Virginia High Court Restores License Plate Data Collection

RICHMOND, Va. (CN) — In a win for local law enforcement agencies, the Virginia Supreme Court on Thursday allowed the state’s largest police department to continue collecting license plate data picked up when cars drive by automated scanners.

Harrison Neal started his fight over the Fairfax Police Department’s use of automated license plate readers back in 2015. The so-called ALPR cameras can be stationery or mounted on a police car and capture license plate images before converting them to alpha-numeric combinations.

Neal argued, with help from the ACLU of Virginia, that the heavily populated Washington suburb’s use of the tool “to scan tens or hundreds of thousands of license plates of vehicles not suspected of any involvement in criminal activity” amounted to a violation of state privacy laws. 

A lengthy civil trial ensued, including an initial trip to the state’s highest court, which remanded the case back to Fairfax County Circuit Court to decide whether the process for keeping ALPR records constituted an “information system” as defined by a state law regulating government data collection.  

Last year, Circuit Judge Robert Smith agreed with Neal and found the system “provides a means through which a link to the identity of a vehicle’s owner can be readily made” and that a “passive use” of the system violates the data law. 

Smith put in place an injunction blocking the system’s use, but Thursday’s ruling from the higher court rolls back that decision. 

Justice Stephen R. McCullough wrote in the 15-page opinion that the system would have to be considered a “record-keeping process” in order to violate state law. He said that because the data being collected doesn’t include additional personal information like phone numbers, addresses and the like, the system doesn’t violate the law.  

“The strictures of the Data Act contemplate accountability and responsibility by an agency for the data it keeps – not data it can query from other sources,” McCullough wrote, acknowledging the loophole that the ruling allows – the collection of data that can only be useful when cross-referenced with other information, while still not violating the law. 

“These separate databases certainly facilitate the investigative process by confirming the accuracy of a hit generated by the ALPR system, but they are not part of the ALPR system and do not form part of its record-keeping process,” he added. 

Claire Gastañaga, executive director for the ACLU of Virginia, said in an emailed statement that the continued use of these systems allows police departments to track people going anywhere from protests to clinics to houses of worship.

“This personal information sits in a database for a year whether you’re suspected of a crime or not.” she added. “Security and privacy can both be protected without giving police the unregulated power to collect private information ‘just because’ and ‘just in case.’”

In an emailed statement, Sergeant Hudson Bull with the Fairfax County Police Public Affairs Bureau said his department respects the decision of the court.

“The Fairfax County Police Department will continue to provide the highest level of ethical service to our communities while safeguarding the privacy and constitutional rights of all that we serve,” Bull added.  

A second opinion released by the high court Thursday delays answering larger questions about the authority local sheriff’s departments have to enter into agreements with U.S. Immigration and Customs Enforcement as part of the federal government’s nationwide effort to crack down on undocumented immigration. 

Culpeper residents Michael McClary and Christina Stockton filed a lawsuit in 2018 alleging the Culpeper County Sheriff’s Office, led by defendant Sheriff Scott Jenkins, violated state law by spending their tax dollars on the ICE program. 

“Neither the Constitution of Virginia nor the Virginia General Assembly authorizes the use of local tax revenue to pay for the enforcement of federal civil immigration law,” the complaint states.  

Also backed by lawyers from the Virginia ACLU, McClary and Stockton pointed to testimony from county board of supervisors meetings where Jenkins said he “did not foresee ‘an enormous cost’” for entering into the agreement with the federal agency. The residents argued, however, that any taxpayer cost for working with ICE would amount to a constitutional violation.

Culpeper County Circuit Judge Paul Peatross dismissed the claim for lack of standing, and Thursday’s opinion from the Virginia Supreme Court affirmed that decision. 

“McClary and Stockton merely identified a policy they disagree with and stated that any expenditures related to that policy were unlawful,” Justice S. Bernard Goodwyn wrote. “Such vague, speculative, and conclusory allegations of a connection between the expenditure of local funds and the policy or action the taxpayer seeks to prohibit do not meet the requirements to establish local taxpayer standing.” 

Eden Heilman, legal director for the ACLU of Virginia, said in a statement that the ruling will encourage the sheriff’s department to racially profile citizens and erode trust within the community. The group also questioned the court’s narrow interpretation of standing requirements.

“Culpeper residents should have the right to sue when their funds are used illegally,” said Heilman. “We call on the Virginia General Assembly to ban 287(g) agreements to protect all our communities and end this xenophobic policy in Culpeper.”

Requests for comment from Sheriff Jenkins were not returned by press time. 

The ACLU’s cries for legislative reform could be answered by the Democrat-controlled Virginia General Assembly. Among its members is Delegate Jay Jones, D-Norfolk, a civil rights attorney who called both of the high court’s rulings “deeply disturbing.”

“Although federal in scope, our aims as policy makers should be to protect our citizens and ensure that interactions with law enforcement are safe, legal, and without fear,” said the second-term lawmaker, who also recently announced he is running for attorney general next year. “Moreover, the opinions highlight the need for continued assessment of law enforcement and its practices to make sure they’re commensurate with our current expectations.”

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