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Full 4th Circuit hears challenge to Baltimore’s aerial surveillance

“Just because it's controversial doesn’t make it unconstitutional,” Andre M. Davis, shown in a 2017 photo, told the 4th U.S. Circuit Court of Appeals Monday in defending Baltimore's aerial surveillance program. (The Daily Record/File Photo)

“Just because it’s controversial doesn’t make it unconstitutional,” Andre M. Davis, shown in a 2017 photo, told the 4th U.S. Circuit Court of Appeals Monday in defending Baltimore’s aerial surveillance program. (The Daily Record/File Photo)

Attorneys for a civil rights group and the Baltimore Police Department battled Monday at a federal appeals court over the constitutionality of BPD’s use of aerial surveillance to fight crime and whether the constitutional challenge ended when the pilot program was grounded in October.

Brett M. Kaufman, of the American Civil Liberties Union, said BPD’s retention of 14% of the 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 Fourth Amendment protection against unreasonable searches.

“The founders would be absolutely horrified by a program of mass surveillance from the sky that logged the movements of all Baltimoreans for 180 days,” Kaufman told the full 4th U.S. Circuit Court of Appeals. “That is completely incompatible with the Fourth Amendment.”

But Andre M. Davis, pressing BPD’s case, said the ACLU’s challenge to the Aerial Investigation Research program ended when the program expired, a conclusion amplified when first-year Baltimore Mayor Brandon Scott said last fall that it would not be resumed.

Davis added that a federal district judge in Baltimore correctly ruled last year that the aerial surveillance of individuals on a city’s streets is constitutional because people have no “reasonable expectation of privacy” when they are out in public and the program was narrowly tailored to help the city achieve its compelling goal of fighting violent crime.

Davis, a former 4th Circuit judge and Baltimore solicitor, called aerial surveillance an  “innovative and controversial” method that properly balanced the privacy rights of individuals and the public safety goals of law enforcement. The retained images are limited to violent crimes being prosecuted, he said.

“Just because it’s controversial doesn’t make it unconstitutional,” Davis told the court.

“The crime, the violence is just profound” in Baltimore, Davis said. “A balance is necessary.”

Judges on the 15-member 4th Circuit appeared as divided as the attorneys, with several indicating that the ACLU’s appeal should be dismissed and the case returned to U.S. District Judge Richard D. Bennett for further review, and others saying the constitutional question is properly before the 4th Circuit and should be resolved.

Judges J. Harvie Wilkinson III and Paul V. Niemeyer were the 4th Circuit’s strongest voices for sending the case back to Bennett, noting that his decision on the program’s constitutionality was just a preliminary ruling and the case remains pending in district court.

Wilkinson was particularly critical of what he called the ACLU’s premature appeal that could have a chilling effect on district court judges engaging in a balanced review of the constitutionality of police tactics.

“Communities have to be given leeway to strike a balance between combating crime and not intruding and invading personal privacy,” Wilkinson said.

“If we just slammed down the gate on these programs (still under district court review) we are leaving, I fear, good communities like Baltimore and fine cities like Baltimore, we are leaving these cities without hope,” he added. “I just worry that we’re going to have cities throwing their hands up and saying ‘there’s nothing we can do,’ and that’s so sad.”

But Roger L. Gregory, the 4th Circuit’s chief judge, said the constitutional question was properly before the appellate court and should be resolved rather than remanded to the district court for further review.

“This is a court of appeals and we’ve been asked to opine on a constitutional issue,” Gregory said. “That’s our job. It’s not to kick a can down the road.”

The full 4th Circuit’s consideration followed its December decision to review Bennett’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 Bennett’s April decision.

The full court’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 Wilkinson 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 Niemeyer.

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 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 did not state when it would render its full court decision in Leaders of a Beautiful Struggle et al. v. Baltimore Police Department et al., No. 20-1495.

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