Orban v. Tampa

My federal lawsuit against the City of Tampa attempted to discontinue: a) Tampa’s ticket-at-every-crash policy and the related fraud; b) the “secret” submission of crash reports to court, some of which are false; and c) the funding of “extra” police pension benefits from auto insurance premium increases. My lawsuit sought policy changes, and was not about money. If successful, I would only be reimbursed for the legal fees incurred to pursue my lawsuit, which were considerable, and the few thousand dollars paid to insurance due to the false crash report.

My lawsuit alleged malicious prosecution and due process violations, stemming from being a victim of the ticket-at-every-crash policy that resulted in a $3,500 auto insurance increase, due to a false crash report written by a rookie Tampa officer. After my ticket was dismissed, my auto insurance company offered to refund the $3,500, if the crash report errors were corrected. However, Tampa police attorney, Kirby Rainsberger, refused to amend the errors, other than the incorrect street name – thereby sustaining the auto insurance increase. He advised resolving differences in court, meaning Orban v. The City of Tampa was his suggestion.

The declarations sought in my 2004 federal lawsuit against the City of Tampa are listed below.

  1. Tampa’s policies, practices and customs to write a traffic citation without reasonable and probable grounds are unconstitutional and otherwise illegal.
  2. The issuance of citations, after it has been determined that issuance of a citation is inappropriate, is unconstitutional and otherwise illegal.
  3. A practice of allowing a supervisor to override a determination of an officer investigating at the scene is unconstitutional and otherwise illegal, in the absence of facts showing the supervisor had reasonable and probable grounds to cause a citation to issue.
  4. Placing known erroneous entries in a citation or crash report to supply a rationale for the citation or conclusions of the crash report is unconstitutional and otherwise illegal.
  5. Traffic court use of crash reports to contradict the testimony of witnesses without providing said report to the parties and without appearance and authentication by the police officer is unconstitutional and otherwise illegal.
  6. A de facto quota system for traffic citations is unconstitutional and otherwise illegal.
  7. A system which causes citations to be issued to generate funds for the police pension fund is unconstitutional and otherwise illegal.
  8. The practice of reducing employee or city contributions to the pension fund, based upon premium tax revenues received, is unconstitutional and otherwise illegal.
  9. The practice of having insurance companies contribute to police pension funds, based upon a percentage of premiums collected, is unconstitutional and otherwise illegal.
  10. The practice and policy of keeping police officers away from court and not honoring subpoenas is unconstitutional and otherwise illegal.
  11. Refusing to give information to citizens that is required to be given, so the citizen can protest citations, is unconstitutional and otherwise illegal.

As background, in March 2000, I had a very minor, non-injury, rear-end crash that had mitigating circumstances. After exchanging information with the other driver, I called the police to affirm the damage was minor. I did not trust the other driver, as he acted as if his car had major damage and he claimed experience in collecting insurance settlements from three prior crashes. Tampa Officer Edward Bowden responded and investigated the minor crash, even though Florida law did not require an investigation of minor accidents. He concluded by telling me that he believed the accident was unavoidable.

Accident Scenario

I was driving at 15 mph on a 30 mph narrow, two-lane, wet road, following an SUV by about 40 feet. Without signaling or braking, the SUV turned off the road at an intersection, directly in front of stopped traffic that was backed up to the intersection. There is no dispute with the Tampa police about how the accident occurred. The accident occurred just beyond the intersection, and the other driver reported being stopped for some time before I bumped into him. It was minor (denting the license plate of the other car and getting paint on its bumper). The officers estimated the damage to each car as $500. My following distance exceeded the guides reported, in depositions, by Officer Bowden (10 feet per 10 mph) and the supervisor who trains new recruits (one car length per 10 mph). In my federal lawsuit, an accident re-constructionist used the body shop damage estimates from the cars to model the crash. He affirmed the damage is consistent with my reported speed and following distance and concluded it was unavoidable, because I was deprived of the distance it would take the SUV to stop had it had braked when approaching the stopped traffic.

