     Case: 09-40462     Document: 00511059739          Page: 1    Date Filed: 03/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 23, 2010

                                     No. 09-40462                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



STEPHEN BELL; TXPS, INC.; MOHAMMED AL MUSA

                                                   Plaintiffs-Appellants
v.

REDFLEX TRAFFIC SYSTEMS, INC.

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:08-CV-00444




Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appellants Stephen Bell, TXPS, Inc., and Mohammed Al Musa appeal
from the district court’s dismissal of their negligence per se claim against
Appellee Redflex Traffic Systems, Inc. (“Redflex”) for lack of standing. For the
reasons provided below, we affirm the dismissal of Appellants’ suit.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 09-40462

                                          I.
      In the latter half of 2008, each Appellant ran a red traffic light in either
the City of Plano or the City of Duncanville and received a notice of a traffic
violation. The Cities issued these notices on the basis of photographs taken by
traffic cameras installed and operated by Redflex in Plano and Duncanville.
Redflex had contracted with the Cities to monitor compliance with traffic lights
at certain intersections. Appellants did not contest the notices of violation and
each paid fines of $75 to either Plano or Duncanville.
      Shortly thereafter, in November 2008, Appellants filed the present suit
under a novel theory of recovery. They claim that Redflex is an “investigations
company” that under Tex. Occ. Code Ann. § 1702.101 may not operate without
a license from the State of Texas. See Tex. Occ. Code Ann. § 1702.104(2) (Vernon
2004) (“A person acts as an investigations company for the purposes of this
chapter if the person . . . engages in the business of securing . . . evidence for use
before a court, board, officer, or investigating committee . . . .”). Since Redflex
did not have a license when its cameras captured evidence of Appellants’ traffic
violations, Appellants argue that Redflex’s conduct qualifies as negligence per
se. Consequently, they seek injunctive relief to block Redflex from continuing
to operate without a license, reimbursement of fines and related expenses,
$3,000,000 in damages, and certification of a class of similarly situated
individuals under Rule 23. The district court, however, dismissed Appellants’
suit, concluding that it lacked subject matter jurisdiction over this case because
Appellants did not have standing to bring their claim. We now affirm the
district court’s dismissal, as we also conclude that Appellants do not have
standing to challenge Redflex’s failure to acquire a license pursuant to section
1702.101.




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                                       II.
      Whether a district court possesses subject matter jurisdiction is reviewed
de novo on appeal. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 (5th Cir.
2008). When a district court dismisses a case because lack of subject matter
jurisdiction is apparent on the face of the plaintiff’s complaint, the factual
allegations in the complaint must be accepted as if they were true.           See
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).
      “[S]tanding is an essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). When a plaintiff cannot satisfy the standing requirements imposed by
Article III, courts lack subject matter jurisdiction over a case. See Cadle Co. v.
Neubauer, 562 F.3d 369, 371 (5th Cir. 2009). To prove standing to bring a claim
in federal court, “a litigant must demonstrate that it has suffered a concrete and
particularized injury that is either actual or imminent, that the injury is fairly
traceable to the defendant, and that it is likely that a favorable decision will
redress that injury.”    Massachusetts v. EPA, 549 U.S. 497, 517 (2007).
Appellants advance several theories of injury to demonstrate that they have
standing to bring suit against Redflex for operating traffic light cameras without
a license. However, none of these theories are sufficient to provide standing to
advance the claims raised by Appellants.
      First, Appellants claim that they have been injured by their traffic
citations and related fines and expenses. These injuries, however, cannot create
standing. Appellants do not allege that they were improperly cited for traffic
violations by the Cities of Plano and Duncanville; instead, they claim their
violations would not have been discovered were it not for Redflex. This interest
in evading the law cannot create standing—a plaintiff’s complaint that the
defendant’s actions “will make his criminal activity more difficult lacks standing
because his interest is not ‘legally protected.’” Initiative and Referendum Inst.

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v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) (citing 13 Charles Alan Wright
et al., Federal Practice and Procedure § 3531.4 (2d ed. Supp. 2005)).
       Second, Appellants assert that they have been injured by the use of
allegedly illegally obtained evidence to prove their traffic violations. However,
illegally obtained evidence may be admitted in civil traffic violation proceedings,
and therefore the use of such evidence against Appellants creates no injury. See
Tex. Transp. Code Ann. § 707.002 (Vernon Supp. 2009) (“The governing body of
a local authority by ordinance may implement a photographic traffic signal
enforcement system and provide that the owner of a motor vehicle is liable to the
local authority for a civil penalty if . . . the vehicle is operated in violation of the
instructions of that traffic-control signal . . . .” (emphasis added)); United States
v. Janis, 428 U.S. 433, 447 (1976) (“In the complex and turbulent history of the
[exclusionary] rule, the Court never has applied it to exclude evidence from a
civil proceeding, federal or state.”); In re Strategic Impact Corp., 214 S.W.3d 484,
488 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding [mand. denied]) (“In
civil cases, even illegally obtained evidence may be admissible at trial.”); State
v. Taylor, 721 S.W.2d 541, 551 (Tex. App.—Tyler 1986, writ ref’d n.r.e.)
(appraisal conducted by unlicensed real estate broker held admissible in
condemnation case). Consequently, this alleged injury to Appellants is illusory.1

