The City of Baltimore lost its prior trial and appellate victories when a sharply divided en banc Fourth Circuit Court of Appeals reversed a panel decision and declared the City’s now defunct aerial surveillance program unconstitutional. Leaders of a Beautiful Struggle v. Baltimore Police Dept. (No. 20-1495) (6/24/21). The 8-7 decision yielded six separate opinions, including a dissent filed simply to say, “[o]ur court’s majority opinion is the most stunning example of judicial overreach that I have ever witnessed [in 31 years] on this court.” Id. at 75 (Niemeyer, J., dissenting). The discourse, though thoughtful, headed downhill from there.
There was complete lack of agreement on all three legal issues presented—mootness, whether preliminary injunctive relief was appropriate, and the constitutionality of the program. Discussion of the causes of and potential cures for urban violence was equally contentious. The majority was criticized for making “[n]o mention whatsoever . . . of the three hundred and thirty-five people that were murdered there in 2020.” Id. at 41 (Wilkinson, J. dissenting). The dissent, in turn, was chastised for “disregard[ing] the systems, relationships, and foundational problems that have perpetuated Baltimore’s epidemic of violence,” including de jure segregation that “plundered Baltimore’s Black neighborhoods—transferring wealth, public resources, and investment to their white counterparts . . . .” Id. at 33–4 (Gregory, C.J., concurring). Buried among competing lectures on federalism, systemic racism, and aggressive policing of minority populations was an edict enjoining the use of surveillance data pending trial on the merits. Until then, the fate of 200 criminal cases and investigations in which the plaintiffs had no direct interest were left in unique legal limbo. Id. at 28, n. 12.
In April 2020, BPD launched an experimental Aerial Investigative Research (AIR) program to help locate suspects and witnesses to violent crime. Id. at 4. AIR airplanes flew over the City for 12 hours each day with cameras that covered 90% of the City. The cameras were set at a resolution that photographed individuals and automobiles as pixelated dots that revealed no identifying characteristics. Photographs were accessed only after a shooting, robbery or carjacking was reported; there was no live tracking. Id. at 5–6.
When a crime was reported, technicians would go back and tag dots that appeared near the crime scene, track their outdoor movements and generate a report that revealed tracks of dots that went to and from the crime scene, as well as the places the dots visited before and after the crime was committed. BPD would then marry that data with information obtained from other surveillance assets, such as license plate readers and its 800 ground-based CCTV cameras, to identify people and vehicles who were at the scene. Id.
The six-month AIR pilot ended in October 2020, and the program was formally discontinued two months later when a new mayor hostile to the program took office. Id. at 8. In the interim, a federal district judge denied plaintiffs’ request for a preliminary injunction to enjoin AIR, arguing that it violated their Fourth Amendment right to be free from unreasonable, warrantless search and seizure.
After cancellation of the program, BPD deleted all but 14.2% of the 6,683,312 images collected during the pilot project. It retained material deemed relevant to the prosecution and defense of 200 investigations aided by the AIR program. Id. at 9. It was the retention of this data that allowed the en banc majority to conclude that the plaintiffs’ motion for a preliminary injunction was not, as the City urged, moot. “While the planes have stopped flying, the fruits of the AIR program persist . . . . If Plaintiffs obtain the injunction they requested, BPD will be barred from accessing those materials as the litigation proceeds, effectively granting Plaintiffs the relief they seek.” Id. at 10.
Emphasizing the fact that this was an interlocutory appeal from the denial of a preliminary injunction, the dissent would have granted the City’s request to dismiss the appeal as moot because “we can award no relief as to that which no longer exists . . . . The one issue before us [whether AIR should be enjoined pending litigation] has disappeared.” Id. at 47. All seven dissenters would have preferred to “let the district court do its job and put together a full evidentiary record” before reaching the merits of plaintiffs’ constitutional claims. Id. at 53. Protesting criticism of the trial judge while accusing the majority of employing “alternative facts” to push its agenda, the dissent added that “[i]t is just wrong to rebuke a trial court for ‘misapprehending’ facts it never gave the court a proper chance to find.” Id. at 54; 59.
The dissent also cited the procedural posture of the case when it addressed the propriety of reversing a trial judge for denying a preliminary injunction. A grant of such extraordinary relief requires, among other elements, that plaintiffs “make a ‘clear showing’ that they are likely to succeed on the merits of their legal claims [and] are likely to suffer irreparable harm in the absence of preliminary relief . . . .” Id. at 48 (citations omitted). As to the latter, “Plaintiffs cannot by definition suffer irreparable harm from a failure to enjoin a program that no longer exists.” Id. at 52.
