License Plate Reader Companies Can't Challenge Ban

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By Nicholas Datlowe

Oct. 14 — A pair of companies that developed and marketed license plate-reading cameras lack standing to challenge a ban on such readers in Arkansas, the U.S. Court of Appeals for the Eighth Circuit ruled Oct. 13.

Vigilant Solutions Inc. developed a program that allows a computer to read license plates from digital photographs. Digital Recognition Network Inc. used the program to identify cars in pictures taken by cameras it sold to, among others, vehicle repossession companies.

Arkansas banned such systems, with limited exceptions, in August 2013.

“Digital Recognition Network and Vigilant Solutions lack standing” to challenge the ban, “so there is no Article III case or controversy,” Judge Steven M. Colloton wrote for the court.

Not ‘Fairly Traceable.'

Under the law—the Automatic License Plate Reader Act—the use of automatic license plate reading systems is unlawful. Anyone claiming to have been injured by the act can bring an action for damages.

If, in the course of an enforcement action, the constitutionality of the law is challenged, the attorney general is empowered to intervene to defend the law.

Digital and Vigilant sued the governor and attorney general, seeking an injunction and a declaration that the act was unconstitutional under the First Amendment.

Although the court assumed that the companies could demonstrate injury-in-fact from the law, they lacked standing to sue the officers because that injury “is not ‘fairly traceable' to either official.”

“The Act provides for enforcement only through private actions for damages,” the court said.

For the same reason, the injury complained of would not be redressed by a favorable decision, because an injunction against the attorney general would not constrain private individuals from enforcing the law through private suits.

‘Some Connection' to Enforcement 

The companies argued that a decision declaring the act unconstitutional would “substantially diminish the risk that the Act would be enforced,” the court said.

“But if that measure of relief were sufficient to satisfy Article III, then the federal courts would be busy indeed issuing advisory opinions that could be invoked as precedent in subsequent litigation,” the court said.

The companies also argued that under Eighth Circuit precedent, as long as there was “some connection” between the state officials and enforcement, they could overcome sovereign immunity and therefore satisfy Article III standing requirements.

The Eighth Circuit held in Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006), that Nebraska's governor and attorney general “were subject to suit to enjoin their enforcement of a Nebraska constitutional amendment prohibiting same-sex marriage,” the court said.

In that case, the court said the officials had sufficient connection to enforcement of the amendment because they would have direct authority to enforce it if the state legislature were to pass a law allowing same-sex marriages.

Here, the attorney general's authority to advise state officials on the constitutionality of the act, and to intervene to defend the constitutionality of it in private suits, did meet the level of connection required.

Judges Diana E. Murphy and Jane Kelly joined the opinion.

Jones Day and Mitchell Williams represented the plaintiffs. The Arkansas Attorney General's office represented the state.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

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