Police Must Serve and Protect, Not Ticket to Collect

Doraville homeowner Hilda Brucker has first hand experience grappling with Doraville’s abusive code enforcement system.

In 2016 the city fined her and sentenced her to six months of probation. What did she do wrong? She had cracks in her driveway, and then nearly missed a court hearing about a ticket that she was never told about. Hilda’s neighbor Jeff Thornton had a similar experience. He was fined $1,000 for the high crime of having a stack of firewood in his backyard. And, just like Hilda, the city threatened Jeff with arrest for missing a court date that it hadn’t notified him of.

Hilda’s and Jeff’s stories are emblematic of Doraville’s reliance on fines and fees to fund the city. Doraville regularly anticipates that between 30% and 17% of its budget will come from fines, fees and forfeiture income (the number varies each year). This means that when a budget year begins, the city knows it must collect that much money—currently $2.5 million out of a $13.5 million budget—to balance its books. That means that if police and inspectors fail to write enough tickets, the city will run out of money. That gives Doraville police, code enforcement officers, prosecutors and municipal court judges a perverse incentive to go out and ticket and fine people for revenue.

Most of Doraville’s fines, fees and forfeiture income comes from traffic tickets. Indeed, past abuses led the Atlanta Journal-Constitution to label Doraville one of the most infamous speed traps in the state. ¹

Janice Craig found that out the hard way. Janice was driving eastbound on a Doraville stretch of Buford Highway. As she was driving in the left lane she realized that it had changed into a turn-only lane. Because she wanted to continue driving straight, she carefully changed lanes before she passed through the intersection. A Doraville police officer nevertheless pulled her over and told her she “held up traffic.” She later received a $215 fine for “failure to obey traffic signs or control.” Janice now goes out of her way to avoid Doraville if she can.

Byron Billingsley has also met the ticket-happy Doraville revenue generator. He was cited for going around a truck traveling at 5 mph—with no other traffic around—without using his turn signal. After hiring a lawyer to defend himself he paid $100. He has to keep driving through Doraville as he works in the city.

Janice and Byron’s driving actions may have arguably been against the law, but they are generally the lowest level of priority for police. The criminal justice system is, of course, intended to protect from harm and punish for wrong, not to generate revenue. But if revenue becomes important, then Janice, Byron and other drivers are easy targets in the quest for fines income.

Fed up with a city putting fines income above public safety, Hilda, Jeff, Janice and Byron are fighting back. They have joined forces with the Institute for Justice to stop Doraville’s unconstitutional reliance on fines and fees income and to force the city to not use the criminal justice system to balance its budget.

Doraville’s Unconstitutional Fines Machine

Like all municipalities, Doraville adopts a new budget every year. And, like every municipality in Georgia (and in many other states), it has to balance its budget. ² Most of the revenue that goes into that budget comes from taxes. ³ No one likes paying taxes, of course, but they are generally assessed so that almost all city residents, or at least almost all city property owners, pay them. This keeps low the amount any one resident has to pay. And when the city raises taxes, it is transparent. Residents know what they have to pay ahead of time, and can try to vote city officials out at the next election if they disagree.

But unlike taxes, fines (and many fees) are not broadly paid by all city residents, but focused on a small portion of the population. In addition, the city doesn’t have to pass any legislation to get more fines and fees: its police, code enforcement officers, prosecutors and municipal court judges just have to work harder, or, better put, work differently. More tickets and convictions mean more revenue. Thus, the more a city depends on fines and fees the less it has to depend on the democratic process for raising revenue, and the more it gives city officials an incentive to ticket and prosecute for the purpose of revenue, not public safety.

A city relying on fines and fees revenue is not unique to this case; it is a nationwide problem. The issue of cities policing for profit instead of for justice has received a great deal of attention over the last few years. In Pagedale, Missouri, the city used its municipal housing code to ticket and fine residents for a host of trivial violations like having mismatched draperies on their windows of barbeque grills in their front yards. Tickets were the city’s second-largest source of revenue—from 2010 to 2014, revenue from fines and fees comprised between 16% to 23% of its general revenue funds. In 2015, the Institute for Justice filed a class action lawsuit against Pagedale. After two years of litigation, the city agreed to a consent decree putting in place broad structural protections reforming it ticketing, housing code, and municipal court system.

A few towns over from Pagedale, in Ferguson, Missouri, a report by the Department of Justice found that the city  relied on fines and fees to cover its budget, and how that reliance infected both the municipal court and its law enforcement. In the report, the DOJ singled out Ferguson’s reliance on fines and fees to pay 23% of its budget as troubling.

But even compared to places such as Ferguson, Doraville’s reliance on ticketing for revenue is out of control. The reliance on fines, fees, and forfeiture income has been as high as 30% in recent years. Further, according to a 2014 investigation, Doraville’s officers write an average of 40 tickets per day, and write more tickets per capita than any other jurisdiction in the Atlanta area, averaging $847 per resident. ⁴ And it doesn’t stop with traffic tickets. Doraville contracts-out its property code enforcement work to a for-profit architectural firm called Clark Patterson Lee. It was employees of the firm that ticketed Hilda and Jeff, and other Doraville property owners, for minor problems with their houses and gardens.

