### REVISED JULY 16, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30711
EVELYN ALEXIS BEVIS, Individually and on behalf of a class of persons similarly situated; SCOTT I. ZATZKIS; JULIETTE M. NEVES; DAVID D. KERVIN, JR.; CHRISTINA H. COBLE,
Plaintiffs-Appellants v. CITY OF NEW ORLEANS, through its administration and its counsel; AMERICAN TRAFFIC SOLUTIONS, INC.,
Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Louisiana
Before REAVLEY, PRADO, and OWEN, Circuit Judges. REAVLEY, Circuit Judge: Plaintiffs-Appellants (“Plaintiffs”) appeal the district court’s judgment dismissing their constitutional challenge to Defendant-Appellee City of N ew Orleans’ “Automated Traffic Enforcement System Ordinance” (“the Ordinance”). The Ordinance permits the city to use automated cameras to detect speeding violations and cars entering an intersection against a red light. The Plaintiffs United States Court of Appeals

Fifth Circuit 

### F I L E D June 11, 2012 Lyle W. Cayce ClerkNo. 11-30711

2 contend on appeal that the district court erred in concluding that the Ordinance (1) is civil in nature, (2) affords constitutionally adequate due process, and (3) does not violate the Constitution’s Ex Post Facto Clause. We AFFIRM. I. Standard of Review We review a district court’s dismissal for failure to state a claim de novo. Reliable Consultants, Inc. v. Earle , 517 F.3d 738, 742 (5th Cir. 2008). We “accept[] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff,” id

. (internal quotation marks and citation omitted), but “we are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106S. Ct. 2932, 2944 (1986). Although the plaintiff’s factual allegations need not be detailed, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007), he must go beyond legal “labels and conclusions” and relate the “circumstances, occurrences, and events” he believes support his claim. Id. at 555, 556 n.3, 1965 & n.3 (internal quotation marks and citation omitted). II. Background The City engaged a private contractor, Defendant-Appellee American Traffic Solutions (“ATS”) to install and maintain the cameras. ATS staff view the footage and forward potential violations to the New Orleans Police Department, whose officers then decide whether to issue a citation to the vehicle’s owner. The Ordinance states that “[t]he imposition of a civil penalty

. . . is an alternative method ofdetecting and deterring red-light violations and speeding.” Accordingly, no fine may be imposed if at the time of the violation the operator of the vehicle was pulled over and either arrested or issued a traffic ticket. Also, no fine may be imposed on the vehicle’s owner if the vehicle was reported stolen and had not been recovered at the time the violation occurred. If the police decide to issue a citation, a notice is sent to the vehicle’s registered owner charging that the violation occurred and stating the amount of the fine.No. 11-30711

3 The fine is $105 for entering an intersection against a red light, and $300 for overtaking a school buswhile it’s stop signals are active. For speeding, the fine is between $45 and $205, depending on the excess speed. The fine can also include up to $80 in enforcement costs. The notice relates the date, time, and location of the violation, and it includes imagesfrom thevideo recording oftheviolation, and a website address where the full video can be viewed. The notice also explains procedures for contesting the fine, and procedures for payment by mail, telephone, or through the website. The owner may contest the violation by appearing before an administrative officer on or before a hearing date stated in the notice. If the hearing date passes and the owner has failed to either pay the fine or to appear and contest liability, then $75 is added to the fine and the City may initiate collection efforts. The notice is presumed to have been received by the owner five days after it was sent, but it is an affirmative defense if “[t]he person who received the notice of violation was not the owner of the motor vehicle at the time of the violation . . . .” An administrative officer employed by the city presides at the hearing, where the owner may “respond and present evidence on all issues of fact involved and argument on all issues of law involved.” The owner may request that witnesses besubpoenaed, and examinewitnesseswhotestify. No mens rea is required for liability. Owner and operator are jointly and severally liable for the fine, except that it is an affirmative defense if the operator was driving the vehicle without the owner’s consent. A non-operating owner who is held liable may recover the amount of the fine from the operator. The owner may seek judicial review ofan adverse decision by filing a petition in the Orleans Parish Civil District Court within 30 days. An earlier version of the ordinance delegated the initial enforc ement decision to the contractor, but that arrangement violated the City’s Home RuleNo. 11-30711

