Federal Judges’ Errors and Omissions
Prior to my lawsuit, I believed the federal court system was a bastion of honesty and integrity. My experience demonstrated this is not necessarily true, as plaintiffs and defendants merely contend with the varying levels of honesty and integrity of individual federal judges. A genuine accountability system for federal judges is nonexistent. While an internal complaint system exists (i.e., making a complaint to the local chief judge), an external accountability system is absent, such as the oversight of medical doctors by Boards of Medicine. Also, attorneys have been silenced since bar association regulations tend to consider it “unethical” for an attorney to criticize a judge’s ruling.
My case went to mediation twice and my proposed settlement provided specific remedies to correct Tampa’s unlawful policies. Jane Castor, Tampa’s current police chief, attended the first mediation. John Bennett, Tampa’s current Assistant Police Chief, attended the second. Neither were willing to modify Tampa’s policies to conform with laws, as I had proposed. They did not even correct the false entries on my crash report. Meanwhile, it is my First Amendment right to disclose what I was seeking in my lawsuit, which is explained in my proposed settlement agreement. Fortunately, I am not bound by restrictions that apply to attorneys. Further, the law states that a party who makes a representation about a privileged (confidential) mediation then waives the privilege, allowing the other party to respond. The City of Tampa police made a representation about what I sought (fabricating that I sought prospective relief for my family and me from any police investigations or enforcement, which was untrue and absurd) Since the City of Tampa engaged in misrepresentations about what I sought at mediation, I have the right to respond. The public can judge whether my requests were reasonable which are explained below in My Proposed Settlement Agreement at Mediation.
My lawsuit centered on police untruthfulness and fraud. Federal District Judge Stephen Merryday and three U.S. Court of Appeals judges (R. Lanier Anderson, Susan H. Black and Gerald Bard Tjoflat) were ultimately unconcerned with these police practices, and instead, omitted important facts and made untrue statements in their rulings, as explained in my analysis of their rulings below. They appeared to “cover” for the Tampa police. It seemed a kangaroo court, giving the impression of being rigged to avoid disclosing the perverse Tampa police policies and the insurance kickback scheme that led to aggrandized police pensions. However, the intent of Judge Merryday’s rulings appear to differ from that of the three appellate judges.
While it is unknown who actually wrote Judge Merryday’s rulings, as other federal judges and/or staff could have done so, they read as if written by the automobile insurance industry. In 1965, the book Unsafe at Any Speed: The Designed-in Dangers of the American Automobile attributed to the automobile insurance industry the notion that every crash entails a traffic law violation, which is an industry that profits from surcharges and underwriting penalties assessed when drivers receive traffic tickets. Unfortunately, this notion reflects ignorance about how and why some accidents occur, including minor accidents. Judge Merryday’s rulings created a federal court precedent in the Middle District of Florida whereby the rear driver in any rear-end crash, regardless of circumstances, has violated a traffic law.
In Florida, state law requires law enforcement officers and traffic judges to consider a driver’s actions and circumstances to determine whether a traffic law has been violated. If Judge Merryday’s rulings became a precedent, they could trump Florida law in the Middle District of Florida and be persuasive in other federal districts, whereby traffic tickets are issued based on who the police officer believes should pay damages (fault), regardless of driving behavior, including minor accidents that do not require a police investigation. Further, he approved of the “secret” submission of crash reports to court hearings.
While the appellate judges upheld Judge Merryday’s rulings, their 2008 ruling was an “unpublished” decision, meaning it is not a precedent and is specific to the City of Tampa and me, which suggests the three federal appellate judges know their ruling is unsound. If sound, then it would not be unpublished, and the appellate judges would have allowed my case to be used to defend the adoption of Tampa’s police practices by other law enforcement agencies. In theory, non-published decisions are a means to avoid creating too many written rulings that are not creating new law; however, Judge Merryday’s conclusions would have very clearly changed the law. An alternative view of unpublished decisions exists. One source explains “The Committee for the Rule of Law maintains that any rule restricting citation of, or which allows secret, hidden, or unpublished opinions, encourages expedient, not careful, consideration as the basis for judgment, and constitutes an invitation to error, incompetence, corruption and tyranny” (www.NonPublication.com). In my case, the appellate judges made numerous errors, making statements that are untrue and omitting facts, while defending Tampa police practices.
