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Red Light Suit St Louis

Red Light Suit St Louis

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class action lawsuit, ATS, Russell Watters, constitutional law, red-light cameras, Missouri, St. Louis
class action lawsuit, ATS, Russell Watters, constitutional law, red-light cameras, Missouri, St. Louis

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05/11/2014

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IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI ALEXA SMITH, J.

TIMOTHY and BELLE KEANE, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF SAINT LOUIS, Serve: Francis G. Slay Mayor, City of St. Louis City Hall, Room 200 1200 Market Street St. Louis, MO 63103 JURY TRIAL DEMANDED

Case No. 0922-CC10285 Div.

Defendant.

FIRST AMENDED CLASS ACTION PETITION Plaintiffs Alexa Smith, J. Timothy and Belle Keane (“Plaintiffs”) bring this action on behalf of themselves and all others similarly situated, and pursuant to Rule 55.33(a) of the Missouri Rules of Civil Procedure do file this First Amended Class Action Petition against the City of Saint Louis (“Defendant”), and state and allege as follows: 1. This action is brought by Plaintiffs on behalf of themselves and a proposed class of

individuals defined as all Missouri citizens who received a Notice of Violation, pursuant to Ordinance 66868 § 4, 2005, as codified in the St. Louis City Revised Code Chapter 17.07.040, and Ordinance 57831 § 1 (part), 1979: 1960 C. § 823.110(b), as codified in Chapter 17.08.130 (hereinafter the “Notice of Violation”) and paid the requisite fine, imposed as punishment by the

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Notice of Violation, to Defendant from the date the first Notice of Violation was issued until the date this class is certified by the Court. 2. 3. 4. Plaintiffs reside in the State of Missouri and are Missouri citizens. Defendant is an independent city operating under the laws of the State of Missouri. Defendant is also a governmental entity that is responsible for issuing and enforcing

traffic citations pursuant to the St. Louis City Revised Code. 5. Defendant, through its Board of Aldermen, was responsible for passing the

ordinances at issue in this action, and was also responsible for codifying them into the St. Louis City Revised Code. 6. This action is brought by Missouri Citizens against Defendant to recover for Plaintiffs

and for all others similarly situated (hereinafter “Class” or “the proposed Class”) the amount of the fines imposed pursuant to the Notice of Violation. 7. Plaintiffs and Class are residents of the State of Missouri who received citations via

mail for violating 17.07.040 and 17.08.130, as referenced in the Notice of Violation. 8. These traffic citations reference 17.07.040, which creates a presumption of guilt by

reason of ownership of the vehicle identified in the Notice of Violation and thereby shifts the burden onto the owner of the vehicle to provide proof that they were not driving the vehicle at the time of the offense. 9. Plaintiffs and Class contend that it is unlawful under Missouri law for Defendant to

impose fines pursuant to the Notice of Violation, and specifically St. Louis City Ordinance 66868 (the “Ordinance”), because the Ordinance and its prosecution violates constitutional and equitable rights of Plaintiffs and Class.

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10.

Plaintiffs and Class further contend that Defendant is legally obligated to refund to

Plaintiffs and Class all fines paid pursuant to the Ordinance, and pre-judgment and postjudgment interest, punitive damages, and reasonable costs. 11. For the reasons stated in more detail below, this case is properly brought as a Class

Action represented by Plaintiffs. 12. All relevant conduct giving rise to this action took place in the City of St. Louis, State

of Missouri; thus this Court has jurisdiction over this action and the parties. 13. 14. The named Plaintiffs were issued a Notice of Violation and paid the requisite fine. Defendant arbitrarily collected from Plaintiffs, pursuant to the Notice of Violation, a

fine in the amount of $100.00 as punishment under the Ordinance. 15. Defendant enacted Chapter 17.07, titled Automated Traffic Control System (ATCS).

As enacted, the ATCS states: 17.07.010 Definitions. As used in this chapter the following terms mean: A. "Automated traffic control system" means a system consisting of devices with one or more motor vehicle sensors working in conjunction with traffic control signals to automatically produce photographs, micrographs, a videotape or other recorded images of motor vehicles entering an intersection in violation of red traffic signal indications or otherwise violating City of St. Louis traffic control ordinances. B. "Automated traffic control system records" means photographs, micrographs, videotape or other recorded images of motor vehicles entering an intersection in violation of red traffic signal indications or otherwise violating City of St. Louis traffic control ordinances. C. "Owner" means the registered owner of a motor vehicle, or a lessee of a motor vehicle under a lease of six months or more as shown by the records of the State Department of Revenue. (Ord. 66868 § 1, 2005.)

