Two companies are asking the 8th Circuit Court of Appeals to overturn a federal judge's decision that left intact a state law regulating the collection of license-plate data.
Digital Recognition Network, based in Fort Worth, and Vigilant Solutions Inc., based in Livermore, Calif., asked the 8th Circuit on Monday to overturn U.S. District Judge Brian Miller's decision to dismiss the case. The two companies sued Arkansas Gov. Mike Beebe and Attorney General Dustin McDaniel in their capacities as elected officials, contending that the state law infringed on their federal speech and equality rights.
The companies had asked Miller to grant an injunction that would have invalidated the law. Instead, Miller dismissed the case Aug. 22, saying Beebe and McDaniel had sovereign immunity.
Sovereign immunity, as written in the state's constitution, gives the state protection from being named defendants in court.
"The Eleventh Amendment reflects a well-settled constitutional principal that lawsuits against states and official capacity claims against state officials are barred, unless a state consents or Congress has abrogated the immunity," Miller said in his August order.
There's one exception to that immunity. That concerns officials "who have a duty to enforce a state law and who threaten and are about to commence proceedings to enforce the law," Miller wrote in the order.
The law -- Arkansas Code Ann. 12-12-1801 et seq. -- went into effect last year and restricts the use of automatic license-plate readers by anyone other than law enforcement and parking enforcement agencies. The law allows those agencies to retain license-plate data for up to 150 days unless the data are part of an ongoing investigation.
Law enforcement can share the license-plate information only with other agencies, but an individual's license-plate data can be dispensed to the owner of the tag or vehicle with the owner's written consent, according to the law, which was sponsored by Rep. Nate Steel, D-Nashville.
The law was "a middle ground" between law enforcement and privacy advocates.
In the order, Miller said the statute does not hand over enforcement to any arm of the state, nor does it list criminal penalties for violating the law.
The "exception does not apply here and defendants are entitled to sovereign immunity because they are not connected to enforcement of the [state law], nor have they threatened to enforce it," the federal judge said in the order. "General authority to enforce state law does not vitiate sovereign immunity."
Attorneys for the two companies have pointed to Citizens for Equal Protection v. Bruning, a federal court case out of Nebraska. In that case, the 8th Circuit applied the exception to sovereign immunity to the Nebraska attorney general because "his broad powers included 'policing compliance' with a statute banning same-sex marriage," Miller's order states.
The two companies have cited First and 14th Amendment infringements regarding the law.
Digital Recognition Network sells cameras with the license-plate reader system -- developed by Vigilant Solutions -- to affiliates, usually towing and repossession companies.
The affiliates will mount the cameras on their vehicles, and the cameras will scan license plates as the vehicle moves. The license-plate information is changed to computer-readable text and cross-checked to a database of license plates registered to vehicles wanted for recovery or repossession by lenders or insurance companies. The license-plate readers also snap pictures of the license plates and would include a date and time stamp and GPS coordinates of where the picture was taken.
When a vehicle is wanted, software will alert the affiliate, who will need to call a dispatch number to verify the vehicle's status.
Before the law was passed, Digital Recognition Network sold three license-plate reader kits to separate Arkansas companies for $15,825 each. After the law, the company stopped selling to companies in the state.
Aaron Sadler, spokesman for the state attorney general's office, said the office was prepared to defend the law, which was crafted to protect Arkansans' privacy concerns and legitimate law enforcement purposes.
Once the federal court record is filed with the appeals court, attorneys for the two companies will have 40 days to file their brief. The state will have another 30 days past that to file its response.
Metro on 09/10/2014