A federal appeals court ruled Thursday that Baltimore’s controversial surveillance plane is constitutional, finding that it is a tool to help police combat rampant crime without invading the rights and privacy of city residents.
The three-judge panel pointed to the city’s homicide count — topping 300 each of the past five years — and the police department’s inability to solve the cases as a reason to search for alternatives.
In a 2-1 ruling, the judges found that police have taken steps to protect the rights of residents.
“One step taken by the BPD to strengthen its hand against violent crime is the Aerial Investigative Research program (AIR),” the court wrote. "It is important at the outset to say all the things the program does not do. It does not search a person’s home, car, personal information or effects.
“It does not photograph a person’s features. The program has been progressively circumscribed to meet the thoughtful objections of civil libertarians, though not sufficiently in plaintiffs' view,” the majority of the panel wrote.
The lawsuit was filed by an activist group, Leaders of a Beautiful Struggle, local activist Erricka Bridgeford and Kevin James, a community organizer and hip-hop musician. The American Civil Liberties Union took on their cause.
They sought to block the surveillance program, a six-month pilot designed to aid police in solving and preventing crime. The trial run ended last week, and the plane’s future will be determined after an evaluation of its effectiveness, city officials said.
Texas philanthropists Laura and John Arnold, through their organization Arnold Ventures, funded three planes, their pilots, analysts and hangar space, as well as grants to help researchers study whether the program is having an impact on Baltimore’s violent crime rate. The city, Arnold Ventures and independent analysts said they will now measure the program’s effectiveness and decide on the next steps.
The program’s technology is capable of capturing images of 32 square miles of the city for a minimum of 40 hours a week.
The court said the plane is constitutional because it is less invasive than street surveillance cameras and that the “built-in limitations of the AIR program mean that it only enables the short-term tracking of public movements.”
“In addition to not infringing a reasonable expectation of privacy, the AIR program seeks to meet a serious law enforcement need without unduly burdening constitutional rights,” Judge J. Harvie Wilkinson IIIwrote in the opinion. Wilkinson, along with Judge Paul V. Niemeyer, said the plane will help police meet a “serious” need without violating any constitutional rights.
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In a dissenting opinion, Chief Judge Roger. L Gregory said he agreed with some of the points in the majority opinion, but said the surveillance program could have larger, more disturbing implications.
“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? Until now, this question was merely a provocative hypothetical for law professors or a slippery-slope concern for litigants,” Gregory wrote.
Instead, Gregory said in his dissenting opinion, Baltimore’s struggles don’t warrant such sweeping measures.
Gregory cited the city’s consent decree with the U.S. Justice Department after a DOJ investigation found Baltimore police officers routinely violated residents' civil rights. The investigation was prompted by the 2015 arrest and death of Freddie Gray from injuries suffered while in police custody, which unrest and calls for police reform in Baltimore.
“The majority’s portrayal of the AIR program aligns with BPD’s public assurances about how the program is intended to be used, but requires putting one’s head in the sand about the program’s capabilities,” Gregory wrote.
The judge said that if the planes are being used to fill holes in police surveillance, it would end up targeting and identifying people, falling into the same cycle of overpolicing neighborhoods. Although the crime rate is high, Gregory said, it does not justify “warrantless aerial surveillance of an entire city, wholly unchecked by the judiciary.”
“This Court should not invoke the tragedies imparted by gun violence in Baltimore to justify its grant of sweeping surveillance powers to the BPD,” he said.