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17.07.020 State requirements. Any automated traffic control system or any device which is part thereof installed or deployed on a street or highway in the City of St. Louis shall meet any applicable requirements established by the State of Missouri. (Ord. 66868 § 2, 2005.) 17.07.030 Installation. The installation of an automated traffic control system in the City by or under the supervision of the Traffic Commissioner is hereby authorized. Devices which are part of the automated traffic control systems may be installed at intersections or other locations identified by the Police Department as dangerous due to numerous traffic control ordinance violations. Such installation is authorized where any contract for installation of, and operational and administrative tasks associated with the use of, one or more automated traffic control systems exists with either the City or the Police Board. (Ord. 66868 § 3, 2005.) 17.07.040 Traffic violation. In a prosecution for a violation of the Traffic Code Ordinance as codified in Title 17 of the Revised Code of the City of St. Louis based on an automated traffic control system record: A. If the City proves: 1. That a motor vehicle was being operated or used; 2. That the operation or use of the motor vehicle was in violation of Traffic Code Ordinance as codified in Title 17 of the Revised Code; and 3. That the defendant is the owner of the motor vehicle in question, then: B. A rebuttable presumption exists that such owner of a motor vehicle operated or used in violation of the Traffic Code Ordinance as codified in Title 17 of the Revised Code was the operator of the vehicle at the time and place the violation was captured by the automated traffic control system record. (Ord. 66868 § 4, 2005.) 17.07.050 Summons.

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In a prosecution for a violation of the Traffic Code Ordinance as codified in Title 17 of the Revised Code of the City of St. Louis based on an automated traffic control system record: A. Upon the filing of an information in the municipal court, the Court Clerk shall issue a summons, with a court date, pursuant to Missouri Supreme Court Rules 37.42 through 37.44. Not later than sixty (60) days after the date the violation is alleged to have occurred, the summons shall be served on the owner by mailing it, together with: 1. A copy of the violation notice; 2. A copy of the recorded image(s) of the alleged violation, which forms the basis of the information; and 3. A copy of the supplemental violation notice as described in subsection B of this section, to the owner’s last known address by first class mail. B. The supplemental violation notice shall contain, at a minimum, the following information: 1. A statement that the automated traffic control system record will be submitted as evidence in the municipal court proceeding for prosecution of the violation of the Traffic Code Ordinance as codified in Title 17, Revised Code of the City of St. Louis; and 2. A statement that, if at the time and place of the violation, the motor vehicle was being operated by a person other than the owner, or the vehicle or the license plate captured by the automated traffic control system record was stolen, the owner may submit information to that effect by affidavit, on a form provided by the City, prior to the municipal court proceeding, or under oath at the municipal court proceeding. If an owner furnishes satisfactory evidence pursuant to this paragraph, the City Court or City Counselor’s office may terminate the prosecution of the citation issued to the owner, and, if appropriate, issue a citation to a person clearly identified in the evidence as the operator of the motor vehicle at the time of the violation. C. A violation notice and summons mailed under this section is presumed to have been received by the owner on the fifth (5th) day after the date the violation notice is mailed. (Ord. 66868 § 5, 2005.) 17.07.060 Advance warning signs.

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Any automated traffic control system on a street or highway must be identified by appropriate advance warning signs conspicuously posted either at the major roadways entering the city, or not more than three hundred feet from the location of the automated traffic control system location. All advance warning signs must be approved by the Traffic Commissioner. (Ord. 66868 § 6, 2005.) 16. Defendant also enacted ordinance 57831 § 1 (part), 1979: 1960 C. § 823.110(b), as

codified in St. Louis City Revised Code Chapter 17.08.130, and titled Traffic-control signal colors–Steady red indication. As enacted, Chapter 17.08.130 states:

Vehicular traffic facing a steady red signal alone shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection and shall remain standing until an indication to proceed is shown. After stopping, a driver may cautiously enter the intersection only to make a right turn unless a sign at such place prohibits such movement and shall yield the right-of-way to pedestrians lawfully within the adjacent crosswalks, and to all other traffic lawfully in the intersection or about to enter the intersection. (Ord. 57831 § 1 (part), 1979: 1960 C. § 823.110(b).) 17. The penalty provision for violating any ordinance within Division I of Title 17 of the

St. Louis City Revised Code, which includes the ordinances cited in the Notice of Violation, is contained in Chapter 17.40.020 (hereinafter the “Penalty Provision”). As enacted, the Penalty Provision states: Any person convicted of a violation of this division shall be punished by a fine of not more than five hundred dollars ($500.00) or imprisonment for not more than 90 days in jail or both such fine and imprisonment. (Ord. 57831 § 1 (part), 1979: 1960 C. § 839.020.) 18. The Penalty Provision contains a clause authorizing imprisonment and fines, which

clearly indicates the Ordinance is criminal in nature. 19. The Notice of Violation and/or the supplemental violation notice states “if you fail to

pay by the due date on the front of this notice or you fail to appear in court on your court date, further legal action may be taken against you by the City of St. Louis.” 6

20.

