Citywide Aerial Surveillance Program Upheld

by | November 12, 2020

Leaders of a Beautiful Struggle v. Baltimore Police Department, 2020 WL 6500931 (4th Cir. 2020)

Baltimore has the dubious distinction of being one of only two U.S. cities to rank in the 25 most dangerous cities in the world. Throughout the coronavirus pandemic, Baltimore has sustained a steady stream of homicides. Most murders in Baltimore go unsolved (the solve rate is only 32%).

In an effort to address violent crime, Baltimore partners with a private surveillance company to operate an Aerial Investigative Research (AIR) program. The program operates by flying three small planes over Baltimore during daytime hours, weather permitting. These planes are equipped with cameras covering about 90% of the city at any given time. The cameras employ a resolution that reduces each person on the ground to a pixelated dot, thus making the cameras unable to capture identifying characteristics of people or vehicles.

When shootings, robberies and carjackings occur, photographs from the AIR program are transmitted to a group of analysts, who may tag the dots photographed around the crime scene and track those dots’ public movements in the hours leading up to and following the crime. Analysts may attempt to collate data from on-the-ground surveillance cameras and automated license-plate readers to identify potential witnesses and suspects. Within 72 hours, analysts can provide investigators with a more detailed report about those present at the crime scene, potentially including identifying information.

The Leaders of a Beautiful Struggle (LBS), a grassroots think-tank that advances the public policy interests of Black people in Baltimore, sued and sought a preliminary injunction against the AIR program. LBS claimed the program infringed on Fourth Amendment reasonable expectations of privacy. It also argued the AIR program chilled First Amendment expression, making community members afraid to talk to LBS personnel out of fear the police would surveil and track them. The trial court denied the injunction and the court of appeals agreed. The appellate court determined the AIR program does not infringe on a reasonable expectation of privacy.

The court predicated its analysis on the Fourth Amendment balancing test, weighing the potential infringement on Fourth Amendment rights against the public safety interests advanced by the AIR program. The AIR program’s intrusion on privacy is minimal. Though the Supreme Court has held that long-term surveillance using GPS tracking violates a reasonable expectation of privacy (United States v. Jones, 565 U.S. 400 (2012)), short-term surveillance of a person’s public movements is much less likely to violate a reasonable expectation of privacy.

The court completed its balancing analysis with the conclusion that Baltimore has a strong public interest in reducing its murder rate and the rate of similar serious crimes.

The AIR program surveillance is very limited. It tracks only outdoor movements during daytime hours and in weather suitable for flying. Thus, the program doesn’t track any person’s day-to-day movements. The system does not connect a pixelated dot entering a building with a dot leaving the building. Plaintiffs claimed connecting the limited surveillance creates a privacy intrusion when it is paired with existing ground-based surveillance. The appellate court rejected this argument, citing several precedents, including:

  • A government plane flying in public navigable airspace at 1,000 feet over a home to photograph items within a fenced-in backyard did not violate a reasonable expectation of privacy (California v. Ciraolov, 476 U.S. 207 (1986)).
  • A government plane flying over a factory and photographing items as small as ½ inch in diameter was constitutionally permissible (Dow Chemical Co. v. United States, 476 U.S. 227 (1986)).
  • Government agents circling 400 feet above a home in a helicopter to view inside a greenhouse partially within the home’s curtilage did not violate the Fourth Amendment (Florida v. Riley, 488 U.S. 445 (1989)).

The AIR program collects data in a manner much less intrusive than the intrusions allowed in each of these precedents. The technology of the AIR program features built-in limitations on invasions of individual privacy. As for LBS’ argument that the AIR program would stifle First Amendment expression, the court concluded the same privacy intrusion protections would limit the threat that individuals, who appear only as a blurry pixelated dot, would not communicate with LBS out of fear of government monitoring.

The court completed its balancing analysis with the conclusion that Baltimore has a strong public interest in reducing its murder rate and the rate of similar serious crimes. The program is not a general surveillance operation; it tracks only dots in the proximity of a violent crime and only after the crime has occurred. The court observed: “The violent crime rates in Baltimore are astonishing, being indisputably among the worst in the country. And despite law enforcement’s best efforts, its low clearance rate—just 32.1% in 2019 for murders—shows the challenge is formidable and this additional tool important.”

The court explained the basic problem with the plaintiffs’ argument regarding First Amendment rights to freely associate with others is that people do not have a right to avoid being seen in public places and, even if that were not so, it is a stretch to suggest people are deterred from associating with each other because they may show up as a dot under the AIR program. Finally, the court concluded allowing the AIR program to continue is the equitable course of action and serves the public interest.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

More Posts
Share this post:

The Briefing – Your source for the latest blog articles, leadership resources and more