Leaders of Beautiful Struggle v. Baltimore Police Department
Published (2021)
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Rule of Law:
The Fourth Amendment requires a warrant for prolonged aerial surveillance that creates a "detailed, encyclopedic" record of an individual's public movements over an extended period, as such surveillance invades a reasonable expectation of privacy in the "whole of their physical movements."
Facts:
- In August 2016, the public learned that the Baltimore Police Department (BPD) was using aerial surveillance planes equipped with high-tech cameras in partnership with Persistent Surveillance Systems (PSS), which led to public outcry and discontinuation of the program.
- In December 2019, BPD Commissioner Michael Harrison announced a renewed aerial surveillance partnership with PSS, the Aerial Investigation Research ("AIR") program, and held community meetings to inform the public.
- The AIR program used multiple planes flying over Baltimore, equipped with PSS’s "Hawkeye Wide Area Imaging System" cameras, which captured roughly 32 square miles per image per second, providing about twelve hours of coverage of 90% of the city each day during daylight hours, weather permitting.
- The photographic resolution of AIR images was limited to one pixel per person or vehicle, appearing as blurred dots or blobs, but analysts could magnify images to individually visible (though blurred) people and cars.
- PSS contractors at "ground stations" used the aerial data to track individuals and vehicles from crime scenes (Target Crimes: homicides, attempted murder, shootings, armed robbery, carjacking) and extract information, providing initial briefings within 18 hours and in-depth reports within 72 hours.
- AIR reports included observations of driving patterns, tracks of vehicles and people, locations visited, and meetings, potentially integrating with BPD systems like CitiWatch cameras, Shot Spotter, and license plate readers to include ground-based images.
- AIR data was stored on PSS’s servers and intended to be retained for 45 days, though a civil liberties audit later revealed much data was retained indefinitely beyond this period due to connections to BPD requests.
- Plaintiffs, including Erricka Bridgeford (who visits scenes of gun violence), are grassroots community advocates whose work involves traveling in areas with high crime, making them likely to be captured in AIR data.
Procedural Posture:
- In December 2019, Baltimore Police Commissioner Michael Harrison announced the Aerial Investigation Research ("AIR") program, a renewed aerial surveillance partnership with Persistent Surveillance Systems ("PSS").
- On April 1, 2020, the Baltimore City Board of Estimates approved the contract between the Baltimore Police Department and PSS, authorizing the AIR program.
- On April 9, 2020, Leaders of a Beautiful Struggle, Erricka Bridgeford, and Kevin James ("Plaintiffs") filed suit against the Baltimore Police Department and Commissioner Harrison in the U.S. District Court for the District of Maryland, challenging the constitutionality of the AIR program under the Fourth Amendment and seeking to enjoin its operation and data access.
- Plaintiffs moved for a temporary restraining order and a preliminary injunction.
- On April 24, 2020, the U.S. District Court for the District of Maryland denied Plaintiffs' motion for preliminary relief.
- Plaintiffs appealed the district court's denial of preliminary relief to the U.S. Court of Appeals for the Fourth Circuit.
- A three-judge panel of the Fourth Circuit issued an opinion on November 5, 2020, affirming the district court, finding Plaintiffs' Fourth Amendment claim unlikely to succeed on the merits.
- Plaintiffs filed a petition for rehearing en banc, which the Fourth Circuit granted on December 22, 2020.
- After the AIR program's pilot period concluded on October 31, 2020, and the City decided not to continue it, the Baltimore City Board of Estimates voted to terminate the contract with PSS on February 3, 2021.
- The Baltimore Police Department and PSS deleted most of the collected AIR data in January 2021, retaining only data related to specific investigations (14.2% of the total).
- On February 4, 2021, Defendants filed a motion to dismiss the appeal as moot.
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Issue:
Does the Baltimore Police Department's warrantless Aerial Investigation Research program, which enables retrospective, multi-hour photographic tracking of individuals' public movements for at least 45 days, constitute an unreasonable search in violation of the Fourth Amendment?
Opinions:
Majority - Chief Judge Gregory
Yes, the Baltimore Police Department's warrantless Aerial Investigation Research program constitutes an unreasonable search in violation of the Fourth Amendment. The court found that the AIR program, by collecting "photographic, retrospective location tracking in multi-hour blocks, often over consecutive days, with a month and a half of daytimes for analysts to work with," effectively tracks every movement of every person outside in Baltimore, creating a "detailed, encyclopedic" record of their whereabouts. This capability, the court reasoned, is analogous to the cell-site location information (CSLI) at issue in Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that government access to CSLI was a Fourth Amendment search because it provided "an intimate window into a person’s life" by revealing familial, political, professional, religious, and sexual associations through aggregate movements. The court rejected the district court's conclusion that AIR's limitations (daylight-only, pixelated images, potential data gaps) made it equivalent to traditional, short-term surveillance or less intrusive than CSLI. It noted that CSLI and GPS data in Jones also had gaps, yet still revealed enough information to deduce patterns. The majority emphasized that people conduct most movements during the daytime, and the program's ability to cross-reference with BPD systems (like CitiWatch cameras and license plate readers) and deductive reasoning allows for identification and insights from the "whole of individuals' movements." The court clarified that the program's aerial nature is incidental, and the controlling precedents concern privacy in "physical location and movements." The program's capacity to record everyone's movements for an extended period goes beyond mere augmentation of ordinary police capabilities, enabling police to deduce intimate details without a warrant, akin to a "21st century general search." The court found that the remaining Winter factors (irreparable harm, balance of equities, public interest) also favored preliminary relief due to the likely constitutional violation.