       1
         Appellants claim that Collins v. Collins establishes that illegally obtained evidence
is properly excluded in civil cases, even when the statute in question does not explicitly
provide for exclusion. 904 S.W.2d 792 (Tex. App.—Houston [1st Dist.] 1995, writ denied). In
Collins, the Texas First Court of Appeals did not allow evidence obtained in violation of federal
and state wiretap statutes to be introduced in a civil proceeding. Id. at 799. Specifically, the
court held that “[a]lthough the Texas wiretap statute does not specifically provide for the
exclusion of illegally obtained ‘communications,’ the provisions for a cause of action for
divulging wiretap information and the injunctive remedies . . . are sufficient to rebut the
presumption of admissibility under [Texas Rule of Evidence] 402.” Id. We find Collins
inapposite in this case for several reasons. First, Collins is in tension with the weight of
authority discussed above, which provides that illegally obtained evidence is admissible in civil
proceedings. Second, unlike the Texas wiretapping statute considered in Collins, Texas law
does not allow private citizens to sue to enforce section 1702.101’s licensing requirement or to
seek injunctive relief against disclosure of information obtained without a license. Compare

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       Third, Appellants contend that Redflex’s collection of evidence without a
license has injured their interest in privacy. Even assuming that taking a
photograph of a vehicle moving through a public intersection could create an
actionable privacy injury,2 we conclude that Appellants have not alleged
sufficient facts to show causation between their purported privacy injury and
Redflex’s failure to acquire a license. If an investigations license were akin to
a warrant and meant to be a procedural means of protecting privacy, the
plaintiffs would likely be able to show causation sufficient to proceed in this case.
Cf. Lujan, 504 U.S. at 573 n.8 (1992) (explaining that plaintiffs can “enforce
procedural rights . . . so long as the procedures in question are designed to
protect some threatened concrete interest . . . that is the ultimate basis of [their]
standing” (emphasis added)).           However, Texas case law reveals that mere
investigation without a license, without more, does not in itself intrude on
privacy. In Hudson v. Winn, a Texas appellate court considered an invasion of
privacy claim filed against an unlicensed investigator. 859 S.W.2d 504, 507-08
(Tex. App.–Houston [1st Dist.] 1993, writ denied). The investigator had lied to


Tex. Occ. Code §§ 1702.381-383 (authorizing attorneys for state to file suit to seek injunctive
relief and civil penalties for failure to acquire license), with § 1702.401 (authorizing private
citizens to file complaints with Texas Private Security Board when entities acting as
investigations companies fail to acquire licenses). Third, the exclusion of evidence endorsed
by the Collins court has been called into question by another Texas appellate court. See Allen
v. Mancini, 170 S.W.3d 167, 172 (Tex. App.—Eastland 2005, pet. denied) (explaining that
Texas wiretapping statute “does not address the admissibility of . . . evidence absent an
injunction prohibiting the divulgence or use of [the wrongfully obtained] information”).
Consequently, we are confident that Redflex’s photographs of Appellants’ vehicles were
properly admitted to prove Appellants’ traffic violations, even if these photographs were
obtained without a license.
       2
         We do not mean to suggest that a defendant’s use of public photography against some
interest of a plaintiff can never establish an injury-in-fact that would be actionable under
Article III. There may be valid privacy concerns regarding such photography, but we do not
reach this issue today. See, e.g., Andrew Lavoie, Note, The Online Zoom Lens: Why Internet
Street-Level Mapping Technologies Demand Reconsideration of the Modern-Day Tort Notion
of “Public Privacy”, 43 Ga. L. Rev. 575, 579-82 (2009) (discussing privacy concerns regarding
Google Street View).

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gain entry to the plaintiff’s home, and then allegedly investigated the nature of
the plaintiff’s relationship with her deceased partner. Id. at 505-06. The
plaintiff claimed that the investigator’s failure to acquire a license established
negligence per se, but the court held against the plaintiff, as it found that the
evidence did not show how the failure to acquire a license caused any privacy
injury. Id. at 508. Similarly, in this case, Appellants have only made the bare
allegation that Redflex collected evidence without a license, without alleging any
facts to demonstrate how Redflex’s lack of a license contributed to any invasion
of their privacy. Consequently, they have not shown the causation necessary to
provide standing to advance their negligence per se claim in federal court. Cf.
Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the
complainant clearly to allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute and the exercise of the court’s remedial
powers.”).3
                                              III.
       For the foregoing reasons, we conclude that we are without subject matter
jurisdiction over this case and AFFIRM the district court’s dismissal of
Appellants’ claims for lack of standing.




       3
         Appellants also protest that the district court improperly dismissed their action solely
on the basis of the allegations in their pleadings and instead should have reviewed evidence
in the record before ruling. It is true that when there are factual disputes concerning subject
matter jurisdiction, district courts may look beyond the pleadings and weigh the evidence in
the record to resolve these disputes. See Williamson, 645 F.2d at 412-13 (quoting Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir. 1977)). However, district courts
are in no way bound to review the record if, as in this case, lack of jurisdiction is apparent on
the face of the plaintiff’s complaint. See, e.g., Test Masters Educ. Servs., Inc. v. Singh, 428
F.3d 559, 570 n.2 (5th Cir. 2005). In the alternative, Appellants argue that the district court
did review the record, and improperly based its dismissal on evidence beyond the pleadings.
However, as Appellants themselves acknowledge, “[t]here is nothing in the District Court’s
Order reflecting any review of the documents made part of the record, or its consideration of
the record at all.”

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