Therefore, Plaintiffs and Class were led to believe that failure to pay the $100 fine

could very well result in imprisonment for up to 90 days in jail. 21. Because the Penalty Provision applies to the prosecution of violations of the

Ordinance, Defendant violated the constitutional rights of Plaintiffs and Class by prosecuting them under an Ordinance that shifts the burden of proof onto the accused, forces selfincrimination in order to prove innocence and fails to afford adequate due process protections. 22. 23. Under Missouri law, violations of municipal ordinances are quasi-criminal in nature. Since this case concerns an alleged violation of a quasi-criminal municipal ordinance,

which has a penalty including imprisonment, a Missouri court must apply the criminal standard of proof; therefore, Defendant was obligated by law to prove the guilt of Plaintiffs and Class beyond a reasonable doubt. 24. Because municipal ordinances are quasi-criminal in nature, the burden of proof must

rest solely upon the City especially in those cases involving imprisonment. 25. Because municipal ordinances are quasi-criminal in nature, a presumption, such as

the one in the Ordinance, may not shift the burden of persuasion on an element of an offense to the accused. 26. The State of Missouri has also recognized that the violation of a traffic signal is

criminal in nature. RSMo 304.281 defines a traffic violation as a class C misdemeanor and RSMo 558.011 states that such class C misdemeanors are punishable by a term not to exceed 15 days imprisonment; whereas the Penalty Provision applicable to the Ordinance authorizes up to 90 days imprisonment.

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27.

The ATCS program involves placing video cameras at numerous public street

intersections within the City of St. Louis. The cameras are used for surveillance of these intersections and capture images of purported traffic violations. 28. 29. The cameras are not able to identify the actual driver of the vehicles. The purported identifications are based solely on license plate checks and vehicle

registration records. 30. Defendant’s prosecution of Plaintiffs and Class, pursuant to the Ordinance, is not

based on proving the accused was the driver at the time of the offense, which is a required element of the offense. 31. The Ordinance establishes the standard and burden of proof required for an individual

to prove innocence following receipt of a citation for an alleged violation by a vehicle either leased or owned by him or her. 32. An owner of record “may” be able to avoid punishment by furnishing “satisfactory

evidence” that at the time and place of violation the motor vehicle was being operated by a person other than the owner, or that the vehicle or license plate photographed by the automated traffic control system was stolen. 33. By requiring each vehicle owner charged with a traffic violation, pursuant to the

Ordinance, to prove that they were not driving the vehicle or that the vehicle was stolen at the time of the alleged violation, cited vehicle owners are forced to self-incriminate themselves in order to prove their innocence without being afforded the constitutional presumption of innocence. 34. The Ordinance is unconstitutional because it authorizes a taking of property and

imprisonment without due process of law by imposing penalties on ownership of a vehicle in an

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arbitrary, unreasonable, and capricious manner without a fair hearing and without adequate procedural protections. 35. The fact that the cameras, used to provide evidence against Plaintiff and Class, are not

able to identify the actual driver of the vehicle is certainly reasonable doubt that Plaintiffs and Class, as vehicle owners, were the actual drivers at the time of the violation. 36. Plaintiffs and Class further state that the citations issued pursuant to the Ordinance

are moving violations, notwithstanding Defendant’s attempt to classify such citations as nonmoving violations. 37. Pursuant to RSMo 302.302.1(1), any moving violation requires the assessment of two

points to the violator’s driver’s license. 38. Defendant knows it cannot assess such points because ATCS cameras cannot identify

the actual drivers. 39. By classifying such citations as non-moving violations and thus not assessing any

points pursuant to RSMo 302.302, Defendant is circumventing Missouri state law. 40. By circumventing RSMo 302.302, by threatening further legal action, such as

imprisonment, for failure to pay the violation, by enacting and enforcing a presumption of guilt pursuant to the Ordinance, and by limiting the defenses available to an accused, Defendant has created a scenario whereby defending oneself against a violation of the Ordinance becomes impractical, financially unsound and legally burdensome when weighed against simply paying the fine. 41. Furthermore, Plaintiffs and Class could not defend themselves by challenging the

constitutionality of the ordinance at the municipal court hearing, as the only defenses applicable to the alleged violation were those enumerated within the Ordinance.

