Filed Date: April 9, 2020
Case Ongoing
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On April 1, 2020, the Baltimore Board of Estimates approved a contract between the Baltimore Police Department (BPD) and Persistent Surveillance Systems, LLC (PSS) for an “Aerial Investigation Research” (AIR) pilot program in Baltimore, Maryland. The pilot program was to take place for six months, during which PSS would fly planes over the city for approximately twelve hours per day. While in flight, the planes would use advanced wide-angle camera systems to collect images of the city that would be reconstructed as slow-frame-rate video recordings of pedestrians and vehicles to be used by BPD.
Eight days after the contract was approved, on April 9, 2020, the plaintiffs, Leaders of a Beautiful Struggle (a self-described “grassroots think tank” that advocates for policy change to improve conditions for Baltimore’s black community) and two individual activists filed this lawsuit in the U.S. District Court for the District of Maryland. Represented by the ACLU of Maryland, the plaintiffs sought declaratory and injunctive relief against the BPD for two types of Constitutional violations.
The first set of claims arose under the Fourth Amendment. The plaintiffs argued that AIR violated the Fourth Amendment’s warrant requirement because its ability to capture images of pedestrians and vehicles amounted to indiscriminate searches that lacked “individualized suspicion or judicial approval.” The use of these images by the BPD similarly violated the Constitution, according to the plaintiffs, because the police could analyze information from the planes without warrants. The second claim was based on the First Amendment’s protection of freedom of association. The plaintiffs claimed that the planes' ability to capture aerial images of 90 percent of the city every second during their 12 hour flights was “constant and inescapable” monitoring that violated the Constitutional right to association. As an example, the complaint cited the effect the surveillance would have on one of the named plaintiffs who, as part of her work as an activist, regularly visited Baltimore neighborhoods affected by street violence to meet with community members shortly after violent crimes (including murders) occurred. This plaintiff was apprehensive about how her work would be unjustifiably scrutinized by police because the AIR program would be likely to generate an individualized report of her movements based on the frequency that she visited these high-crime areas. Because the contract between BPD and PSS established an official municipal policy under color of state law, the plaintiffs sued under 42 U.S.C. § 1983. The plaintiffs asked the district court to: 1) declare that the AIR program violated the First and Fourth Amendments; 2) permanently enjoin the BPD from operating the AIR program or collecting any images from it; 3) order the BPD to expunge all records of the plaintiffs gathered as a result of AIR surveillance; 4) award the plaintiffs attorneys’ fees. The case was assigned to District Judge Richard D. Bennett.
On the same day they filed the complaint, the plaintiffs moved for a temporary restraining order and preliminary injunction to prevent the defendants from operating the AIR pilot program and using any of the data collected from it. Judge Bennett held a telephone hearing on the motion on the afternoon of April 9, 2020. That same day, Judge Bennett entered an order prohibiting any AIR program flights from collecting, retaining, or accessing photographic imagery of Baltimore until the court’s hearing on the preliminary injunction on April 21, 2020. However, the court allowed the BPD to continue undertaking preparatory activities for the launch of the AIR program.
On April 21, 2020, the court conducted a hearing on the motion for a preliminary injunction. On April 24, 2020, Judge Bennett issued an opinion denying the plaintiffs’ motion for a preliminary injunction. He held that the AIR program did not constitute a “search” under the Fourth Amendment or violate the First Amendment, that the balance of the equities weighed against the grant of a preliminary injunction, and that it was not within the public interest to grant a preliminary injunction. 456 F. Supp. 3d 699. Because the plaintiffs did not succeed on their motion for a preliminary injunction, Judge Bennett entered an order allowing the AIR pilot program to proceed. On the same day, the plaintiffs appealed the lower court’s decision to the Fourth Circuit Court of Appeals.
