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Davis, ex-judge, will defend Baltimore’s aerial surveillance

“The fact you’re a former judge gets you nothing special in the 4th Circuit,” says Andre Davis, shown in a 2020 photo. “If anything I think they are harder on the former judge” so as not to show favoritism, he added. (The Daily Record / Jason Whong)

“The fact you’re a former judge gets you nothing special in the 4th Circuit,” says Andre Davis, shown in a 2020 photo. “If anything I think they are harder on the former judge” so as not to show favoritism, he added. (The Daily Record/Jason Whong)

The full 4th U.S. Circuit Court of Appeals might hear a familiar voice as it considers whether the Baltimore Police Department’s use of aerial surveillance to fight crime in the city last year violated Baltimoreans’ constitutional protection against unreasonable searches and their right to peacefully associate.

Retired 4th Circuit Judge – and former Baltimore City Solicitor – Andre M. Davis has agreed to press the city’s argument that BPD’s Aerial Investigation Research program fell into the surveillance techniques and tools, such as security cameras, that the U.S. Supreme Court has expressly upheld as constitutional law enforcement tactics, especially in light of the city’s rampant violent crime.

That argument has won in the U.S. District Court and before a divided three-judge panel of the 4th Circuit. Davis, who stepped down from the 4th Circuit in 2017 and retired as city solicitor last year, hopes to keep that winning streak going – though he predicts his services will not be needed.

Davis said he expects the 4th Circuit to grant the city’s request, filed Thursday, that the court dismiss the American Civil Liberties Union’s constitutional challenge as moot because the controversial six-month AIR program ended at the end of October.

But if his prediction is wrong, Davis said, he will be ready to argue before his former judicial colleagues on behalf of his ex-municipal employer.

“I want the city to succeed,” said Davis, a Baltimore native. “If I can help the city in any way, I’m certainly going to do that.”

Davis said he told Dana P. Moore and James L. Shea — his successors as the city’s chief attorney — that he would be willing to argue the appeal for free shortly after the full 4th Circuit agreed in December to hear the ACLU’s request that the court review the three-judge panel’s decision. Moore and Shea accepted the offer.

Davis formally entered his appearance in the case Jan. 29 by notifying the 4th Circuit.

Davis said Thursday that his nearly eight years on the 4th Circuit will garner him no special courtesy from his former colleagues. He noted that the court disagreed with his argument as city solicitor when it ruled in 2019 ruling that a nondisparagement provision in civil settlement agreements with Baltimore violated the plaintiffs’ constitutional right to free speech.

“The fact you’re a former judge gets you nothing special in the 4th Circuit,” Davis said. “If anything I think they are harder on the former judge” so as not to show favoritism, he added.

If the argument session scheduled for March 8 does go forward, it will be conducted remotely due to the 4th Circuit’s pandemic-compelled restrictions. As a result, Davis will miss out on the 4th Circuit judges’ custom of shaking hands with counsel after their arguments.

However, Davis offered a high-tech substitute all-too familiar to those who have participated in online meetings.

“They do have that little hand on Zoom that you can call up,” Davis said.

The 71-year-old retired judge and city attorney said he has no intention of resuming practice, saying he is busy serving on boards of nonprofits and on civil justice panels as well as mentoring law students.

“I don’t expect to be going to court,” Davis said. “This (4th Circuit argument) is definitely a one-off.”

The ACLU and its Maryland chapter has challenged the AIR 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 has 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 full 4th Circuit’s coming decision will supplant the three-judge panel’s 2-1 ruling from November.

“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 in the opinion affirming U.S. District Judge Richard D. Bennett’s April ruling. “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.”

Chief Judge Roger L. Gregory dissenting, saying 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 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 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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