Judge Rules Lawsuit Challenging Norfolk’s Use of Flock Cameras Can Proceed

NORFOLK, Va.—On Wednesday, Chief Judge Mark Davis of the United States District Court for the Eastern District of Virginia ruled that a constitutional lawsuit challenging the city of Norfolk’s use of more than 170 automatic license plate reader cameras can move forward. The lawsuit was filed last October by Norfolk resident Lee Schmidt, Portsmouth resident Crystal Arrington, and their attorneys from the Institute for Justice (IJ).   

“I’m very happy that our case can move forward, and hopefully this is the first step toward making sure that my family and friends don’t have to live in a world where our constitutional rights are so blatantly ignored,” said Lee. 

Norfolk partnered with a company called Flock Safety in 2023 to install 172 automatic license plate reader cameras throughout the city. The goal, as Police Chief Mark Talbot put it, was to create “a nice curtain of technology,” which would make it “difficult to drive anywhere of any distance without running into a camera somewhere.”  

Unlike red light or speed cameras, which are triggered by specific violations, Flock cameras record every vehicle that drives by. The cameras then upload the data to a server and create a “vehicle fingerprint,” which allows anyone with access to the Flock database to track everywhere that vehicle goes, all without a warrant. Flock claims its cameras are in more than 5,000 communities throughout the country.  

“This is a massive first step toward protecting the Fourth Amendment rights of everyone who drives through Norfolk,” said IJ Attorney Michael Soyfer. “These cameras can track people’s every move over a prolonged time period. If the government wants to do that, it should have to get a warrant.”   

In Wednesday’s ruling, Chief Judge Davis rejected the city’s motion to dismiss the lawsuit, citing the United States Supreme Court case Carpenter v. United States, which held that using cell phone location data to track someone’s movements is a search that requires a warrant under the Fourth Amendment. Chief Judge Davis wrote, “a reasonable person could believe that society’s expectations, as laid out by the Court in Carpenter, are being violated by the Norfolk Flock system.” 

Chief Judge Davis went on to say, “the complaint alleges facts notably similar to those in Carpenter that the Supreme Court found to clearly violate society’s expectation of privacy: law enforcement secretly monitoring and cataloguing the whole of tens of thousands of individual’s movements over an extended period.” 

With the city’s motion to dismiss denied, the case will now go on to be heard on the merits.