Legal Authority and Anticipated Challenges Guide for the Proposed Ordinance

Proposed Surveillance Technology Ordinance: Legal Authority and Anticipated Challenges

Companion to the July 2026 Draft (Version 8.1) of the Automated Surveillance Technology Governance Ordinance

Status: Community draft. This document requires review by a licensed Wisconsin attorney before reliance for any legal purpose.

This document responds to legal questions that have been raised publicly about the draft ordinance. It is a community-prepared reference, not legal advice and not part of the ordinance. It collects the statutes, case law, and precedent that support the ordinance's structure, and it identifies where implementation requires coordination with other authorities. Where this document differs from the ordinance text, the ordinance controls.

1. Challenge: "The Common Council has no authority to pass an ordinance of this scope."

Response: the Council is exercising its own core powers.

Wisconsin cities hold two sources of authority. The first is constitutional home rule (Wis. Const. art. XI, § 3), covering local affairs and government. The second, and the primary basis for this ordinance, is Wis. Stat. § 62.11(5), which grants the council power to act "for the health, safety, and welfare of the public" and is construed broadly by Wisconsin courts. Everything the ordinance does falls into four recognized council functions:

1. Procurement and contracting. Articles III and IX condition what the City buys and on what contract terms. Setting mandatory contract standards is the purchaser's prerogative.
2. Governance of City-owned assets and data. Articles IV, V, and VI regulate how the City's own systems and the City's own data are configured, retained, accessed, and shared.
3. Substantive local policy under the police power. Use restrictions, retention limits, and oversight requirements are legislative policy choices of the kind councils make routinely.
4. Appropriation and oversight. Audits, reports, and the Relevant Board or Commission are spending and monitoring decisions.

Preemption. Under Wisconsin's four-factor preemption test, a local ordinance in an area of statewide concern fails only if the legislature expressly withdrew municipal power, the ordinance logically conflicts with state legislation, it defeats the purpose of state legislation, or it goes against the spirit of state legislation. No Wisconsin statute currently governs ALPR or municipal surveillance technology. 2025 Assembly Bill 576, which would have created a statewide warrant requirement for ALPR and private-camera data, failed to pass on March 23, 2026, so no express preemption exists, and the ordinance's warrant standard points in the same direction the legislature itself considered. Wisconsin courts also permit municipalities to impose stricter local requirements consistent with state law, and Section 9.1 of the ordinance yields automatically if the State later legislates.

Precedent for the model. The ordinance follows the Community Control Over Police Surveillance (CCOPS) framework adopted in more than two dozen United States jurisdictions since 2016, including cities of comparable and smaller size. No CCOPS ordinance has been invalidated as beyond municipal authority.

2. Challenge: "The ordinance oversteps powers reserved to other bodies."

Response: the ordinance is drafted around each reserved power, and transfers nothing unlawfully.

| Reserved power | Holder | How the ordinance respects it | |-|-|-| | Discipline, hiring, promotion of sworn officers | Police and Fire Commission and Chief (Wis. Stat. § 62.13) | Article VIII routes violations through the existing disciplinary framework; Section 8.5 expressly disclaims any limit on PFC or Chief authority | | Operational command of the department | Chief of Police | The ordinance states outcomes; the Chief writes procedures (Sections 3.1, 4.4, and companion guidance) | | Court jurisdiction and procedure | State legislature and courts | Judicial-order provisions impose duties on the Department to seek authorization; nothing purports to command a court | | Records retention minimums | Wis. Stat. § 19.21(4), Wisconsin Public Records Board | Short retention takes effect only upon required state approval; fallback access controls apply until then (Section 4.2) | | Criminal prosecution | District Attorney | The ordinance provides for referral only | | Public records disclosure | Wis. Stat. §§ 19.31 to 19.39 | Section 4.8(4) saving clause defers to the Public Records Law | | Open meetings | Wis. Stat. §§ 19.81 to 19.98 | The Relevant Board or Commission operates subject to open-meetings law (Section 7.1 and companion Section 12) | | Federal supremacy | Federal courts | Section 6.6 requires City Attorney review and compliance where a court of competent jurisdiction orders it |

On the question of transferred power flowing to the oversight body: the Relevant Board or Commission is advisory only (Section 7.1). The Common Council designates that body by resolution and may use an existing board or commission or create a new one, which keeps the choice of oversight structure within the Council's own organizational authority. Technical standards under Appendix A and compliance procedures under Section 7.6 are adopted by the responsible City officials or the Council, on the body's recommendation, so no legislative or regulatory power is delegated to an unelected body.

