ACLU Asks Virginia Supreme Court to Block Use of Automated License Plate Readers

November 2, 2017BRAD KUTNER

RICHMOND, Va. (CN) – Attorneys with the American Civil Liberties Union on Thursday asked the Virginia Supreme Court to stop the state from using automated license plate readers which they contend impermissibly surveil  innocent drivers.

The ACLU is representing Harrison Neal, a resident of Fairfax County.

The Fairfax County Police Department has repeatedly argued there are no civil rights issues associated with the use of the technology because the database for the automated readers is a “closed system” and not “married “to other networks that would allow for a comparison with other data on an individual.

But Neal’s attorneys said connecting the dots through the systems is an easy matter for law enforcement and so the passive collection of data is a violation of Virginia motorists’ Fourth Amendment rights.

Automated license plate readers have been in use for decades, The small camera systems are mounted on cars or in stationary positions, and when turned on, collect high resolution images of vehicles and their licenses plates.

A computer algorithm converts the license plate numbers into code, and combines them with timestamps and GPS locations tags. The data is then searchable through a database.

The ACLU says that database allows law enforcement to cross-reference the data with DMV and other records to determine whether the driver is a law-abiding citizen or someone wanted in connection with an unlawful activity.

In a November 2016 ruling in the case, Fairfax County Circuit Judge Robert Smith said “the database did not contain Neal’s name, address, date of birth or any information related to the registered owner of the vehicle associated with the … license plate number,” and denied Neal’s request for summary judgment.

“The only information stored as to the … license plate was the photographs, and the date, time and GPS coordinates of the locations where the photos were captured,” Judge Smith said.

Smith said based on these facts, the collection of data with the automated readers does not violate the law.

On Thursday, the ACLU said they disagree.

“Fairfax County has set its own rules,” said ACLU lawyer Ed Rosenthal.

According to Rosenthal, Neal’s “personal data” was discovered on the Fairfax County Police Department’s servers after he filed a Freedom of Information Act request in 2015.

There was no reason for Neal’s data to be there because he was not the subject of a criminal investigation, Rosenthal said.

State Supreme Court Justice Stephen McCullough appeared to agree with this assertion, although he did take issue with aspects of an opinion filed by former state Attorney General Ken Cucinelli, which the ACLU pointed to in support of its position.

“… Data collected by an LPR may be classified as ‘criminal intelligence information; and thereby exempted from the Data Act’s coverage only if the data is … evaluated and determined to be relevant to criminal activity,” Cucinelli wrote in 2013.

McCullough said Cucinelli’s interpretation was too broad in its use of data “relating to ongoing investigations.”

Chief Justice Donald Lemons brought Monday’s terrorist attack in New York City into the discussion, saying that passive collection of driver information could be helpful in an investigation after a crime has been committed.

But Lemons wondered whether there should be limits to how long the collected data can be held.

“How long is long enough, how long is too long?” he asked Rosenthal.

The attorney said information not directly linked to a criminal investigation should not be retained at all.

Justice D. Arthur Kelsey then wondered if warnings of attacks or crimes could warrant passive collection. He asked if it would be appropriate for New York city police to turn on automated readers if the U.S. Dept. of Homeland Security warned that an attack was imminent.

Rosenthal seemed to concede data collection was appropriate in this scenario. He pressed the words of the statute which says “information shall not be collected unless the need for it has been clearly established in advance,” calling that “particularized need” good enough.

But Rosenthal persisted, arguing that at its core, the case is about the database itself, and making sure the data is protected from being misused.

Fairfax County ‘s Assistant County Attorney Kim Baucom countered by returning the lower court’s decision, saying the law is narrow in its definition of “personal information,” and that Judge Smith was correct in concluding the data collection does not violate that law.

Baucom said Fairfax County Police officers, while able to access the database, their ability to compare the information with other municipal databases is very limited.

For instance, the officers can’t determine whether the owner of the vehicle was actually driving it when the license plate image was captured.

The court did not indicate when it will rule on the case.

On the illegal arrest of a reporter

^{BEWARE, YE foul-mouthed citizens of Fairfax County: The sensibilities of your police force are so delicate, their taste in language so virtuous, their ears so unsullied by rude speech that they regard the utterance of profanity as justification for a half-dozen of them to throw you to the ground, crush your head to the pavement with their knees, wrestle you into submission and arrest you.}

^{A Fairfax ordinance seems to give the police carte blanche in this regard, proclaiming that “if any person profanely curse or swear or be drunk in public, he shall be deemed guilty of a Class 4 misdemeanor.”}

^{The trouble is, the ordinance, like the police policy, is flatly unconstitutional, as the Supreme Court and lower tribunals have ruled repeatedly. And the Fairfax County police chief, Edwin C. Roessler Jr., only encouraged police to overreact and use gratuitous violence by offering an unqualified defense of some officers’ recent actions, even as the police opened an internal investigation of the incident that prompted the chief’s remarks.}

^{The incident in question involved Mike Stark, a journalist who, while covering a political rally in Annandale last weekend, was confronted by an officer who told him to get on the sidewalk. (He was barely off it.) In a video of the incident, Mr. Stark, who works for Shareblue, a left-leaning website, is seen protesting: “I’m a f---ing reporter doing my job.”}

