Fourth Circuit Allows Baltimore Police Department’s Aircraft-Based Surveillance Program to Continue

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Schnader Harrison Segal & Lewis LLPIn Leaders of a Beautiful Struggle v. Baltimore Police Department, the ACLU and ACLU of Baltimore filed a lawsuit against the Baltimore Police Department challenging the constitutionality of the Baltimore Police Department’s (the “BPD”) Aerial Investigative Research program (the “AIR”), which was instituted in 2016 in response to rising crime in Baltimore. The plaintiffs include Leaders of a Beautiful Struggle, a think tank advancing the public policy interests of black people in Baltimore.

The AIR uses three small planes to provide aerial observation of 90% of the city, the results of which are used to track movement of individuals and suspects in the vicinity of a violent crime. The BPD implemented the AIR without informing the public, elected officials, or the city solicitor. The system was used for about three hundred surveillance hours before being temporarily shuttered, but the BPD later reactivated the AIR system with additional safeguards in place to decrease the likelihood of potential abuse.

The Leaders of a Beautiful Struggle and two individuals moved for a preliminary injunction under 42 U.S.C. § 1983, alleging constitutional violations under the First and Fourth Amendments relating to infringement of the public’s reasonable expectation of privacy and the alleged chilling effect the AIR system would have on public association. The district court denied Plaintiff’s preliminary injunction.

In a 2-1 decision, with Chief Judge Gregory dissenting, the Fourth Circuit upheld the district court’s denial of the preliminary injunction, holding that the short-termed nature of the tracking did not violate reasonable expectations of privacy, the system did not capture intimate details, was not being used to target particular individuals, and did not interfere with the right to associate. The Court noted that due to the limited privacy allotted to citizens’ public movements, this short-termed public surveillance does not violate existing constitutional precedent allowing other types of more-intrusive aerial surveillance such as photographing a backyard from a plane flying at 1000 feet or looking into a backyard greenhouse from a low circling helicopter. The Court cautioned, however, that “our decision should not be interpreted as endorsing all forms of aerial surveillance.”

Privacy concerns play an integral role in the regulation and policy surrounding Unmanned Aerial Systems (“UAS”), and also are likely to play a role in the development of electronic vertical takeoff and landing systems (i.e., ‘flying cars’) guidance and regulations. As such, we can expect these types of issues to arise with some frequency in the coming years. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 979 F.3d 219 (4th Cir. 2020).

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