3. Challenge: "There is no procedural precedent for post hoc judicial review."

Response: post hoc judicial review is an established pattern in Wisconsin statute, federal statute, and constitutional doctrine.

1. Wis. Stat. § 968.373(8g). The closest possible precedent, in Wisconsin's own communications-device tracking statute. After an emergency disclosure of device location without a warrant, the law enforcement agency "shall, within 3 days of the disclosure, apply to a judge for an order retroactively authorizing the emergency disclosure." If the judge finds the disclosure was not necessary, the evidence is suppressed. The ordinance's exigent-access mechanism (Section 4.4) is modeled on this statute.
2. 18 U.S.C. § 2518(7). The federal Wiretap Act's emergency provision: interception may begin on emergency grounds if an application for an order is made within forty-eight hours. After-the-fact judicial authorization has governed the most intrusive form of surveillance in American law for over five decades.
3. Gerstein v. Pugh, 420 U.S. 103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Warrantless arrests are constitutional precisely because a prompt judicial probable-cause determination follows, presumptively within 48 hours. Review after exigent government action is a bedrock constitutional pattern.
4. The exigency doctrine generally. Missouri v. McNeely, 569 U.S. 141 (2013), and related cases confirm that warrantless action on exigent facts is always subject to after-the-fact judicial scrutiny.

Implementation note. A city cannot assign duties to the circuit court. The ordinance therefore places the duty on the Department: to initiate retroactive judicial review of the access through the appropriate legal channels, not to direct the court itself. Before adoption, the City should coordinate with the Winnebago County District Attorney's Office and the circuit court on the review format and filing route, using the § 968.373(8g) procedure as the template. If the State later enacts an ALPR statute (an AB 576 successor), a codified review mechanism would perfect this pathway, and Section 9.1 already provides for conformance.

4. Challenge: "The City cannot refuse federal agencies access to data."

Response: the ordinance distinguishes voluntary cooperation, which the City may lawfully decline, from compulsory process, which the City obeys.

Under the anti-commandeering doctrine (Printz v. United States, 521 U.S. 898 (1997)), the federal government cannot compel state or local governments to carry out federal regulatory or enforcement programs. Voluntary data sharing with federal agencies is exactly that: voluntary. The Council may lawfully set the terms on which the City volunteers, including requiring a judicially issued warrant served on the City (Section 6.3).

Where process is compulsory and legally enforceable, the ordinance complies: Section 6.6 routes all federal process to the City Attorney for legal-sufficiency review, permits narrowing where appropriate, and requires compliance where a court of competent jurisdiction orders it. The ordinance claims no power to defy federal courts. What it removes is informal, unreviewed, voluntary disclosure.

The security architecture of Section 3.5 reinforces rather than replaces this legal position: because the Vendor holds no keys, process served on the Vendor alone cannot produce plaintext City data, and requests are channeled to the City where the City Attorney review applies. Wisconsin has no statute prohibiting local policies of this kind as of this writing.

5. Challenge: "This ordinance improperly binds future councils."

Response: it does not bind them; it makes weakening core safeguards deliberate and public.

Section 9.2 imposes procedural steps (referral to the Relevant Board or Commission, notice and comment, two readings, a public hearing, a roll-call vote) before a vote to weaken a core safeguard. A future Council retains full legislative power, including the power to repeal Section 9.2 itself through ordinary process. The section states expressly that it does not limit the authority of a future Common Council except as provided by applicable law. Heightened procedure for sensitive changes is a common and lawful legislative self-discipline device.

6. How the ordinance protects OPD and the City

6.1 Protecting convictions from suppression

The controlling trend in Fourth Amendment law is toward treating retrospective location tracking as a search requiring a warrant:

• Carpenter v. United States, 585 U.S. 296 (2018). Acquisition of historical cell-site location information is a search requiring a warrant.
• Chatrie v. United States, No. 25-112 (U.S. June 29, 2026). Decided this term, 6 to 3. Law enforcement's geofence query of Google location data was a Fourth Amendment search even though the data covered a limited time and was held by a third party. The Court declined to extend the third-party doctrine to modern location records and remanded for review of the warrant's particularity and probable cause.
• Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021) (en banc). A city-wide aerial program enabling retrospective tracking of individual movements violated the Fourth Amendment.
• Commonwealth v. McCarthy, 484 Mass. 493 (2020). A sufficiently extensive ALPR network can invade a reasonable expectation of privacy under the mosaic theory.