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42.

Plaintiffs and Class further state Defendant failed to conform with several Missouri

Supreme Court Rules (MSCR), including but not limited to: a. MSCR 37.33 because the Notice of Violation fails to cite the chapter and section that fixes the penalty or punishment. b. MSCR 37.35 because the Information fails to cite the chapter and section that fixes the penalty or punishment. c. MSCR 37.43 because Defendant never issued a Summons or a proper Summons. d. MSCR 37.42 because the Summons must be signed by a judge or by a clerk of the court. 43. Because Defendant’s prosecution of the Ordinance failed to conform with the MSCR,

as shown above, Plaintiffs and Class were denied fair notice, which violated their due process rights. 44. Because Defendant’s prosecution of the Ordinance failed to conform with the MSCR,

as shown above, the information was insufficient and the 22nd Judicial Circuit never acquired jurisdiction; thus, the payments made by Plaintiffs and Class were a nullity and Defendant must refund such payments or it will be unjustly enriched. 45. Because Defendant’s prosecution of the Ordinance failed to conform with the MSCR,

as shown above, the substantial rights of Plaintiffs and Class were prejudiced. 46. Plaintiffs and Class further state that Rule 69.7 of the Local Court Rules of the Circuit

Court of Twenty-Second Judicial Circuit requires that “Municipal Division shall cause to be published, and made available to the public, a brochure of defendant’s rights.” Pursuant to said Rule 69.7, “Your Rights in the Municipal Division” was published (hereinafter the “Municipal Rights”). See St. Louis Municipal Court document 316-083.

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47. rights:

The Municipal Rights specifically states the following procedural protections and

a. “The City has the burden of proving its case against you. You have the right to hear the City’s evidence and to require it to prove its case. The law does not require you to prove anything.” b. “The City will be required to prove all the allegations as contained in the formal complaint against you ‘beyond a reasonable doubt.’” c. “You have the right to cross-examine any witness who testifies against you.” d. “You also have a constitutional right not to testify. If you choose not to testify, your refusal cannot and will not be used against you in determining your guilt or innocence.” e. “You may also testify in your own behalf, but cannot be compelled to do so.” 48. Plaintiffs and Class further state that, pursuant to the alleged Ordinance violation,

their payment of $100 was involuntary and not an admission of guilt or liability because Plaintiffs and Class acted under duress as a result of Defendant’s threats to take further legal action including up to 90 days imprisonment under the Penalty Provision. 49. Moreover, the payment of $100 by Plaintiffs and Class was not an admission of guilt

or liability pursuant to MSCR 37.57 because “no defendant shall either be tried or permitted to enter a plea of guilty unless the defendant is personally present or the judge, defendant, and prosecutor consent to such trial or plea in the defendant’s absence.” 50. In addition, the payment of $100 by Plaintiffs and Class was not an admission of guilt

or liability pursuant to MSCR 37.58(c).

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51.

Plaintiffs and Class further allege that the $100 fine imposed for violating the

Ordinance is in essence a fee assessed to vehicle owners, not the actual drivers, and such a fee violates Article 10 § 22 of the Missouri Constitution by imposing such fees without a vote of the people. 52. Therefore, the Ordinance and Defendant’s conduct violate the fundamental rights of

Plaintiffs and Class; these rights are absolutely guaranteed under the Missouri Constitution’s Bill of Rights. 53. As a direct and proximate result of Defendant’s conduct, Plaintiffs and Class were

injured while Defendant was unjustly enriched. 54. Defendant’s conduct, as set forth above, showed complete indifference to or

conscious disregard for the rights of individuals charged with violations pursuant to the Ordinance, which justifies an award of punitive damages in such sum which will serve to punish Defendant and others from like conduct. 55. Upon information and belief, tens of thousands of Missouri Citizens have been

punished by this Ordinance resulting in approximately $10,000,000 in fines levied by Defendant. CLASS ACTION ALLEGATIONS 56. Plaintiffs propose to represent the Class consisting of all Missouri Citizens who

received a Notice of Violation and paid the requisite fine to Defendant pursuant to the Ordinance. 57. The Class is believed to comprise tens of thousands of Missouri Citizens, the joinder

of which is impracticable, and the members of the Class are so numerous that it is impractical to bring all of them before the Court in this action. Moreover, the amount of damages suffered

