Welcome to the Law Office
About David B. Hamilton
Practice Areas
Directions
Quick Map
Internet Links
Privacy Policy
Other
Other
e-mail me
 
RedFlex Complaint

 

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 locationare not contained in said “subsection 17-506(a)(3)(a),” and because logically there cannot be any violation of the Ordinance according tosubsection 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 linerenders 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 application of the Ordinance and its undefined “at a system location phrase becoming manifest in Sullivan affirming in his jurat that Plaintiff committed a violation when in fact she had not. (emphasis added).

 

145.  “Traffic Control Photographic System” is defined in Section (a) of the Ordinance to be, in pertinent part, a “system consisting of a photographic, video or electronic camera and a vehicle sensor installed to work in conjunction with an official traffic control sign, signal or device, and to automatically produce . . . images of each vehicle violating a standard traffic control sign, signal or device.” (emphasis added).

 

146.  The Ordinance, because the aforesaid words “official” and “standard” are unconstitutionally vague in that they are not defined in the Ordinance and in that while they mean different things, they modify the same phrase “traffic control sign, signal or device,”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).

 

147.  Defendants Redflex, Photonotice/Unknown1, Unknown2, and Mayor (collectively, the “Private Parties”) have engaged in collaborative, joint, and/or conspiratorial conduct with the City (by and through its officials, agents, departments, and representatives) and the other Municipal Defendants (defined below) to deprive the Plaintiff and other citizens and residents of the Untied States of their federally-secured civil rights by working together in designing, implementing, and operating all aspects of the Program and conceptualizing, writing, and approving (a) the Ordinance, (b) the methods, modes, policies, and customs used for enforcing the Ordinance, and (c) the language contained in the Citation and Notice, all to such an extent that it should be held that the Private Parties acted with the Municipal Defendants under “color of law” and as a result, should be held directly liable under 42 U.S.C. § 1983 for the civil rights violations alleged in this Amended Complaint.

 

148.  Contrariwise, because Redflex and Photonotice/Unknown1as alleged in this Amended Complaint, violated the clearly established constitutionally guaranteed civil rights of the Plaintiff and therefore 42 U.S.C. § 1983, as a result of being delegated powers and functions which traditionally were exclusively reserved to the City and which would have had to have been performed by the City (but for the automated citation activities of Redflex which the Municipal Defendants admit in their Answer, “Redflex contracts with governmental entities for”), including but not limited to the City’s non-delegable police and law enforcement powers and functions, the actions Redflex and Photonotice/Unknown1 may fairly be treated as actions of the City for which the City should be held liable.

 

149.  Additionally, because the City (by and through its officials, agents, departments, and representatives) directed or aided and abetted Redflex and Photonotice/Unknown1 in violating the civil rights of the Plaintiff as alleged in this Amended Complaint under 42 U.S.C. § 1983, the City should be held liable therefor.

 

150.  In their Answer, Municipal Defendants admit that the Contract provides an economic benefit to both the City and Redflex, each of which as a result of the Contract acted with mutually-beneficial pecuniary gain and profit motives, reflecting their common understanding and meeting of the minds, so as to maximize their revenues at the expense of the federally-secured civil rights of the Plaintiff and other citizens and residents of the United States, and making it fair for them both to be held liable for violations of 42 U.S.C. § 1983.

 

151.  Even if a City official is held to be immune from liability under 42 U.S.C. § 1983, if such official’s actions result in an unlawful deprivation of civil rights and are sufficiently entangled with those of the private parties, then the actions of the private parties acting jointly with City officials or representatives can be held to be City action, as is the case here with Redflex.

 

152.  As alleged in this Amended Complaint, the Defendants conspired under 42 U.S.C. § 1983 to deprive Plaintiff of or to interfere with Plaintiff’s right to, the clearly established civil rights secured to Plaintiff under the Constitution of the United States, including but not limited to her First Amendment right to petition, her right to due process, and her right to access the courts, by (1) making agreements, including but not limited to the Contract and the Program, between two or more “state” actors, or one or more “state” actors and private entity Redflex, (2) acting in concert under the Contract to inflict unconstitutional injury, and (3) performing the overt acts set forth in this Amended Complaint which were done in furtherance of their goal of maximizing their revenues at the expense of the federally-secured civil rights of the Plaintiff and other citizens and residents of the United States and which acts include, but are not limited to, collaborating in designing, implementing, and operating all aspects of the Program and conceptualizing, writing, and approving (a) the Ordinance, (b) the methods, modes, policies, and customs used for enforcing the Ordinance, and (c) the language contained in the Citation and Notice.

 

153.  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 minimal objective guidelines to govern law enforcement and the Defendants in determinations of its violation and enforcement, and therefore it impermissibly delegates basic policy matters to the City, City police, City and (worse yet) Redflex personnel, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

 

154.  For example, while 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, and therefore the Ordinance contains no objective guidelines to govern the actions of the Defendants concerning enforcement of the Ordinance, thereby making the Ordinance subject to ad hoc and subjective resolution and arbitrary and discriminatory application, thereby rendering the Ordinance unconstitutionally vague and unenforceable under the United States and Tennessee constitutions.

 

155.  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,” because no such “Violation Criteria” are contained in the Ordinance, any other City ordinance, or any city regulation, the Ordinance contains no objective guidelines to govern the actions of the Defendants, including especially, but not limited to the “Authorized Officer,” concerning “Potential Violation” evaluations and determinations of “deemed” violations of the Ordinance, thereby making the Ordinance subject to ad hoc and subjective resolution and arbitrary and discriminatory application and rendering the Ordinance unconstitutionally vague and unenforceable under the United States and Tennessee constitutions. (emphasis added).

 

156.  In pertinent part, Section (b)(2) of the Ordinance, which sets forth certain elements and effects of citations, states that citations are to be “sworn to or affirmed by officials or agents of the city, based on inspection of recorded images produced by a traffic control photographic system.” (emphasis added).

 

157.  In pertinent part, Section (b)(1) of the Ordinance states that “[t]he city police . . . or an agent of the department shall administer the traffic control photographic systems.”(emphasis added).

 

158.  The repeated use of the words “agents” in Sections (b)(1)-(2) of the Ordinance further indicates that the City envisioned delegating certain of its important and core police functions under the Contract and Program.

 

159.  The acts of the Defendants in interfering with or depriving the Plaintiff’s clearly established fundamental constitutional rights of access to the courts and due process, also violate the prohibition of the First Amendment of the United States Constitution, applicable to state actors through the Fourteenth Amendment, against abridging (or diminishing) the right of the Plaintiff to “petition the Government for a redress of grievances” without precondition.

 

160.  The acts of the Defendants in interfering with or depriving the Plaintiff’s clearly established fundamental constitutional rights of access to the courts and due process, also violate the open courts provision contained in article I, section 17, of Tennessee’s Constitution, which guarantees that “all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” (emphasis added).

 

161.  The threat or fact of the imposition of the Citation Processing Fee as a precondition to even scheduling a hearing to defend against the Citation, and the fact the Citation Processing Fee exceeds the amount of civil penalty imposed under the Citation, indicate that with respect to the Ordinance, the Program, and the related acts of the Defendants as alleged herein, constitute not “justice administered without sale, [or] denial,” but rather, as a result of the Citation Processing Fee, constitute “justice administered with . . . sale, [or if the Citation Processing Fee is not paid] denial,” and therefore the said Ordinance, Program, and acts of the Defendants alleged herein are unconstitutional and unenforceable under the Tennessee Constitution.

 

162.  The acts of the Defendants in interfering with or depriving the Plaintiff’s clearly established fundamental constitutional rights of access to the courts and due process, also violate the due process provision contained in article I, section 8 of the Tennessee Constitution, which provides that “no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.”

 

163.  The Program directly affects the application and administration of the Ordinance and therefore constitutes a policy and custom of the City.

 

164.  Besides the aforesaid “Options,” inter alia, the Citation contains a “Payment Coupon,” an “Affidavit” where the Plaintiff only would be allowed to prove she was not liable by one of the several possible available methods (such as providing sufficient conclusive independent and verifiable evidence that the Plaintiff did not violate the Ordinance)–providing evidence that a third party was liable, and a “Hearing Request” informing Plaintiff for the second time in the same document, that “[t]o schedule a hearing you will be assessed a court processing fee of $67.50.”

 

165.  The Option C imposition of the Citation Processing Fee as a precondition for Plaintiff to schedule a hearing to defend against and dispute the Fine and Citation, inter alia, deprives or interferes with Plaintiff’s fundamental constitutional right of access to the courts, both with respect to city court for trials, and with respect to Knox County Circuit Court for appeals.

 

166.  The Option C imposition of the Citation Processing Fee as a precondition for Plaintiff to schedule a hearing to defend against and dispute the Fine and Citation, also violates Sections 8-1 and 8-10(b) of the Knoxville Code of Ordinances, the later of which in pertinent part states that “[a]ny person convicted in the municipal court wherein a fine, penalty, forfeiture or imprisonment is rendered, shall have the right to appeal the decision of the municipal court by filing . . . a notice of appeal.”

 

167.  No matter which Option (A, B or C) would have been selected, the mere existence of the Option C imposition of the Citation Processing Fee (which is unlawful as discussed below) as a precondition for Plaintiff to schedule a hearing to defend against and dispute the Fine and Citation, inter alia, deprives or hinders Plaintiff’s fundamental constitutional right of access to the courts, both with respect to city court for trials, and with respect to any appeals from city court.

 

168.  The Defendants intentionally acted and conspired to threaten the imposition of the $67.50 Citation Processing Fee in an amount that exceeded the $50 Fine, so that Plaintiff would not ever choose Option C, which is the only option under which Plaintiff could have had access to the courts.

 

169.  In addition to the Citation Processing Fee, the Citation states that the Plaintiff will be charged a $67.50 processing fee (“Processing Fee”) for failing to respond to the Citation “[N]otice,” which “[N]otice” was not personally served on the Plaintiff and does not under any standard constitute service of process as required by Knoxville ordinance section 8-1 and the Tennessee Rules of Civil Procedure, and is insufficient to satisfy the due process requirements of the Tennessee and United States constitutions.

 

170.  Plaintiff in fact did not pay the Fine under Option A, in fact did not schedule a hearing under Option C, and in fact did not file an affidavit under Option B.

 

171.  Even if chosen, Option B as stated in the Citation, is invalid and unlawful, as the affidavit thereunder would have been returned to Redflex at their office bearing the logo and name of Redflex, located at “900 East Hill Avenue, Suite 110, Knoxville, TN, 37915,” whereas the Ordinance only authorizes that the affidavit be returned to “the city court,” which has a different address than Redflex.

 

172.  On October 20, 2006, Redflex sent a default notice (“Notice”) to the Plaintiff in the name of the “CITY OF KNOXVILLE, TENNESSEE,” bearing the insignia of the Knoxville Police Department, signed by Knoxville Police Captain Catlett, the Knoxville Police Project Coordinator directly working with Defendant Redflex on unknown, but believed to include wording of Citation and this Notice, aspects of the automated enforcement program, and citing the Ordinance as authority. The Notice is attached hereto as Exhibit E.

 

173.  In issuing the Notice and taking the action set forth therein, including but not limited to imposing the Processing Fee, Redflex was acting as a state actor in the form of an agent and/or extension of the City by performing full or quasi-governmental functions of the City, all as discussed elsewhere in this Amended Complaint.