While the appellate judges did not establish a precedent to support Tampa’s policies for adoption by other agencies, the Tampa Police Department changed their crash investigation policy following my lawsuit. Officers are now banned from writing tickets and crash reports in minor, non-injury crashes. In 2008, a news station (WTSP) reported the policy change in a story titled “Tampa police have a new ticket policy,” which explained that insurance companies, and not police officers, determine “fault.” A Tampa police officer told me that officers have been retrained and that if my same crash occurred today, the investigating officer would be prohibited from writing a ticket or crash report. Also, I know a few people involved in minor, rear-end crashes and the investigating Tampa officer did not write a ticket or crash report, affirming the policy has been changed.
Counts 2 and 3 of my lawsuit pertained to malicious prosecution. Judge Merryday denied my motion for summary judgment and granted summary judgment to the City – concluding Officer Bowden had probable cause to write the ticket. Summary judgment can only be granted when the evidence presents no genuine issue of fact. However, there were genuine disputes about facts, which Judge Merryday’s opinion failed to disclose, meaning he exceeded the limits of his authority. Count 4, pertaining to due process rights, was dismissed as Judge Merryday found no due process fairness issues with the Tampa Police Department practices, even though Tampa’s practices appear to meet the definition of a “color of law” crime, which is a felony.
- My proposed settlement agreement at mediation
- Tampa’s Motion for Summary Judgment on Counts 2 and 3
- My Attorney’s Motion for Summary Judgment on Counts 2 and 3
- Judge Merryday’s Rulings on Counts 2 and 3 2006
- Judge Merryday’s Ruling on Count 4 2007
- Tampa’s Appellee Brief
- My Attorney’s Response to Tampa’s Appellee Brief
- US Court of Appeals ruling 2008
Analysis of Judge Merryday’s Rulings on Counts 2 and 3Click here to read the analysis
The following are some examples of Judge Merryday’s errors and omissions, which were used in his rulings to justify the outcome.
- Judge Merryday failed to acknowledge that I said Officer Bowden told me that I did not violate a traffic law, but he was required to issue a ticket because his supervisor ordered a ticket. My statement precluded Judge Merryday from granting summary judgment to the City since he is not permitted to make credibility determinations, which may be why he omitted my statement in his ruling on Counts 2 and 3.
Judge Merryday wrote: “Orban asserts that the officers either ignored or failed to credit her description of the accident, although she claims that she provided the officers a satisfactory explanation that the accident was unavoidable.“
Instead, I said Officer Bowden told me that he concluded the accident was unavoidable and that I did not violate a traffic law; however, his supervisor ordered a ticket issued to me, nonetheless. By failing to correctly quote my statements, Judge Merryday creates the appearance that I am disagreeing with the officer; whereas, in reality, Officer Bowden disclosed Tampa’s perverse practices to me – that supervisors can order tickets after the investigating officer concludes probable cause does not exist. It appears Judge Merryday omitted my actual statements to sidestep the fact that he is not permitted to make credibility determinations. Only a jury can decide whether Officer Bowden did or did not make this statement to me. However, in his ruling on Count 4, which was issued about a year later, Judge Merryday acknowledged my actual statement.
Judge Merryday wrote (Count 4): “…the plaintiff’s entire argument is premised on the alleged ‘fact’ that a citation was issued, even though the investigating officer determined that there was no probable cause to issue the citation.”
The judge failed to disclose this “alleged fact” in his ruling on Counts 2 and 3, as it would have precluded him from granting summary judgment to the City. It appears Judge Merryday exceeded the limits of his authority, yet there were no consequences.
- Judge Merryday failed to acknowledge the evidence that affirms the ticket-at-every-crash policy. Instead, he ignored the evidence and contended the policy did not exist.
Judge Merryday wrote: “…the City employs no policy that requires issuance of a citation. Of course, this policy accords with the administrative reality that, in most automobile accidents, someone is at fault.”
Contrary to Judge Merryday’s statement, the evidence that I provided did affirm the City required a citation at each crash investigation. Judge Merryday failed to disclose that Officer Bowden’s deposition affirmed the ticket-at-every-crash policy. The officer said: “So I guess that correlates to, if I’m dispatched to a traffic crash and I investigate it, that I’m supposed to write a citation for it.” Also, a retired Tampa police sergeant submitted an affidavit that explained the Tampa Police Department trains rookie officers to write a ticket-at-every-crash investigation, and that rookies are told they will not need to provide a rationale for the ticket in court since the report is submitted instead. A retired Tampa patrol officer submitted an affidavit that explained he was trained that the police are investigating crashes for insurance companies. The ticket-at-every-crash policy was also affirmed by Chief Hogue (deposition), who said a ticket should be written even when an accident is unavoidable. Further, patrol officer annual evaluations, including Officer Bowden’s evaluations, which demonstrated that the number of crashes he investigated in 1999-2000 equaled the number of moving violation tickets issued in crash investigations – indisputable evidence of the ticket-at-every-crash policy. Many Tampa officers were prepared to testify that the ticket-at-every-crash policy existed. Judge Merryday ignored the evidence and contended the policy did not exist. He also ignored the evidence when ruling on Count 4, about a year later.