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individually by each member of the Class is so small as to make suit for its recovery by each individual member of the Class economically unfeasible. 58. Class treatment of the claims asserted herein will provide substantial benefit to both

the parties and the court system. A well-defined commonality of interest in the questions of law and fact involved affects Plaintiffs and all proposed members of the Class. 59. There are common questions of law and fact applicable to the claims asserted on

behalf of the Class. The common questions include, but are not limited to: a. Whether the issuance of citations, the Ordinance, and the imposition of fines under the circumstances described herein deprives Plaintiffs and Class of their property without due process of law; b. Whether the Ordinance is unconstitutional on its face and/or as applied; c. Whether the Ordinance is unlawful because it creates a presumption of guilt by reason of ownership of the vehicle identified in the Notice of Violation and thereby shifts the burden onto the owner of the vehicle to prove that they were not driving the vehicle at the time of the offense; d. Whether Plaintiffs and Class who failed or waived their right to contest the citation by paying the fine, pursuant to Notice of Violation, were misinformed of their legal rights and misled to their detriment as a result of written and other information provided by the Defendant; and e. Whether members of the Class have a right to recover the fines paid to Defendant; 60. Plaintiffs’ claims are typical of the claims of the proposed Class. Plaintiffs will fairly

and adequately represent and protect the interests of the proposed Class. Plaintiffs do not have any interest antagonistic to those of the Class. Plaintiffs have retained competent and

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experienced counsel in the prosecution of this type of litigation. The questions of law and fact common to the members of the Class, some of which are set out above, overwhelmingly predominate over any questions affecting only individual members of the Class. 61. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy because members of the Class number in the thousands and individual joinder is impracticable. The expenses and burden of individual litigation would make it impracticable or impossible for proposed members of the Class to prosecute their claims individually. Trial of Plaintiffs’ claims is manageable. 62. Unless a class is certified, Defendant will retain monies received as a result of its

unlawful conduct and scheme to collect monies from Plaintiffs and Class. Unless a class-wide injunction is issued, Defendant will continue to commit violations against Missouri Citizens. 63. This action is maintainable as a class action pursuant to Rule 52.08 of the Missouri

Rules of Civil Procedure and pursuant to Mo. Rev. Stat. section 407.025.3. COUNT I - VIOLATION OF ARTICLE I § 10 OF THE MISSOURI CONSTITUTION 64. Plaintiffs re-allege and incorporate by reference all preceding paragraphs of this First

Amended Class Action Petition as if fully set forth herein. 65. Article I § 10 of the Missouri Constitution states “that no person shall be deprived of

life, liberty or property without due process of law.” 66. Plaintiffs and Class had a clearly established state right not to be deprived of their

personal property, in the form of fines paid to Defendant, without the benefit of due process of law. 67. The Ordinance conflicts with the fundamental rights and protections afforded by

Article I § 10 of the Missouri Constitution and is thus unconstitutional because the Ordinance 14

authorizes a taking of property and imprisonment without due process of law by imposing penalties on vehicle owners in an arbitrary, unreasonable, and capricious manner without a fair hearing and without adequate procedural protections. 68. The Ordinance provides the accused with fewer due process protections than are

available to motorists pulled over by a police officer and prosecuted under the same red light violation, Ordinance 57831 § 1 (part), 1979: 1960 C. § 823.110(b), as codified in 17.08.130. 69. The Ordinance is unconstitutional on its face and as applied because it deprives all

owners of vehicles due process of law pursuant to Article I § 10 of the Missouri Constitution by establishing an arbitrary, capricious and unreasonable presumption concerning ownership and operation of automobiles and further permits a person to be punished, including a term of imprisonment, without proof beyond a reasonable doubt. 70. Plaintiffs and Class were not afforded the criminal standard of proof and were thus

denied due process of law. 71. The Ordinance enumerates only two affirmative defenses available to the accused by

which he or she could prove their innocence: a. the first affirmative defense available to the accused to prove their innocence is to identify the person who operated the vehicle; such identification of the actual driver must be in the form of an Affidavit of Non-Responsibility “under penalty of perjury” or “under oath” in court. b. the second affirmative defense is for the accused to submit information that the vehicle or license plate was stolen at the time of the violation. This information must also be in the form of an Affidavit of Non-Responsibility “under penalty of perjury” or “under oath” in court, and the accused must “provide necessary