While the parties were awaiting the Fourth Circuit’s decision on the preliminary injunction, on August 12, 2020, the BPD filed a motion to dismiss for failure to state a claim. On November 5, 2020, before the plaintiffs could respond to the motion to dismiss, the Fourth Circuit affirmed the denial of the preliminary injunction. A divided three-judge panel (Circuit Judge Harvie Wilkinson) held that the district court did not abuse discretion in denying the plaintiffs’ motion for a preliminary injunction because the plaintiffs were not likely to succeed on the merits of their claims that: 1) the AIR program violated the Fourth Amendment’s protection of a reasonable expectation of privacy, 2) the AIR program violated the Fourth Amendment under a balancing test, or 3) the AIR program violated the plaintiffs’ right to association under the First Amendment. Furthermore, the Fourth Circuit held that the balance of the equities weighed against the issuance of a preliminary injunction, noting that the high crime rate in Baltimore and newness of the pilot program supported the BPD’s effort to implement a technological innovation to stem violence. In a dissenting opinion, Chief Judge Roger Gregory disagreed with the majority’s characterization of the AIR program as a form of short-term surveillance and pointed to the program’s capacity to track individuals over time to reveal their “most intimate associations and activities” to support his conclusion that the AIR program violated the Fourth Amendment. 979 F.3d 219.
On December 22, 2020, the Fourth Circuit granted the plaintiffs’ petition for a rehearing en banc. A 15-judge panel heard arguments from both parties on March 8, 2021. An 8-7 majority overruled the three-judge panel’s decision and reversed the district court’s denial of the preliminary injunction on June 24, 2021. Chief Judge Gregory wrote the majority opinion, supported by two separate concurrences. The first concurrence by Chief Judge Gregory himself was joined by Circuit Judges Wynn, Thacker, and Harris. The second concurrence was written by Circuit Judge Wynn and joined by Circuit Judges Motz, Thacker, and Harris. The minority filed three separate dissents. The first dissent was written by Circuit Judge Wilkinson and joined by Circuit Judges Niemeyer, Agee, and Quattlebaum, and joined in part by Circuit Judges Diaz, Richardson, and Rushing. Circuit Judges Niemeyer and Diaz filed their own independent dissenting opinions which no other Judges joined. 2021 WL 2584408.
One of the issues on appeal was whether the case was moot due to the fact that the Board of Estimates voted to terminate the AIR program on February 3, 2021. According to the majority opinion, while AIR program planes stopped flying over Baltimore on October 31, 2020, the BPD submitted requests to RSS for analysis of data collected during the pilot program up until December 8, 2020. On February 2, 2021, BPD and PSS announced that they had deleted most of the data (all but 14.2 percent of images collected) that had been collected over the course of the AIR program. Because the remaining data that the BPD had access to documented thousands of hours of public movement and were being used in around 150 open criminal investigations, the Fourth Circuit held that the preliminary injunction sought by the plaintiffs was not moot as the requested relief, a prohibition on the usage of RSS data by police, could still be granted. 2021 WL 2584408.
On the merits of the plaintiffs’ claim for preliminary injunctive relief, the Fourth Circuit found that the district court erred in holding that the AIR program was capable only of short-term tracking, pointing to the fact that the information collected by RSS from its planes was even more precise than GPS and cell phone tracking data. Further, the majority found that the AIR program went beyond an “augmentation” of ordinary police capabilities. Instead, the opinion described the data collected by the program as “record[ing] the movements of a city” in a way that could be readily analyzed to identify the locations of individuals over an extended period of time. The majority held that police access of AIR program data constituted a search and, as a result, warrantless collection and analysis of the data violated the Fourth Amendment. The case was remanded to the district court for proceedings consistent with the en banc opinion. 2021 WL 2584408.
On August 20, 2021, the parties jointly moved to withdraw the BPD’s August 2020 motion to dismiss and to stay the proceedings, other than those relating to entry of a preliminary injunction in accordance with the en banc Fourth Circuit’s opinion. In the motion, the BPD also noted that it was still evaluating internally whether to file a petition for writ of certiorari to the U.S. Supreme Court.