On Count 4, Judge Merryday wrote: “Moreover, Officer Bowden testified the City has no policy requiring the mandatory issuance of a citation.”
The judge’s statement is untrue. Officer Bowden openly disclosed the ticket-at-every-crash policy in his deposition. However, he explained that he has sometimes avoids the policy by not writing a report, such that his tickets equal his reports, but he said he could not do this in my situation, because he was training a new officer on Tampa police policy.
- Judge Merryday contended “fault” (who pays damages) is a basis for issuing a traffic ticket, instead of probable cause that a traffic law was violated. His opinion would, in effect, lower the standard used for issuing traffic tickets in crash investigations and allow for a ticket-at-every-crash.
Judge Merryday wrote: “The officers . . . conducted a reasonable investigation of the accident before determining that Orban was probably at fault . . . Police officers at the scene of an accident are neither permitted nor required to adjudicate the issue of fault before issuing a traffic citation.”
Judge Merryday states the officers conducted a “reasonable investigation,” but he failed to disclose that my minor accident did not require a police investigation, meaning the police opted to investigate a crash when an investigation was not required.
Nonetheless, Judge Merryday’s two statements above are contradictory. The first says the officers concluded I was at fault and the second claims officers are not permitted or required to determine fault before issuing a ticket. Judge Merryday concludes I received a ticket for being at fault, yet officers are not permitted to adjudicate the issue of fault. Judge Merryday is engaging in verbiage that advances a federal court precedent that embraces Tampa’s ticket-at-ever-crash policy by claiming tickets are issued to an “at fault” driver.
“Fault” (who paid damages) is inadmissible in traffic court hearings in Florida, meaning the officer must provide a reason related to driving behavior or accident circumstances to issue a ticket. Otherwise, a traffic judge would dismiss the ticket for lack of evidence if “fault” was the sole basis for a ticket. However, if “fault” becomes the sole basis for a ticket, then a ticket could be written at every crash investigation, because someone will be responsible for paying damages in every crash. Judge Merryday provided a federal court ruling that makes fault (who pays damages) synonymous with a traffic law violation, absent any consideration of driving behavior or accident conditions.
- Judge Merryday endorsed Tampa’s policy that requires the supervisor to become the ticket decision-maker once the investigating officer’s concludes probable cause does not exist to write a ticket. This policy puts pressure on the investigating officer to fabricate entries on the crash report to concoct a rationale for tickets ordered by supervisors. From my perspective, this policy meets the definition of a “color of law” crime, which is a felony, yet Judge Merryday endorsed the practice.
Judge Merryday wrote: “Of the three options (the investigating officer decides every time, the supervisor decides every time, or the supervisor decides in the unusual case), the City’s policy is the most reasonable policy, or, at the very least, not an unconstitutional policy.”
It is unreasonable and unconstitutional to permit a supervisor, who does not investigate a crash, to order the investigating officer to write a ticket after the officer has concluded probable cause does not exist, as this meets the definition of a color of law crime. The FBI definition of a color of law crime includes a false arrest (citation) and fabrication of evidence. In Tampa, the supervisor is the ticket decision-maker only when the officer believes probable cause does not exist to issue a ticket. In such circumstances, the supervisor a) has not conducted a personal investigation, b) has ignored the investigating officer’s conclusions, c) does not possess unique information beyond that of the investigating officer, d) merely orders the officer to write a ticket nonetheless, thereby ticketing drivers absent probable cause, and e) has a financial interest in the ticket as it can yield “extra” pension benefits for the supervisor from any auto insurance increase. Also, the supervisor determines the specific charge, which in my case was a careless driving ticket that misrepresented an injury. The officer then must write a crash report to support issuing the ticket ordered by the supervisor, thereby fabricating and/or omitting evidence.
