Constitutional – Short-term aerial surveillance allowed to continue

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Where Baltimore’s short-term aerial surveillance program does not target particular individuals or violate a reasonable expectation of privacy, and seeks to meet a serious law enforcement need without burdening constitutional rights, the denial of community activists’ request for a preliminary injunction was affirmed.

Background

Plaintiffs appeal the district court’s denial of their request for a preliminary injunction against Baltimore’s aerial surveillance program. Under that program, when specific violent crimes—shootings, robberies and carjackings—are reported in a particular location, analysts can “tag” the dots photographed around the crime scene (representing each individual on the ground) and track those dots’ public movements in the hours leading up to and following the crime.

The process takes about 18 hours and provides the police department with a report that includes the location and timing of the crime, the observable actions at the crime scene, the tracks of people and vehicles to and from the crime scene and the locations the individuals at the crime scene visited before and after the crime. Using that data, the police can employ existing surveillance tools to identify witnesses and suspects. Within 72 hours, analysts can give the police a more detailed report about those present at the crime scene that potentially includes identifying information.

Standing

Defendants argue that plaintiffs’ alleged injuries are too speculative to establish standing. They reason that the potential injury lies at the end of an attenuated chain of possibilities where the police department successfully identifies who plaintiffs are. But the injury plaintiffs complain of is not being identified by the police department, but merely that they are being photographed. And that is almost certain to occur, considering that cameras can capture around 90% of Baltimore in a given moment.

Merits

The court concludes initially that the program does not violate a reasonable expectation of privacy. Supreme Court decisions teach that short-term surveillance of an individual’s public movements is less likely to violate a reasonable expectation of privacy. And under that rule, the program here passes muster.

First, the program’s cameras are only able to track outdoor movements. They cannot track an individual who enters a building, and analysts cannot tell if the person leaving the building is the same person who entered it. Second, surveillance planes only fly during 12 daylight hours. Because they do not fly at night, surveillance cannot be used to track individuals from day-to-day. Further, the Supreme Court has already held that various types of aerial surveillance do not invade a reasonable expectation of privacy.

In addition to not infringing a reasonable expectation of privacy, the program seeks to meet a serious law enforcement need without unduly burdening constitutional rights. First, this program is not being used to target particular individuals. Instead, it is used to track non-identified individuals only under certain circumstances—namely, once a shooting, armed robbery or carjacking has been reported in a specific location. An individual will not have his public movements tracked unless he happens to be at the scene of one of these violent crimes.

Ignoring this dynamic, plaintiffs complain they are particularly likely to be targeted because of their community activism. But the program cannot be used to target them as individuals; they do not appear in the photographs as individuals, but as featureless pixelated dots. Second, the program is designed to serve critical government purposes.

Plaintiffs also allege the program will violate their First Amendment rights to freely associate with others. Their basic theory is that the fear of being surveilled will deter them from associating with others on the streets of Baltimore. Plaintiffs are unlikely to succeed on the merits of this claim. The Supreme Court has explained that the First Amendment protects two types of free association: intimate association and expressive association. Plaintiffs do not plead that either type of association is infringed here.

Affirmed.

Dissent

(Gregory, C.J.): This case presents a long-anticipated Fourth Amendment question: Does the Constitution permit warrantless dragnet surveillance by a police plane in the sky above an American city? Because the majority concludes the warrantless surveillance program is constitutional, I respectfully dissent.

Leaders of a Beautiful Struggle v. Baltimore Police Department (Lawyers Weekly No. 001-122-20, 52 pp.) (J. Harvie Wilkinson III, J.) (Roger Gregory, C.J., dissenting) Case No. 20-1495. Nov. 5, 2020. From D. Md. (Richard D. Bennett, J.) Brett Max Kaufman for Appellants. Rachel Simmonsen for Appellees.