Marco Island camera lawsuit heads to federal appeals court

Three Marco Island residents who sued the city over license-plate recording cameras that track vehicles entering and leaving the island have filed an appeal after a federal judge dismissed their lawsuit. 

Washington, D.C.-based New Civil Liberties Alliance filed an opening brief Dec. 16 urging the U.S. Court of Appeals for the Eleventh Circuit to reverse a federal judge’s dismissal of a privacy rights lawsuit filed in U.S. District Court in Fort Myers in 2022 by Shannon (Schemel) Druen, Stephen Overman and Michael Tschida. 

“The city of Marco Island cannot compile a large database of its residents’ movements spanning at least three years — through which it can piece together details of those residents’ personal lives and habits — without a warrant based on probable cause,” said NCLA attorney Andreia Trifoi. “We look forward to the Eleventh Circuit’s reversing this mistaken decision and restoring the fight to uphold our clients’ privacy rights.” 

A prior judge dismissed claims against Police Chief Tracy Frazzano in February 2023. In an Oct. 17 ruling, U.S. District Judge Kyle C. Dudek granted the city’s motion to dismiss, agreeing that the cameras do not violate the Fourth Amendment’s protections against unreasonable searches and seizures. One count was dismissed with prejudice, barring further action, while two counts were dismissed without prejudice but ruled appropriate for state court in Collier Circuit Court. 

City police have said the cameras are used to compare license plates against official “hotlists,” including individuals with outstanding warrants, gang members, people on terrorist watch lists, registered sexual offenders, parents delinquent on child support, criminal suspects, missing adults and children, and those on state or national watch lists. The system also is used to identify uninsured motorists or drivers with suspended licenses. 

The lawsuit alleges the city continuously monitored residents’ movements for years without suspicion, probable cause or warrants by using automated license-plate recognition systems, in violation of the Fourth Amendment. NCLA attorneys argue Dudek dismissed the lawsuit by misconstruing U.S. Supreme Court precedent on privacy. 

They contend the city strategically installed ALPR cameras to ensure near-complete coverage of traffic entering and exiting the small island. The system stores time-stamped vehicle images in a searchable database and retains the data for at least three years, which the plaintiffs allege allows officials to identify patterns that reveal residents’ daily movements. 

Dudek rejected arguments that the cameras violate the Supreme Court’s 2018 decision in Carpenter v. United States, which found individuals have a reasonable expectation of privacy in the totality of their movements over time. That case involved historical cellphone location data. 

“The city’s ALPRs tell very little about a person’s movements,” Dudek wrote, noting the cameras capture only snapshots of vehicles at specific times on public roads. “They only record whether vehicles have entered or exited Marco Island. They don’t reveal where any vehicle travels to beyond that.” 

NCLA attorneys counter that the privacy implications depend on how frequently drivers are surveilled, how much data is collected, whether it is aggregated and how long it is retained. They argue their clients are entitled to discovery to fully assess the scope of surveillance. 

When the cameras began operating in 2021, Marco Island police said they played a key role in helping the Collier County Sheriff’s Office locate a missing autistic teenager. Naples Police have installed more than 100 license-plate reader cameras citywide, and the Collier County Sheriff’s Office operates at least 127 Flock Safety and Motorola Vigilant cameras in unincorporated areas of the county.