Two companies asked Tuesday for the 8th Circuit Court of Appeals to reverse a federal judge's decision to leave intact a state law regulating the collection of license-plate data.
Fort Worth-based Digital Recognition Network and Livermore, Calif.-based Vigilant Solutions Inc. had sued former Arkansas Gov. Mike Beebe and former Attorney General Dustin McDaniel in their capacities as elected officials, alleging the state law was unconstitutional because it infringed on their federal speech and equality rights. U.S. District Judge Brian Miller dismissed the case in August on the grounds that the elected officials had sovereign immunity.
Sovereign immunity prohibits lawsuits against the state and its agencies, according to the Arkansas Constitution. There is an exception to that immunity concerning officials "who have a duty to enforce a state law and who threaten and are about to commence proceedings to enforce the law," Miller said in his August order.
On Tuesday, Michael Carvin, an attorney representing the two companies, argued that the state's attorney general would intervene in any enforcement action to defend the constitutionality of the law.
"There will be no issue in these cases about whether or not license plates were actually photographed," he said. "The sole determinant of liability will be the constitutionality of Arkansas' statute, and obviously the attorney general is going to intervene to make that argument."
The law, Arkansas Code Annotated 12-12-1801, prohibits the use of automatic license-plate readers by anyone other than law enforcement and parking enforcement agencies. The law, which began in 2013, allows those agencies to keep the license-plate data retrieved from the readers for up to 150 days -- unless it is part of an ongoing investigation, at which point the data can be kept until the investigation is concluded.
The law was touted as a middle ground between law enforcement agencies and privacy advocates.
Digital Recognition Network sells cameras with the license-plate reader system developed by Vigilant Solutions. The cameras go to affiliated companies, such as towing and repossession businesses, that mount the cameras on their vehicles.
The cameras scan license plates as the vehicle moves, allowing the affiliates to cross-check the plates to a database of license plates registered to vehicles wanted for recovery or repossession by lenders or insurance companies. The system allows the companies to take photos of license plates with a date and time stamp and GPS coordinates of where the picture was taken.
Before the law, Digital Recognition Network sold three of the systems to separate Arkansas companies for $15,825 each. After the law was enacted, the Texas company did not have any sales to Arkansas businesses, prompting the claim of a First Amendment infringement.
It's indisputable that the license-plate data are commercial speech, Carvin said Tuesday.
"It's photographs and transmittable information," he said. "Anybody can look at the license plate. Anybody can take a photograph of it with devices other than ours. So we think quite clearly they don't have any kind of privacy-related justification for this, what is a complete and utter speech ban."
The judges should take a lax view of the sovereign immunity exception, he said. If not, the judges would "be barring the courthouse doors" to constitutional disputes, he said.
But, U.S. Circuit Judge Steven Colloton said, if the judges relax the standards, there wouldn't be anything left to the principle of sovereign immunity.
"What's the limiting principle?" he said.
Carvin replied that a limiting principle is the possibility of future enforcement, adding that the attorney general has direct enforcement of the law.
"He can bring an action under the Deceptive Trade Practices Act, pointing to our photographing of license plates as an adjudgment of the Arkansas Legislature constituting an unreasonable or unconscionable invasion of privacy," he said. "Remember that's the basis for that law -- that it is such an invasion of privacy that they can actually ban this speech-related activity, and it serves a compelling interest."
Assistant Arkansas Attorney General Patrick Hollingsworth disagreed, telling the judges that if automatically recording license plates, putting them in a database and distributing that information is "unconscionable" under the state Deceptive Trade Practices Act, it is deemed as such because of that act and not because state legislators passed a separate statute, referring to Arkansas Code Annotated 12-12-1801.
When determining the sovereign immunity exception, judges in preceding cases weighed the ability and willingness of the state official to enforce the statute, Hollingsworth said.
"Neither of those are present in this case," he said, adding that there is no criminal penalty for violating the law and that neither the governor nor attorney general is charged with enforcing the statute.
Colloton, of Des Moines, Iowa, was joined by U.S. Circuit Judges Jane Kelly of Cedar Rapids, Iowa, and Diana Murphy of Minneapolis. The judges said they would study the matter further before issuing an opinion.
Metro on 04/15/2015