, resulting in too much money for the city.
In 2000, the last year for which full statistics are available, three photo enforcement vans in Denver monitored nearly 1.8 million cars. Of those, 161,460 triggered cameras; 85,935 of those pictures were clear enough to send out a ticket, resulting in fines of a little more than $3 million, according to the Denver Post.
In San Diego, where the program is limited to red-light intersections, the recent audit found that violations dropped 20 to 24 percent at intersections with the cameras, but the overall accident rate increased 3 percent at the same intersections because of drivers rear-ending vehicles that stopped to avoid a $270 ticket.
In Hawai'i, the most successful legal challenge to the program may come from those who argue that cameras do not show them driving the car, White said.
"Just taking a picture of your car is not enough to link you to the case," White said. "That's not proof beyond a reasonable doubt that you were the one driving."
As in the San Diego case, cases here could also be invalidated because of the company's incentive in issuing tickets, he added. In Honolulu, ACS receives $27 for each ticket it issues.
"The profit motive is so strong that the evidence basically is tainted," White said. "You can definitely make good arguments about that. We're telling people to fight the ticket — and fight it all the way. You have to show up at the administrative hearing and then you have to go to trial."
The ACLU will hold a public forum on the traffic camera controversy 5:30 to 7:30 p.m. Tuesday at the Blaisdell Center's Pikake Room. Panelists, including White and attorneys Earle Partington and Brook Hart, will offer advice on how to challenge photo citations in court, White said.
Reach Mike Leidemann at mleidemann@honoluluadvertiser.com or 525-5460.