Concurring - Chief Judge Gregory
Yes, the Baltimore Police Department's warrantless Aerial Investigation Research program constitutes an unreasonable search in violation of the Fourth Amendment. Chief Judge Gregory, in a concurring opinion, responded directly to the dissent's focus on Baltimore's high murder rate and its implication that the majority's decision would exacerbate violence. He argued that this perspective oversimplifies the complex issues contributing to violence in Baltimore, which include historical racial segregation ("redlining") and disproportionate policing, rather than just a lack of surveillance tools. He cited research demonstrating how these historical and systemic issues correlate with current disparities in resource distribution and public well-being. He emphasized that the Plaintiffs' advocacy, which includes community-driven initiatives for flourishing, embodies self-determination and rejects the "false choice between community instability created by violent crime, [and] the community instability caused by mass incarceration [and] unaccountable policing." He asserted that constitutional rights should not be sacrificed, and hope and talent still flourish in Baltimore's neighborhoods despite challenges. Judge Wynn, Judge Thacker, and Judge Harris joined this concurring opinion.
Concurring - Judge Wynn
Yes, the Baltimore Police Department's warrantless Aerial Investigation Research program constitutes an unreasonable search in violation of the Fourth Amendment. Judge Wynn's concurring opinion agreed with the majority's legal conclusion, but primarily addressed Judge Wilkinson's dissenting argument that the majority was "dismantling a democratically enacted solution, blind to the consequences for the lives and wellbeing of Baltimoreans." Judge Wynn stated that while both he and Judge Wilkinson agree on the principle of judicial restraint in policymaking, the dissent's rhetoric goes too far by insinuating that only the dissent has Baltimore's best interests at heart. He highlighted that Baltimore suffers from both "over-policing" (ubiquitous surveillance, humiliating interactions, disproportionate policing in Black neighborhoods) and "under-policing" (tragic homicide and low clearance rates), as well as "plain poorly policed" (referencing a DOJ finding of a pattern of unconstitutional conduct by BPD). He stressed that the court's role is to adhere to the law, not to determine what is best for Baltimore, and that the majority correctly resolved the legal issue. Judge Motz, Judge Thacker, and Judge Harris joined this concurring opinion.
Dissenting - Judge Wilkinson
No, the Baltimore Police Department's warrantless Aerial Investigation Research program does not constitute an unreasonable search in violation of the Fourth Amendment, and the appeal should have been dismissed as moot. Judge Wilkinson argued that the appeal should be dismissed as moot because the AIR program was terminated, its contract cancelled, and most data deleted. He contended that granting relief would be impossible and that the voluntary cessation exception did not apply because the program ended due to democratic pressures, not to evade review. On the merits, he asserted the majority "overreads" Carpenter and defies precedent regarding the limited expectation of privacy in public movements (Katz, Knotts, Jones). He distinguished AIR from CSLI in Carpenter, noting AIR's limitations (daylight only, pixelated dots, inability to track individuals entering buildings, requiring human analysis for short snippets of movement). He argued that AIR was a reasonable program addressing serious law enforcement needs (Baltimore's high murder rate), akin to programmatic searches upheld in Michigan Department of State Police v. Sitz. He heavily criticized the majority's "judicial overreach" for prematurely intervening in local governance and democratic experimentation, thereby undermining federalism and denying Baltimore the ability to combat violent crime. He concluded that the majority's decision effectively bans all warrantless tracking of public movements, which is a "breathtaking transformation of the law." Judge Niemeyer, Judge Agee, and Judge Quattlebaum joined this dissenting opinion, with Judge Diaz joining Part I, Judge Richardson joining Parts I, II, and III, and Judge Rushing joining Parts I and II.
Dissenting - Judge Niemeyer
No, the appeal should have been dismissed as moot. Judge Niemeyer concisely stated his belief that the majority opinion is a "stunning example of judicial overreach" and "nothing short of an advisory opinion that also oversteps an appellate court’s role." He concurred with Judge Wilkinson’s persuasive arguments, particularly regarding mootness and judicial propriety.
Dissenting - Judge Diaz
No, the appeal should have been dismissed as moot. Judge Diaz focused solely on the mootness issue. He stated that the constitutional question, while close, became moot because the Baltimore Police Department terminated the AIR Program, cancelled its contract with PSS, and deleted almost all of the collected data. He concluded that the justification for a preliminary injunction—that the Department was actively using images to track individuals—had "effectively evaporated," rendering the appeal moot. He joined Part I of Judge Wilkinson’s dissent, which explained the mootness argument.
Analysis:
This case significantly expands the scope of Fourth Amendment protection against government surveillance, particularly in the context of emerging technologies. By applying Carpenter to aerial photographic surveillance, the Fourth Circuit signals that any government program capable of creating a "detailed, encyclopedic" record of individuals' aggregate public movements for an extended period will likely constitute a Fourth Amendment search requiring a warrant. This decision could have far-reaching implications for other wide-area surveillance technologies, prompting municipalities to reconsider the design and implementation of such programs to ensure they are narrowly tailored and respect privacy expectations, or to seek warrants for their operation. It reinforces the principle that technology's enhancement of surveillance capabilities must be balanced against foundational constitutional protections, regardless of the perceived public safety benefits.