1 The factors are: (1) Whether thesanction involvesan affirmativedisability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding ofscienter; (4) whether its operation will promote the traditional aims ofpunishment-retribution and deterrence; (5) whether the behavior towhich it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Hudson, 522 U.S. at 99-100, 118 S. Ct. at 493 (internal quotation marks and citation removed). 4 Charter, and a state court enjoined the law’s enforcement until the current ordinance was passed. The current ordinance is retroactive to the date of the original law’s passage. III. Discussion Plaintiffs contend that the district court erred in concluding that the Ordinance imposes civil rather than criminal penalties. That determination requires courts to look initially to the legislature’s intention. H udson v. United States, 522 U .S. 93, 99, 118 S. Ct. 488, 493 (1997). The Ordinance repeatedly describes the fine as a civil penalty. However, a penalty can be criminal in nature, notwithstanding the legislature’s intention, if the statutory scheme is sufficiently punitive in purpose or effect. I d. The Supreme Court has articulated seven factors that serve as “useful guideposts” for that determination. 1 I d

. The only factor favoring Plaintiffs’ position is the fact that some of the conduct that violates the ordinance would also be punishable as a crime, if done with the requisite mental state. That is not enough to overcome legislative intent. U nited Statesv. Ward, 448 U.S. 242, 249-50, 100S. Ct. 2636, 2642 (1980). We agree with the district court that the Ordinance imposes a civil penalty. That conclusion disposes of the Plaintiffs’ contention that the Ordinanceviolates the Ex Post FactoClause, U.S. CONST

. art. I, § 10, cl. 1, whichNo. 11-30711

2 See SDJ, Inc. v. City of Hous., 837 F.2d 1268, 1278 (5th Cir. 1988) (ordinance giving police chief power to determine whether to issue license to sexually oriented businesses does not offend due process because ordinance allowed judicial review and there was no evidence that the police chief was “inherently not neutral”).

3 SeeOrtwein v. Schwab, 410 U.S. 656, 659-60 93 S. Ct. 1172, 1174-75 (1973) (no dueprocess right to waiver of fees for judicial review of administrative welfare-benefits determination, because right to increased welfare payments not a fundamental interest); Seoane v. Ortho Pharm., Inc., 660 F.2d 146, 151 (5th Cir. 1981) (right to recover for injuries caused by medical malpractice not a fundamental interest). 5 applies only to criminal sanctions. Smith v. Doe , 538 U.S. 84, 105-06, 123 S. Ct. 1140, 1154 (2003). We next consider Plaintiffs’ contention that theOrdinancedoesnotsupply constitutionally adequate process. The constitutional adequacy of the Ordinance’s procedures is assessed by balancing the private and governmental interests concerned. Mathews v. Eldridge , 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03 (1976). We consider, first, “the private interest that will be affected by the official action.” I d. at 335, 96 S. Ct. at 903. In this case, the maximum fine is the relatively minor amount of$380, or $455 ifthe payment is overdue. Next,
we consider “the risk of an erroneous deprivation” under the procedures provided. I d. Plaintiffs do not challenge any specific aspect of the procedures governing the administrative hearing the Ordinance provides. They contend that the hearing officer is not neutral, but a presiding official’s being an employee of the municipal executive does not alone offend due process. 2 Plaintiffs also argue that requiring a driver to file a civil action in order to challenge the outcome of the initial hearing deprives them of due process because of the expense of initiating the civil action. However, unless a fundamental interest is at stake, the due process clause allows states to restrict
accesstojudicial review of civil administrative proceedings. SeeM.L.B. v. S.L.J., 519 U.S. 102, 113, 117 S. Ct. 555, 562 (1996). No fundamental interest is involved here. 3No. 11-30711

4 We express no opinion regarding the due process adequacy of features of the Ordinance’s procedures that the plaintiffs did not specifically raise in their appellate briefing (e.g., the Ordinance’s distribution of burdens of proof and the potential liability for allowing another person to drive one’s vehicle). 6 Finally, the private interests and risk of error are balanced against “the Government’s interest, incl uding the function involved and the fiscal and administrative burdens that . . . additional or substitute procedural requirement[s] would entail.” Mathews, 424 U.S. at 335, 96 S. Ct. at 903. The City’s interest is to reduce the risk of road accidents. Though only a fraction of trafficviolations cause an accident, the costs ofeven a low-speed collision can be severe, particularly if a pedestrian is struck. The features of the Ordinance’s adjudicatory scheme raised in this appeal fall comfortably within the “great leeway” given to governments i n “protect[ing] public health and safety.”4 See Mackey, 443 U.S. at 17, 99 S. Ct. at 2620. AFFIRMED.