In his rulings, Judge Merryday cited the importance of the investigating officer as possessing the facts, and yet he defended supervisors overruling the investigating officer, which is contradictory because the supervisor ignores the investigating officer’s facts and orders a ticket nonetheless. In contrast to Judge Merryday’s opinion, Florida law only allows an investigating officer to write a ticket in a crash investigation. Judge Merryday advanced a federal court precedent that would allow supervisors, who do conduct investigations, to order investigating officers to write tickets after the officer concluded probable cause is absent.
- Judge Merryday supported the City of Tampa’s notion that a rear-end crash is de facto evidence of careless driving. Thus, he is defending the issuance of a ticket-at-every rear-end crash, while denying such a policy exists. In contrast, Florida law requires a careless driving action to be identified.
Judge Merryday wrote: “The undisputed facts provide a sufficient basis to determine as a matter of law that the officers had probable cause to conclude Orban failed to drive in a careful and prudent manner. The officers arrived at the scene of the accident and discovered evidence of a rear-end collision . . . and concluded Orban failed to stop her car before the rear-end collision.”
Judge Merryday contends that any rear-end crash is de facto careless driving, absent any specification of a careless driving action, as required by Florida law. My careless driving ticket lacks a careless driving action because Officer Bowden told me he did not identify a careless driving action – a fact Judge Merryday ignored. Further, both Officer Bowden and Officer Duncan stated in depositions that they expected my ticket to be dismissed, which is contrary to believing probable cause existed that my driving was careless. Officer Bowden said the ticket would be dismissed because no one would testify against me, and Officer Duncan expected the ticket to be dismissed because it lacked a careless driving action, as required in Robinson. In Robinson v. State (152 So.2d 717 – Fla. 1934), the Florida Supreme Court ruled that “reckless driving,” similar to careless driving, is vague term and it is “impossible for the defendant to know what act or circumstance constituted the alleged infraction of the law….A defendant has the right to know from the language of the charge against him what conduct on his part is the basis of that charge.”
In his ruling on Count 4, Judge Merryday again claimed Officer Bowden had probable cause, while ignoring what the officer actually said in his deposition. On Count 4, Judge Merryday wrote: “Despite the plaintiff’s repeated suggestion to the contrary, Officer Bowden had probable cause to issue her citation.”
Officer Bowden’s deposition admits that careless driving may not be the appropriate charge regarding my accident circumstances, and he said the documentation (ticket and report) is created for the insurance company, because he believes investigations of minor crashes are unrelated to police work. Judge Merryday’s ruling failed to disclose these facts, which do not support his opinion that any minor rear-end crash is evidence of careless driving.
- Judge Merryday contended that I was following the lead vehicle closely and quickly, even though the ticket and crash report do not claim this, meaning the judge deviated from facts and the police documentation.
Judge Merryday wrote: “Orban apparently concludes that no reasonable person could find her careless for driving in a metropolitan area in the rain while following a leading vehicle so closely and quickly that, if the leading vehicle turns, Orban will collide into any stopped traffic further ahead.”
Contrary to Judge Merryday’s statement, I was not charged with Following Too Closely or driving too fast (Speed Too Fast for Conditions). Likewise, these allegations are not documented on my ticket or crash report as the reason for the ticket, recognizing the ticket and report are the sole evidence the Tampa police used against me in court, which Judge Merryday failed to disclose. Judge Merryday also failed to disclose that my following distance significantly exceeded the guides stated in depositions by Officer Bowden and the supervisor who trains rookie officers, meaning Judge Merryday’s conclusion is not supported by the officers’ depositions. Further, Judge Merryday failed to disclose that Officer Duncan reported my speed as 5 to 10 mph – a speed that Judge Merryday contends a reasonable person might find to be too high. The judge is speculating about what a reasonable person might believe, rather than permitting a jury to make such determinations. The crash expert in my lawsuit used math to affirm my statements about my slow speed and a correct following distance, which Judge Merryday opted to ignore. The Tampa police attorneys never disputed the expert’s report. Instead, the City of Tampa attorney claimed my ticket was issued because I could have been “more careful.”
Analysis of Judge Merryday’s Ruling on Count 4Click here to read the analysis
Judge Merryday also engaged in errors and omissions regarding Count 4, which pertained to due process violations. His ruling on Count 4 was made about a year after his ruling on Counts 2 and 3.
- Judge Merryday again denied the existence of the ticket-at-every-crash policy and mischaracterized the “kickback” between auto insurance and “extra” police pension benefits as “some indirect financial interest by the City,” rather than a direct financial interest among police administrators who establish the quotas.
