NORFOLK — A federal judge on Wednesday challenged the argument by an attorney for a Northern Virginia privacy rights organization suing the city of Norfolk over its Flock Safety surveillance system.

U.S. District Judge Mark S. Davis appeared skeptical over the assertion that Flock cameras are tracking residents “in the whole of their movements” — which is crucial language that’s been used by the U.S. Supreme Court in prior cases.

In their federal lawsuit, local residents Lee Schmidt and Crystal Arrington contend the Norfolk Police routinely violate their constitutional rights with the city’s 176 Flock cameras and the database of pictures the cameras amass. Searching the system without a warrant, they maintain, is a violation of their Fourth Amendment right to be free from unreasonable searches.

But Davis said the number of times Schmidt’s license plate was captured by a Flock camera, or about four times per day, doesn’t appear to be enough.

“You have a few hits by Mr. Schmidt on a particular day,” Davis told attorneys suing Norfolk. “But you don’t have anything that will track the whole of his movements … That’s one of my biggest problems with your argument.”

The Supreme Court has opined that people’s “reasonable expectation of privacy” can be violated if the whole of their movements are tracked.

In other words, while people might believe it’s reasonable to be occasionally photographed by public camera systems, they draw the line at being tracked going to the store, to work, church and visiting relatives.

Aside from the four times a day that Schmidt’s license plate was captured on the system, there were several times a day that a partial plate was captured that could have been tied to him with further data about the car.

Davis noted the Flock system is unlike cell phone location data, which courts have ruled require a search warrants for police to access. He said it’s also unlike a Baltimore program that tracked people by plane, also ruled a privacy violation.

It’s also different, he said, “from a police officer tailing you, following you for a certain amount of time.”

But Michael Soyfer, an attorney for Institute for Justice who is suing Norfolk, said that lots of information about people’s whereabouts can be gathered with the Flock data.

“You can glean insights about people’s habits and routines from the Flock data,” he said. For a system to be illegal, he said, the police “don’t need to have an 8 x 10 glossy photograph of everywhere you’ve been.”

He noted that when Arrington visited her father, police could draw inferences from the Flock cameras in the area about “when and how long she is visiting him.”

In a court filing, the Institute for Justice said that the Norfolk police have conducted more than 200,000 searches, with no oversight on the justification for the searches and cursory “audits” only beginning last May.

But Justin Raphael, a San Francisco attorney representing the city of Norfolk at Wednesday’s hearing, said that for a technology to be illegal, it must truly track people.

“They’re not able to show continuous tracking,” he said.

To be considered “tracking,” Raphael asserted, the Flock system would have to say “where the car started, where it ended and what it’s doing in between.” It’s not enough, he said, to say “where they were at this hour or that day.”

Though an expert witness for the plaintiffs was able to say that Arrington was “in the general area” of her father’s home on a particular date, Raphael said, the witness was not able to go beyond that.

There are now more than 700 Flock cameras in Hampton Roads.

The cameras — typically mounted on 12-foot poles — take pictures of all cars that pass. The system logs not only license plates, but a vehicle’s make, body type and color, and such features as bike racks, dents and bumper stickers.

Detectives can query the database to find out which vehicles passed the cameras at certain times and places. The data is stored for 21 days and is widely shared among police agencies.

Police rave about the Flock cameras in helping solve a wide range of crimes, but privacy advocates are increasingly concerned.

Aside from casting doubt on Flock’s ability to “track” people at current levels of deployment, Judge Davis on Wednesday noted that the Virginia General Assembly took up the issue last year. Lawmakers passed a state law in 2025 that implements guardrails on police usage of the systems.

The legislative process in Virginia, Davis said, “allows for the public to be heard and weigh in on how technology is being gathered and used.”

The process of drafting legislation, he said, helps to arrive at the public’s “reasonable expectation of privacy” in a particular matter.

Under the state’s resulting rules, for example, police can use Flock only for law enforcement purposes and can’t share the data with out of state or federal agencies without a court order. Police agencies must provide detailed information to the public annually on how they use the systems.

Significantly, lawmakers did not require that police officers get warrants to use the systems.

The counterargument is that just because the General Assembly allows something doesn’t make it right.

Soyfer asserted that ever since the nation’s founding, the judicial system serves as a “check” on any violations of “people’s security in their persons.”

At that time, he said, the police had “a very limited ability” to search people without a judge’s involvement.

“This was guaranteeing people to be free from permeating police pressure,” Soyfer said.

Wednesday’s hearing was regarding motions from each side for summary judgement — in other words, motions asking Davis to decide the case without a trial.

If Davis denies both motions, the trial can move forward as expected in February. But if he grants Norfolk’s motion, the trial is off.

Davis said the sides would hear from him soon on a ruling.

After the hearing, Norfolk Chief Deputy City Attorney Adam Melita expressed satisfaction with how it went.

“It went as well as we expected,” he said. “It gives us the confidence that the court is giving the case the tough analysis that it deserves.”

Soyfer sounded a hopeful note despite Davis’ skepticism.

“The judge was clearly very engaged,” he said. “He had looked at both of the parties’ arguments in detail. He asked fair and tough questions of each side. So we’re hopeful, but we don’t know which way it will ultimately roll.”

Soyfer noted that this was the first federal constitutional challenge to Flock Safety cameras to get this far in court.

“This is the first case anywhere across the country that has gotten past the initial stage, has gotten discovery, has gotten to summary judgment — almost all the way to trial —challenging the use of license plate readers to track ordinary people’s movements for weeks at a time.”

In the meantime, Soyfer said, “we’re going to prepare for trial — prepare to question witnesses and prepare to have our clients testify.”

If Davis rules against the plaintiffs, Soyfer said, the Institute for Justice will file an appeal to the U.S. 4th Circuit Court of Appeals — and will take it even beyond that to the U.S. Supreme Court if necessary.

“We plan to pursue this issue the whole way,” Soyfer said.

Peter Dujardin, 757-897-2062, pdujardin@dailypress.com