 

174.  The Notice was issued under color of law.

 

175.  The Notice demanded that Plaintiff pay $117.50, which amount was comprised of the Fine and the Processing Fee.

 

176.  In substance, the Processing Fee is an additional fine or penalty, which was imposed on the Plaintiff for no wrongful action on her part whatsoever.

 

177.  Neither the Citation Processing Fee nor the Processing Fee were authorized or fixed in the Ordinance or any other Knoxville ordinance or Tennessee statute.

 

178.  Moreover, section (d)(1) of the Ordinance expressly disallows the Citation Processing Fee, by providing that “[a]ny violation of subsection (c) of this section shall subject the responsible person or entity to a civil penalty of $50, without assessment of court costs or fees.”

 

179.  Because the Processing Fee is not authorized or fixed in the Ordinance or any other ordinance or statute, was not assessed in any proceeding in which it could have been assessed to Plaintiff by a jury of her peers, was imposed as the result of no proscribed or illegal conduct whatsoever, the imposition of the Processing Fee deprived the Plaintiff of her clearly established fundamental civil right to the due process protections afforded the Plaintiff under the constitution of the United States.

 

180.  For the reasons set forth above, the acts of the Defendants in imposing the Processing Fee violate article VI, section 14 of the Tennessee Constitution, which provides that “[n]o fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars,” and as a result such acts should be ruled unenforceable, void, and of no legal effect.

 

181.  For the reasons set forth above, the acts of the Defendants in imposing the Processing Fee violate article I, section 6 of the Declaration of Rights of the Tennessee Constitution, which in pertinent part provides that “the right of trial by jury shall remain inviolate” and by said violation also violate article XI, section 16 of the Tennessee Constitution, which provides that “[t]he declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate,” and as a result such acts should be ruled unenforceable, void, and of no legal effect.

 

182.  Because the Processing Fee, if not outright fraudulent, violates and is not authorized by the Ordinance, the Knoxville Code of Ordinances, the Tennessee Code Annotated, and the Tennessee Constitution, the Processing Fee should be held to be unenforceable and to have been illegally and unconstitutionally imposed, and therefore should be ruled null, void, and of no legal effect.

 

183.  Because the Court Processing Fee, if not outright fraudulent, violates and is not authorized by the Ordinance, the Knoxville Code of Ordinances, the Tennessee Code Annotated, and the Tennessee Constitution, the Court Processing Fee should be held to be unenforceable and to have been illegally and unconstitutionally imposed, and therefore void and of no legal effect.

 

184.  The acts of the Defendants alleged in this Amended Complaint violate article I, section 9 of the Declaration of Rights of the Tennessee Constitution, which in pertinent part provides that “in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed” and by said violation also violate article XI, section 16 of the Tennessee Constitution, which provides that “[t]he declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate,” and as a result such acts should be ruled unenforceable, void, and of no legal effect.

 

185.  The acts of the Defendants alleged in this Amended Complaint violate article I, section 9 of the Declaration of Rights of the Tennessee Constitution, which in pertinent part provides that “no person shall be put to answer any criminal charge but by presentment, indictment or impeachment” and by said violation also violate article XI, section 16 of the Tennessee Constitution, which provides that “[t]he declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate,” and as a result such acts should be ruled unenforceable, void, and of no legal effect.

 

186.  The Notice, in pertinent part, states that because the Plaintiff did not choose or perform Option A, B or C within the arbitrary 30 day period (which period is not stated in the Ordinance), Plaintiff “waives” her “right to contest” the Citation, and by using such language, the Defendants again acted to deprive United States citizens, including Plaintiff, of their unconditional fundamental right of access to the courts for the purpose of defending themselves against what under the Tennessee Code is a crime and under the Ordinance is in substance the imposition of a penal Fine.

 

187.  The Notice also states, in pertinent part, that Plaintiff’s “failure to pay . . . could result in court action against you. This civil action could be enforced as a debt and the civil penalty imposed under the . . . [Ordinance] shall be collectible, together with any interest and penalties thereon, by civil suit.” (emphasis added).

 

188.  The Ordinance does not authorize the assessment of “interest” against the Plaintiff , and the threats and acts of the Defendants to threaten to impose the same violate the Ordinance, Chapter 8 of the Knoxville Code of Ordinances, and the due process protections guaranteed by the United States and Tennessee constitutions. (emphasis added).

 

189.  The Ordinance does not authorize the imposition of “penalties” upon the Plaintiff for failure to pay her civil penalty (i.e., penalties on penalties), and the threats and acts of the Defendants to impose the same violate the Ordinance, Chapter 8 of the Knoxville Code of Ordinances, and the due process protections guaranteed by the United States and Tennessee constitutions. (emphasis added).

 

190.  Plaintiff’s failure to pay a civil penalty is in substance and form, just and only, a failure to pay, and such failure cannot cause the creation of a debt that the Defendants can collect through a civil suit (e.g., the U.S. Department of Treasury, Internal Revenue Service, does not institute civil suits against taxpayers to collect as a debt the civil penalties which it imposes; rather, the IRS has a collections department which acts to collect the penalties through, inter alia, execution on liens and levies). (emphasis added).

 

191.  The acts of the Defendants to collect from the Plaintiff an amount imposed as a civil penalty, by calling it a debt and using a civil suit, violates Section 8-11 of the Knoxville Code of Ordinances, which does not contemplate civil suits for the collection of “fines and costs” and only allows the same to be collected through “execution,” and only then after “the city judge has entered a judgment for fines and costs,” which entry here has not, and could not lawfully have, occurred. (emphasis added).

 

192.  The Defendants intentionally incorporated the “civil suit” into the Program for collection of the Fines and Fees imposed upon Plaintiff, inter alia, because they knew that the Ordinance, facially and as applied, failed to comply with the “city judge” entry of judgment requirement for execution of Section 8-11 of the Knoxville Code of Ordinances, the “city judge” issuance of process requirement of Section 8-1 of the Knoxville Code of Ordinances, and the requirement that only “fixed” fines and penalties be imposed by the “city judge” and only “upon conviction” requirements of Section 8-5 of the Knoxville Code of Ordinances.

 

193.  In substance, the Notice was a debt collection letter addressed to the Plaintiff, and as it was required to do under the Contract, Redflex was acting as a debt collector, but of an amount (comprised of the Fine and the Processing Fee) that was not in fact a debt or a lawful debt.

 

194.  The Notice, which provides that all payments must be remitted to Redflex (under the rubric of The Knoxville Photo Enforcement Program or The Knoxville Photo Red Light Enforcement Program) or Photonotice, violates the Ordinance, which provides that civil penalty payments be made “directly to the city court.”

 

195.  Photonotice and/or Unknown1 are listed on the Citation as a place and means to pay the Fine and to view the far less than complete photographic record of the purported violation.

 

196.  As an attempted, but unsuccessful, subsequent remedial measure indicative of their recognition and acknowledgment of the illegality and wrongfulness of their conduct, the Defendants have change the one of the two references to the Citation Processing Fee on the citations which they issue, to now state on page 2 of the citation that “‘[i]f you request a hearing and are found guilty, you will be assessed a court processing fee of $67.50.” (emphasis added).

 

197.  The attempted remedial measure of conditioning the imposition of the Citation Processing Fee upon a guilty finding is unsuccessful and incomplete, because on page 4 of the citations, under Option C, they still state that “[t]o schedule a hearing you will be assessed $67.50 in court processing fees.”

 

198.  Due to the conflict between the page 2 and page 4 language, the citations currently used still have the same legal and constitutional defects which have been alleged in this Amended Complaint concerning the Citation.

 

199.  Certain aspects of the Program are embodied in the Ordinance.

 

200.  Ordinance section (d)(1) provides: “[a]ny violation of subsection (c) of this section shall subject the responsible person or entity to a civil penalty of $50, without assessment of court costs or fees. Failure to pay the civil penalty or appear in court to contest the citation on the designated date shall subject the responsible person or entity to assessment of court costs and fees as set forth in this chapter and chapter 8 of the Code of Ordinances.”

 

201.  New (sub of 16.) On information and belief, the Knoxville Code Section 17-210 evidentiary rule is intended to place the burden of proof not on the officer to prove that the event occurred, which the officer swore as a violation, and that the person cited is legally responsible for the act, the burden is placed on the cited individual to prove innocence.

 

202.  Knoxville Ordinance Section 8-1 states in pertinent part that the city judge “shall issue process on the complaint of any person when it appears to the city judge that any provision of this [Knoxville] Code or other ordinance of the city has been violated” and “shall try no case until process has been regularly sued out, served, and returned.” (emphasis added).

 

203.  On information and belief, the Defendants have violated Knoxville Ordinance Section 8-1 because, as part of the Program and under the Ordinance as applied, (a) the Defendants caused or had some part in causing the city judge to not issue, sue out, serve or return, (b) the city judge did not issue, sue out, serve or return, and (c) none of the Defendants even attempted to issue, sue out, serve or return, regular process for the purported violation of the Ordinance by the Plaintiff.

 

204.  The Defendants also have violated Knoxville Ordinance Section 8-1 facially, because section (b)(3) of the Ordinance overrode and abrogated the mandatory process requirements of Knoxville Ordinance Section 8-1, by stating that “[p]ersonal service of process on the owner shall not be required.”

 

205.  The Citation and the Notice were not personally served upon the Plaintiff and they do not constitute regular process.

 

206.  The aforesaid violations of Knoxville Ordinance Section 8-1 also are unconstitutional because the Ordinance facially and as applied, and the Program, violate and deprive, under color of law, the due process protections afforded the Plaintiff by the Tennessee and United States constitutions.

 

207.  Because of the aforesaid conflict between the Ordinance, and Knoxville Ordinance Section 8-1, and moreover, the unconstitutionality of the Ordinance and the Program, the Ordinance and the Program are null and void, as are all actions taken by the Defendants under the ostensible authority of the Ordinance, including without limitation, the assessment and imposition of all Fines, Citation Processing Fees, Processing Fees, and other costs imposed pursuant to the Program.

 

208.  Knoxville Ordinance Section 8-2 states in pertinent part that in all cases where a defendant is not in custody trial “shall” be had “within (30) days of the arrest unless further continued by order of the court.” (emphasis added).

 

209.  Service of process under Knoxville Ordinance Section 8-1 should trigger the running of the 30 day period within which trial must take place in the same manner as an “arrest” does.

 

210.  No 30 day or other period is stated or fixed in the Ordinance for paying the Fine or requesting a hearing (or anything else), and thus no Citation Processing Fee or Processing Fee lawfully could be imposed by the Defendants upon the Plaintiff as a result of the failure of the Plaintiff to do anything within 30 days.

 

211.  In a manner that is unconstitutionally vague, the Ordinance merely states that “[f]ailure to pay the civil penalty or appear in court on the designated date,” which “designated date” is nowhere defined in the Ordinance, “shall subject the responsible person [Plaintiff] or entity to assessment of court costs and fees as set forth in this chapter [17] and chapter 8 of the [Knoxville] Code of Ordinances.” (emphasis added).

 

212.  Because the service of process requirements of Knoxville Ordinance Section 8-1 are never met under the Ordinance and Program, the 30 day period within which trial must take place under said ordinance never could start to run, and moreover because no designated date is fixed or stated in the Ordinance, any adverse action taken or threatened by the Defendants against the Plaintiff for failing to do anything within any 30 day period, violates the Knoxville Ordinance Sections 8-1 and 8-2 and the due process protections afforded the Plaintiff under the Tennessee and United States constitutions.

 

213.  The aforesaid “costs and fees” can only be imposed under the terms of the Ordinance, “as set forth in this chapter [17] and chapter 8 of the [Knoxville] Code of Ordinances.” (emphasis added).