Judge Merryday wrote: “The plaintiff also mischaracterizes the factual record by repeatedly stating that the City’s policy requires issuance of a ticket “after every crash,” because of some indirect financial interest by the City and that this “policy” explains Orban’s citation.
The Tampa police required a ticket-at-every-crash investigation, as the evidence affirmed. I did not allege an “indirect financial interest by the City,” but instead a direct financial interest by Tampa police administrators to increase auto insurance rates of local residents in order to receive more pension benefits. It is a fact that the tickets resulted in a 40 percent auto insurance increase in the four years, from 1999 to 2003, which was used to gain a 40 percent pension benefit increase, as explained in the link titled 96% Pension Increase. Judge Merryday never mentioned “insurance” or the “police pension,” nor did he disclose the kickback between auto insurers and police pension benefits.
- Judge Merryday defended the ticket at every rear-end crash notion by confusing Florida’s rebuttable presumption law, regarding “fault” in rear-end crashes, with probable cause to issue a ticket.
Judge Merryday wrote: “Orban’s application of the law to her factual allegation is equally flawed. . . Orban argues that before issuing a citation for careless driving a police officer must weigh the presumption under Florida law that the following vehicle is responsible for a rear-end collision against the rear-end driver’s explanation to the contrary.”
Judge Merryday is confused. The judge is referring to Florida’s rebuttable presumption law, which pertains to who pays damages (fault), recognizing who pays damages is inadmissible in traffic court. The rebuttable presumption law assumes the rear driver is the sole cause of the accident and responsible for paying damages; however this presumption can be rebutted in certain circumstances. For example, the presumption can be rebutted if the forward vehicle makes an unexpected, sudden stop or an unexpected lane change. However, auto insurance companies, and not police officers, rebut the presumption of fault. Judge Merryday incorrectly suggests that I believe the officers should consider whether the presumption of fault is rebuttable before issuing a ticket, which is untrue. Instead, the law allows officers to determine whether probable cause exists that a particular traffic law was violated, which requires investigating accident circumstances, rather than merely assuming the rear driver has violated a traffic law. Judge Merryday is suggesting the “presumption of fault” is a basis for writing a ticket to any rear driver regardless of driving behavior or accident circumstances, thereby allowing for a ticket at any and all rear-end crashes.
In their court filings, the City of Tampa attorney acknowledged that my accident circumstances are consistent with those in which the presumption of fault can be rebutted, since the SUV I was following made an abrupt turn off the road directly in front of stopped traffic. Judge Merryday is suggesting the accident circumstances can be ignored prior to issuing a ticket to the rear driver – thereby allowing for a ticket at every rear-end crash, even if the circumstances are consistent with rebutting the presumption of fault. Such a federal court ticketing precedent could have been particularly profitable to the auto insurance industry, as it advocates for red-light traffic cameras that are associated with large increases in rear-end crashes.
The judge had made similar conclusions about rebuttable presumption in his ruling on Counts 2 and 3.
Judge Merryday wrote: “However, both officers testify that they relied on the Florida rebuttable presumption that the following driver in a rear-end collision is at fault.”
Judge Merryday’s confusion about rebuttable presumption and traffic tickets was further evidenced when he referenced the Clampitt v. D.J. Spencer Sales lawsuit, which was a lawsuit that occurred after my accident and pertained to rebuttable presumption, not a traffic ticket. Judge Merryday used the Clampitt lawsuit to defend the issuance of my ticket in his rulings on Counts 2 and 3. The Clampitt scenario entailed three vehicles traveling in tandem. The first vehicle slowed to turn off the road, and the second (Clampitt) hit the first, causing a minor accident. The third vehicle was a commercial rig and hit Clampitt, causing a major crash and nearly a $1 million injury to Clampitt. The commercial rig company rebutted the presumption of fault, apparently as Clampitt crashed first. The Florida Supreme Court ruled the rebuttable presumption did not apply, as the rig driver could see both vehicles in front of him and should have controlled his following distance accordingly, and they ordered the commercial rig company to pay the damages. Judge Merryday did not equate me to Clampitt, who cause a minor crash. Instead, the judge likened me to the commercial rig driver, who caused a major crash and injury, and explained the Clampitt case supports issuing my ticket, even though the lawsuit had nothing to do with a traffic ticket. The Florida Supreme Court ruling in Clampitt was based on the commercial rig driving being able to view all vehicles in front of him, whereas Judge Merryday failed to acknowledge that I could not see the stopped traffic, such that the Clampitt circumstances are dissimilar. Judge Merryday also failed to acknowledge that my accident circumstances are consistent with those where the rebuttable presumption has applied, as the City of Tampa attorney explained. The presumption of fault has been rebutted in cases where the rear driver could not see stopped traffic. Had Judge Merryday used a lawsuit with similar accident circumstances, he would have come to a different conclusion. This reflects how a federal court outcome can be rigged by a judge, as Judge Merryday’s integration of the Clampitt case in defending the issuance of my ticket is illogical, as the case did not pertain to probable cause for a traffic ticket and the accident circumstances and magnitude are grossly dissimilar.