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supporting documentation.” 72. Furthermore, this self incriminating Affidavit may not be enough to prove innocence

because after reviewing the Affidavit and supporting documentation, the City Court or the Counselor’s office “may terminate the prosecution” but only “if the owner of the vehicle furnishes satisfactory evidence.” The Affidavit of Non-Responsibility further states that

“providing an affidavit will NOT automatically result in a dismissal of this matter.” 73. It has been repeatedly ruled in the state of Missouri that a city has no power, by

municipal ordinance, to create liability from one citizen to another, nor to relieve one citizen from that liability by imposing it on another. 74. A city cannot create by ordinance a scheme that enlarges the common law or statutory

duty or liability of citizens among themselves. 75. Furthermore, the Ordinance, Notice of Violation, and/or Defendant does not permit

the accused vehicle owner to defend him or herself by submitting an Affidavit of NonResponsibility on the grounds, including but not limited to, that: a. the owner was simply not the driver at the time of the violation in order to prove their innocence; or b. the vehicle owner or owners cannot honestly recall who the actual driver was at the time of the violation because the vehicle has more than one owner or the vehicle is periodically driven by non-owners and the length of time that has passed since the date of the violation and the date the accused received the Notice of Violation thereby renders determining of the actual driver unascertainable; or c. the presence of ice, snow, unusual amounts of rain or other unusually hazardous conditions existed that would make compliance with the Ordinance more

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dangerous under the circumstances than non-compliance; or d. the traffic-control signal was not in proper position and sufficiently legible to an ordinarily observant person; or e. the operator of the motor vehicle was acting in compliance with the lawful order or direction of a police officer; or f. the operator of the motor vehicle violated the traffic signal in order to yield the right-of-way to an immediately approaching authorized emergency vehicle; or g. the motor vehicle was being operated as part of a funeral procession pursuant to RSMo § 194.503; or h. the motor vehicle was being operated as an authorized emergency vehicle pursuant to RSMo § 304.022. 76. By shifting the burden of proof onto the accused to prove their innocence and limiting

the legal defenses available to Plaintiffs and Class to overcome the presumption of guilt, the Ordinance and/or Defendant did not afford Plaintiffs and Class adequate due process protections. 77. As a result of Defendant’s actions and conduct, Plaintiffs and Class have been

deprived of due process of law and have been injured thereby in an amount yet to be determined but estimated at this time to be approximately $10,000,000. 78. The conduct of Defendant was malicious, corrupt, and either intentional or reckless to

a degree sufficient to support an award of punitive damages against Defendant. 79. Plaintiffs and Class claim all legal and equitable remedies they are entitled by law to

recover from Defendant for the injuries and losses set forth herein. WHEREFORE, Plaintiffs and Class pray for the relief requested in the Request for Relief set forth below in this First Amended Class Action Petition.

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COUNT II - VIOLATION OF ARTICLE I § 19 OF THE MISSOURI CONSTITUTION 80. Plaintiffs re-allege and incorporate by reference all preceding paragraphs of this First

Amended Class Action Petition as if fully set forth herein. 81. Article I § 19 of the Missouri Constitution states “that no person shall be compelled

to testify against himself in a criminal cause….” 82. Article I § 19 of the Missouri Constitution creates and identifies the privilege against

self-incrimination. 83. The presumption of innocence and the prosecution’s burden to prove guilt beyond a

reasonable doubt are necessary and proper corollaries of Article I § 19 of the Missouri Constitution and the privilege against self-incrimination. 84. By requiring each vehicle owner charged with a traffic violation, pursuant to the

Ordinance, to prove that they were not driving the vehicle, or that the vehicle was stolen, at the time of the alleged violation, cited vehicle owners are forced to prove that they are innocent of the alleged offense without being afforded the constitutional presumption of innocence, and are thereby compelled to testify on their own behalf in order to overcome the Ordinance’s presumption of guilt. 85. Pursuant to the Ordinance and/or Notice of Violation, Plaintiffs and Class were

compelled to testify, to prove their innocence, by identifying the actual driver of the vehicle in an Affidavit of Non-Responsibility “under penalty of perjury” or “under oath” in court. 86. Since this case concerns an alleged violation of the criminal Ordinance with a Penalty

Provision that authorizes imprisonment, Plaintiffs and Class were required to be afforded the rights and protections of the Missouri constitution, including the privilege against selfincrimination. 18

87.