The contrary authority, Schmidt v. City of Norfolk (E.D. Va. Jan. 27, 2026), upheld a 21-day-retention ALPR network against a Fourth Amendment challenge; it is on appeal to the Fourth Circuit. The split is the point: an agency that queries plate history without a warrant is betting its prosecutions on an unsettled question. Under this ordinance, the warrant is already in the file (Sections 4.3, 4.7), the exigent path has documented judicial follow-up modeled on Wis. Stat. § 968.373(8g) (Section 4.4), and tamper-evident logs establish the chain of custody and search justification (Section 5.2). Evidence gathered under the ordinance survives whichever way the case law settles. Chatrie also validates Section 4.7 specifically: data held by a commercial third-party network retains Fourth Amendment protection, so the ordinance's judicial-order requirement for third-party lookbacks matches the Court's direction.

The ordinance deliberately creates no new suppression remedy (Section 8.4). Suppression standards belong to the courts and the legislature; the ordinance's contribution is ensuring the underlying practice is one no court will need to suppress.

6.2 Protecting the City from civil liability

• Section 1983 and Monell. Municipal liability attaches to an unconstitutional policy or custom. An adopted ordinance embodying the most protective reading of current Fourth Amendment law is the opposite of a Monell predicate, and the audit, oversight, and reporting provisions (Article VII) rebut any claim of deliberate indifference.
• Officer protection. Complete, tamper-evident logging (Sections 5.2, 5.3) protects officers who follow procedure from misconduct allegations and provides clean evidence when allegations are false.
• Driver's Privacy Protection Act, 18 U.S.C. § 2721. When plate data is joined to registration records, DPPA obligations attach. The use restrictions (Section 4.5), role-based access controls (Article V), and audit trails reduce exposure to DPPA claims from improper access or disclosure.
• Hotlist accuracy. Section 4.6(5) adopts Privacy Act data-quality principles, reducing the wrong-stop scenarios that have produced ALPR misidentification settlements elsewhere.
• Vendor and breach risk. The key-control architecture (Section 3.5) means a vendor breach does not expose plaintext resident data, and the contract standards (Sections 3.3, 3.4) shift and price residual vendor risk.
• Public trust risk. The most common end-state for ungoverned surveillance tools is not litigation but forced abandonment after a public backlash. The oversight, reporting, and community-meeting provisions are the mechanism by which OPD keeps the tools.

7. Authorities cited

Statutes. Wis. Const. art. XI, § 3; Wis. Stat. §§ 62.11(5), 62.13, 19.21(4), 19.31 to 19.39, 19.81 to 19.98, 943.10, 940.302, 948.051, 968.373 (including sub. (8g)); 18 U.S.C. §§ 2518(7), 2709, 2721; 2025 Wisconsin Assembly Bill 576 (failed to pass, Mar. 23, 2026).

Cases. Carpenter v. United States, 585 U.S. 296 (2018); Chatrie v. United States, No. 25-112 (U.S. June 29, 2026); Printz v. United States, 521 U.S. 898 (1997); Gerstein v. Pugh, 420 U.S. 103 (1975); County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Missouri v. McNeely, 569 U.S. 141 (2013); Monell v. Department of Social Services, 436 U.S. 658 (1978); Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021) (en banc); Commonwealth v. McCarthy, 484 Mass. 493 (2020); Schmidt v. City of Norfolk (E.D. Va. Jan. 27, 2026) (appeal pending, 4th Cir.).

Frameworks. Community Control Over Police Surveillance (CCOPS) model legislation and adopting jurisdictions; Wisconsin Public Records Board municipal records schedule process; Wisconsin Legislative Council Issue Brief, Home Rule (May 2023).

Prepared as a community drafting aid. All citations should be independently verified, and this analysis reviewed, by a licensed Wisconsin attorney before public or Council use.