 

214.  Neither the Citation Processing Fee nor the Processing Fee are fixed or mentioned in the Ordinance or anywhere in the Knoxville Code of Ordinances, and therefore all such fees imposed by the Defendants, or incurred or paid by Plaintiff, under the Ordinance and Program, violate the Ordinance and the due process protections afforded the Plaintiff under the constitutions of the United States and Tennessee, and are therefore unconstitutional, unlawful, null, and void.

 

215.  The word “processing” does not appear anywhere in the Ordinance, in “chapter 8 of the [Knoxville] Code of Ordinances,” or “chapter [17]” of the Knoxville “Code of Ordinances.” (emphasis added).

 

216.  Section (d) of the Ordinance states that its violators shall be responsible for the Fine of “$50, without assessment of court costs or fees,” and for this separate reason, the assessment of any Processing Fee violates the Ordinance and is and should be unenforceable. (emphasis added).

 

217.  Section 8-5 of the aforesaid “chapter 8 of the [Knoxville] Code of Ordinances” in pertinent part provides that the “city judge” shall “impose the fines, penalties, and costs fixed for such violation . . .”, only “upon [Plaintiff’s] conviction” for “violating any provision of this [Knoxville] Code or other ordinance of the city,”(emphasis added).

 

218.  Any and all Citation Processing Fees and Processing Fees imposed by the Defendants under the Ordinance or the Program, because they are not imposed by the “city judge,” are not imposed only “upon [Plaintiff’s] conviction,” and are not “fixed,” violate Section 8-5 of the Knoxville Code of Ordinances and the due process protections afforded the Plaintiff under the constitutions of the United States and Tennessee, and are therefore unconstitutional, unlawful, null, and void. (emphasis added).

 

219.  Even though they are “fixed” under the Ordinance, any and all $50.00 Fines imposed by the Defendants under the Ordinance or the Program, because they are not imposed by the “city judge” and are not imposed only “upon conviction,” violate Section 8-5 of the Knoxville Code of Ordinances and the fundamental due process protections afforded the Plaintiff under the constitutions of the United States and Tennessee, and are therefore unconstitutional, unlawful, null, and void. (emphasis added).

 

220.  Although certain costs and fees are fixed “chapter 8 of the [Knoxville] Code of Ordinances,” none of them seem to apply to Plaintiff, and none could lawfully be imposed due to all the aforesaid violations of the ordinances contained within “chapter 8.” (emphasis added).

 

221.  Also for the same reasons as caused all of the aforesaid violations of the ordinances contained within “chapter 8” and the constitutions of the United States and Tennessee, the Ordinance and the Program, and the actions of the Defendants taken ostensibly or actually thereunder, violate Section 8-6 of the Knoxville Code of Ordinances, which states in pertinent part that “[t]he city judge shall, in all cases, personally endorse his judgment . . . upon the warrant sued out as provided in section 8-1. Such warrant shall . . . constitute a public record of the city . . . .” (emphasis added).

 

222.  The records of the City, including records and evidence of violations of the Ordinance by the Plaintiff and others (collectively, the “Violations Data”), are “public record of the city” and also records which must be available for public inspection under Section 10-7-503 of the Tennessee Code.

 

223.  The Violations Data are owned by the City under the Contract.

 

224.  Notwithstanding the City’s ownership and legal duties, Redflex in fact retains possession, custody and control of and access to, the Violations Data.

 

225.  Under the Contract, Redflex is obligated to “not disclose Violation Data or privately disclose or use the Violations Data for any purposes whatsoever except as specified in [the Redflex Contract] without the prior written consent of the City, except for information that: (1) is or becomes generally available to the public through no fault of Redflex personnel; or (2) is required to be disclosed by law or by a court of competent jurisdiction.”

 

226.  On information and belief, the Violations Data of the Program are City of Knoxville records.

 

227.  On information and belief, Defendant Redflex has possession and control of, and controls access to, the Violation Data.

 

228.  On information and belief, while Plaintiff and other persons convicted of any Ordinance violation have no expectation of privacy concerning the fact of the conviction and/or the payment of fine, they do have an expectation of privacy concerning their information which is in the custody and control of the Tennessee Department of Safety Division of Motor Vehicles, including especially the information contained on their driver’s license, their insurance, and the linking of their address and name to their license plate and vehicle.

 

229.  On information and belief, the City is without the authority to enter into a contract with Defendant Redflex which shares city revenue in the form of the Fine and P and Citation Processing Fees, delegates core government functions including but not limited to police power, decriminalizes conduct which is criminal under the Tennessee Code Annotated, attempts to circumvent the rules of evidence, and expressly attempts to limit public access to public records, and any such Contract should be held ultra vires.

 

230.  On information and belief, the Redflex Contract should be held void.

 

231.  On information and belief, Plaintiff’s vehicle was photographed crossing the illegally and improperly placed white street marking, which is not relevant to her violation (as discussed elsewhere herein), at a time when the traffic light for the intersection was red.

 

232.  What is relevant is the fact that the Plaintiff is shown to have clearly stopped prior to the intersection in one of the 9 recorded images made available to the Plaintiff; the second such photograph clearly shows a stopped vehicle, but reflects that the stopped vehicle speed is 31 MPH, indicating that all data captured by or relied upon by the Defendants for any purpose is totally unreliable.

 

233.  Under both the Tennessee Code Annotated and the Knoxville Code of Ordinances, it is proper for a vehicle to stop prior to an intersection when making a right turn at a red light.

 

234.  The set of images provided to the Plaintiff in the Citation is incomplete because it effectively contains only 2 images, whereas the Defendants have possession, custody, or control of at least 9 images related to the purported violation.

 

235.  The said 9 images which the Defendants have in their possession, custody, or control constitute a vastly incomplete record of the purported violation in they are not continuous, and in fact there are spans of multiple seconds which elapse between the time when each of the images were captured; that the said missing images and time periods were intentionally destroyed or withheld from the Plaintiff is indicated by the fact that at the beginning of the 9 images provided to the Plaintiff, there was a continuous and uninterrupted amount of video film, rather than intermittent still images.

 

236.  On information and belief, Defendant Redflex reduced the frames captured rate to one frame per second for images captured for later review by the Plaintiff on the web site where Citation Violation Data was made available for her to review, at www.photonotice.com, to a less than standard frame rate, which reduces the information available to Plaintiff to assert any defense, although the first second of the images provided to Plaintiff are at an apparent standard video frame rate.

 

237.  On information and belief, the frames of video captured by Defendant Redflex which were not made available for Plaintiff to review, constitute evidence which has been spoiled by Defendant Redflex.

 

238.  Defendant Redflex selected the images which are relied upon by a City of Knoxville police officer, in this case Defendant Sullivan, in the issuance of the Citation.

 

239.  On information and belief, the only images relied upon by Defendant Sullivan, are the images which he declared under penalty of perjury were reviewed, namely the two images selected by Defendant Redflex for printing.

 

240.  On information and belief, Defendant Redflex exercised police power by controlling the images and other Violations Data which were relied upon by Defendant Sullivan concerning the Citation.

 

241.  On information and belief, the images selected by Defendant Redflex for review by Defendant Sullivan with respect to the Citation are redacted images, not encompassing all of the images which were or should have been originally recorded.

 

242.  On information and belief, Defendant Redflex, which has an economic interest in the enforcement of the Citation and the related payment of civil penalty, limits and restricts the amount of exculpatory provided to the Plaintiff and which would be available to present to any court.

 

243.  On information and belief, the Ordinance was intended by Defendants Redflex and the City to supplant the Tennessee Rules of Evidence.

 

244.  Tennessee Rules of Evidence Rule 101 provides 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.”

 

245.  Tennessee Rules of Evidence Rule 803(8) provides in part for the exclusion of records or documents which relate to “matters observed by police officers and other law enforcement personnel.”

 

246.  The Advisory Comment to Tennessee Rules of Evidence Rule 803(8) states, “Police reports are expressly excluded, just as they are under current law in some instances.”

 

247.  Defendant City, upon enactment of the Ordinance did pass a law which attempted to avoid the Tennessee rule of evidence prohibiting the admission into evidence of police reports as inadmissable hearsay.

 

248.  The Ordinance deprives persons of the right to confront witnesses, right to speedy trial, and right to free access to the trial court to assert innocence, all without due process of law.

 

249.  On information and belief, the Ordinance does, as implemented, deprive persons of property without due process of law.

 

250.  On information and belief, the Ordinance does, as implemented, deprive persons of property without due process of law, and by placing the burden of proof on the car owner, deprives the car owner of the Constitutional presumption of innocence.

 

251.  The Fifth Amendment of the Constitution states in part, “ . . .nor shall any person . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, . . . .” Additional protections found within the Constitution include: Sixth Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The Fourteenth Amendment states at Section 1, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 

252.  Article 1, Section 8, of the Constitution of the State of Tennessee provides that “no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, . . . or in any manner destroyed or deprived of his life, liberty or property, but by judgment of his peers, or the law of the land.”

 

253.  Article 1, Section 9, of the Constitution of the State of Tennessee, provides that “in all criminal prosecutions, the accused hath the right to be heard by himself or his counsel . . . .”

 

254.  Article 1, Section 17, of the Constitution of the State of Tennessee, provides that “all courts shall be open . . . .”

 

255.  Knoxville City Code Sec. 17-181, “Required Position and Method of Turning at Intersections, states: “The driver of a vehicle intending to turn at an intersection shall do so as follows: (1) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the righthand curb or edge of the roadway.”

 

256.  Knoxville Code Sec. 17-502, Manual and Specifications, states: “All traffic control signs, signals and devices shall conform to the Manual on Uniform Traffic Control Devices approved by the state department of transportation. All signs and signals required under this chapter for a particular purpose shall so far as practicable be uniform as to type and location throughout the city. All traffic control devices so erected and not inconsistent with the provisions of state law or this chapter shall be official traffic control devices.”

 

257.  Knoxville Code Sec. 17-504, Installation Requirements for Enforcement Purposes, states: “No provision of this chapter for which official traffic control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic control devices are required, such section shall be effective even though no devices are erected or in place.” This is a similar provision to Tenn. Code Ann. § 55-8-109(b).

 

258.  The Tennessee Manual on Uniform Traffic Control Devices, at paragraph 6.4, provides that the MUTCD (an apparent reference to the Manual on Uniform Traffic Control Devices cited in 23 C.F.R 655) shall guide the placement of road markings.

 

259.  The Tennessee Manual on Uniform Traffic Control Devices, at paragraph 6.4.2.3, provides that intersections with crosswalk stop lines must be a minimum of 4' from the crosswalk, and points to figure 6.3 for guidance. Found on Figure 6.3 is the guidance for 4' to 30' placement of stop line placement where no crosswalk exists, and fails to provide Tennessee guidance for placement beyond 4' from a crosswalk.

 

260.  The Manual on Uniform Traffic Control Devices, incorporated into 23 CFR 655, paragraph 3B.16 states “If used, stop and yield lines should be placed a minimum of 1.2 m (4 ft) in advance of the nearest crosswalk line at controlled intersections, . . . . In the absence of a marked crosswalk, the stop line or yield line should be placed at the desired stopping or yielding point, but should be placed no more than 9 m (30 ft) nor less than 1.2 m (4 ft) from the nearest edge of the intersecting traveled way. Stop lines should be placed to allow sufficient sight distance to all other approaches to an intersection.”

 

261.  On information and belief, the stop line viewed in the photograph used by Officer Sullivan to issue the Notice of Violation/Citation, at the intersection of Western Ave. and Henley Street at the L&M Station prior to the parking lot entrance, is 80' from the edge of the crosswalk and is therefore in violation of 23 C.F.R 655 by 50', Manual on Uniform Traffic Control Devices, and Tennessee Manual on Uniform Traffic Control Devices.

 

262.  On information and belief, federal funds have been used in the construction, expansion, maintenance, modification, or otherwise, on either Western Ave., which is a Tennessee Hwy. and Henley Street, also known as U.S. Hwy. 441, at the intersection of these roads and therefore Defendant City of Knoxville must apply the standard cited within 23 C.F.R 655, Manual on Uniform Traffic Control Devices.

 

263.  On information and belief, the City of Knoxville traffic engineering department routinely violates, 23 C.F.R 655, Manual on Uniform Traffic Control Devices, and Tennessee Manual on Uniform Traffic Control Devices. Examples exist such as the Weisgarber and Papermill intersection, and the obviously modified stop line placement for the benefit of Braden’s Fine Furniture & Interiors at 1335 Western Ave., among others.

 

264.  On information and belief, upon placement of the camera system at the intersection of Western Ave./W. Summit Hill & Henley St., Defendant Redflex knew or should have known of the violation of the aforementioned traffic manuals.

 

265.  On information and belief, Defendant Redflex accepted and used the violation of Knoxville Code § 17-502, and 23 C.F.R 655 in the unlawful issuance of the Citation, as it resulted in Redflex receiving a financial benefit in the form of the Fine, notwithstanding that it had a duty under the Contract to develop Violations Criteria that were in compliance with all applicable laws.

 

266.  The State of Tennessee did criminalize failure to obey traffic control devise, the red light, at Tenn. Code Ann. § 55-8-109, as a Class C Misdemeanor, subject to a $50.00 fine and/or 30 days incarceration.

 

267.  In order to protect the public the Tennessee Department of Safety has established a system for the administrative suspension of a driver licence in order to protect the public from habitual offenders.

 

268.  Tennessee Department of Safety has assigned a point value of 4-points to any violation of a traffic control device statute at Tenn. Code Ann. § 55-8-109, Tenn. R. & Reg. 1340-1-4.03.

 

269.  That upon the accumulation of sufficient points within a one year period, twelve (12), the Department of Safety shall issue a Notice of Proposed Suspension.

 

270.  That the City of Knoxville, for non-automated citations, does require obedience of traffic control device, Knoxville Code § 17-503, and such violation is a misdemeanor reported to the Tennessee Department of Safety, Knoxville Code § 17-47, for assignment of points and other Tennessee Department of Safety purposes.

 

271.  On information and belief, Defendant Knoxville was not delegated the authority by the State of Tennessee to enact ordinances which are in direct conflict with existing general law.

 

272.  Under the Contract Reflex must and does provide self-serving training of City personnel and police officers, and such training is an impermissible exercise of or has an impermissible effect on the exercise of, the City’s police power by a private company for profit.

 

273.  Although the Municipal Defendants in their Answer “deny that Redflex exercises ‘oversight’ over the City police officers,” in pertinent part the Contract states that the “‘Redflex Project Manager,’” initially one Joseph Bernard, “shall be responsible for overseeing . . . the implementation of the Photo Red Light Enforcement Program,” which in pertinent part is defined in the Contract to mean “the process by which the monitoring, identification and enforcement of Violations [rather than Potential Violations] is facilitated.” (emphasis added).

 

274.  On information and belief, Defendant Bernard did exercise oversight and train City police officers, to include Defendants Sullivan and Catlett.

 

275.  On information and belief, Defendant Bernard has acted to oversee the implementation of the Photo Red Light Enforcement Program.

 

276.  Although the Municipal Defendants in their Answer “admit that officers of the Knoxville Police Department have authority to enforce the statutes of the United States and the State of Tennessee, and the ordinances of the City,” they do not admit that said officers were allowed, told, or trained to, and did , fail to enforce or comply with certain of said statutes and ordinances (and the constitutions of the United States and Tennessee) in order to maximize the overriding goal of the Program, the extraction of money from the citizens and residents of Tennessee and the United States.

 

277.  The Attorney General of the State of Tennessee has opined that a contract between a municipality and a third party that involves “the issuance of citations to such violators . . . .” by that third party violates the principle that a state’s sovereign powers may not be delegated to third parties. Op. Tenn. Att’y Gen. No. 06-150 (Oct. 2, 2006). Such a contract “is effectively delegating to the private company . . . the manner of enforcement and the enforcement itself of the city’s traffic ordinances.”

 

278.  The Attorney General of the State of Tennessee has opined that a contract between a municipality and a third party that involves “the collection of fines” by that third party violates the principle that a state’s sovereign powers may not be delegated to third parties. Op. Tenn. Att’y Gen. No. 06-150 (Oct. 2, 2006). Such a contract “is effectively delegating to the private company . . . the manner of enforcement and the enforcement itself of the city’s traffic ordinances.”

 

279.  On information and belief, Defendant Knoxville was not delegated the authority to contract out any police power of enforcement to any private company for profit by the State of Tennessee.

 

280.  Because under the Contract Redflex is obligated to develop the “Violation Criteria,” the City has no right under the Contract to approve Violation Criteria, and in pertinent part Violation Criteria means “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,” the City’s delegation to Redflex of the obligation to develop Violation Criteria is an impermissible delegation of the core governmental legislative and police functions, which is unconstitutional under Article I, Section I of the Tennessee Constitution. (emphasis added).

 

281.  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 any non-governmental actor, among other things, by allowing Redflex to “[d]evelop the Photo Red Light Violations Criteria” and to thereby effectively determine what a violation is, and when and under what circumstances a violation has occurred; 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 Criteria. (emphasis added).

 

282.  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.

 

283.  Training provided by Defendant Redflex includes strategies for presenting “Violations Data” in court and judicial proceedings.

 

284.  On information and belief, training provided by Defendant Redflex provided strategies for presenting “Violations Data” in court and judicial proceedings is an impermissible intrusion into prosecutorial functions, and an apparent effort to train officers to prosecute alleged offenders whom they did not personally observe violating any statute, and therefore a planned contractual effort to train non-attorneys to present hearsay as fact and to act as prosecutors.

 

285.  Defendant Redflex is contractually obligated to “interact with court and judicial personal” by developing the subpoena process, and controlling the coordination between Defendant Redflex, the City, and City Court personnel.

 

286.  On information and belief, Defendant Redflex contractual obligation to “interact with court and judicial personnel” by developing the subpoena process, and controlling the coordination between Defendant Redflex, the City, and City Court personnel is an effort to impermissibly extend control or influence over the judicial process and an unconstitutional intrusion into the Constitutional separation of powers designed to violate the due process protections provided to Plaintiff.

 

287.  Under the Contract, Defendant Reflex is obligated to provide training to City police officers.

 

288.  Defendant Redflex’s provided training includes strategies for presenting “Violations Data” in court and judicial proceedings.

 

289.  Defendant Redflex is contractually obligated to “interact with court and judicial personal” by developing the subpoena process, and controlling the coordination between Redflex, the City, and City Court personnel.

 

290.  Knoxville Code Section 17-73, entitled “disposition of fines and forfeitures,” provides in pertinent part that: “[a]ll fines and forfeitures collected upon conviction . . . of any person charged with a violation of any of the provisions of this chapter shall be paid into the city treasury and deposited in the general fund and be expendable as provided by the city charter.” Exhibit B (collective cited sections from the Knoxville Code).

 

291.  Tennessee Code Section 55-10-303(a), entitled “disposition of collections,” provides in pertinent part that: [a]ll fines, [and] penalties . . . imposed or collected under any of the provisions of chapters 8 and 9 of this title [55], [and] parts 1-5 of this chapter [10] . . . shall, within fifteen (15) days following the last day of the month in which such fines, [and] penalties and forfeitures of bond were received, be paid to the commissioner of safety, with a statement accompanying the same, setting forth the action or proceeding in which such moneys were collected, the name and residence of the defendant, the nature of the offense and fines, penalties, forfeitures or sentence, if any, imposed.”

 

292.  Here the City has violated Tennessee Code Section 55-10-303(a) because all funds comprised of fines and penalties which are collected under the Ordinance and Program are held in a bank account owned by Redflex, after a significant time lag, only a mere pittance of such funds, and no portion of the interest earned on the funds, are ultimately remitted to the City, and no portion of such funds are remitted to the commissioner of safety.

 

293.  In Tennessee, city ordinances or actions cannot contravene state statutes.

 

294.  Tennessee Code Annotated Sections 55-8-110 (the prohibited acts) and 55-8-103 (the criminal effect and classification of committing the prohibited acts) make it a Class C misdemeanor criminal offense in Tennessee for drivers and pedestrians to run red lights, or as the statute describes them “traffic-control signals exhibiting the words ‘Go,’ ‘Caution’ or ‘Stop,’ or exhibiting different colored lights successively one (1) at a time, or with arrows . . . .” (emphasis added).

 

295.  Knoxville Code Ordinance Section 17-506 (the prohibited acts), the provisions of which are substantively identical to Tennessee Code Annotated Section 55-8-110, and Knoxville Code Ordinance Section 17-47 (the criminal effect and classification of committing the prohibited acts), make it a misdemeanor criminal offense in Knoxville for drivers and pedestrians to run red lights, or as the ordinance describes them “traffic control signals exhibiting the words ‘go,’ ‘caution’ or ‘stop,’ or exhibiting different colored lights successively one (1) at a time, or with arrows . . . .” (emphasis added).

 

296.  Further indicia of the pretextual nature of the stated reason for the Program of reducing red light running violations, is the fact that, based upon information and belief, no portion of the Program or Ordinance were designed to capture pedestrian violations.

 

297.  Subsection (3) of Tennessee Code Annotated Section 55-8-110 provides that “Red alone or ‘Stop’” signals must be obeyed such that: “[v]ehicular traffic facing the signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until green or ‘Go’ is shown alone. A right turn on a red signal shall be permitted at all intersections within the state; provided, that the prospective turning car shall come to a full and complete stop before turning and that the turning car shall yield the right-of-way to pedestrians and cross traffic traveling in accordance with their traffic signal. However, such turn will not endanger other traffic lawfully using the intersection. A right turn on red shall be permitted at all intersections, except those that are clearly marked by a ‘No Turns On Red’ sign, which may be erected by the responsible municipal or county governments at intersections which they decide require no right turns on red in the interest of traffic safety. . . .” Accord, Knoxville Code Ordinance Section 17-506(a)(3).

 

298.  Subsection (5) of Tennessee Code Annotated Section 55-8-110 provides that: “[i]n the event an official traffic-control signal is erected and maintained at a place other than an intersection, the provisions of this section shall be applicable except as to those provisions which by their nature can have no application. Any stop required shall be made at a [valid]sign or marking on the pavement indicating where the stop shall be made, but in the absence of any such sign or marking the stop shall be made at the signal.” (emphasis added) Accord, Knoxville Code Ordinance Section 17-506(a)(5).

 

299.  The Citation indicates and it is a fact that the official traffic control signal here at issue was erected and is maintained at an intersection, so Tennessee Code Annotated Section 55-8-110(5) is inapplicable, and therefore, all that the Plaintiff needed to do, which she did do, was come to a full and complete stop at the intersection and before entering the crosswalk on the near side of the intersection, before making a right turn on red as allowed by Knoxville Code of Ordinances Section 17-506 and Tennessee Code Annotated Section 55-8-110, for right turns on red at intersections where there is no device, signal or sign prohibiting the making of right turns on red.

