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ACLU seeks to block aerial surveillance as unconstitutional

Baltimore Police Commissioner Michael Harrison discusses his plan for crime reduction at the Greater Baltimore Committee on Wednesday. (Submitted photo)

Baltimore Police Commissioner Michael Harrison. (Submitted photo)

A civil rights group is seeking a federal court order to block the Baltimore Police Department’s planned aerial surveillance of the city, saying the crime-fighting tactic would violate Baltimoreans’ constitutional right to free association and protection against unreasonable searches.

The ACLU of Maryland’s filing Thursday followed the Baltimore Board of Estimates’ approval last week of the BPD’s pending Aerial Investigation Research program.

“The AIR program would put into place the most wide-ranging surveillance dragnet ever employed in an American city, giving the BPD a virtual, visual time machine whose grasp no person can escape,” David R. Rocah, ACLU of Maryland’s senior staff attorney, wrote in the complaint filed in U.S. District Court in Baltimore. “And though the program’s objectives to reduce crime and violence are laudable, the Constitution dictates that this all-seeing and ever-present ‘eye in the sky’ is not an available solution.”

Acting Baltimore Solicitor Dana P. Moore, the city’s chief lawyer, stated in an email Thursday that she has received the ACLU of Maryland’s complaint.

“We are reviewing the submission, in full, and will respond after our review is complete,” Moore said.

Under the plan, three planes will fly over the city during daylight hours to record footage of activity citywide. The trial program — which will run for up to 180 days — will focus on compiling data and assisting investigations into murders, shootings, armed robberies and carjackings.

The planes will be operated by Ohio-based Persistent Surveillance Systems, which conducted aerial surveillance over Baltimore in 2016 in partnership with the police department. The project is funded by Texas philanthropists John and Laura Arnold.

Police Commissioner Michael Harrison told the board before its 3-2 vote April 1 that he has no expectation the program will be successful but that he is open to trying it to see if it reduces violent crime.

The American Civil Liberties Union’s Maryland chapter filed the complaint on behalf of the black advocacy group Leaders of a Beautiful Struggle and Baltimore activists Erricka Bridgeford and Kevin James, who advocate for gun control, school funding, housing rights and immigrants.

Their advocacy requires them to visit high-crime and other areas in the city, leaving their private movements and confidential meetings vulnerable to the overhead surveillance, Rocah stated in the complaint. Such warrantless spying would violate their First Amendment right to association and Fourth Amendment protection against unreasonable search, Rocah wrote.

“Unlike lawful forms of aerial surveillance, the warrantless AIR program subjects plaintiffs and virtually all of Baltimore’s 600,000 residents to long-term, wide-area, and indiscriminate surveillance that will capture the whole of an individual’s movements and thereby reveal their privacies of life,” Rocah wrote.

“The surveillance is inescapable, and revelation of private information to the AIR program is involuntary: short of never leaving home when the planes are in the air, there is no way to avoid defendants’ surveillance system,” Rocah added. “But even one’s home is not entirely safe from the surveillance, as the AIR program will also inevitably capture movements in the curtilage surrounding homes, including driveways and yards. The data collected through the AIR program will amount to a comprehensive record of the movements of plaintiffs and nearly everyone in Baltimore – facilitating an unprecedented police power to engage in retrospective location tracking.”

The case is docketed at the U.S. District Court in Baltimore as Leaders of a Beautiful Struggle et al. v. Baltimore Police Department et al., No. 1:20-cv-00929-RDB.

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