- Judge Merryday contended that the officer was charged with investigating the crash, but he failed to disclose that minor crashes do not require a police investigation in Florida, and he engaged in further misstatements about Florida’s rebuttable presumption law.
Judge Merryday wrote: “Orban cannot expect a police officer charged with investigating an accident to arrive at the scene, collect evidence, and weigh the evidence to adjudicate whether under Florida law the statutory presumption that a rear-end driver is at fault has been overcome by a substantial and reasonable explanation.”
This is incorrect since the officers were not “charged” with investigating the accident, as Florida law did not require an investigation of minor, non-injury crashes. Instead, the Tampa police “opted ” to investigate my crash even though it did not require an investigation. Also, officers are not determining fault or whether a rebuttable presumption exists. The judge has already explained that officers are prohibited from adjudicating the issue of fault; yet Judge Merryday claims the Tampa police are tagging a driver as “at fault” using a ticket. Judge Merryday is either confused or purposely obtuse.
- Judge Merryday suggested that my experience may reflect mere negligence by the officer and he defends the Tampa police practices as meeting the fairness requirements of due process, despite the fact that their practices violate every element of the fairness requirements.
Judge Merryday wrote: “Even a claim that Officer Bowden negligently issued Orban’s citation fails because a single instance of wrongdoing by an agent of the government is inactionable . . . mere negligence of inadvertence on the part of law enforcement does not meet the fairness requirements imposed by Due Process Clause [and] does not amount to a deprivation in the constitutional sense.”
I did not allege a single episode, but rather a pattern of practice and my lawsuit identified other victims who would testify regarding their related experiences if my case proceeded to a jury trial. Five requirements of fairness are explained on a University of Missouri – Kansas City School of Law web site, and the Tampa police policy violated all five.
Aspects of Due Process (‘Fundamental Fairness’)
- The government must provide notice of the charges against you.
I received the ticket, which lists the charge; however, this occurred after being told by the investigating officer that I did not violate a traffic law, yet his supervisor ordered the ticket due to “my characteristics” and the ticket misrepresented an injury, which the investigating officer said he was not permitted to correct.
- The government must be able to show that there is an articulated (non-vague) standard of conduct which you are accused of violating.
I was notified of the standard of conduct in vague terms only, as a careless driving action was not identified, as is required in Florida.
- The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time – the “hearing requirement”.
I was allowed to rebut the charges, but not in a meaningful way, as the investigating officer and/or supervisor did not attend the hearing and testify. Instead a false crash report was used as ex parte evidence against me. Further, the police chief’s aide (John Bennett) wrote that I could not have access to the investigating officer’s knowledge of circumstances, unless filing a lawsuit.
- In order to sustain its position (i.e., its deprivation of your liberty or property), the government must establish–at a minimum–that there is substantial and credible evidence supporting its charges.
There was no substantial or credible evidence supporting the charge, as a careless driving action was never identified. Their only evidence was a police report with multiple errors, and the officer who wrote it told me it was written per police policy, and not based on an investigation.
- The government must provide some explanation to the individual for the basis of any adverse finding. The initial adverse finding against me was due to the false crash report stating the pavement was “dry” when it was actually “wet,” – something the investigating officer knew, but was not permitted to disclose in court. The dismissal of the ticket ultimately resulted from documenting police fraud.
- Judge Merryday contended my experience reflects adequate due process, yet he failed to reveal my second hearing was granted by documenting police fraud.
Judge Merryday wrote: “More particularly, Orban received a citation, appealed the citation, lost her appeal, appealed again, and won her appeal. Orban seized both a robust and full measure of due process. . . Both her knowledge of and her exercise of her procedural rights is impressive, but any suggestion that she is deprived of her constitutional rights is not only false, but moot.”
