Article: Inside Investigator | Archive: Ghost
A lawsuit against a company whose automated license plate readers (APLRs) are used by several towns in Connecticut will move forward after a federal judge rejected a motion to dismiss it.
The lawsuit, filed in U.S. District Court for the Eastern District of Virginia, alleges Flock Safety’s ALPRs violate the Fourth Amendment’s prohibition on unreasonable searches and seizures because the cameras create a record of every vehicle that passes and collect it in a database, where it is held for thirty days. Information in the database is also “pooled” with data collected from other cities that have Flock ALPRs installed and accessible outside Norfolk’s police department.
Norfolk, Virginia resident Lee Schmidt and Portsmouth, Virginia resident Crystal Arrington, a home healthcare worker who frequently takes clients through Norfolk, filed the lawsuit against the city of Norfolk and its police department in federal court in October 2024. The lawsuit claimed the 172 cameras installed across the city create a surveillance system that violates the Fourth Amendment, that the ability to track a person’s movements over at least 30 days constitutes a search under that amendment, and that it is done without a warrant, another alleged violation of the Fourth Amendment.
On November 25, 2024, the city of Norfolk, its police department, and chief of police Mark Talbot filed a motion to dismiss the complaint, arguing Arrington and Schmidt had not stated a claim where relief could be granted.
A memo supporting the motion to dismiss claimed Arrington’s and Schmidt’s suit attempted to “extend the boundaries of Fourt Amendment protection beyond any place it has reached before” and was asking the court to “restrict the use of cameras on public land to capture static images of what any passerby would have been able to observe on the exterior of a vehicle.”
They argued that federal courts have previously found that because there is no public expectation of privacy, police can use video surveillance to capture the same things any passerby could also observe.
The memo also argued Arrington and Schmidt did not have standing to sue the Norfolk police department because it is part of the city of Norfolk and cannot be sued.
Arrington and Schmidt moved to dismiss the police department from the lawsuit in December 2024.
A federal judge rejected the remaining claims in the motion to dismiss the lawsuit on February 5.
To determine whether Arrington and Schmidt have standing for the suit, the court looked at whether the data collected by the ALPRs constituted a search that infringed upon the Fourth Amendment. The court noted that precedent from the Supreme Court has found that this is a necessary standard when determining standing in a Fourth Amendment case.
To do that, the court turned to a two-part test established by a concurring Supreme Court opinion in its ruling in Katz v. United States. Under the test, a person has an expectation of privacy and the government violates their Fourth Amendment rights if that person has shown an actual subjective belief in their expectation of privacy and if that expectation is recognized by society as reasonable.
Contrary to the argument made in the motion to dismiss, the court found it is plausible Arrington and Scmidt believe they have a reasonable expectation of privacy that is being violated by Flock’s cameras because it creates “a drag-net system of surveillance that effectively tracks the whole of Plaintiffs’ physical movements.” They further added that a statement made by Norfolk Chief of Police Talbot supports this. Talbot previously said the cameras were placed to make it difficult to drive anywhere in Norfolk without running into them.
The court also noted there are four cameras outside Schmidt’s neighborhood and that “he cannot leave his neighborhood without [Norfolk police] knowing.” They also noted that Arrington’s car is captured by the cameras almost daily, that hits from the cameras for specific cars are placed in a database, and that the “stated purpose of the Flock system is to “archive evidence” of a vehicle’s movements for ‘evidence gathering.'”
Together, the court found, these factors justify Arrington’s and Schmidt’s subjective belief that the cameras violate their expecation of privacy.
The court also found that Arrington’s and Schmidt’s claims fulfilled the second part of the Katz test. As a result, and because they “plausibly alleged that a warrantless search occurred, and thus interests that the Fourth Amendment was designed to protect have been violated,” the court found they do have standing to sue and denied the motion to dismiss the lawsuit.
“This is a massive first step toward protecting the Fourth Amendment rights of everyone who drives through Norfolk,” said Michael Soyfer, an attorney with the Institute for Justice, a public interest law firm that is representing Arrington and Schmidt. “These cameras can track people’s every move over a prolonged time period. If the government wants to do that, it should have to get a warrant.”
Flock has contracts with several Connecticut towns, including Cheshire, New Canaan, Southington, and Darien.
The cameras were recently the subject of controversy in Colchester after a pilot program with Flock was run without any sign-off from the town’s board of selectmen.
Norfolk, VA Camera Surveillance
Case Details: Institute for Justice | Archive: GhostLee Schmidt and Crystal Arrington live in and around Norfolk, Virginia. Like most ordinary people, they have daily routines. Work, church, trips to the store, visits with family, school pickups. And like most ordinary people, they don’t like the thought of somebody following them around and watching their every move.
But that is exactly what the city of Norfolk is doing. In 2023, the city installed over 172 cameras around town. These are not your standard traffic cameras. The cameras are strategically placed to capture everybody’s daily travel. They’re straight-up surveillance cameras, set up to watch people 24/7 as they go about their lives.
As the police chief has explained, “it would be difficult to drive anywhere of any distance without running into a camera somewhere.”
The cameras snap photos of every car as they drive by and upload them into a database. Officials can then use this database to go back in time and create maps of where people have been, where they tend to drive, and even who they tend to meet up with. All of this happens without a warrant or even probable cause.
But the Fourth Amendment doesn’t allow the government to set up a surveillance state. If the city wants to track suspicious people, it can do what the police have always done: get a warrant. What the city can’t do, though, is watch ordinary people everywhere they go and create a record of their lives without any judicial oversight. Lee and Crystal, with help from the Institute for Justice, are suing to make sure of that.
