A constitutional challenge to the Baltimore Police Department’s use of aerial surveillance to fight crime last year did not end when the pilot program was grounded in October, despite what the BPD says, the American Civil Liberties Union told a federal appeals court Monday.
The BPD’s retention of images collected during the six-month program and the city’s ability to resume the flights enable the court to decide whether the department violated Baltimoreans’ constitutional protection against unreasonable searches and their right to peacefully associate, the ACLU told the 4th U.S. Circuit Court of Appeals.
The ACLU’s filing followed BPD’s motion, submitted last week, urging the full 4th Circuit to dismiss the group’s challenge as moot because the Aerial Investigation Research program has expired and pixilated images of people on city streets are no longer being collected.
The dueling submissions followed the full court’s decision last December to review a federal judge’s ruling that the AIR program falls into the surveillance techniques, such as security cameras, that the Supreme Court has expressly upheld as constitutional law enforcement tactics, especially in light of the Baltimore’s violent crime.
The ACLU had asked for the full court’s review after a divided three-judge panel of the 4th Circuit in November upheld U.S. District Judge U.S. District Judge Richard D. Bennett’s April decision.
The full 4th Circuit is scheduled to hear arguments March 8, pending its ruling on BPD’s motion to dismiss.
“The BPD is no longer collecting or accessing aerial surveillance images to track and potentially identify individuals or vehicles,” the department stated in its motion. “Accordingly, the termination of the pilot program makes it impossible for this court to grant the relief the plaintiffs-appellants (ACLU) sought, and the court must dismiss this interlocutory appeal as moot.”
BPD also cited Baltimore Mayor Brandon Scott’s pledge that no surveillance plane will fly over the city during his tenure.
In its response, the ACLU stated that the aerial surveillance’s unconstitutional search and its chilling effect on the right to associate peacefully extended beyond the program’s collection of the images and includes their retention.
“Contrary to the BPD’s repeated suggestion, plaintiffs’ motion does not merely seek to keep the BPD’s AIR program from collecting aerial images,” the ACLU wrote.
“Rather, plaintiffs’ motion also specifically seeks to prohibit the BPD from accessing any images collected during the litigation of the motion,” the ACLU added. “Should this (4th Circuit) Court grant plaintiffs’ requested relief, it would prohibit the BPD from accessing the data it unconstitutionally collected throughout the course of the program, providing plaintiffs with effective preliminary redress.”
The ACLU added that its appeal is not moot because the city could reconsider its decision to end the program and resume the flights in the absence of a court ruling that they are unconstitutional.
“Whatever the effect of its recent decisions and pronouncements, the BPD is certainly free to engage in a newly constituted AIR program again,” the ACLU wrote. “What’s more, the BPD’s belated assurances in legal briefing that it will not imminently revive the program are largely based on the long-time opposition of Baltimore City’s new mayor, but politicians commonly change their minds, and new elections could eventually put the AIR program back on the city’s agenda.”
The 4th Circuit has not stated when it will rule on BPD’s motion to dismiss.
The ACLU and its Maryland chapter 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 would supplant the three-judge panel’s 2-1 ruling. “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 indisputably 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.
Chief Judge Roger L. Gregory dissented, 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.