Judge Merryday failed to disclose that I was granted a second hearing by documenting police fraud. Tampa police policy essentially forces officers to engage in what appears a “color of law” crime, when officers are ordered to issue tickets absent probable cause. The fact that I had help from Tampa police officers, the Florida Department of Law Enforcement, the Florida Highway Patrol, and the law office of the former U.S. Attorney for the Middle District of Florida in understanding the law and Tampa’s policies and practices may be impressive, but fabricating evidence on a ticket and crash report to justify a false ticket (arrest) meets the definition of a “color of law” crime. The FBI reports “color of law” crimes are unconstitutional. Judge Merryday failed to disclose that the false police report cost me thousands of dollars in additional auto insurance expense, some of which accrued to the Tampa police pension for use as “extra” pension benefits.
- Judge Merryday endorsed the “secret” submission of crash reports to court, contending a County traffic judge has the authority to notify officials they need not abide by State law, which is obviously incorrect.
Judge Merryday wrote: “Orban’s further allegation of constitutional injury resulting from the City’s ‘policy’ of allowing officers to submit ‘crash reports’ is equally moot and otherwise without merit. The Senior Administrative Judge for the Traffic Division for the City specifically allows officers of the police department to submit reports in place of live testimony.”
Florida statutes ban the use of crash reports in court, as they are hearsay. Judge Merryday is pretending that a County traffic judge can send a memo informing the police they need not abide by Florida law, which is untrue. Further, the Senior Administrative Judge (Thomas Stringer) who permitted the practice, in a 1985 memo, is now a felon. Also, the U.S. Supreme Court has ruled it is unconstitutional to submit reports to court in the absence of the person who wrote the report attending the hearing and testifying to answer any questions about the report, which also expects reports to be entered as evidence. In Tampa, crash reports are submitted as secret testimony, and drivers have no ability to challenge their accuracy or question the officer who wrote it because they are not informed the report is being used as evidence against them.
- Judge Merryday suggested the police practices do not rise to a level that “shock the conscience.”
Judge Merryday wrote: “Further, Orban would have to establish that the City’s actions ‘were so egregious as to …shock the conscience.”
My conscience is shocked, as the Tampa Police Department was requiring officers to essentially engage in color of law crimes. Florida statutes describe a “color of law” crime as follows: “Any person who falsely under color of law attempts in any way to influence, intimidate, or hinder a law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree.” In crash investigations, supervisors were influencing the investigating officer in the discharge of official duties, using a simulated legal process, by ordering officers to issue tickets after the officer concluded probable cause did not exist. This results in a false arrest (citation) and the need to fabricate evidence on a crash report, which is then used as ex parte evidence in court. I do not understand why Judge Merryday’s conscience is not shocked.
Analysis of the Appellate Court RulingClick here to read the analysis
I appealed Judge Merryday’s rulings on Counts 2 and 3 (malicious prosecution) and Count 4 (due process violations). The following are examples of errors and omissions by Appellate Judges R. Lanier Anderson, Susan H. Black and Gerald Bard Tjoflat.
- The appellate judges falsely claimed that I was found guilty of careless driving, which is untrue.
Appellate Judges Anderson, Black and Tjoflat wrote: “Dr. Orban contested the citation, but the traffic judge found Dr. Orban guilty of careless driving.”
I was never found “guilty of careless driving.” In the first hearing, the judge “withheld adjudication,” which is not a conviction in Florida. I was granted a second hearing by documenting police fraud and the ticket was dismissed. In their court filings, attorneys for the City of Tampa repeatedly wrote that I was found “guilty” in the first hearing and my attorney repeatedly wrote this was untrue. Nonetheless, the appellate judges merely repeated this untruth by City of Tampa attorneys.
- The appellate judges take their claim even further and report I was “guilty of careless driving,” despite the fact that I was not found guilty.
Appellate Judges Anderson, Black and Tjoflat wrote: “…Dr. Orban was at fault and guilty of careless driving, because she failed to observe the stopped traffic in time to avoid a collision. Even assuming Dr. Orban failed to timely spot the stopped traffic because a leading SUV-abruptly turned off the street, Dr. Orban still should have maintained adequate stopping distance in front of her car to avoid any obstacles in the roadway.”
