Appeals court rules against Baltimore Police Department aerial surveillance program

A federal appeals court on Thursday said that a previous aerial surveillance program operated by the Baltimore Police Department was unconstitutional, ordering city law enforcement to stop using data collected from the since-ended program. 

Writing for the majority, the chief judge for the U.S. Court of Appeals for the Fourth Circuit, Roger Gregory, said that the use of data collected from the Aerial Investigation Research (AIR) program launched in early May 2020 amounted to a “warrantless operation” and search in violation of the Fourth Amendment. 

The case erupted from a lawsuit initially filed in Maryland District Court last April by the ACLU on behalf of Leaders of a Beautiful Struggle, a grassroots think tank in Baltimore advancing the interests of Black community members. 

The ACLU argued at the time that the program would threaten the rights to privacy and free association for Baltimore residents, requesting a preliminary injunction preventing the initiative from being launched for a six-month trial period.

However, the district court denied the motion, allowing flights for the program to take place. 

After the ACLU appealed the decision, a panel of the 4th Circuit Court of Appeals rejected the group’s Fourth Amendment argument, prompting the group to request a hearing en blanc, or to bring forth the case to the full appeals court. 

In his ruling Thursday, Gregory reversed the appeals court panel’s decision, writing in his filing that while the police department decided to end the pilot program in February based on mixed results and backlash, the agency “has already tracked movements and identified individuals with AIR data and now has access to the resulting intelligence.” 

The program included the flying of planes 40 hours a week to almost constantly collect wide-angle photos of Baltimore. The police department and other proponents of the program defended it as a way to assist in violent crime investigations. 

Gregory denied the argument from the police department that the case was moot because the AIR program had ended, writing, “Plaintiffs have a concrete, legally cognizable interest in freezing BPD’s access to these images, which were obtained only by recording Plaintiffs’ movements and in which they may still appear.”

“The AIR program is like a 21st century general search, enabling the police to collect all movements, both innocent and suspected, without any burden to ‘articulate an adequate reason to search for specific items related to specific crimes,’” the judge added. 

The Hill has reached out to the ACLU and the Baltimore Police Department for comment on the ruling.