 

300.  Despite the clear evidence which the Defendants possessed or reviewed indicating that the Plaintiff did not violate the Ordinance, in their Answer they still insist “that Plaintiff violated the applicable ordinance of the City by running (sic) red light.”

 

301.  Neither Knoxville Code of Ordinances Section 17-506 and Tennessee Code Annotated Section 55-8-110 prescribe any duration for “the full and complete stop,” and because of the missing seconds of evidence (none of which evidence would be admissible even if it existed-as discussed elsewhere herein ) in the record of recorded images, the Defendants cannot even theoretically show that a full and complete stop was not made by the Plaintiff.

 

302.  The phrase “at a place other than an intersection” in the Knoxville Code of Ordinances Section 17-506(a)(5) is unconstitutionally vague, as it does not precisely define when, how, and by what measurements a traffic control signal is either “at . . . an intersection” or is “at a place other than an intersection.”

 

303.  Tennessee Code Annotated Section 55-8-103 provides that “[i]t is unlawful and, unless otherwise declared in this chapter and chapter 10, parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.”

 

304.  Tennessee Code Annotated Section 55-10-301(a) provides that “[a]ny person violating any of the provisions of chapters 8 and 9 of this title and parts 1-5 of this chapter where a penalty is not specifically prescribed commits a Class C misdemeanor.”

 

305.  The Ordinance provides in pertinent part that: “[c]itations . . . shall include . . . [i]nformation advising the person alleged to be liable under this section . . . [of a] [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.”

 

306.  The Citation contains no “[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,” and only makes the dissimilar and inadequate statement under Option C, that “[f]ailure to appear at the hearing will result in being found liable, and . . . and responsible for the” Citation Processing Fee. (emphasis added).

 

307.  Because the Citation lacked the warning required by the Ordinance, the Citation, and the acts of the Defendants in creating, authorizing, affirming, and issuing the Citation, all violate the Ordinance and violate the Plaintiff’s guarantees of due process under the United States and Tennessee constitutions.

 

308.  That the Ordinance states “that failure to contest in the manner and time provided shall be deemed an admission of liability . . . [for which] a default judgment may be entered” is a particularly egregious deprivation of or hindrance upon the Plaintiff’s fundamental civil right to access the courts, given that a $67.50 Citation Processing Fee, which far exceeds the $50 fine, is imposed as a pre-condition for the Plaintiff to defend herself and even schedule a contest.

 

309.  The Ordinance is unconstitutionally vague because it declares violations both “unlawful,” which denotes criminality, but yet it results only in a “civil penalty.”

 

310.  The Ordinance is unconstitutionally vague because its provisions directly conflict with the provisions of the Tennessee Code Annotated and other of the City’s own ordinances.

 

311.  Knoxville Code Section 17-71(a) states that “[u]nless another penalty is expressly provided by law, every person convicted of a violation of any traffic ordinance shall be punished as provided in section 1-9 of this Code.”

 

312.  Knoxville Code Section 1-9 provides in pertinent part that: “[w]henever in this Code or in any ordinance of the city an act is prohibited or is made or declared to be unlawful, or an offense or a misdemeanor, or whenever in such Code or ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, where no specific penalty is provided therefor, the violation of any such provision of this Code or any such ordinance shall be punished as follows: Any person violating any of the provisions of this general penalty article shall be guilty of a misdemeanor, and conviction thereof shall result in the penalties of a monetary fine not to exceed fifty dollars ($50.00) and the repayment of administrative costs incident to the correction of the municipal violation in an amount not to exceed five hundred dollars ($500.00) and/or by imprisonment not to exceed thirty (30) days, or both, for each separate offense. . . .

 

313.  Knoxville Code Section 17-47 provides that “[i]t is unlawful and a misdemeanor for any person to do any act forbidden or fail to do any act required in this chapter [17].”

 

314.  The Ordinance is unenforceable, inter alia, because it violates Knoxville Code Section 17-47 by imposing a penal civil penalty, rather than a misdemeanor, upon Plaintiff, and by penalizing Plaintiff merely because of her status as a person to whom an automobile is registered, rather than because Plaintiff did “any act forbidden” by or failed to do “any act required in” chapter 17 of the Knoxville Code of Ordinances.

 

315.  Knoxville Code Section 17-71(c) through (f) allow a series of fees to be collected by the City, but only upon “conviction” and only if “the citation was issued or arrest was effected by a law enforcement officer of the city.”

 

316.  No fees can be collected under Knoxville Code Section 17-71(c) through (f) by the City pursuant to the Program, Contract, Ordinance, and Citation, because no “conviction” occurred and because no “citation was issued or arrest was effected by a law enforcement officer of the city” concerning the Citation which was issued by Redflex pursuant to the Contract.

 

317.  The Municipal Defendants admit in their Answer “that the City retains a portion of the funds paid for citations.”

 

318.  Although the Plaintiff has made no such allegation, the Municipal Defendants deny in their Answer that “the funds paid for citations” are required to “be returned to the general fund of the State of Tennessee.”

 

319.  Tennessee Code Annotated Section 55-10-306(a) provides that: “[e]very magistrate or judge of a court shall keep or cause to be kept a record of every traffic complaint, warrant, traffic citation or other legal form of traffic charge deposited with or presented to the court or the traffic violations bureau of its jurisdiction, and shall keep a record of every official action by the court or the traffic violations bureau of its jurisdiction in reference thereto, including, but not limited to, a record of every conviction, forfeiture of bail, judgment of acquittal and the amount of fine or forfeiture resulting from every traffic complaint, warrant, or citation deposited with or presented to the court or traffic violations bureau.” (emphasis added).

 

320.  Tennessee Code Annotated Section 55-10-306(b)(1) provides in pertinent part that: “[w]ithin thirty (30) days after the conviction . . . of a person upon a charge of violating any provision of chapter 8, parts 1-5 of this chapter . . . or other law regulating the operation of vehicles on highways, every such magistrate or judge of the court or clerk of the court of record in which such conviction was had . . . shall prepare and immediately forward to the department an abstract of the record of the court covering the case in which the person was so convicted . . . , which abstract must be certified by the person so required to prepare the same to be true and correct. . . .”

 

321.  Tennessee Code Annotated Section 55-10-306(e) provides that “[t]he department shall keep all abstracts received hereunder at its main office and the same shall be open to public inspection during reasonable business hours.” (emphasis added).

 

322.  Tennessee Code Annotated Section 55-10-307(a) provides in pertinent part that “[a]ny incorporated municipality may by ordinance adopt, by reference, any of the appropriate provisions of §§ 55-8-101 - 55-8-180, 55-10-101 - 55-10-310, 55-50-301, 55-50-302, 55-50-304, 55-50-305, 55-50-311, 55-10-312, and 55-12-139, and may by ordinance provide additional regulations for the operation of vehicles within the municipality, which shall not be in conflict with the provisions of such sections. . . .” (emphasis added).

 

323.  Tennessee Code Annotated Section 55-10-308 provides that: “[w]here §§ 55-8-101 - 55-8-180 and 55-10-101 - 55-10-310 apply to territory within the limits of a municipality, the primary responsibility for enforcing such sections shall be on the municipality which shall be further authorized to enforce such additional ordinances for the regulation of the operation of vehicles as it deems proper . . . .” (emphasis added).

 

324.  The emphasized word “additional” in Tennessee Code Annotated Sections 55-10-307 and 308 cannot mean merely adding ordinances so that there are more in number; rather, it must mean something like that which is already regulated plus additional or more stringent regulation or like greater degree of regulation, degree of punishment, level of criminal culpability, level of enforcement, and/or degree of protection.

 

325.  As an additional ordinance, the Ordinance violates Tennessee Code Annotated Section 55-10-308 because it is in conflict with the provisions of” certain provisions of sections 55-8-101 through 55-8-180, and 55-10-101 through 55-10-310 of the Tennessee Code Annotated.

 

326.  Tennessee Code Annotated Section 55-10-310 provides that: “Chapter 8, parts 1-5 of this chapter and § 55-12-139 shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact them.”

 

327.  The Ordinance is unenforceable, inter alia, because it decriminalizes red light running violations, and thereby violates Tennessee Code Annotated Section 55-10-310 because said decriminalization makes Knoxville and, to the extent the Ordinance is enforced, Tennessee, law, nonuniform when compared to states which have enacted Tennessee Code Annotated Chapter 8, parts 1-5, section 55-12-139.

 

328.  The Contract provides that the collection of fines for traffic violations will be conducted by Redflex, and Exhibit “D” of the Contract states that “Redflex will collect all payments on Citations and will deposit all payments into a lockbox account . . . .” Exhibit C.

 

329.  Under the Contract, the Processing Fee of $67.50 is initially paid to Redflex and then shared by the City and Redflex.

 

330.  In accord with the Redflex Contract, if the payment is received by the City of Knoxville, then the City must forward the entire payment to Redflex.

 

331.  On information and belief, the City of Knoxville never has control of payments made to Redflex until after deposit in the lockbox, with all such payments only being subject to administrative accounting by Redflex after deposit.

 

332.  On information and belief, the City places into the General Fund its portion of the fines obtained from citations which are not issued under the Ordinance.

 

333.  On information and belief the City does not place into the General Fund Fines and Fees which are paid to Redflex which Redflex has a right to under the Contract.

 

334.  On information and belief, Redflex maintains a lock box account which is subject to Defendant Knoxville review, but which Defendant City does not have control.

 

335.  On information and belief, Redflex receives the benefit of all interest which has been earned on all Fines, Fees, and other sums while held in the lockbox account.

 

336.  On information and belief, the Contract was entered into by Defendant City without following and at variance with the Ordinance, among other things, in a scheme to split fines or fees of the general fund with a third party to the general fund, requirement that all fines be deposited in the general fund.

 

337.  On information and belief, the Citation language supports the Plaintiff’s position that Defendants’ actions caused Plaintiff and other alleged violators to be presumed guilty, all without trial or opportunity to be heard, with Defendant Sullivan thereby becoming a de facto star chamber judge.

 

338.  The Contract expressly provides that the collection of fines for traffic violations will be conducted by Defendant Redflex. Exhibit “D” of the Redflex Contract states “Redflex will collect all payments on Citations and will deposit all payments into a lockbox account . . . .”

 

339.  On information and belief, the Contract violates Knoxville Code § 17-73, and in the lack of an enabling statute of the State, such deposit of funds is actually barred by existing ordinance, rendering the Contract void and unenforceable. See also Shavitz v. City of High Point, COA 05-571 (N. C. Ct. App. May 16, 2006) attached hereto at Exhibit F.

 

340.  Plaintiff has an expectation of privacy concerning Plaintiff’s personally identifiable financial and other personal and private information obtained from the Tennessee Department of Motor Vehicles, which information is displayed on the Violation, and freely shared by the City with Reflex and/or Unknown1 and/or Photonotice, with no contractual protections concerning the same being contained in Contract.

 

341.  On information and belief, Redflex Traffic Systems Inc., d/b/a www.photonotice.com, (hereinafter “Photonotice”) is owned or controlled by Defendant Redflex which is retaining, distributing, controlling access, of information obtained by Defendant Redflex and owned by Defendant Knoxville, where such privacy information is subject to intercept on the Internet, and such information is maintained in a manner in violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et. seq., as personally identifiable financial information is protected by the act, and Redflex or Photonotice is failing to implement adequate procedures to protect personally identifiable financial information.

 

342.  The Redflex Contract provides that the violation data is the property of the City however, that Redflex “shall not disclose Violation Data or privately disclose or use the Violations Data for any purposes whatsoever except as specified in [the Redflex Contract] without the prior written consent of the City, except for information that: (1) is or becomes generally available to the public through no fault of Redflex personal; or (2) is required to be disclosed by law or by a court of competent jurisdiction.” Exhibit C, Redflex Contract para. 1.4(C).

 

343.  In their answer (“Answer”), Defendants City, Council, and Sullivan (collectively, the “Municipal Defendants”), no less than 5 times,“expressly deny any allegation that they have ‘decriminalized’ any conduct which is a violation of state law,” yet directly controvert said denial by averring also in the Answer that the Plaintiff was issued a “civil citation.” (emphasis added).

 

344.  The Ordinance is invalid and unenforceable because it contravenes Tennessee Code Annotated Sections 55-8-103 and 55-10-301(a), which classify the moving violation known as a red light running violation as a “Class C misdemeanor,and the Ordinance contrariwise states that a red light running violation “shall not be considered a moving violation” and that “civil violators” shall only be punished by “civil penalty” which if unpaid may be enforced through a “civil action.”

 

345.  While in their Answer the Municipal Defendants repeatedly state that the Ordinance “speaks for itself” and deny any “inconsistent” allegations, they fail to discuss the unconstitutional and illegal aspects of the Ordinance as applied under their policies and customs of enforcement.

 

346.  While in their Answer the Municipal Defendants repeatedly state that the Ordinance “speaks for itself” and deny any “inconsistent” allegations, they fail to discuss the unconstitutional and illegal aspects of their actions and failures to act in implementing and enforcing the Ordinance and elements of the Program which are not embodied in the Ordinance, such as the unconstitutional and illegal language, terms, and threats contained in the Citation and Notice.

 

347.  In their Answer, the Municipal Defendants admit that all “Violations Date (sic)” as defined in the Contract “are City of Knoxville records” and that “certain specified records of the City are open for public inspection pursuant to the provisions of T.C.A. § 10-7-503,” yet they deny that “all records of the City are public records . . . open to public inspection.”

 

348.  In their Answer, the Municipal Defendants averred that the Citation “provided Plaintiff with notice of her right to a hearing” but they do not state that Plaintiff was served with process concerning the violation recited in the Citation. (emphasis added).

 

349.  The said notice did not constitute service of process for several reasons, including the fact that it was not personally served (whereas even citations for moving violations which are issued by police officers who personally observe violations are personally served).

 

350.  In their Answer, the Municipal Defendants “deny that Plaintiff is required to pay any fee to schedule a hearing to contest a citation.”

 

351.  The mere threat of the imposition or assessment of the Citation Processing Fee as a condition for even scheduling a hearing, which threat was set forth multiple times in the clear language of the Citation, is effectively the same thing as the actual imposition of the Citation Processing Fee, because based upon the threat and other misrepresentations of the Citation, Plaintiff, as intended by the Defendants, was led to believe that the Citation Processing Fee would be imposed and she would have had no way of knowing that the Citation Processing Fee would not have been imposed, if in fact it would not have been, if she had chosen Option C and scheduled a hearing.

 

352.  Because of the acts of the Defendants alleged herein, the Plaintiff suffered damages, including but not limited to, out of pocket costs, attorney fees, being subject to a civil suit for debt collection, possible credit rating impairment, emotional distress, embarrassment, humiliation, impairment of reputation, and other and similar things.

 

353.  All the damages suffered by the Plaintiff were in fact and proximately solely caused by the direct and conspiratorial acts and failures to act of the Defendants.

 

354.  Plaintiff had no duty to exhaust any administrative remedies prior to commencing this civil action, and any such alleged failure is not and cannot be a bar to her constitutional claims under 42 U.S.C. § 1983 and otherwise.

 

355.  All the Defendants, and especially Redflex, but excluding the City, can be and should be held liable for punitive damages due to their intentional acts which are alleged in this Amended Complaint, which among other things, deprived the Plaintiff of or interfered with the Plaintiff’s clearly established constitutional rights.

 

356.  While the Municipal Defendants in their Answer state that Plaintiff “failed to mitigate her damages,” they do not state that the Plaintiff was under a duty to do so, and while not conceding the existence of any duty or ability to mitigate, the Plaintiff did so mitigate by not choosing Option C (which Option C, but for the threat of the imposition of the Citation Processing Fee she desired to and would have availed herself of, because of her innocence) and thereby avoiding the imposition of the Citation Processing Fee for scheduling a hearing.

 

357.  As intended by the Defendants and as a result of their individual and conspiratorial acts under the Program and the policies and customs of the City, a Processing Fee was imposed upon the Plaintiff as a person innocent of any violation because she did not avail herself of: Option A due to her innocence; Option B due to its ostensible inapplicability; or Option C due to the threatened imposition of the Citation Processing Fee.

 

358.  If in fact it was the case, as the Municipal Defendants contend, that no fee was required or assessed in order to schedule a hearing to contest a citation, the mere threat of the imposition or assessment of the Citation Processing Fee as a condition for even scheduling a hearing, which threat was set forth multiple times in the clear language of the Citation, was sufficient to constitute interference with or deprivation of the Plaintiff’s right to access the courts; consequently, the Citation Processing Fee was illegally and unconstitutionally imposed or threatened to be imposed.

 

359.  The said threat and other unwritten and/or unlegislated elements of the Program, including but not limited to, the policies and customs of the City in implementing and operating the Program and administering the Ordinance, due to their obvious illegality, were not intended by any of the Defendants to be embodied in the Ordinance.

 

360.  In their Answer, the Municipal Defendants “deny that the subject [O]rdinance requires the payment of a ‘processing fee’ in order to contest a citation,” and while this is a true statement, the fact that such payment is required in the Citation shows that such fee was unconstitutionally and illegally imposed or threatened to be imposed, as well as the existence of the Program and policies of the Municipal Defendants which intentionally were not embodied in the Ordinance.

 

361.  In their Answer, the Municipal Defendants deny that the Ordinance requires the payment of any $67.50 amount “in order to have a hearing to contest the [C]itation,” and while this is may in fact be a true statement, the fact that such payment is required in the Citation shows that such fee was unconstitutionally and illegally imposed or threatened to be imposed and the existence of the Program and policies of the Municipal Defendants which intentionally were not embodied in the Ordinance.

 

362.  In their Answer, the Municipal Defendants repeatedly “expressly deny that a court processing fee is required or assessed in order to schedule a hearing to contest a citation.”

 

363.  If in fact it was the case that no Citation Processing Fee was required or assessed in order to schedule a hearing to contest a citation, the mere threat of the imposition or assessment of the Citation Processing Fee as a condition for even scheduling a hearing which was set forth multiple times in the clear language of the Citation, was sufficient to constitute interference with or deprivation of the Plaintiff’s right to access the courts and shows that such fee was unconstitutionally and illegally imposed or threatened to be imposed, as well as the existence of the Program and policies of the Municipal Defendants, which intentionally were not embodied in the Ordinance.

 

364.  With respect to all the allegations in this Amended Complaint concerning any aspect of the Program (which with respect to the Plaintiff, includes but is not limited to the Ordinance, Contract, Citation, Notice, and all actions taken by the Defendants under, in connection with, and pursuant to the Ordinance, Contract, Citation, Notice), all actions taken by any of the Defendants in furtherance of the Program or under the auspices thereof, constitutes a policy and custom of the City, especially with respect to those aspects of the Program and said actions taken by the Defendants in furtherance thereof which as alleged in this Amended Complaint are either illegal (as violating any positive law), unconstitutional, or are not embodied in or authorized by the Ordinance or any enabling act.

 

365.  Unless otherwise specifically set forth elsewhere in this Amended Complaint otherwise, all the allegations in this Amended Complaint concerning the unlawful and unconstitutional aspects of the Program, and all the allegations concerning unlawful and unconstitutional actions taken by Defendant the City constitute allegations of the City directly acting as a “state” actor.

 

366.  Unless otherwise specifically set forth elsewhere in this Amended Complaint otherwise, all the allegations in this Amended Complaint concerning the unlawful and unconstitutional aspects of the Program, and all the allegations concerning unlawful and unconstitutional actions taken by Defendant the City, constitute direct, and not derivative or vicarious, state actions in violation of the rights of the Plaintiff and of the positive laws and constitutions of the United States and the State of Tennessee.

 

367.  Unless otherwise specifically set forth elsewhere in this Amended Complaint, all the allegations in this Amended Complaint concerning any actions taken by Defendant Redflex under the Contract or in connection with, or pursuant to, City police, welfare, enforcement, safety, financial, and other governmental and other functions which the City abdicated or delegated to Redflex in connection with the Contract, Program, Ordinance, Citation, Notice, and otherwise, constitute allegations of direct, and not derivative or vicarious, violations of the rights of the Plaintiff and of the positive laws and constitutions of the United States and the State of Tennessee by Redflex acting as a state actor in the form of an agent and/or extension of the City by performing direct or quasi-governmental functions, notwithstanding the Municipal Defendants in their Answer admitting that Redflex is a “private company.”

 

368.  The illegal and unconstitutional acts of the Defendants which are set forth herein and which are not authorized by any ordinance, statute, or constitution, which fail to provide sufficient notice of what is prohibited to the Plaintiff, and/or which fail to provide minimal guidelines to govern law enforcement in making determinations as to whether the Plaintiff violated the Ordinance, also violate substantive due process guarantees under the constitutions of the Untied States and Tennessee, in that they are arbitrary, or conscience shocking in a constitutional sense.

 

369.  The illegal and unconstitutional acts of the Defendants which are set forth herein also violate the separation of powers doctrine contained in article II, sections 1 and 2, of Tennessee’s Constitution, which provides in pertinent part that “[t]he powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial” and that “[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others,” in that the Ordinance facially frustrates or interferes with the adjudicative function of the courts and therefore constitutes an unconstitutional encroachment upon the judicial branch of government by the legislative branch, and in that the Program and the Ordinance, as applied, frustrate or interfere with the legislative function of the Council and therefore constitute an unconstitutional encroachment upon the legislative branch of government by the executive branch and also frustrate or interfere with the adjudicative function of the courts and therefore constitute unconstitutional encroachments upon the judicial branch of the government by the executive branch.

 

370.  The illegal and unconstitutional acts of the Defendants which are set forth herein also violate the equal protection guarantee in article XI, section 8, of Tennessee’s Constitution, which provides that the “[l]egislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie [sic] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law,” in that the Council made the Ordinance which the Mayor signed into law, which Ordinance suspended the general laws (i.e., the Tennessee Code Annotated, the Tennessee Rules of Evidence, and the Knoxville Code of Ordinances) concerning red light running violations, due process, service of process, the rules of evidence, and other things, all for the benefit of Redflex and the City (at the expense of the civil rights, protections, and privileges and immunities of all the citizens and residents of Tennessee and the United States, and any other person receiving a citation), which Ordinance is inconsistent with the general laws (i.e., the Tennessee Code Annotated, the Tennessee Rules of Evidence, and the Knoxville Code of Ordinances) and was passed for the benefit of Redflex and the City (at the expense of the civil rights, protections, and privileges and immunities of all the citizens and residents of Tennessee and the United States, and any other person receiving a citation) which Ordinance otherwise violates article XI, section 8, of Tennessee’s Constitution.

 

371.  Notably, nowhere in their Answer do the Municipal Defendants state, assert or aver any legal authority for the City’s actions which are alleged in the Complaint and this Amended Complaint to be illegal and unconstitutional.

 

372.  Both in name and in fact, the Program is the City’s.

 

373.  That the City’s illegal abdication and delegation of its core governmental police, safety, and other functions, was motivated by its desire to have a turnkey automated enforcement system which would provide it with easy money for little effort is evidenced by the fact that the City would, under the Contract, receive only a very low effective percentage of the Program’s revenues for normally expected volume ranges, the fact that the Contract recites that the City wanted an “automated” red light enforcement system and that the proposal of Redflex to provide the same was “most responsive” to the “needs of the City,” and the fact that as the Municipal Defendants admit in their Answer Council “enacted an ordinance entitled ‘“Automated Enforcement.’”

 

374.  This turnkey easy-money perspective of the City helps to explain why the Defendants, motivated by money, acted illegally and unconstitutionally, by, among other things, abdicating and delegating to Redflex, which the Municipal Defendants admit is a “private company,” its core governmental police, safety, and other functions.

 

375.  The Municipal Defendants in their Answer, admit that the Contract “provides an economic benefit both to the City and Redflex.”

 

376.  The Municipal Defendants in their Answer admit that Defendant Sullivan “was not personally present at the time of Plaintiff’s violation.”

 

377.  The admission made by the Municipal Defendants in their Answer that Defendant Sullivan “issued a citation” to the Plaintiff, is factually untrue, as it is the case that Redflex was obligated under the Contract to “print and mail” the Citation, and that Redflex did in fact issue the Citation.

 

378.  While the Municipal Defendants in their Answer “admit that moving violations data is reported to the State of Tennessee in accordance with state law,” they fail to state whether they classify as a moving violation the putative violation of the Plaintiff which gave rise to the Citation, whether such violation must be reported to the State of Tennessee in accordance with law, or even whether such violation was in fact reported to the State of Tennessee.

 

379.  The Plaintiff seeks damages and/or sanctions against the Municipal Defendants for having to respond to their knowingly false and obfuscatory answers.

 

380.  Contrary to the Answer of the Municipal Defendants, the Plaintiff’s due process and other civil rights which are alleged herein to have been violated by the Defendants and to be actionable under 42 U.S.C. § 1983, are long and clearly established fundamental rights under, among other cases: Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Harrison v. Springdale Water & Sewer Commission, 780 F.2d 1422, 1427 (8th Cir.1986); Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir.1979); McCray v. Maryland, 456 F.2d 1, 6 (4th Cir.1972); and Harris v. Pate, 440 F.2d 315, 317 (7th Cir.1971).

381.  Contrary to the Answer of the Municipal Defendants, interference with or deprivation of the right of access to the courts is actionable under § 1983. See e.g., Graham v. National Collegiate Athletic Ass’n, 804 F.2d 953, 978 (6th Cir. 1986); Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983).

 

382.  The Tennessee Public Records Act, Tenn. Code Ann. § 10-7-503 et seq., which governs the right of access to the records of government agencies in Tennessee and thereby promotes government accountability to the people through public oversight of governmental activities, provides in pertinent part that “[a]ll municipal records . . . shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee . . . .” to the extent that said records were “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.”

 

383.  The Tennessee Public Records Act applies to records “made or received” by Redflex pursuant to the Ordinance or in connection with the transaction of official business under the Contract, the policies and customs of the City, and the Program, notwithstanding that Redflex is a private, for-profit corporation, because Redflex operates as the functional equivalent of the City by providing to the City “contracted out” police and other services which are undeniably public in nature, and because Redflex performs a City police function in return for which the City provides Redflex with an exceptionally high level of government funding, and because of the significant level of City involvement with the administration of the Ordinance and the operation of the Program under the Contract.

 

384.  Defendants Redflex and the City acknowledged the existence and applicability of the Tennessee Public Records Act in two places in the Contract, providing in pertinent part, among other things, that “Confidential Information will not include information that . . . was required by applicable state law to be disclosed, specifically including The Tennessee Public Records Act . . .”

 

385.  While Defendants Redflex and the City went to great lengths in the Contract to protect each other’s confidential information and proprietary interests, no protections whatsoever were provided to protect the private information of violators; indeed, the City violated the privacy of the potential violators by disclosing and providing their private information to Redflex which information was and could only be obtained from the Tennessee Department of Motor Vehicles and by agreeing in the Contract to be obligated to provide such information to Redflex.

 

386.  Concerning the Processing Fee and/or the Citation Processing Fee which in substance are penalties and which not set forth in full in the Ordinance, the Ordinance, Program, Citation, Notice, and acts and customs and policies of the Defendants in imposing those fees violate Section 6-54-504 of the Tennessee Code Annotated, which provides that “[n]tohing contained in this part shall be deemed to permit the adoption of penalty clauses by reference that may be established in the code or public record that is being incorporated by reference, and such penalty clauses shall set forth in full in the adopting ordinances and be published along with and in the same manner as the adopting ordinance is required to be published.”

 

387.  The Contract specifies that Redflex will be paid “20% of all late fees received by Redflex (which under the Contract and in operation equates to all late fees).” (emphasis added).

 

388.  Because no “late fees” are fixed in or authorized in the Ordinance (or any other ordinance), and what Redflex in the Notice is attempting to collect is the Processing Fee, which is a “processing” fee, the debt that Redflex is attempting to collect is known by Redflex to be, and in fact is, a fictional debt.

 

389.  Because what was imposed upon the Plaintiff was a Processing Fee, which is a “processing” fee, Redflex has no right to any portion of the Plaintiff’s or any other Processing Fee.

 

390.  As further evidence of its unlawful abdication and delegation of its core governmental duties, the City, through its employee Darrell DeBusk, admitted that Redflex, rather than the City, was going to “determine what intersections they will be in.” Exhibit G.

 

391.  As further evidence of the City’s unlawful abdication and delegation of its core governmental duties, the parent company of Redflex, Redflex Holdings Limited, in a press release made to the Australian Stock Exchange, described the Contract as one under which Redflex would “build-own-operate-maintain” a “red light photo enforcement program.” (emphasis added). Exhibit D.

    




 

CAUSES OF ACTION

SECTION 1983

(Access to the Courts, Right to Petition, and Due Process)

392.  Plaintiff adopts and restates the previous paragraphs.

393.  Plaintiff is a member of the class the statute, 42 U.S.C. § 1983, was enacted to protect.

394.  Defendants acted under the color of law to deprive Plaintiff, and the public, of a right secured by the Constitution or laws of the United States.

395.  Agents of Defendants, and or Defendants, while acting under color of law, did violate Plaintiff’s Constitutional Rights, and that Defendant City policy, custom, ordinance, and policy of inaction was the moving force behind the violation.

396.  That each specific Defendant did participate in the harm suffered by Plaintiff.

397.  Plaintiff suffered damage to her right to access the courts, her right to petition, and suffered a denial of due process.

398.  Defendants individually, or collectively, did agree, contribute, or participate in the damages suffered by Plaintiff.

399.  Defendant Redflex exercises powers, delegated by contract, which are traditionally exclusively reserved to Defendant City.

400.  Defendant Redflex did in cooperation or concerted action participate in the deprivation of Plaintiff’s rights.

401.  Plaintiff suffered damages for harm to reputation in the community, humiliation, fright, shame, embarrassment, anger, chagrin, disappointment, and worry.

402.  Plaintiff claims that the Defendants must disgorge themselves of the unconstitutionally obtained funds and return the money to the parties from whom Defendants, using unconstitutional practices, did seize the money, and that her attorneys be compensated in accord with the common fund doctrine for the benefit accruing to the beneficiaries of the litigation.

403.  Plaintiff claims damages for the denial of proper access to the Court to defend herself, in the amount of $1,000,000.00, punitive damages in an amount to be determined at trail, and her attorney fees, available under 42 U.S.C. § 1988.

SECTION 1983 CIVIL CONSPIRACY

404.  Plaintiff adopts and restates the previous paragraphs.

405.  A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.

406.  Defendants in agreement engaged in a single plan, that the Defendants shared in the general conspiratorial objective, and that overt acts caused injury to the Plaintiff.

407.  Defendant Redflex exercises powers which are traditionally and by operation of law exclusively reserved to Defendant City.

408.  The private defendants jointly engaged with state officials in a deprivation of civil rights.

409.  Defendant Redflex did in cooperation or concerted action participate in the depravation of Plaintiffs rights.

410.  Plaintiff claims that the Defendants must disgorge themselves of the unconstitutionally obtained funds and return the money to the parties from whom Defendants, using unconstitutional practices, did seize the money, and that her attorneys be compensated in accord with the common fund doctrine for the benefit accruing to the beneficiaries of the litigation.

411.  Plaintiff claims damages for the denial of proper access to the Court to defend herself, in the amount of $1,000,000.00, punitive damages in an amount to be determined at trail, and her attorney fees, available under 42 U.S.C. § 1988.

SECTION 1983

(Injunction)

412.  Plaintiff adopts and restates the previous paragraphs.

413.  The injury to the Plaintiff is capable of repeating and therefore an injunction to order Defendants to cease acting in a manner which violates Constitutional guarantees of due process is necessary.

414.  Plaintiff seeks temporary and permanent injunctions to suspend enforcement of Knoxville Code § 17-210.

415.  Plaintiff claims her attorney fees, available under 42 U.S.C. § 1988.

VIOLATION OF THE UNITED STATES CONSTITUTION

416.  Plaintiff adopts and restates the previous paragraphs and in addition states.

417.  Plaintiff is a citizen of the United States, protected by the rights and privileges available and granted under the United States Constitution.

418.  Defendants did enact an ordinance which is unconstitutionally vague, which fails to provide appropriate legal notice of the act in which Plaintiff is not to engage, and without police standards necessary for the enforcement.

419.  Plaintiff claims damages in the amount of $1,000,000.00, and punitive damages in an amount to be determined at trail.

VIOLATION OF FAIR DEBT COLLECTION PRACTICES ACT

420.  Plaintiff adopts and restates the previous paragraphs and in addition states.

421.  Plaintiff suffered damage when Defendants demanded sums not authorized by any statute or law and the demand is couched in terms of an enforceable debt.

422.  Plaintiff suffered damages when Defendants demanded payment of an unconstitutional $50.00 fine.

423.  Plaintiff suffered damages when Defendants demanded payment of a “processing fee of $67.50” not authorized in any manner and which is fraudulent.

424.  Defendant Redflex, for its own purpose drafted the demand for payment of a “processing fee of $67.50” not authorized in any manner, for its own enrichment.

425.  Defendant Redflex and Defendant City intend to benefit from the fraudulent charge.

426.  Plaintiff demands her statutory damages for the violation of the FDCPA and her attorney fees, 15 U.S.C. § 1692(k).



 

STATE CLAIMS

VIOLATION OF THE STATE OF TENNESSEE CONSTITUTION

427.  Plaintiff adopts and restates the previous paragraphs and in addition states.

428.  Plaintiff is a citizen of the State of Tennessee, protected by the rights and privileges available and granted under the State of Tennessee Constitution.

429.  Defendants did enact an ordinance which is unconstitutionally vague, which fails to provide appropriate legal notice of the act in which Plaintiff is not to engage, without police standards necessary for enforcement.

430.  Plaintiff claims damages in the amount of $1,000,000.00, and punitive damages in an amount to be determined at trail.

STATE CLAIM - OPEN RECORDS ACT

431.  Plaintiff adopts and restates the previous paragraphs.

432.  On information and belief, the records of the City of Knoxville are records which are available for public inspection, Tenn. Code. Ann. § 10-7-503.

433.  On information and belief, Defendant Redflex, is a quasi-governmental agency within the meaning of Memphis Publishing Co. v. Cherokee Children & Family Services, Inc., 87 S.W.3d 67, 78 (Tenn. 2002). Footnote

434.  On information and belief, the Violation Data of the automated red light enforcement program are City of Knoxville records and Defendant Redflex retains possession, control, and access to the Violation Data of the automated red light enforcement program.

435.  The Redflex Contract provides that the violation data is the property of the City however, that Defendant Redflex “shall not disclose Violation Data or privately disclose or use the Violations Data for any purposes whatsoever except as specified in [the Redflex Contract] without the prior written consent of the City, except for information that: (1) is or becomes generally available to the public through no fault of Redflex personal; or (2) is required to be disclosed by law or by a court of competent jurisdiction.” Exhibit C, Redflex Contract para. 1.4(C).

436.  Defendant Redflex has delegated, internally or contractually to Defendant Photonotice, its response to Plaintiff request to view her images using the method, the only method, provided in the citation, and such set of images are a redacted set without a manner to copy or retain the images.

437.  The Defendant City has violated the statutory intent of Tenn. Code. Ann. § 10-7-503 when the City entered a contract which limits public access to traffic enforcement records and requires that persons seeking access to Violation Data obtain written approval for such public review of the data.

438.  The intentional violation of the Open Records Act is apparent as this provision appears to agree with the Knoxville Code requirement that no reporting of violations to the Tennessee Department of Safety shall occur. Knoxville Code § 17-210.

439.  The safety of the public is adversely impacted by this violation of the Tennessee Open Records act as automobile insurance companies should be able to access the Violations Data to determine which drivers are operating vehicles in an inappropriate manner and adjust their insurance rate accordingly, all of which protects or furthers protection of the public.

440.  Such contract is void as against the Tenn. Code. Ann. § 10-7-503, and the decisions of the Tennessee Supreme Court which has held that private companies which assume governmental function are subject to the provisions of the act.

441.  Plaintiff sought to review her records and such records have been redacted in an impermissible manner.

442.  That redaction of the images is a violation of the Open Records Act.

443.  That the intentional failure to provide a method to copy the images is a violation of the Open Records Act.

444.  Plaintiff seeks an injunction barring Defendant Redflex and Defendant City from enforcement of the offensive contractual provision, and which directs said Defendants to obey the law, Tenn. Code. Ann. § 10-7-503, and an order declaring that the contractual provision to limit access to the citations is a violation of the Open Records Act and therefore unenforceable.

445.  Plaintiff seeks her attorney fees, available under the statute.

STATE CLAIM - FRAUD

446.  Plaintiff adopts and restates the previous paragraphs.

447.  Plaintiff suffered damage when Defendants demanded sums not authorized by any statute or law and the demand is couched in terms of an enforceable debt.

448.  Plaintiff suffered damages when Defendants demanded payment of an unconstitutional $50.00 fine.

449.  Plaintiff suffered damages when Defendants demanded payment of a “processing fee of $67.50” not authorized in any manner and which is fraudulent.

450.  Defendant Redflex, for its own purpose drafted the demand for payment of a “processing fee of $67.50” not authorized in any manner, for its own enrichment.

451.  Defendant Redflex and Defendant City intend to benefit from the fraudulent charge.

452.  Plaintiff claims special damages in the amount of $117.50, damages in the amount $1,000,000.00, and punitive damages in an amount to be determined at trail.

453.  Defendant Redflex and Defendant City be joint and severally liable for the damages.

STATE CLAIM - CONSPIRACY

454.  Plaintiff adopts and restates the previous paragraphs

455.  Plaintiff suffered damage when Defendants demanded sums not authorized by any statute or law and the demand is couched in terms of an enforceable debt.

456.  Plaintiff suffered damages when Defendants demanded payment of an unconstitutional $50.00 fine.

457.  Plaintiff suffered damages when Defendants demanded payment of a “processing fee of $67.50” not authorized in any manner and which is fraudulent.

458.  Defendant Redflex, for its own purpose drafted the demand for payment of a “processing fee of $67.50” not authorized in any manner, for its own enrichment.

459.  Defendant Redflex and Defendant City intend to benefit from the fraudulent charge.

460.  Defendants intended to deprive Plaintiff of her rights protected by law in order to obtain illegal or unauthorized sums.

461.  Defendants Bernard, Catlett, and Sullivan participated in the fraudulent scheme to obtain charges and fees illegal on their own terms.

462.  Defendants in agreement engaged in a single plan, shared in the general conspiratorial objective, and the overt acts caused injury to the Plaintiff.

463.  Plaintiff claims special damages in the amount of $117.50, damages in the amount $1,000,000.00, and punitive damages in an amount to be determined at trail.

464.  Defendants be joint and severally liable for the damages.

STATE CLAIM - REDFLEX

465.  Plaintiff adopts and restates the previous paragraphs

466.  Plaintiff suffered damage when Defendant Redflex agent, Defendant Bernard, did cause to be drafted citations and default notices which demand processing fees not authorized.

467.  Defendant Redflex owes a duty of care toward Defendant City to properly draft Citations and Default Notices, in accord with the Contract, and that Plaintiff is an intended recipient of the drafted documents.

468.  Defendant Redflex breached the duty of care toward Defendant City, and that Plaintiff is an intended beneficiary of the care taken by Defendant Redflex.

469.  Defendant Redflex acts, and/or failure to act, are the actual and proximate cause of the injury suffered by Plaintiff.

470.  Defendant Bernard acted in furtherance of his employer’s interest.

471.  Defendant Redflex is liable for the acts of Defendant Bernard.

472.  Defendant Redflex knew or should have known that intersections fail to comply with the standards of 23 CFR 655 and failed to take any step to inform the City of Knoxville.

473.  Defendant Redflex benefitted financially from the failure to inform the public or the City of Knoxville of the violations of 23 CFR 655.

474.  Defendant Redflex, by contracting to assist the City of Knoxville in the establishment of a photo enforcement program, and actually assisting the City of Knoxville, accepted a duty to the public to protect the public from the potential abuse to which a photo citation system is subject, and Defendant Redflex failed in the duty to prevent abuse of the photo citation system.

475.  Plaintiff claims special damages in the amount of $117.50, damages in the amount $1,000,000.00, and punitive damages in an amount to be determined at trail.

476.  Defendants be joint and severally liable for the damages.

STATE CLAIM - MUNICIPAL DEFENDANTS

477.  Plaintiff adopts and restates the previous paragraphs

478.  Plaintiff suffered damage when Defendant City agents, Defendant Sullivan and Defendant Catlett, authorized Citations and Default Notices created by Defendant Redflex which demand payments for unauthorized charges.

479.  Defendant Sullivan and Defendant Catlett were negligent in their duty to review draft Citations and Default Notices, in accord with the Contract, and that Plaintiff is an intended recipient of the drafted documents.

480.  Defendant City breached the duty of care toward Plaintiff to properly train, supervise, and control its officers.

481.  Defendant Sullivan’s and Defendant Catlett’s acts, and/or failure to act, are the actual and proximate cause of the injury suffered by Plaintiff.

482.  Defendant Haslam entered into the Contract resulting from a determination of preexisting laws, regulations, policies, or standard and performed an operational act.

483.  Defendant Haslam failed to ensure that the Contract properly limited Defendant Redflex demands for payment from Plaintiff.

484.  Defendant Haslam failed to impliment plans and procedures to monitor the Contract and to ensure compliance with the law.

485.  Defendant Haslam intentionally entered into the Contract with provisions in violation of various statutes.

486.  Plaintiff claims that any harm allocated between the Municipal Defendants, in accord with the Tennessee comparative fault doctrine, should be borne by Defendant City.

487.  Plaintiff claims special damages in the amount of $117.50, damages in the amount $1,000,000.00, and punitive damages in an amount to be determined at trail.

STATE CLAIM - VOID CONTRACT

488.  Plaintiff adopts and restates the previous paragraphs

489.  Defendant Redflex and Defendant City have entered into an impermissible contract which allows for the sharing of fines.

490.  Defendant City has no statutory authority to enter into a revenue sharing contract.

491.  Defendant City is without the authority to decriminalize any criminal statute of the State of Tennessee.

492.  Defendant City is without the authority to re-characterized behavior in an attempt to avoid the already criminally sanctioned behavior to avoid the protects provided to citizens of the State of Tennessee.

493.  The Contract is an ultra-vires and an attempt by Defendant City to delegate a duty which can not be delegated under Tennessee law.

494.  Plaintiff claims that she has been harmed by the existence of the contract as the events which she claims to have damaged her are the reasonablely foreseeable outcome of a revenue sharing scheme.

495.  Plaintiff seeks a declaratory judgment that the Contract is a void contract and which orders Defendant City and Defendant Redflex return the sums demanded illegally be returned to the original owner of the sums.

496.  Plaintiff claims that the Defendants must disgorge themselves of the unconstitutionally obtained funds and return the money to the parties from whom Defendants, using unconstitutional practices, did seize the money, and that her attorneys be compensated in accord with the common fund doctrine for the benefit accruing to the beneficiaries of the litigation.


 

WHEREFORE, Plaintiff prays:

A.     That service of process be issued and that Defendants be ordered to appear and answer this complaint.

B.     That Plaintiff elect her remedy where appropriate, as previously plead.

C.     That a jury of 12 hear this matter and that such jury trial not be tainted by any press release by Defendants.

D.     That a temporary injunction and a permanent injunction be granted against Defendant City of Knoxville to bar enforcement of Knoxville Code Sec. 17-210, by any officer of the law until such time as the Constitutional infirmities of the ordinance are removed.

E.     That a permanent injunction be granted against Defendant City of Knoxville, Defendant Redflex, and Defendant Photonotice until the contract and conduct of the parties conforms to the requirements of the Tennessee Open Records Act.

F.     That the contract between Defendant City of Knoxville and Defendant Redflex be declared ultra vires and therefore void and that Defendant Redflex abandon all efforts to collect any sum due, of any party.

G.     Plaintiff claims that the Defendants must disgorge themselves of the obtained funds and return the money to the parties from whom Defendants using unconstitutional practices did seize the money from, and that her attorneys be compensated in accord with the common fund doctrine for the benefit accruing to the beneficiaries of the litigation.

H.     Plaintiff demands expungement of any demand for payment of fee, fine, or charge of any form whatsoever demanded by any of the Defendants, assessed but unpaid.

I.      That Plaintiff be reimbursed for costs, expenses, and attorney fees, as appropriate upon her election of remedy.

J.      That Plaintiff be granted such further and general relief to which she is entitled.

         Respectfully submitted, December 18, 2006 


 

s/ David B. Hamilton
_______________________________________
DAVID B. HAMILTON (020783)
Attorney for Plaintiff
1810 Merchant Drive, Ste. 1
Knoxville, TN 37912
865.219.9250
                                                                      



 

CERTIFICATE OF SERVICE

         I certify that on December 18, 2006, a true and correct copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served via US Mail, First Class, Prepaid. Parties may access this filing through the Court’s electronic filing system.


 

s/ David B. Hamilton
_______________________________________
DAVID B. HAMILTON (020783)
Attorney for Plaintiff
1810 Merchant Drive, Ste. 1
Knoxville, TN 37912
865.219.9250

 



 

 

|Welcome to the Law Office| |About David B. Hamilton| |Practice Areas| |Directions| |Quick Map| |Internet Links| |Privacy Policy| |Other| |Other|