Officer Bowden then explained that his supervisor (identified as Corporal Robert Wagner on the crash report) ordered a ticket due to “my characteristics,” which I assumed was retaliation over a Tampa officer being terminated a few months earlier, due to information I had provided. The ticket ordered by the supervisor was for Careless Driving and it misrepresented that an injury occurred. Officer Bowden said that insurance companies consider Careless Driving a serious infraction, which my auto insurance agent subsequently affirmed. Officer Bowden also explained why the two tickets used in rear-end crashes (“Following Too Closely” and “Careless Driving”) were not applicable to my accident circumstances, such that he did not have probable cause to write a ticket. I received the ticket only because Tampa police policy allowed the supervisor, who did not investigate the crash, to override the investigating officer’s conclusion that probable cause did not exist to write a ticket. Officer Bowden suggested taking the ticket to court.

I called Officer Bowden a week or two later and told him my insurance agent asked that he delete the injury misrepresentation. He responded that he is not allowed to make any changes to the ticket. He then explained that my Careless Driving ticket did not list a careless driving action, as is required by Florida case law (Robinson) to assure a driver knows what driving behavior was deemed careless. In Robinson v. State (152 So.2d 717 – Fla. 1934), the Florida Supreme Court ruled that “reckless driving,” similar to careless driving, is a vague term and that 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.” Thus, Officer Bowden wrote an incomplete ticket, which suggests he followed his supervisor’s directive as is required by Tampa police policy, but in a manner that allowed the ticket to be dismissed. He again suggested requesting a court hearing, and said he would not attend the hearing to testify against me.

Officer Bowden then explained it was my insurance company that wanted a ticket issued, despite the lack of a traffic violation, and he blamed the State of Florida for the practice, which becomes clear once understanding the Florida law that links auto insurance increases to “extra” police pension benefits. When deposed in my federal lawsuit, he said: “The only other thing I think that I’ve used in any conversation is that my personal perspective on some of these traffic crashes is that we’re investigating them primarily for the benefit of the insurance company, that they have documentation at the time at the scene. Because as far as how it relates to police work, you know, I guess just personally sometimes I don’t see that relationship; if there’s minimal damage, there’s no criminal offense.” His statement was not specific to my accident, but his belief that all investigations of minor accidents are documentation for insurance and unrelated to police work.

When deposed years later in my federal lawsuit, Officer Bowden said he expected my ticket to be dismissed, because no one would testify against me. He said there were no injuries, and that when called to a crash, he is expected to write a ticket and report.

Rookie officer David Duncan, who was also present at the crash investigation and wrote the crash report, told me his report was written “per police policy” and not based on an investigation. Eventually, his report would be used in court as “secret” evidence to contradict my statements, which I did not know at the time. His crash report was the first ever written by rookie officer David Duncan, and despite a plethora of false entries, Tampa’s police attorney never required the young officer to correct them – allowing him to believe that crash reports are written per police policy. This appears to violate Florida State 316.067 pertaining to crash reports, which states: “Any person who gives information in oral, electronic, or written reports as required in this chapter, knowing or having reason to believe that such information is false, commits a misdemeanor of the second degree.”

At the court hearing, I followed Officer Bowden’s advice and told the judge there was no careless driving action identified on the ticket. Instead of dismissing the ticket because it was incomplete, the judge proceeded with the hearing. The other driver attended and insisted the road was dry and that I told him I was looking backward reading a Thai restaurant sign, which is untrue. Five years later, when he was deposed in my lawsuit, he admitted that he said this to the officers. However, the officers did not document his statement, because they went to the road and looked. At the time, there was no Thai restaurant sign if looking backward.

Also in his deposition, the other driver explained that he intended to sue me for more money, despite collecting from my insurance company; however, he said his attorney would not do so.

At the traffic hearing, the judge had asked us to commit on the road as wet or dry. The other driver insisted it had not rained and the road was dry, even though it was wet. Then, the judge shuffled through some papers, read something, shook his head negatively, and told me my statements were not supported by the police. I had the newspaper from the day following the accident that reported the evening thunderstorm as the first rain in many months, but the judge refused to review it and instead relied on his “secret” evidence. The judge said I had an excellent driving record, withheld adjudication, and assessed $100 in court costs, which is not a conviction in Florida. Thus, the court profited for its use of secret crash report evidence and by proceeding with the hearing, despite the ticket being incomplete. When Officer Bowden was deposed five years later, he recalled the road was wet and that it had just rained, which demonstrates the importance of having the investigating officer testify, as opposed to “secret” reports that may or may not be true.

