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Full 4th Circuit will hear challenge to Baltimore’s aerial surveillance program

A screen shot of how the surveillance technology tracks an individual's movement via aerial cameras. (Submitted Photo)

A screen shot of how the surveillance technology tracks an individual’s movement via aerial cameras. (Submitted Photo)

The full 4th U.S. Circuit Court of Appeals will consider whether the Baltimore Police Department’s use of aerial surveillance to fight crime in the city violated  Baltimoreans’ constitutional protection against unreasonable searches and their right to peacefully associate.

The full 15-member court on Tuesday agreed to review a federal 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, especially in light of the city’s violent crime.

The American Civil Liberties Union had asked for the full court’s review after a divided three-judge panel of the 4th Circuit upheld U.S. District Judge U.S. District Judge Richard D. Bennett’s April decision.

“The court is right to rehear this case, given the threat these planes pose to privacy and the serious errors in the panel majority’s opinion,” Ashley Gorski, a senior staff attorney with the ACLU’s national security project, said in a statement Tuesday.

“As we have said all along, this surveillance program does identify people, does track them over several days, and does store the recorded movements of virtually everyone in Baltimore,” Gorski added. “This program is unconstitutional and yet another example of the over-policing of Black and Brown people. These surveillance planes must be stopped.”

Acting Baltimore Solicitor Dana P. Moore, the city’s chief attorney, stated via email Tuesday that “while we were hopeful that no additional time, energy and effort would need to be expended to address the preliminary injunction issues pertaining to the aerial surveillance pilot program that has concluded, we will comment preparing for a hearing before the full court and advancing our arguments there.”

The losing party in the 4th Circuit will have the chance to seek review by the U.S. Supreme Court.

The full 4th Circuit is expected to hear arguments early next year and its decision will supplant the 2-1 ruling last month.

“On the one hand, the BPD has a clearly demonstrated need for this surveillance,” Judge J. Harvie Wilkinson III wrote for the slim majority.

“The violent crime rates in Baltimore are astonishing, being undisputably among the worst in the country,” Wilkinson added. “And despite law enforcement’s best efforts, its low clearance rates – just 32.1% in 2019 for murders – shows the challenge is formidable and this tool important. On the other hand, the program has been carefully designed to impose a minimal burden on constitutional rights.”

For example, the program’s aerial surveillance of people in public places for limited times does not violate their reasonable – and constitutionally protected  — expectation of privacy.

“AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened,” wrote Wilkinson, who was joined in the opinion by Judge Paul V. Niemeyer.

“Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance,” Wilkinson added. “We do not address a surveillance program that includes, for example, 24-hour surveillance of indoor and outdoor space using photographs that allow analysts to immediately identify the specific people being photographed.”

The 4th Circuit panel added that the surveillance program does not interfere with the constitutional First Amendment right of Baltimoreans to associate, despite claims the eye in the sky has a chilling effect on people’s willingness to be seen with certain individuals or in certain places.

“The basic problem with (that) argument is that people do not have a right to avoid being seen in public places,” Wilkinson wrote. “And even if that were not so, it is a stretch to suggest people are deterred from associating with each other because they may show up as a dot under the AIR program.”

The controversial 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 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 pilot program, which is nearing the end of its six-month testing period, is funded by Texas philanthropists John and Laura Arnold.

The ACLU of Maryland challenged the program as violating the constitutional Fourth Amendment rights of Baltimoreans to be free of unreasonable searches and the First Amendment right of people to peacefully associate without police surveillance.

The BPD defended the program as necessary to help prevent soaring gun violence in the city without violating the reasonable expectation of privacy people have in their homes but not on public streets.

The 4th Circuit panel affirmed Bennett’s decision over the dissent of Chief Judge Roger L. Gregory, who said Baltimore’s desire to stem gun violence did not justify its spying on city residents without a warrant.

“No crime rate can justify the aerial surveillance of an entire city, wholly unchecked by the judiciary,” Gregory wrote.

“I cast no aspersions on the majority’s sincere concerns regarding the problem of crime in the city of Baltimore,” Gregory added. “However, the manner in which policing occurs is just as important as the level of policing. … This court should not invoke the tragedies imparted by gun violence in Baltimore to justify its grant of sweeping surveillance powers to the BPD.”

The ACLU of Maryland filed its 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 and other areas in the city, leaving their private movements and confidential meetings vulnerable to the overhead surveillance, the ACLU of Maryland stated in its challenge.

The 4th Circuit panel issued its ruling in Leaders of a Beautiful Struggle et al. v. Baltimore Police Department et al., No. 20-1495.

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