A motorist is using federal anti-racketeering statutes to go after the red light camera and speed camera program in Tempe, Arizona. Dan Gutenkauf filed his complaint last week in the US District Court for the District of Arizona and happened to land the same judge, Frederick J Martone, who presided over the
recent American Traffic Solutions (ATS) vs. Redflex case which is currently under appeal. The suit names Redflex employees, police officials, politicians and judges as defendants.
“I feel this lawsuit is very comprehensive and I have spent a lot of time over the last two years doing the legal research, gathering evidence and drafting the complaint,” Gutenkauf told TheNewspaper. “And I have my appeal victory from the lower court propelling me into federal court.”
In his filing, Gutenkauf carefully laid out the circumstances of his February 17, 2009 trial in Tempe Municipal Court before Judge Mary Jo Barsetti. Traffic aide Bianca Gallego and Tempe Police Officer Aaron Colombe both testified that they had no way to confirm whether Dan Gutenkauf or his identical twin brother, Dennis, had been behind the wheel, based on the photographic evidence and that no attempt at positive identification was made before the ticket was issued. Both Gutenkauf brothers are listed on an insurance policy for the van that was photographed.
Barsetti found him guilty over numerous objections Gutenkauf made about the admissibility of the evidence provided by Redflex. Maricopa County Superior Court Judge Eartha K. Washington overturned the ruling on appeal, and Gutenkauf received a refund check in December 2009 for the $197 fine, but Gutenkauf wanted to recover the additional $699 he spent in filing the appeal. Tempe agreed to pay back the $699, but only if Gutenkauf signed a contract containing language preventing him from filing suit against Redflex. Gutenkauf refused, knowing the company’s manuals direct employees to “issue citation” based solely on a match between the sex of the driver in the photograph and the vehicle registration records, not on the positive identification required by Arizona statute.
“Matthew Degraw knew that the photo speed enforcement citations sent to Daniel Gutenkauf through the mail by Redflex’s back office citation program contained knowingly false representations, creating the false impression that the actual driver had been identified, in a fraudulent scheme and artifice for the purpose of obtaining money from him by false pretenses,” Gutenkauf’s filing stated.
Gutenkauf argues that the police officer who certified the citation violated the same law requiring positive identification before approving the ticket. This violation, combined with his inability to cross-examine the witnesses against him represented a deprivation of his constitutional right to due process, he argued. Tempe officials have not yet filed a response.
