a low aerial view of downtown baltimore

En banc 4th Circ. rules Baltimore’s air surveillance unconstitutional

Sara Merken | June 24, 2021

(Reuters) – The 4th U.S. Circuit Court of Appeals held in a divided en banc ruling on Thursday that the Baltimore Police Department’s now-ended aerial surveillance program is unconstitutional, reversing a lower court’s decision and remanding the case.

The appeals court concluded that because the department’s Aerial Investigation Research (AIR) pilot 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 Fourth Amendment,” Chief U.S. Circuit Judge Roger Gregory wrote in the opinion for the majority.

A group of Black community advocates in Baltimore, backed by the American Civil Liberties Union, sought to block the police department from operating a six-month pilot program last year that flew planes over the city for 40 hours per week capturing images, aimed at combatting crime. A federal district judge in Maryland denied the bid for a preliminary injunction, and a split panel for the 4th Circuit in November affirmed the ruling. The ACLU, which represents grassroots group Leaders of a Beautiful Struggle and individuals, asked for a rehearing.

The appeals court on Thursday reversed the denial of the preliminary injunction motion, holding that the 4th Amendment challenge is likely to succeed on the merits.

“The court’s landmark ruling makes clear that the Constitution forbids police departments from deploying this kind of dystopian aerial surveillance,” Ashley Gorski, senior staff attorney at the ACLU, said in a statement. “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 to get off the ground.”

The Baltimore Police Department referred comment to the Baltimore City Law Department, which didn’t immediately respond to requests for comment.

The judges in the majority opinion first looked at the police department’s attempt to dismiss the appeal as moot because the program has ended without renewal and the department deleted most of the data collected. The court held the appeal is not moot, though, because it presents a “live controversy” as the department can still access some data.

“While the planes have stopped flying, the fruits of the AIR program persist,” the majority opinion said.

Turning to the merits of the appeal, the appeals court found the Maryland district court “misapprehended the AIR program’s capabilities.”

Evaluating other 4th Amendment privacy cases, the court concluded that a U.S. Supreme Court cellphone tracking case, Carpenter v. United States, “applies squarely” here. The appeals court considered the details of the Baltimore program, including what data was collected and when, as well as what that data could reveal about an individual.

The program “violates a reasonable expectation of privacy individuals have in the whole of their movements,” the court said.

“The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period,” the majority opinion said.

The court was split in its decision, with seven judges joining Gregory in the majority. Judge J. Harvie Wilkinson wrote a dissenting opinion, in which six judges joined in whole or in part, and two other judges wrote dissenting opinions.

The case is Leaders of Beautiful Struggle v. Baltimore Police Department, 4th U.S. Circuit Court of Appeals, No. 20-1495.

For the plaintiffs: Brett Max Kaufman of the American Civil Liberties Union

For the Baltimore Police Department: Andre Davis of the Baltimore City Law Department

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