Full Fourth Circuit Split on Baltimore Aerial Police Surveillance

An ACLU lawyer urged the judges to find the program unconstitutional, while the city asked for the case to be sent back to a lower court for more discovery.

(Jerry Jackson/The Baltimore Sun via AP)

RICHMOND, Va. (CN) — The en banc Fourth Circuit appeared split Monday on the constitutionality of a Baltimore police surveillance program under which as much as 90% of the city was observed via plane over a six-month period.  

The Baltimore Police Department put the Aerial Investigation Research, or AIR, pilot program into use in May 2020. It used a small airplane equipped with a high-resolution camera array to fly over the city for 40 hours per week during daylight in fair weather.

The program was challenged under the First and Fourth Amendments by the ACLU of Maryland, but a federal judge denied the group’s request for an injunction halting it. While the rest of the case plays out, the ACLU appealed the injunction denial and went before a similarly unsympathetic three-member Fourth Circuit panel in September.

“When hundreds of Baltimore residents are killed on their streets each year, their rights to life are not protected…Now and then the gunshots pause, leaving only the silence of loved ones lost long before their time. The AIR program just might help reduce this most aching of silences—giving it a chance to succeed is in the public interest,” U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, wrote in a November opinion for the 2-1 majority. 

The controversial program has since ended and Baltimore’s new Mayor Brandon Scott, elected in November, has promised to stop it from ever running again.

It was the end of the program that proved to be a sticking point for some Fourth Circuit judges at the en banc rehearing Monday, including Wilkinson. 

“The question before the district court was the program and the program has been discontinued,” he said, arguing the appeal of the injunction denial should be dismissed as moot.

Wilkinson said new questions that have since been raised, including how police can use the data collected by the AIR program, need to be part of a record developed at the lower court before the appeals court can rule.  

“It’s hard to enjoin something that doesn’t exist,” the judge said. “That’s the very definition of mootness.” 

U.S. Circuit Judge Allison Rushing, a Donald Trump appointee, shared Wilkinson’s concerns. She asked about the balance of equities, used to weigh the impact of an injunction, and how they were different now that the program has ended.

“It’s not something we should be deciding on now,” she said after suggesting the city’s access to collected data “raises tension between criminal defendants and the city.” 

ACLU attorney Brett Max Kaufman, who argued on behalf of the plaintiff civil rights group Leaders of a Beautiful Struggle, said the injunction would not impede ongoing investigations, but also said the data’s very collection was still an issue that needed to be dissected. 

“The department now possesses unconstitutionally collected data,” Kaufman said. “The police department claims now that it has no present intention to conduct any new investigations from the data but there’s nothing stopping them.” 

“It’s a slight of hand,” he added. 

Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, shared Kaufman’s feelings on the issue.  

“It doesn’t matter what you use the data for. The question is should you have had it in the first place – did you violate the constitution by collecting it?” he said, adding that the plaintiffs are “still here wanting an answer to that, and mootness is not a way to find out.” 

Gregory stressed the need for the court to home in on the broader data collection issue and said they had the authority to do so despite the city and department’s promise to end the AIR program.  

“How on the earth is this court not empowered to answer that?” he said.  

But Andre Davis, the lawyer for the Baltimore Police Department, tried to push the merits argument back to the district court. He agreed with Wilkinson and others that enough of the case had changed that more discovery was necessary.

After more information was collected, he argued, the lower court judge could decide on the merits and the plaintiffs could appeal as needed. 

“As we are here today there is no decision in the case,” Davis said. “The other side is suggesting the city and police department nefariously brought the program to an end in order to avoid an en banc here but that’s nonsense.”

“Everyone knew this program would come to an end and that’s exactly what’s happened,” he added, again pointing to the new mayor’s campaign promise.  

“Does the Constitution depend on the mayor?” U.S. Circuit Judge James Wynn, a Barack Obama appointee, shot back.

Wilkinson returned to concerns over the city’s rising rate of crime and violence and urged his colleagues to let the lower court parse out the details before ruling on the merits. 

“Under our federal system, cities like Baltimore have to be given this leeway,” the judge said. “If we just slam down the gate on these programs, we are leaving, I fear, good communities like Baltimore without hope.” 

But even Davis pushed back on this idea. While conceding a 15-year-old boy died from a gunshot in Baltimore just days before the hearing, he said the nation’s history of unconstitutional surveillance in low-income communities, especially communities of color, should not be understated. 

“The crime and violence is profound,” he said. “But you must never permit a majoritarian approach as a means to addressing criminal activity or violence to trample or denigrate individual rights and liberties.”

The judges did not signal when they would rule.

Attempts to reach the ACLU of Maryland and the Baltimore Police Department for comment after the hearing were not returned by press time.

As for the results of the six-month program, a midterm report completed by the Baltimore Police Department found it was working to some degree. About 200 criminal investigations were using data collected by plane and some of those cases had a higher closure rate. But the report also admitted “the program has not collected sufficient data to make a definitive conclusion” as to its broader success.

Meanwhile, a post-program report by the New York University School of Law’s Policing Project suggested the injunction should be granted and any similar program should get legislative approval before being put to use. 

“The program’s potential for invasive surveillance is too great to be implemented without democratic authorization by a representative body,” the report found, suggesting the Baltimore City Council should be in charge of any such mass surveillance. 

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