The ultimate legal battleground was whether the plaintiffs were likely to succeed on the merits of their Fourth Amendment claims. The majority was clear in its conclusion: “we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment. Accordingly, we hold that Plaintiffs’ Fourth Amendment challenge is likely to succeed on the merits.” Id. at 28.
Resolution of this issue depended on where AIR fell on an analytical continuum established by two Supreme Court cases when measuring electronic surveillance against the Fourth Amendment. At one end was United States v. Knotts, 460 U.S. 276, 281 (1983), where a unanimous Court held that the warrantless use of an electronic tracking device to follow a car to a single location did not offend the constitution because one travelling public streets “has no reasonable expectation of privacy in his movements from one place to another.” At the other end was Carpenter v. United States, 138 S. Ct. 2206 (2018), where the Supreme Court held (5-4) that the warrantless use of cell-site location information (CSLI) to track an individual through his phone for six days did violate the target’s reasonable expectation of privacy. The CSLI provided the government with an average of 101 real-time location data points per day to yield a “detailed, encyclopedic, and effortlessly compiled” record of one person’s every movement. Carpenter, 138 S. Ct. at 220. In between was United States v. Jones, 565 U.S. 400 (2012), where a plurality found the warrantless use of a GPS device to track an automobile for 28 days also violated the subject’s reasonable expectation of privacy and, therefore, the Fourth Amendment.
The Leaders majority concluded that “Carpenter applies squarely to this case.” Slip Op. at 19.
AIR data is a photographic record of movements, surpassing the precision even of GPS data and CSLI, which record variable location points from which movements can be reconstructed. And while the coverage is not 24/7, most people do most of their moving during the daytime, not overnight. Likewise, many people start and end most days at home, following a relatively habitual pattern in between. These habits, analyzed with other available information, will often be enough for law enforcement to deduce the people behind the pixels….They could use any number of context clues to distinguish individuals and deduce identity. After all, the AIR program’s express goal is to identify suspects and witnesses to help BPD solve crimes.
Id. at 22–3.
The majority went on to “hold that accessing AIR data is a search, and its warrantless operation violates the Fourth Amendment.” Id. at 28.
The five dissenters who reached the issue used the facts as found by the trial judge and analyzed the law quite differently. In addition to the Knotts/Jones/Carpenter trilogy, the author of the primary dissenting opinion referred to a series of cases where the Supreme Court specifically upheld warrantless aerial surveillance.
If a plane can fly just one thousand feet over a home with cameras able to photograph individual items within the home’s curtilage, California v. Ciraolo, 476 U.S. 207, 209 (1986), I fail to see how AIR photographs representing daytime movements on public streets violate a reasonable expectation of privacy. If planes can photograph individual objects on a property as small as one half inch in diameter, Dow Chemical Co. v. United States, 476 U.S. 227, 238 (1986), I cannot grasp how AIR photos representing individuals on public streets as mere pixelated dots with no distinguishing features flunks the Fourth Amendment test. Unlike Florida v. Riley, 488 U.S. 445 (1989), where the Court upheld surveillance by government agents circling four hundred feet above a home in a helicopter to look into a greenhouse partially within the home’s curtilage, id. at 450, AIR does not involve the invasion of anyone’s home or curtilage. If those precedents do not control this case, the majority should frankly state that it no longer deems them palatable or binding.
Id. at 58 (Wilkinson, J., dissenting).
The thoughtful legal analysis in the several opinions is not likely to be the last word on a constitutional issue that depends exclusively on the interpretation of precedent of a divided Supreme Court. The case also presents some difficult questions on the limits of appellate review of an interlocutory appeal. But what really sets these six opinions apart is the uncharacteristic, sharply worded disagreement on the societal and law enforcement interests that the Fourth Circuit felt compelled to assess the “reasonableness” of AIR’s intrusion into the lives of city residents. When jurists of this caliber quote the Federalist Papers and list actual lives lost to remind their colleagues that it is “essential to appreciate in human terms the tragedy that has befallen the Baltimore community,” id. at 69, only to be reminded with quotes from Ta-Nehisi Coates, researchers and historians that “Baltimoreans need not sacrifice their constitutional rights to obtain equal governmental protection,” id. at 36, they have written opinions that will endure.