As in Ferguson, the budgetary incentives don’t just lead to over-ticketing, but aggressive tactics in ticketing. Hilda’s six-month probation sentence was for a cracked driveway. Yet, the sentence imposed on her, for example, required her to avoid, among other things, “alcoholic intoxication,” even though alcohol had absolutely nothing to do with her driveway. Doraville’s hunger for revenue breeds a culture of intolerance toward its citizens, viewing them as walking ATMs, and not as property owners with basic rights.

Astoundingly, Doraville has no shame about its reliance on fines and fees. In fact, it is positively proud of the fact. A 2015 Doraville newsletter bragged that “[a]veraging nearly 15,000 cases and bringing in over $3 million annually, [Doraville’s] court system contributes heavily to the city’s bottom line.” ⁵ The court system’s annual cost is only around $600,000, meaning that that “investment” gives the city a return many times over.

Policing for Profit is Unconstitutional

Doraville’s bragging about its reliance on fines and fees is evidence of why it’s budgeting system is unconstitutional. The U.S. Supreme Court has long held that a judge cannot hear a case when he is paid by the city and the city stands to financially benefit from income generated by his outcome. For example, the Supreme Court has ruled that “mayor’s courts,” where the mayor of a town helps set the city’s budget and also rules on the guilt of innocence of defendants, are unconstitutional because of a conflict of interest. ⁶ Similarly, the Supreme Court has said that prosecutors’ duty to exercise their discretion neutrally can also be compromised if their department has a financial stake in obtaining convictions. ⁷ The same reasoning applies to law enforcement.

Doraville’s level of dependence on fines and fees is so high that the budget levels themselves are unconstitutional. Depending on the year, between one fifth to close to one third of every dollar a city official earns comes from fines or fees. City judges, prosecutors and police officers all understand the basic truth: if revenue from the fines and fees they issue decreases, their salaries may be at risk. That inherent bias in their work unconstitutionally compromises the tickets they write and cases they work on.

The Clients

Hilda Brucker was sitting at home one day working her job as a freelance writer. The phone rang, she answered, and was told by a hostile voice that if she didn’t come down to the courthouse at once she would be given a failure to appear violation. She hastily complied. When she got there, she found out that the city had issued a citation, although it had never told her about it. She later learned the citation stated she was charged with (1) “Rotted wood on house and chipping paint on fascia boards”;  (2) “High weeds in backyard and ivy on tree and vines on house”;  and (3) “Driveway in a state of disrepair.” Not knowing what to do, Hilda pled guilty to the driveway charge, while the other two were dismissed. She paid a fine of $100 and was sentenced to six months probation, where she had to report to a probation officer, avoid alcoholic intoxication, and cooperate “with code enforcement upon request.” She later hired an attorney who filed a motion to vacate her sentence, but the motion was continued several times, eventually being granted only after her six-month probation would have already ended. She also obtained a home equity line of credit in case she needed to pay for any of the fixes that the city nebulously demanded.

Jeff Thornton didn’t receive a phone call, but a “notice of arrest warrant.” Although he never received a ticket, the city had issued a warrant for his arrest.

Prior to that, he had received a prior “advisory notice” stating that his “trailer cannot be in grass—must be parked on hard surface” and that he should “call about the logs in backyard.” Jeff moved his trailer, but later received another warning about his perfectly ordinary woodpile, where a code enforcement official said he had to remove it from his yard. Jeff later went to trial and was fined $1,000. He then told the court that he couldn’t afford his fine, and it was reduced to $300, with 12 months probation. When he later demonstrated to a code enforcement official that he couldn’t afford that either the charges were dropped. In other words, once Doraville found out that it wouldn’t be getting money out of Jeff, the need to prosecute him went away.

Janice Craig and Byron Billingsley, whose stories are discussed above, both were ticketed for minor traffic violations that other jurisdiction rarely enforce—but all too tempting if a city uses traffic tickets for revenue. Janice now avoids driving in Doraville because she doesn’t trust the city’s officials to ticket, prosecute, and rule free from bias. Byron has no choice as he works in the city. But both are constitutionally entitled to a bias-free criminal justice system. Doraville’s budgeting practices deny that basic right to them and all others who live in Doraville or pass through on its streets.

Doraville is the Latest Front in the War Against Policing for Profit

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees, and civil forfeiture as a means to raise revenue and as a means to pursue illegitimate goals. IJ’s cases in this area include:

• A successful challenge to the city of Pagedale, Missouri’s use of fines and fees to supplement its budget;
• A class action lawsuit against two California cities that hired a private law firm to serve as their official city prosecutor. The firm then, without warning, imposed outrageously high attorneys fees on property owners that pled guilty to city code violations;
• A successful request for an injunction against the city of Charlestown, Indiana, that is ticketing property owners in order to force them to sell to its favored developer;
• Challenging, in a class-action lawsuit, Philadelphia’s forfeiture machine, where the city has used civil forfeiture to grab millions of dollars’ worth of property each year by putting residents through a faux-legal process without a judge, a jury, or representation by an attorney.

Litigation Team

The litigation team in the case is IJ attorney Joshua House and IJ senior attorney Anthony Sanders. Working with them on the case is local counsel Frank Strickland of the Atlanta firm Strickland Brockington Lewis, LLP.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty. IJ is a public-interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government. IJ is based in Arlington, Va., and has offices in Arizona, Florida, Minnesota, Texas and Washington, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.