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‘Proving a negative’
Even if the plaintiffs’ legal arguments are upheld, proving whether DVS queries from years ago were not police work could be a herculean task.
“It becomes very burdensome to try to … be proving a negative on something that happened a long time ago that may not be easy to prove either way,” said Duluth City Attorney Gunnar Johnson.
Attorneys at Sapientia say they’ve done all they can to eliminate legitimate lookups, such as only including lookups of a name — rather than license plate. “Beyond that, though, it’s the state … or individual officers who … have the information of whether or not it was looked up for a permissible purpose,” said Sapientia attorney Mark Zitzewitz. “That’s why the burden is on them.”
Other questions involve how lookups should be counted and whether older incidents qualify under the statute of limitations. Government attorneys say the suits have so far taken the most expansive view.
“We’re asking ourselves, ‘$2,500 per lookup, plus attorneys fees, is that really what Congress intended when it set out to protect people’s very legitimate privacy interests?’ ” Grewing said. “I think we want to clarify what ‘lookup’ means.”
What appears likely is that the issue will be playing out for some time.
“It’s the tip of the iceberg,” Johnson said. “If there’s some money to be made here, it’s going to dredge up a lot of claims.”