Saying time is of the essence when the Constitution is at stake, civil rights groups are urging a federal appeals court to expedite consideration of whether the Baltimore Police Department’s use of aerial surveillance to fight crime in the city violates the constitutional protection against unreasonable searches and the right to peacefully associate.
In papers filed last week, the American Civil Liberties Union and its Maryland chapter objected to the 4th U.S. Circuit Court of Appeals’ proposal to wait until September before hearing the groups’ challenge to a judge’s ruling that BPD’s Aerial Investigation Research program falls into the “surveillance techniques and tools, such as security cameras” that the Supreme Court has expressly upheld as constitutional law enforcement tactics.
The ACLU said the 4th Circuit should hear the appeal as soon as practicable, noting that the AIR program was implemented May 1 and is slated to run until late October – at which point the constitutional challenge might be rendered moot.
The ACLU has characterized the surveillance program as akin to George Orwell’s dystopian novel “1984,” stating it subjects “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” in violation of the Constitution.
“If plaintiffs’ legal arguments are correct, each day that this program continues will result in substantial additional harms to plaintiffs’ Fourth and First Amendment rights,” ACLU attorneys wrote in the groups’ request for expedited 4th Circuit review. “And both parties, in addition to all of Baltimore, have an extraordinary interest in this court’s assessment of the legality of the AIR program as soon as practicably possible.”
The Baltimore Police Department countered that the ACLU’s “alleged need for a hurried resolution to this appeal is largely illusory,” adding that AIR’s goal is not indiscriminate spying on Baltimoreans but criminal investigation.
“While the activity that the plaintiffs-appellants seek to stop does not violate any constitutional rights, a contrary ruling by this court – even in September or some time thereafter – would not deprive the plaintiffs-appellants of a meaningful remedy,” Baltimore City Law Department attorneys wrote Thursday on behalf of the BPD.
“The court could simply forbid the police department from using any of the data collected by the Aerial Investigation Research pilot program,” the attorneys added. “Indeed, by design, the vast majority of the imagery depicting dots representing pedestrians and vehicles on public streets will be deleted without ever being viewed by human eyes. Under the terms of the program, data collected more than 45 days ago that is not related to the investigation of a specific serious violent crime has already been deleted.”
The law department added that expedited argument is not feasible because its lawyers remain “consumed by the innumerable questions and unprecedented challenges” related to the COVID-19 pandemic and the legal advice it continues to provide the city regarding demonstrations against racism and police brutality.
The ACLU replied within an hour to Baltimore’s arguments, telling the 4th Circuit that the group empathized with the demands wrought by COVID-19 and the demonstrations and that its constitutional concerns were not illusory.
The controversial AIR program was approved by the Baltimore Board of Estimates April 1 on a 3-2 vote.
Under the plan, three planes fly over the city during daylight hours to record footage of activity citywide. The trial program, which runs for up to 180 days, focuses on compiling data and assisting investigations into murders, shootings, armed robberies and carjackings.
The planes are operated by Ohio-based Persistent Surveillance Systems, which conducted aerial surveillance over Baltimore in 2016 in partnership with the police department. The program is funded by Texas philanthropists John and Laura Arnold.
The ACLU and its Maryland chapter filed the challenge to the AIR program 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 areas and other neighborhoods in the city, leaving their private movements and confidential meetings vulnerable to the overhead surveillance, the ACLU stated in its challenge.
The 4th Circuit did not state when it will rule on the motion for expedited review. The appeal is docketed at the 4th Circuit as Leaders of a Beautiful Struggle et al. v. Baltimore Police Department et al., No. 20-1495.