Baltimore police department: Aerial surveillance constitutional

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The Baltimore Police Department this week defended the constitutionality of its planned use of aerial surveillance of the city, citing BPD’s compelling need to fight violent crime and saying Baltimoreans have no “reasonable expectation of privacy” when walking in public.

Facing a legal challenge from a civil rights group, BPD stated in court papers that its pending Aerial Investigation Research, or AIR, program will no more intrude on an individual’s right to be free from unreasonable searches than do police patrols via helicopter, a practice federal courts have upheld.

The AIR surveillance will not be trained on people’s homes, where the Constitution’s Fourth Amendment right is strongest, the department added in its filing in U.S. District Court in Baltimore.

“The AIR program is simply a creative, technological assist to surveillance tools already in law enforcement’s tool kit,” stated the department, which is being represented in court by acting Baltimore City Solicitor Dana P. Moore.

“It does not travel inside person’s homes or park outside a person’s residence at all hours waiting for the person to emerge,” BPD added. “If it would be constitutionally permissible for a law enforcement officer to surveil an individual during daylight hours on foot, then it must too be constitutional for the officer to do so using the AIR program.”

The police department’s filing came in response to the ACLU of Maryland’s pending request for a federal court order to block the planned program. The group said the crime-fighting tactic would violate the Fourth Amendment as well as Baltimoreans’ First Amendment right to freely associate.

“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,” stated the filing from the American Civil Liberties Union’s Maryland chapter. “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.”

The Baltimore Board of Estimates approved the police department’s pending AIR program on April 1 on a 3-2 vote.

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

The planes would be operated by Ohio-based Persistent Surveillance Systems, which conducted aerial surveillance over Baltimore in 2016 in partnership with the police department. BPD characterized the project, funded by Texas philanthropists John and Laura Arnold, as a welcome gift to a city ravaged by homicides.

“It is obvious that Baltimore is a city in dire need of effective anti-violence tools,” the department stated in its response to the ACLU of Maryland’s court filing. “BPD has been given the opportunity – at no cost to taxpayers – to employ traditional surveillance techniques in a creative and unobtrusive way. This opportunity should not be laid waste because it does not fit plaintiffs’ political agenda.”

The department added that the U.S. Supreme Court’s precedent on police surveillance hews to “the general axiom that an individual does not have an expectation of privacy in their public movements.”

“Therefore, the observation of public movements is generally not a ‘search’ within the meaning of the Fourth Amendment,” BPD told the district court. “Public movements are public movements, regardless of the technology used to capture them.”

The ACLU of Maryland filed its request 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 of the city, leaving their private movements and confidential meetings vulnerable to the overhead surveillance, the ACLU of Maryland stated in the complaint. Such warrantless spying would violate not only their Fourth Amendment protection against unreasonable search but also their First Amendment right to association, the rights group said.

The police department responded that fear of being seen by police, without evidence of targeting, does not constitute an infringement on the constitutional right of people to peacefully associate.

“Plaintiffs do not assert that their movements, meetings or associations are directly regulated by BPD, but rather that they would be harmed by the existence of the AIR pilot program,” the department stated.

Such speculative “harm” provides insufficient grounds for bringing a First Amendment challenge, BPD added.

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.