However, the Ordinance and Defendant violated this constitutional right by asserting

in the Notice of Violation that Plaintiffs and Class could only prove their innocence by testifying against themselves in a criminal cause. 88. By prosecuting Plaintiffs and Class under such an unconstitutional Ordinance,

Defendant essentially forced Plaintiffs and Class to pay a fine while denying them their constitutional rights. 89. As a result of Defendant’s actions and conduct, Plaintiffs and Class have had their

Article I § 19 constitutional right violated and have been injured thereby in an amount yet to be determined but estimated at this time to be approximately $10,000,000. 90. The conduct of Defendant was malicious, corrupt, and either intentional or reckless to

a degree sufficient to support an award of punitive damages against Defendant. 91. Plaintiffs and Class claim all legal and equitable remedies they are entitled by law to

recover from Defendant for the injuries and losses set forth herein. WHEREFORE, Plaintiffs and Class pray for the relief requested in the Request for Relief set forth below in this First Amended Class Action Petition. COUNT III - VIOLATION OF ARTICLE I § 18(a) OF THE MISSOURI CONSTITUTION 92. Plaintiffs re-allege and incorporate by reference all preceding paragraphs of this First

Amended Class Action Petition as if fully set forth herein. 93. Article I § 18(a) of the Missouri Constitution states “that in criminal prosecutions the

accused shall have the right… to meet the witnesses against him face to face….” 94. Article I § 18(a) of the Missouri Constitution is also identified with creating the

confrontation clause.

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95.

The confrontation clause, as quoted above, gives the accused the absolute right to

confront his accusers and cross-examine them. 96. Defendant accused Plaintiffs and Class of violating the Ordinance and informed them

that, unless they could prove their innocence, a punishment would be imposed. 97. Since this case concerns an alleged violation of the criminal Ordinance with a Penalty

Provision that authorizes imprisonment, Plaintiffs and Class were required to be afforded the rights and protections of the Missouri constitution, including the right of the accused to confront their accusers and cross-examine them. 98. Defendant’s evidence of guilt was in the form of a photograph and video, taken by a

machine, which depicted the backside of vehicles owned by Plaintiffs and Class, but could not identify the driver of the vehicles. 99. Because Defendant’s witnesses are machines, the right of Plaintiffs and Class to

confront and cross-examine Defendant’s witnesses is impossible and thus the plain language of Article I § 18(a) is vitiated. 100. Therefore, Defendant’s use of these camera machines to prove the guilt of Plaintiffs and Class and then impose punishment, as described in the Notice of Violation, constitutes a clear violation of the Missouri Constitution. 101. As a result of Defendant’s actions and conduct, Plaintiffs and Class have had their constitutional rights violated and have been injured thereby in an amount yet to be determined but estimated at this time to be approximately $10,000,000. 102. The conduct of Defendant was malicious, corrupt, and either intentional or reckless to a degree sufficient to support an award of punitive damages against Defendant.

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103. Plaintiffs and Class claim all legal and equitable remedies they are entitled by law to recover from Defendant for the injuries and losses set forth herein. WHEREFORE, Plaintiffs and Class pray for the relief requested in the Request for Relief set forth below in this First Amended Class Action Petition. COUNT IV – UNJUST ENRICHMENT 104. Plaintiffs re-allege and incorporate by reference all preceding paragraphs of this First Amended Class Action Petition as if fully set forth herein. 105. The aforementioned automated traffic enforcement scheme and the Ordinance violates the Missouri Constitution for several reasons, as shown in Counts I through III of this First Amended Class Action Petition, including the fundamental rights of Plaintiffs and Class guaranteed by the Missouri Bill of Rights. 106. The Ordinance is invalid, unconstitutional, and cannot be used to prosecute or legally punish the Plaintiffs and Class because the Ordinance: a. shifts the burden of proof onto the accused to prove their innocence; b. forces self-incrimination to prove innocence; c. creates an irrational inference to establish a rebuttable presumption; d. limits the defenses available to those accused; e. allows Defendant to meet its burden of proof without sufficient evidence establishing the vehicle owner was the driver who committed the violation; f. permits proof of guilt without proof beyond a reasonable doubt; and g. deprives the accused of constitutional protections and thereby results in a failure to afford due process of law.

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107. Plaintiffs and Class conferred a benefit on Defendant by making payments to Defendant pursuant to an alleged violation of the Ordinance. 108. After receiving said payments, Defendant recognized that a benefit was conferred by terminating the prosecution of the Ordinance violation. 109. Defendant has accepted and retained money paid by the Plaintiffs and Class in the form of fines, costs, and fees paid by them following the Notice of Violation pursuant to the unlawful and unconstitutional Ordinance. 110. It is unconscionable, unjust, and inequitable for Defendant to retain the money paid by Plaintiffs and Class in the form of fines, costs, and fees collected pursuant to the Ordinance. 111. As a result of Defendant’s action and conduct, Defendant has been unjustly enriched and financially benefited, at the expense of Plaintiffs and Class, in an amount yet to be determined but estimated at this time to be approximately $10,000,000. 112. The conduct of Defendant was malicious, corrupt, and either intentional or reckless to a degree sufficient to support an award of punitive damages against Defendant. 113. Plaintiffs and Class claim all legal and equitable remedies, including restitution, which they are entitled by law to recover from Defendant for the injuries and losses set forth herein. WHEREFORE, Plaintiffs and Class pray for the relief requested in the Request for Relief set forth below in this First Amended Class Action Petition. COUNT V – MONEY HAD AND RECEIVED 114. Plaintiffs re-allege and incorporate by reference all preceding paragraphs of this First Amended Class Action Petition as if fully set forth herein. 115. Defendant has received monies which in equity and good conscience ought to be paid

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to Plaintiffs. 116. As the governmental entity in charge of protecting its residents and faithfully executing the laws of the State of Missouri, Defendant was placed in a position of trust and was expected to carry out its duties with care, loyalty and trust. 117. Pursuant to an unlawful and unconstitutional scheme, as described in this First Amended Class Action Petition, Defendant extorted monies from Plaintiffs and Class and converted said monies for Defendant’s use and gain. 118. Defendant therefore abused and breached its position of trust. 119. Defendant, having extorted monies from Plaintiff pursuant to an unlawful and unconstitutional Ordinance, did not properly act as a City should in that Defendant embezzled and misappropriated the monies of Plaintiffs and Class. 120. By circumventing RSMo 302.302, while threatening further legal action, such as imprisonment, for failure to pay the violation, and by enacting and enforcing a presumption of guilt pursuant to the Ordinance, Defendant has abused its trust, abused its power and such conduct is tantamount to extortion. 121. As a result of Defendant’s action and conduct, Plaintiffs and Class have been damaged in an amount yet to be determined but estimated at this time to be approximately $10,000,000. 122. The conduct of Defendant was malicious, corrupt, and either intentional or reckless to a degree sufficient to support an award of punitive damages against Defendant. 123. Plaintiffs and Class claim all legal and equitable remedies they are entitled by law to recover from Defendant for the injuries and losses set forth herein.

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WHEREFORE, Plaintiffs and Class pray for the relief requested in the Request for Relief set forth below in this First Amended Class Action Petition.

REQUEST FOR RELIEF WHEREFORE, Plaintiffs and members of proposed Class pray for the following relief: A. B. C. An order certifying the Class as requested herein; An order appointing Brown & James, P.C., as lead counsel for the Class; A judgment awarding restitution and/or compensatory damages to Plaintiffs and members of the proposed Class, and any interest paid or to be paid on any fines paid by Plaintiffs and Class; D. A judgment awarding declaratory and injunctive relief as permitted by law or equity including a preliminary and permanent injunction enjoining Defendant from continuing the unlawful conduct as set forth herein and directing Defendant to identify, with Court supervision, victims of their conduct and pay them restitution and disgorgement of all monies acquired by Defendant by means of any code or ordinance declared by this Court to be unlawful; E. F. G. H. I. A judgment awarding punitive damages in an amount to be determined at trial; A judgment awarding pre-judgment interest; A judgment awarding post-judgment interest; A judgment awarding attorneys’ fees and costs; Providing such further relief as may be fair and reasonable.

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JURY TRIAL DEMAND Plaintiffs and Class demand a trial by jury on all issues so triable.

BROWN & JAMES, P.C.

Russell F. Watters, #25758 Timothy J. Wolf, #53099 Justin C. Wilson, #61691 1010 Market Street, 20th Floor St. Louis, Missouri 63101-2000 314-421-3400 314-421-3128 – Fax rwatters@bjpc.com twolf@bjpc.com jwilson@bjpc.com ATTORNEYS FOR PLAINTIFFS
8534291

CERTIFICATE OF SERVICE A true and accurate copy of the foregoing was hand-delivered and sent via U.S. Postal Service, Certified Mail with Return Receipt Requested, postage prepaid, this 4th day of January, 2010, to: Angela Thompson Administrative Assistant to Francis Slay City Hall, Room 200 1200 Market Street St. Louis, MO 63103

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