Their statement is untrue and reflects disrespect for the judicial process because they are unwilling to honestly disclose the actual outcome – that I was never found guilty. Their false statement would mislead anyone who reads their ruling, and therefore I regard it as malicious by the three appellate judges. Further, they engage in more discussion on “fault,” which is not a basis in Florida law regarding the issuance of tickets in crash investigations. While the appellate judges contend I was following too closely, the investigating officers did not allege this on the ticket or crash report. The appellate judges failed to acknowledge my following distance exceeded that stated in depositions by Officer Bowden and the supervisor who trains new recruits. Similar to Judge Merryday, they ignored the analysis by the traffic accident expert who explained why the minor accident occurred and why it was unavoidable, which is not difficult to understand. Also, the appellate judges ignored the fact that my accident circumstances are similar to those where the rear driver has a rebuttable presumption of fault, which calls into question why federal judges are permitted to rule on matters they clearly do not understand.
- The appellate judges misrepresent that I said the accident was unavoidable, whereas I actually said Officer Bowden told me this.
Appellate Judges Anderson, Black and Tjoflat wrote: “Dr. Orban describes the accident as unavoidable.”
I said Officer Bowden told me he concluded the accident was unavoidable, but his supervisor required a ticket nonetheless – a fact the appellate judges never acknowledged. If acknowledging the truth, my case should have moved to a jury trial since federal judges are not permitted to make credibility determinations.
- The appellate judges concluded probable cause existed for the ticket because the officers had trustworthy information that an offense was committed; however, they failed to acknowledge the officers did not identify an “offense” ( a careless driving action) on the ticket or crash report, as required in Florida.
Appellate Judges Anderson, Black and Tjoflat wrote: “We agree with the district court that TPD [Tampa Police Department] officers had probable cause to issue Dr. Orban a citation. . . Probable cause exists where the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”
Officer Bowden’s deposition stated that careless driving may not be the appropriate charge, meaning he did not have “trustworthy information” that a careless driving act was committed. He never identified a careless driving act, which he told me would result in the ticket being dismissed. The law requires documentation of the action the officers deemed careless so that drivers can have a fair hearing by knowing what was considered careless – a fact the appellate judges ignored. The appellate judges ignored what Officer Bowden actually said. Further, there is no presumption that an offense occurred in a minor crash since the law does not require a police investigation.
- The appellate judges likewise deny the existence of the ticket-at-every-crash policy.
Appellate Judges Anderson, Black and Tjoflat wrote: “Dr. Orban’s assertion that in the future she may be issued a ticket without probable cause does not create an actual case or controversy. Even as alleged by Dr. Orban, TPD’ s policy does not mandate that TPD officers issue a citation whenever they respond to an accident; rather, TPD officers may seek a supervisor’s approval to forego issuing a citation if a citation would be inappropriate under the circumstances.”
As previously documented, the evidence affirms the ticket-at-every-crash policy existed.
- The appellate judges pretended I sought “prospective relief” for myself, whereas, I actually sought policy changes for all, whereby the Tampa Police Department would be required to abide by existing laws. Despite the evidence, they referred to my claim as “speculative.”
Appellate Judges Anderson, Black and Tjoflat wrote: “Thus, even assuming Dr. Orban will have another accident, and assuming TPD officers will respond to the scene, it remains uncertain that Dr. Orban would receive a citation if probable cause is lacking. Dr. Orban is no more entitled to prospective relief than any other citizen of Tampa, and her undifferentiated, speculative claim cannot sustain federal jurisdiction. The district court thus properly dismissed Dr. Orban’s due process claim for lack of standing.”
I had already been issued two tickets by the Tampa police absent probable cause and both were dismissed by documenting police fraud. Further, I identified other victims, and provided evidence of Tampa’s ticket-at-every-crash policy, such that their statement is untrue. It is untrue that I sought any “prospective relief” for myself, but instead sought policy changes for all citizens of Tampa, as specified in my proposed settlement agreements, which would require the Tampa police to abide by the law. My allegations were not undifferentiated and speculative, but well documented by Tampa police officers, which appellate Judges Anderson, Black and Tjoflat chose to ignore. My proposed settlement agreement affirms this.
It is disturbing that Stephen Merryday and Appellate Judges R. Lanier Anderson, Susan H. Black and Gerald Bard Tjoflat have such little regard for the affidavits and depositions from the law enforcement officers, in particular, failing to acknowledge what they actually said or wrote. This trio of appellate judges demonstrated an unwillingness to integrate facts provided by my attorney and police officers, revealing a profound bias toward attorneys for the City of Tampa, reminiscent of The Emperor’s New Clothes. My case reveals the need to develop a genuine accountability system for federal judges, such that they are held accountable for making statements that are untrue and for omitting important facts.
The Tampa police ticket-at-every-crash policy was discontinued prior to the appellate court ruling. However, who or what forced the policy change is unknown.