About a year after the accident, I requested the crash report once learning how it was used at the hearing. The rookie’s crash report had listed the road as “dry” and weather conditions as “clear,” even though the accident occurred just after a thunderstorm, meaning the rookie erred in reporting facts he could observe. He used the “long form” crash report, which is used for injury crashes; however, he correctly reported there were no injuries. The rookie listed the air bags as “in use” on both cars, whereas they did not deploy on either. He incorrectly checked boxes that I had an unobstructed view and was not braking. Instead, he wrote that I was driving at 5 to 10 mph (a speed that would require braking) and struck the other car since I “failed to observe the vehicle in time.” However, he omits why this occurred.

Tampa police attorney Ursula Richardson later defended the rookie’s omissions, contending that officers report “what” happened, not “why” it happened. This is consistent with their belief that any crash, regardless of circumstances, entails a traffic law violation because of “what” happened (an accident). The “why” does not matter to Tampa police attorneys. However, the law is based on “why” an accident occurred, as specific driving behaviors are identified as violations of the law. Also, when deposed, Officer Bowden said Careless Driving may not be the appropriate charge, yet Ms. Richardson contends, in her letter, that he had probable cause for a Careless Driving ticket nonetheless. It becomes evident that Tampa police attorneys do not respect the conclusions of investigating officers.

The notion that any accident entails a traffic law violation emanates from the automobile insurance industry. In my federal lawsuit, Tampa police attorneys attempted to create a federal court precedent, which could trump State law in the Middle District of Florida, that probable cause exists in all rear-end crashes because an accident occurred. In court filings, their rationale for my Careless Driving ticket was that I could have been “more careful.”

Because the ticket was not dismissed, I paid a $3,500 auto insurance increase (39% increase) over three years, due to the $1,000 claim paid to repair the two cars, illustrating how insurance companies profit from minor accidents. My insurance agent had advised against personally paying for the other driver’s repairs. She explained that if settling with him and then subsequently sued by him, the insurance company would not be responsible.

If convicted on the ticket, I would have paid a 132% auto insurance increase for three years, totaling $11,800, based on the rates my insurance company filed with the State. On my policy, the insurance increase was assessed to the two most expensive drivers on the policy, which were my husband and teenaged son. The 132% increase would have resulted from: 1) a 78% increase if convicted on the ticket, with points accruing to the driver’s license; 2) a 15% underwriting penalty; and 3) the 39% that I paid for the claim since the ticket was not dismissed. This is evidence that auto insurers are the true beneficiary of traffic tickets, as the fine for the Careless Driving ticket was only $90 – plus four driver’s license points.

I planned to appeal the verdict and subpoena Officer Bowden, as he could affirm the road was wet, which he said when subpoenaed five years later in my federal lawsuit. However, my traffic attorney claimed Officer Bowden would not attend a hearing, even if deposed, because Tampa police do not attend hearings on tickets written in crash investigations. At the time, it was baffling that a police officer would not show up in court when subpoenaed. However, I had not yet discovered the policy on the “secret” submission of crash reports to court, in lieu of the officer’s attendance.

Asking the Police Chief for Officer Bowden's Knowledge of Circumstances...

Meanwhile, I wrote to Tampa’s police chief and asked to access Officer Bowden’s knowledge of the accident circumstances. The police chief’s aide, Sergeant John Bennett, who is now Tampa’s Assistant Police Chief, responded with a letter, making a number of points that are untrue, as noted below.

  • Bennett claimed officers “identify the at-fault party, and cite accordingly” (page 2). “Fault” pertains to who pays damages, and who pays damages is inadmissible in traffic ticket court hearings, which reveals Bennett’s assertion is incorrect. Tampa’s policy did not abide by State law, which requires an officer to have probable cause that a particular infraction occurred.
  • Bennett stated an officer chooses a ticket as a “matter of style” once determining “fault.” He wrote that Following Too Closely, Careless Driving and Speed Too Fast for Conditions are all appropriate charges for a minor rear-end crash, apparently regardless of one’s following distance, speed, or whether a careless driving action occurred. His statements are further evidence that Tampa police policy did not adhere to Florida law, as the law requires probable cause that a particular infraction occurred, as well as disclosure of the alleged infraction.
  • Sgt. Bennett claimed my accident report is “correct,” which is untrue, and he denied access to Officer Bowden’s knowledge of circumstances (page 4). Regarding the written statement I requested, he sent only page 1 of the crash report to affirm injuries were not reported. He failed to provide pages 2-4, where the rookie incorrectly documented road, weather and accident circumstances. Bennett wrote that I would need to file a lawsuit to gain Officer Bowden’s knowledge of accident circumstances and, if doing so, the crash report “would prevail,” even though Florida law bans the use of crash reports in court.

Mr. Bennett’s letter reveals he was unfamiliar with Florida law regarding officers writing tickets in crash investigations.

My Complaint to the Tampa Police Department...

I was motivated to pursue a complaint for two reasons. Something obviously had occurred in 1999 that precipitated the deluge of traffic tickets in Tampa. Intellectual curiosity made me want to find the reason. Second, my public health students often assume that public sector employees will do the right thing on behalf of the public, regardless of whether oversight exists. The Tampa police provided an example of why this notion is faulty, as perverse practices were evident since accountability systems were absent.

Once learning that law enforcement officers are not required to investigate minor non-injury crashes, meaning there is no presumption that a traffic law was violated, I made a written complaint to Tampa’s Internal Affairs Bureau, which stated Officer Duncan told me he wrote the report per policy and not an investigation, that Officer Bowden told me I did not violate a traffic law, and that his supervisor ordered the Careless Driving ticket that misrepresented an injury due to “my characteristics.” The following briefly summarizes what transpired.

  • About a month later, I called Internal Affairs Det. Bert Murray who explained the police would not investigate my complaint, since it would lead to the ticket being dismissed. Further, he said Sgt. John Bennett told them not to investigate my complaint. The detective had me call Sgt. Bennett, but he never responded.
  • I then wrote to Tampa’s Mayor Dick Greco and asked to have my complaint investigated. He forwarded my letter to the Tampa police. Sgt. John Bennett responded to the mayor’s office by e-mail, claiming he had handled the matter and they need not respond to me. However, in his affidavit submitted to federal court in my lawsuit, Bennett denied that he advised the mayor to not respond to my complaint, meaning he was untruthful in a sworn statement submitted to federal court, yet there were no consequences. When the Tampa police officer was terminated in 1999 over my first traffic ticket, an Internal Affairs sergeant explained that officers who are untruthful in sworn statements are no longer permitted to testify in court, which was the reason given for the officer’s termination. If Bennett has been permitted to continue testifying in court, then a double standard exists.
  • A Florida Department of Law Enforcement special agent advised me to obtain the relevant Tampa police policies and file two complaints. The first complaint was to the Commission on Accreditation of Law Enforcement Agencies (CALEA), which accredits the Tampa Police Department, and requires that all complaints are investigated. The second complaint was to the Tampa police Internal Affairs, identifying specific violations of their written policies, such as the policy requiring truthfulness. The CALEA site visit report acknowledged my complaint and concluded it was investigated and the officers were disciplined (page 13), which is untrue. Meanwhile, Tampa’s Internal Affairs Captain Jill Marks responded to me that I had no complaint, which directly contradicts what the Tampa police told the CALEA site visit team.
Getting the Ticket Dismissed...

I then was fortunate enough to have the former U.S. Attorney for the Middle District of Florida, who had vigorously prosecuted corrupt public officials in Tampa, agree to meet with me and review my concerns. An attorney from his firm subsequently advised on filing a Motion for Reconsideration on the ticket based on intrinsic and extrinsic police fraud. The following supporting documentation was provided:

  • The ticket, which lacks documentation of a careless driving action:
  • The crash report, with the errors noted;
  • The letter from Sgt. John Bennett, which affirmed a) there is no dispute regarding how the accident occurred; b) that the Tampa police issue tickets based on “fault” and not driving behavior; c) that they deny access to the investigating officer’s knowledge of accident circumstances; and d) that Bennett was incorrect when stating the crash report was accurate;
  • Satellite weather data from the National Oceanic and Atmospheric Administration (NOAA) to prove it had been raining around the time of the accident, which cost $70, and was necessitated only because the Tampa police denied access to Officer Bowden’s knowledge that the pavement was wet;
  • The print-out from a weather web site that documented daily rain totals to prove the rain was the first in many months;
  • A letter from my insurance company that documented a claim had not been filed for air bags or an injury, which was also necessitated because the Tampa police denied access to the Officer Bowden’s knowledge of these facts;
  • The damage estimate for the other vehicle, which affirmed the accident was minor, despite the rookie using the “long” crash report form, which is used in major crashes;
  • The letter from Internal Affairs Captain Jill Marks, who wrote that I had no complaint, despite the crash report having errors and used as “secret” evidence in the court hearing; and
  • A photo that affirmed there was no Thai restaurant sign if looking backward down the road.