^{Another officer informed him that if he swears again, “you’re going to jail.” Mr. Stark replied, “F--- this,” whereupon the police officer pounced, threw him to the ground, and, joined by reinforcements pinning him to the ground, handcuffed and arrested him. Ultimately, Mr. Stark was charged with disorderly conduct and avoiding arrest — not with swearing.}

^{Mr. Stark may not have been wise in his dealing with the police. It’s equally true that the officers’ response was unprofessional, at the least. A citizen’s lack of social polish or politesse does not justify the officers’ use of violence. There’s no excuse for verbally abusing police officers, but in real life it happens plenty, and if police officers can’t take foul language directed at or used around them now and then, they’re in the wrong line of work. (The same goes for journalists.) At no time did Mr. Stark threaten the officers or anyone else.}

^{Courts have been clear that, as Justice John Marshall Harlan II wrote for the Supreme Court in Cohen v. California, a free-speech case in 1971, “one man’s vulgarity is another man’s lyric.” In that case, the court ruled that the First Amendment protected an individual’s right to wear a jacket inscribed with the words “F--- the Draft.” And while the court has exempted “fighting words” from First Amendment protections, those are generally considered language meant to incite others to violence. Mr. Stark may have been irascible and ill-tempered, but he was hardly trying to start a riot.}

^{Fairfax County police have opened an internal investigation of Mr. Stark’s arrest. That’s a good thing. Mouthing off is not cause for arrest, let alone physical abuse by police.}

^{Context, as usual, is everything.}

^{I was targeted by the police for special enforcement at the request of Ed Gillespie's campaign, who I was there to cover. A campaign aide, seen in the video, asked the police to keep me away from the candidate, who has been evading all reporters - not just me - for many weeks now.}

^{When the cop told me to get out of the road, I got out of the road. When he told me I couldn't go near the candidate, I told him he'd probably have to arrest me. Things escalated quickly from there.}

^{But there were other people in the street and other people taking pics of Gillespie's bus. I was singled out.}

^{So this was not a case of crowd control, or traffic management, or anything else. It was one reporter being singled out and told by police he would be arrested if he tried do his job because one candidate (a citizen like the rest of us) doesn't want to answer questions from unapproved, pre-vetted press.}

^{That made me angry, and my language reflected that.} 

Is it legal to curse at police? Hell yeah.

By Editorial Board November 3 at 7:31 PM

BEWARE, YE foul-mouthed citizens of Fairfax County: The sensibilities of your police force are so delicate, their taste in language so virtuous, their ears so unsullied by rude speech that they regard the utterance of profanity as justification for a half-dozen of them to throw you to the ground, crush your head to the pavement with their knees, wrestle you into submission and arrest you.

A Fairfax ordinance seems to give the police carte blanche in this regard, proclaiming that “if any person profanely curse or swear or be drunk in public, he shall be deemed guilty of a Class 4 misdemeanor.”

The trouble is, the ordinance, like the police policy, is flatly unconstitutional, as the Supreme Court and lower tribunals have ruled repeatedly. And the Fairfax County police chief, Edwin C. Roessler Jr., only encouraged police to overreact and use gratuitous violence by offering an unqualified defense of some officers’ recent actions, even as the police opened an internal investigation of the incident that prompted the chief’s remarks.

The incident in question involved Mike Stark, a journalist who, while covering a political rally in Annandale last weekend, was confronted by an officer who told him to get on the sidewalk. (He was barely off it.) In a video of the incident, Mr. Stark, who works for Shareblue, a left-leaning website, is seen protesting: “I’m a f---ing reporter doing my job.”

Another officer informed him that if he swears again, “you’re going to jail.” Mr. Stark replied, “F--- this,” whereupon the police officer pounced, threw him to the ground, and, joined by reinforcements pinning him to the ground, handcuffed and arrested him. Ultimately, Mr. Stark was charged with disorderly conduct and avoiding arrest — not with swearing.

Mr. Stark may not have been wise in his dealing with the police. It’s equally true that the officers’ response was unprofessional, at the least. A citizen’s lack of social polish or politesse does not justify the officers’ use of violence. There’s no excuse for verbally abusing police officers, but in real life it happens plenty, and if police officers can’t take foul language directed at or used around them now and then, they’re in the wrong line of work. (The same goes for journalists.) At no time did Mr. Stark threaten the officers or anyone else.

Courts have been clear that, as Justice John Marshall Harlan II wrote for the Supreme Court in Cohen v. California, a free-speech case in 1971, “one man’s vulgarity is another man’s lyric.” In that case, the court ruled that the First Amendment protected an individual’s right to wear a jacket inscribed with the words “F--- the Draft.” And while the court has exempted “fighting words” from First Amendment protections, those are generally considered language meant to incite others to violence. Mr. Stark may have been irascible and ill-tempered, but he was hardly trying to start a riot.

Fairfax County police have opened an internal investigation of Mr. Stark’s arrest. That’s a good thing. Mouthing off is not cause for arrest, let alone physical abuse by police.