4th Circuit rules Baltimore’s aerial surveillance program unconstitutional

The Baltimore Police Department violated the constitutional rights of city residents and visitors when it conducted general aerial surveillance in an effort to fight violent crime last year, a federal appeals court ruled Thursday.

In its 8-7 decision, the 4^th U.S. Circuit Court of Appeals said Baltimore’s six-month Aerial Investigation Research program involved the warrantless tracking of people on city streets in violation of the 4^th Amendment. Though people lack a “reasonable expectation of privacy” while walking in public, they do not expect to be tracked over extended periods of time and have those visual images retained by the police, the 4^th Circuit stated in its published ruling.

“People understand that they may be filmed by security cameras on city streets, or a police officer could stake out their house and tail them for a time,” Chief Judge Roger L. Gregory wrote in the 4^th Circuit’s majority opinion.

“But capturing everyone’s movements outside during the daytime for 45 days goes beyond that ordinary capacity,” Gregory added. “With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search and its warrantless operation violates the 4^th Amendment.”

BPD had defended its pilot surveillance program in court as necessary to prevent violent crime in a city ravaged by homicides that took 335 lives last year and 348 in 2019, according to published reports. The department also said the constitutional challenge must be rejected as moot because the program ended Oct. 31 and Baltimore Mayor Brandon Scott has said the city has no plans for its resumption.

But the American Civil Liberties Union, 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 – called AIR an infringement on their right to have their movements free of overhead surveillance.

They said their case is not moot because BPD has retained images collected during the six-month program and the city remains able to resume the flights if Scott or a succeeding administration pursues resumption.

The 4^th Circuit’s majority sympathized with those concerns.

“The Fourth Amendment must remain a bastion of liberty in a digitizing world,” Gregory wrote. “The AIR program is like a 21st century general search, enabling the police to collect all movements, both innocent and suspected, without any burden to articulate an adequate reason to search for specific items related to specific crimes.”

But Judge J. Harvie Wilkinson III, in a scathing dissent, assailed the majority for its “judicial overreach” by ruling in a case he called moot because the city allowed the program to lapse and in finding unconstitutional a surveillance program the city briefly adopted in an effort to reduce gun violence.

“In its indecorous rush to quash any experimentation on Baltimore’s part, the majority has signaled to American cities that future initiatives and attempts at solving the rapid rise of violent crime will likely meet with disfavor from the courts,” Wilkinson wrote.

“I fear that cities like Baltimore will be unwilling to put forth the effort in the future, so predetermined has become this judicial ‘No,’ ” Wilkinson added. “Dwelling in the eternal negative, the majority offers no solutions and can only reject answers that others have tried industriously to provide. Its decision strikes a heavy blow against democratic experimentation and innovation that is essential if our nation is to make headway in protecting those most vulnerable to the ravages of crime.”

Ashley Gorski, senior staff attorney in the ACLU’s National Security Project, hailed the 4^th Circuit’s decision.

“The court’s landmark ruling makes clear that the Constitution forbids police departments from deploying this kind of dystopian aerial surveillance,” Gorski said in a statement Thursday. “The AIR program’s technology presents a society-changing threat to everyone’s privacy, and as we’ve argued, the program never should have been permitted off the ground.”

Baltimore Solicitor James L. “Jim” Shea, the city’s chief attorney, did not immediately return a message Thursday seeking comment on the court’s ruling.

The full 4^th Circuit’s decision overturned U.S. District Judge Richard D. Bennett’s ruling in April 2020 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 Baltimore’s homicide rate.

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 decision. The full court’s decision supplants the three-judge panel’s 2-1 ruling.

Gregory was joined in the majority opinion by Judges Diana Gribbon Motz, Robert B. King, Barbara Milano Keenan, James A. Wynn Jr., Henry F. Floyd, Stephanie D. Thacker and Pamela A. Harris.

Wilkinson was joined in dissent in whole or in part by Judges Paul V. Niemeyer, G. Steven Agee, A. Marvin Quattlebaum Jr., Albert Diaz, Julius N. Richardson and Allison Jones Rushing.

The 4^th Circuit rendered its decision in Leaders of a Beautiful Struggle et al. v. Baltimore Police Department et al., No. 20-1495.