The judge granted a new hearing. My attorney subpoenaed Officer Bowden to the hearing, and the officer responded that he would not attend, which suggests the crash report was again submitted as evidence. Similar to the first hearing, the Tampa Police Department did not have anyone attend to testify against me. The judge told me I did an excellent job, dismissed the ticket, and ordered a refund of the $100 in court costs.

After the ticket was dismissed, my insurance company was supposed to refund the $3,500 surcharge. However, they decided to keep the money, and claimed it was now an underwriting penalty based on the crash report. They would refund the money, if the Tampa police corrected the errors on the report, which Tampa police attorney Kirby Rainsberger refused to do, despite admitting the report has errors. Had Mr. Rainsberger simply corrected the crash report errors, I would have received the insurance refund and would lose the right to file a federal lawsuit, since I had no other monetary damages, other than legal expenses over the ticket.

I then asked the Florida Department of Highway Safety and Motor Vehicles to correct the crash report errors and provided the supporting documentation, in order to receive the insurance refund. The report was stored on microfiche and the State’s manager of crash reports told me he would hand enter the changes once they were submitted to him, allowing me to receive the insurance refund. A Florida Highway Patrol captain in Tallahassee responded to my request and explained that only the Tampa Police Department can make changes to my crash report. The captain further explained that the Tampa practices that I described would violate many State laws, which include felonies. The captain had me write down the statutes that appear to be violated in order to review them with my attorney.

They are as follows:

  1. Falsifying records (F.S. 839.13) – If any employee of a public agency falsify any paper filed in any judicial proceeding in any court of this state, or shall knowingly and willfully conceal any issue, or shall falsify any document or instrument recorded, or filed in any court, or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending shall be guilty of a misdemeanor of the first degree.
  2. False [crash] reports (F.S. 316.067) – Any person who gives information in oral, electronic, or written reports as required in this chapter, knowing or having reason to believe that such information is false, commits a misdemeanor of the second degree.
  3. False official statements (F.S 837.06) – Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree.
  4. Perjury in official proceedings (F.S. 837.02) – Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree.
  5. Official misconduct (F.S. 838.022) – It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to: a) Falsify, or cause another person to falsify, any official record or official document . . . Any person who violates this section commits a felony of the third degree.
  6. Criminal actions under color of law or through use of simulated legal process (F.S. 843.0855) – (4) Any person who falsely under color of law attempts in any way to influence, intimidate, or hinder a public officer or 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

After talking to my attorney, I called the State Attorney’s office and explained the Tampa police practices, relative to the law. The woman responded that they prosecute cases “with” the police department, and they do not prosecute police officers. She told me to report this to the U.S. Attorney.

Assistant U.S. Attorney Jeffrey Del Fuoco worked in the public corruption unit and had successfully prosecuted corrupt law enforcement officers in two other local agencies. He immediately responded to my call. After explaining Tampa’s practices to him, he expressed concern and asked for further documentation, which I forwarded to him. At the time, I had documentation of the police practices, and had identified other victims and officers who had concerns about the policy, but had not yet found the kickback from insurance companies to the police pension. Within weeks, Mr. Del Fuoco came under attack by his supervisor Robert O’Neill, and was ultimately forced to resign. I made additional requests to have my complaint investigated, but never received a response from anyone else in the public corruption unit. Tampa’s U.S. Attorney later resigned to become an insurance company executive, and Mr. O’Neill later became the U.S. Attorney for the Middle District of Florida.

Tampa police officers told me they were informed money was flowing from auto insurance companies to the police to investigate crashes, but they did not know the specifics. In 2003, I finally found an officer who could explain the kickback between auto insurance and police pension benefits. Due to inaction by City of Tampa officials and the U.S. Attorney’s public corruption unit in addressing my police fraud complaint, I filed Orban v. The City of Tampa in August 2004 in an attempt to have Tampa’s perverse policies changed.