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 New

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

Clerk
No. 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, 106 S. 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 of detecting 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.
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3

The fine is $105 for entering an intersection against a red light, and $300 for

overtaking a school bus while 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 images from the video recording of the violation, 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 be subpoenaed, and examine witnesses who testify. 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 of an 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 enforcement

decision to the contractor, but that arrangement violated the City’s Home Rule
No. 11-30711

1 The factors are:

(1) Whether the sanction involves an affirmative disability or restraint;(2) whether

it has historically been regarded as a punishment; (3) whether it comes into play

only on a finding of scienter; (4) whether its operation will promote the traditional

aims of punishment-retribution and deterrence; (5) whether the behavior to which

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).

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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. Hudson 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. Id. The Supreme Court has

articulated seven factors that serve as “useful guideposts” for that

determination.1Id. 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. United States v. Ward, 448 U.S. 242, 249-50, 100 S. 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

Ordinance violates the Ex Post Facto Clause, U.S.CONST.art. I, § 10, cl. 1, which
No. 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 See Ortwein 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).

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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 thatthe Ordinance does not supply

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.” Id. at 335, 96 S. Ct. at 903. In this case, the maximum fine

is the relatively minor amount of $380, or $455 if the payment is overdue. Next,

we consider “the risk of an erroneous deprivation” under the procedures

provided. Id. 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

access to judicial review of civil administrative proceedings. See M.L.B. v.S.L.J.,

519 U.S. 102, 113, 117 S. Ct. 555, 562 (1996). No fundamental interest is

involved here.3
No. 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).

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Finally, the private interests and risk of error are balanced against “the

Government’s interest, including 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

traffic violations cause an accident, the costs of even 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 in “protect[ing] public health and safety.”4 See

Mackey, 443 U.S. at 17, 99 S. Ct. at 2620.

AFFIRMED.