Pursuant to the en banc Fourth Circuit’s opinion, the plaintiffs moved for a preliminary injunction again on August 25, 2021. In the interests of preserving their appellate rights, the BPD opposed the preliminary injunction, but agreed that the injunction’s specific terms comported with the Fourth Circuit’s opinion. Pursuant to the proposed injunction, the defendants, their agents, employees, successors in office, and all others acting in active concert with them (including but not limited to PSS), would be prohibited from accessing data generated by the AIR program, subject to certain exceptions. Furthermore, the injunction would mandate that PSS maintain sole possession of all other AIR program data consistent with the continuing confidentiality obligations and use limitations contained in its contract with the BPD, and that such data would not be accessed for any purpose aside from certain exceptions. The proposed preliminary injunction carved out some exceptions including that the BPD would be permitted to access the AIR program data in reports they possessed for the purpose of sharing those reports with government prosecutors in existing criminal prosecutions or with defendants in criminal prosecutions. The BPD would only be permitted to release data to government prosecutors in connection with prosecutions already existing on June 24, 2021. Additionally, the BPD would be permitted to access AIR program data with the plaintiffs in accordance with its discovery obligations. Lastly, the injunction would carve out an exception for AIR program data that had already been disseminated to the New York University Law School Policing Project, the RAND Corporation, the University of Baltimore, or the public.
The court granted the plaintiffs’ motion for a preliminary injunction on November 29, 2021.
On February 14, 2022, the parties jointly moved to dismiss the case after reaching a settlement agreement. Pursuant to the agreement, the BPD agreed to: 1) not resume the AIR program; 2) not access any AIR program data for any reason, aside from the agreed upon exceptions; 3) expunge all AIR program data not subject to the exceptions; and 4) pay the plaintiffs $99,000 for attorneys’ fees. The settlement agreement carved out exceptions that mirrored those contained in the preliminary injunction. The BPD was permitted to access the AIR program data in reports they possessed for the purpose of sharing those reports with government prosecutors in existing criminal prosecutions or with defendants in criminal prosecutions already existing on June 24, 2021. AIR program data that had already been disseminated to the New York University Law School Policing Project, the Rand Corporation, the University of Baltimore, or the public was not subject to the terms of the settlement. PSS would maintain sole possession of all other AIR program data consistent with the continuing confidentiality obligations and use limitations contained in its agreement with the BPD.
The court granted the motion and dismissed the case on February 17, 2022, but retained jurisdiction to enforce the terms of the agreement.
Summary Authors
Sabrina Glavota (5/22/2020)
Esteban Woo Kee (7/28/2021)
Nina Gerdes (4/29/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17055584/parties/leaders-of-a-beautiful-struggle-v-baltimore-police-department/
Agee, G. Steven (Virginia)
Bennett, Richard D. (Maryland)
Diaz, Albert (North Carolina)
Floyd, Henry Franklin (South Carolina)
Gorski, Ashley (New York)
Agee, G. Steven (Virginia)
Bennett, Richard D. (Maryland)
Diaz, Albert (North Carolina)
Floyd, Henry Franklin (South Carolina)
Gregory, Roger L. (Virginia)
Harris, Pamela Ann (Maryland)
Keenan, Barbara Milano (Virginia)
King, Robert Bruce (South Carolina)
Motz, Diana Jane Gribbon (Maryland)
Niemeyer, Paul Victor (Maryland)
Quattlebaum, A. Marvin Jr. (South Carolina)
Richardson, Julius Ness (South Carolina)
Rushing, Allison Jones (South Carolina)
Thacker, Stephanie Dawn (West Virginia)
Wilkinson, J. Harvie III (District of Columbia)
Wynn, James Andrew Jr. (North Carolina)
See docket on RECAP: https://www.courtlistener.com/docket/17055584/leaders-of-a-beautiful-struggle-v-baltimore-police-department/
Last updated Feb. 19, 2024, 3 a.m.
State / Territory: Maryland
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: April 9, 2020
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
A grassroots think-tank that advances the policy interests of black people in the Baltimore, Maryland community and two individual activists from Baltimore.
Plaintiff Type(s):
Non-profit NON-religious organization
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Baltimore Police Department (Baltimore , Baltimore City), City
Defendant Type(s):
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Constitutional Clause(s):
Unreasonable search and seizure
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Preliminary injunction / Temp. restraining order
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Amount Defendant Pays: 99,000
Content of Injunction:
Warrant/order for search or seizure
Issues
General: