U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:20-cv-00929-RDB

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Leaders of a Beautiful Struggle et al v. Baltimore Police Date Filed: 04/09/2020

Department et al

Jury Demand: None

Assigned to: Judge Richard D. Bennett

Nature of Suit: 440 Civil Rights:

Case in other court: Fourth Circuit Court of Appeals, Other

20-01495

Jurisdiction: Federal Question

Cause: 28:1331 Violation of Constitutional Rights

Plaintiff
Leaders of a Beautiful Struggle Leaders of a Beautiful Struggle

represented by Alexia Ramirez ACLU Foundation 125 Broad St. 18th Fl. New York, NY 10004 2155492500 Fax: 2125492654 Email: aramirez@aclu.org TERMINATED: 09/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 2122847305 Fax: 2125492654 Email: agorski@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Ben Wizner ACLU Foundation 125 Broad St. 18th Fl. New York, NY 10004 2125492500 Fax: 2125492654 Email: bwizner@aclu.org

Plaintiff
Erricka Bridgeford Erricka Bridgeford

PRO HAC VICE ATTORNEY TO BE NOTICED
Brett Max Kaufman American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2125197847 Fax: 2125492654 Email: bkaufman@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Freed Wessler American Civil Liberties Union 125 Broad St. 18th Fl. New York, NY 10004 2125197847 Fax: 2125492654 Email: nwessler@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah ACLU of Maryland 3600 Clipper Mill Rd, #350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: rocah@aclu-md.org ATTORNEY TO BE NOTICED
represented by Alexia Ramirez (See above for address) TERMINATED: 09/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ben Wizner (See above for address)

Plaintiff
Kevin James Kevin James

PRO HAC VICE ATTORNEY TO BE NOTICED
Brett Max Kaufman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Freed Wessler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
represented by Alexia Ramirez (See above for address) TERMINATED: 09/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ben Wizner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brett Max Kaufman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nathan Freed Wessler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah

V. Defendant Baltimore Police Department Baltimore Police Department
Defendant Michael S Harrison Michael S. Harrison, in his official capacity as Baltimore Police Commissioner

(See above for address) ATTORNEY TO BE NOTICED
represented by Dana Petersen Moore Office of the City Solicitor 100 N Holliday St. Ste. 101 Baltimore, MD 21202 4103963659 Email: law.danapmoore@baltimorecity.gov LEAD ATTORNEY
Elisabeth Walden Baltimore City Law Department Office of Legal Affairs 100 N. Holliday Street, Suite 101 Baltimore, MD 21202 4103962496 Fax: 4103962126 Email: lisa.walden@baltimorepolice.org ATTORNEY TO BE NOTICED
Kara K Lynch Baltimore City Law Department 100 N Holliday St Room 101 Baltimore, MD 21202 14103962496 Email: Kara.Lynch@baltimorepolice.org ATTORNEY TO BE NOTICED
represented by Dana Petersen Moore (See above for address) LEAD ATTORNEY
Elisabeth Walden (See above for address) ATTORNEY TO BE NOTICED
Kara K Lynch

(See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/09/2020 04/09/2020 04/09/2020
04/09/2020 04/09/2020 04/09/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-8606257.), filed by Leaders of a Beautiful Struggle, Kevin James, Erricka Bridgeford. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons)(Rocah, David) (Entered: 04/09/2020)
2 MOTION for Temporary Restraining Order & Preliminary Injunction by Erricka Bridgeford, Kevin James, Leaders of a Beautiful
Struggle (Attachments: # 1 Memorandum in Support)(Rocah, David) (Entered: 04/09/2020)
3 AFFIDAVIT re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Alexia Ramirez by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle (Attachments: # 1
Exhibit (A) BPD Presentation, # 2 Exhibit (B) BPD/PSS
Contract, # 3 Exhibit (C-1) PSS Hawkeye II Web Pages Part 1 of
2, # 4 Exhibit (C-2) PSS Hawkeye II Web Pages Part 2 of 2, # 5
Exhibit (D) Unique in the Crowd Study, # 6 Exhibit (E) PSS Nighthawk II Web Page)(Rocah, David) (Entered: 04/09/2020)
4 AFFIDAVIT re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Dayvon Love, Leaders of a Beautiful Struggle by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
5 AFFIDAVIT re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Erricka Bridgeford by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
6 AFFIDAVIT re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Kevin James by Erricka Bridgeford, Kevin

04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/09/2020

James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
7 NOTICE by Erricka Bridgeford, Kevin James, Leaders of a Beautiful
Struggle re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Proposed Order Granting TRO (Rocah, David) (Entered: 04/09/2020)
8 NOTICE by Erricka Bridgeford, Kevin James, Leaders of a Beautiful
Struggle re 2 MOTION for Temporary Restraining Order & Preliminary Injunction of Proposed Order Granting Preliminary Injunction (Rocah, David) (Entered: 04/09/2020)
9 MOTION To Omit Home Address From Caption by Kevin James (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Rocah, David) (Entered: 04/09/2020)
10 MOTION to Appear Pro Hac Vice for Brett Max Kaufman (Filing fee $100, receipt number 0416-8606411.) by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
11 MOTION to Appear Pro Hac Vice for Ashley Gorski (Filing fee $100, receipt number 0416-8606437.) by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
12 MOTION to Appear Pro Hac Vice for Alexia Ramirez (Filing fee $100, receipt number 0416-8606444.) by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
13 MOTION to Appear Pro Hac Vice for Nathan Freed Wessler (Filing fee $100, receipt number 0416-8606446.) by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
14 MOTION to Appear Pro Hac Vice for Ben Wizner (Filing fee $100, receipt number 0416-8606459.) by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 04/09/2020)
Telephone conference with all parties re: status held on 4/9/2020 before Judge Richard D. Bennett. (NOT on the record) (krs, Deputy Clerk) (Entered: 04/09/2020)

04/09/2020 04/09/2020 04/09/2020 04/09/2020 04/10/2020 04/10/2020
04/10/2020
04/10/2020

15 ORDER directing the Defendants to respond to Plaintiffs' Motion by 4/15/2020 at 4:00 p.m. and Plaintiffs shall file reply by 4/17/2020 at 4:00 p.m. The Court will conduct a Preliminary Injunction Hearing on 4/21/2020 at 11:00 a.m. and issue a decision on the Plaintiffs' Motion by 4/24/2020 at 5:00 p.m. Signed by Judge Richard D. Bennett on 4/9/2020. (krs, Deputy Clerk) (Entered: 04/09/2020)

16 ORDER granting 9 Motion for Permission to Omit Home Address from Caption; granting 10 , 11 , 12 , 13 , and 14 Motions for Admission Pro Hac Vice. Signed by Judge Richard D. Bennett on 4/9/2020. (cc Attorney Admissions 4/9/2020) (krs, Deputy Clerk) (Entered: 04/09/2020)

17 NOTICE of Appearance by Dana Petersen Moore on behalf of Baltimore Police Department, Michael S Harrison (Moore, Dana) (Entered: 04/09/2020)

18 NOTICE of Appearance by Elisabeth Walden on behalf of Baltimore Police Department, Michael S Harrison (Walden, Elisabeth) (Entered: 04/09/2020)

Deficiency Notice as to Leaders of a Beautiful Struggle -- Your Local Rule 103.3 disclosure statement has not been filed. The Statement must be filed by 4/17/2020 (kw2s, Deputy Clerk) (Entered: 04/10/2020)

19 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Brett Max Kaufman. Directing attorney Brett Max Kaufman to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 4/10/2020. (srds, Deputy Clerk) (Entered: 04/10/2020)

20 QC NOTICE: 1 Complaint, filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle was filed incorrectly.*** Please submit a proposed summons for Michael S Harrison. Use the

event Notice> Notice(Other) and link to 1 Deputy Clerk) (Entered: 04/10/2020)

Complaint (kw2s,

21 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Ashley Marie Gorski. Directing attorney Ashley Marie Gorski to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.

04/10/2020
04/10/2020
04/10/2020 04/14/2020 04/14/2020 04/15/2020 04/15/2020 04/15/2020 04/15/2020

Signed by Clerk on 4/10/2020. (srds, Deputy Clerk) (Entered: 04/10/2020)
22 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of Alexia Ramirez. Directing attorney Alexia Ramirez to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/10/2020. (srds, Deputy Clerk) (Entered: 04/10/2020)
23 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice on behalf of Nathan Freed Wessler. Directing attorney Nathan Freed Wessler to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 4/10/2020. (srds, Deputy Clerk) (Entered: 04/10/2020)
24 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of Ben Wizner. Directing attorney Ben Wizner to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 4/10/2020. (srds, Deputy Clerk) (Entered: 04/10/2020)
25 NOTICE by Erricka Bridgeford, Kevin James, Leaders of a Beautiful
Struggle re 1 Complaint, Corrected Summons for Michael Harrison (Rocah, David) (Entered: 04/14/2020)
26 Local Rule 103.3 Disclosure Statement by Leaders of a Beautiful Struggle (Rocah, David) (Entered: 04/14/2020)
27 Summons Issued 21 days as to Baltimore Police Department, Michael S Harrison. (Attachments: # 1 Summons)(kw2s, Deputy Clerk) (Entered: 04/15/2020)
28 Local Rule 103.3 Disclosure Statement by Baltimore Police Department (Walden, Elisabeth) (Entered: 04/15/2020)
29 Local Rule 103.3 Disclosure Statement by Michael S Harrison (Walden, Elisabeth) (Entered: 04/15/2020)
30 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order & Preliminary Injunction filed by Baltimore Police

04/17/2020 04/21/2020 04/24/2020 04/24/2020 04/24/2020 04/27/2020
04/28/2020

Department, Michael S Harrison. (Attachments: # 1 Exhibit A,
# 2 Exhibit B)(Walden, Elisabeth) (Entered: 04/15/2020)
31 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order & Preliminary Injunction filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle.(Rocah, David) (Entered: 04/17/2020)

Telephone Motion Hearing held on 4/21/2020 re 2 MOTION for Temporary Restraining Order & Preliminary Injunction filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle before Judge Richard D. Bennett.(Court Reporter: Christine Asif) (chs, Deputy Clerk) (Entered: 04/22/2020)
32 MEMORANDUM OPINION Signed by Judge Richard D. Bennett on 4/24/2020. (cags, Deputy Clerk) (Entered: 04/24/2020)

33 ORDER denying 2 Motion for Preliminary Injunction; the Air Pilot Program may proceed. Signed by Judge Richard D. Bennett on 4/24/2020 (cags, Deputy Clerk) (Entered: 04/24/2020)

34 NOTICE OF INTERLOCUTORY APPEAL as to 33

Order on

Motion for TRO, 32 Memorandum Opinion by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle. Filing fee $ 505, receipt number 0416-8625995.(Rocah, David) (Entered: 04/24/2020)

35 Transmission of Notice of Appeal and Docket Sheet to US Court of

Appeals re 34 Notice of Interlocutory Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(Filing Fee incorrectly on transmittal as unpaid and the Filing Fee is Paid)(slss, Deputy Clerk) Modified on 4/27/2020 (slss, Deputy Clerk). (Entered: 04/27/2020)

36 USCA Case Number 20-1495 for 34 Notice of Interlocutory
Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a

04/28/2020 04/28/2020
04/30/2020 08/12/2020 08/14/2020 08/17/2020

Beautiful Struggle - Case Manager - Cathi Bennett (slss, Deputy Clerk) (Entered: 04/28/2020)
37 TRANSCRIPT ORDER ACKNOWLEDGMENT by Leaders of a Beautiful Struggle for proceedings held on Telephone motion hearing
of 04/21/2020 before Judge Bennett, re 34 Notice of Interlocutory Appeal - Transcript due by 4/30/2020. (Court Reporter; Christine Asif)(slss, Deputy Clerk) (Entered: 04/28/2020)
38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of
4/21/2020, before Judge Richard D. Bennett, re 34 Notice of Interlocutory Appeal Court Reporter Christine Asif, Telephone number 410-962-4492. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Does this satisfy all appellate orders for this reporter? - Y. Redaction Request due 5/19/2020. Redacted Transcript Deadline set for 5/29/2020. Release of Transcript Restriction set for 7/27/2020.(ca, Court Reporter) (Entered: 04/28/2020)
39 NOTICE of Appearance by Kara K Lynch on behalf of Baltimore Police Department, Michael S Harrison (Lynch, Kara) (Entered: 04/30/2020)
40 MOTION to Dismiss for Failure to State a Claim by Baltimore Police Department, Michael S Harrison (Attachments: # 1
Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Lynch, Kara) (Entered: 08/12/2020)
41 Consent MOTION for Extension of Time to File Response/Reply as
to 40 MOTION to Dismiss for Failure to State a Claim by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle. (Attachments: # 1 Text of Proposed Order)(Rocah, David) (Entered: 08/14/2020)
42 ORDER granting 41 Consent MOTION for Extension of Time to File
Response/Reply as to 40 MOTION to Dismiss for Failure to State a Claim. Signed by Judge Richard D. Bennett on 8/17/2020. (kw2s, Deputy Clerk) (Entered: 08/17/2020)

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11/11/2020 11/12/2020 11/20/2020 12/22/2020 12/22/2020

43 MOTION to Withdraw as Attorney on behalf of Alexia Ramirez by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle(Rocah, David) (Entered: 09/03/2020)

44 ORDER Approving 43 MOTION to Withdraw as Attorney on behalf of Alexia Ramirez. Attorney Alexia Ramirez terminated. Signed by Judge Richard D. Bennett on 9/3/2020. (kw2s, Deputy Clerk) (Entered: 09/03/2020)

45 JUDGMENT of USCA (certified copy) "Affirming" the judgment of

the District Court as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle

(Attachments: # 1 11/06/2020)

Opinion)(slss, Deputy Clerk) (Entered:

46 Consent MOTION for Extension of Time to File Response/Reply as

to 40 MOTION to Dismiss for Failure to State a Claim by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle. (Attachments: # 1 Text of Proposed Order)(Rocah, David) (Entered: 11/11/2020)

47 ORDER granting 46 Consent MOTION for Extension of Time to File Response/Reply as to 40 MOTION to Dismiss for Failure to State a Claim. Signed by Judge Richard D. Bennett on 11/12/2020. (kw2s, Deputy Clerk) (Entered: 11/12/2020)

48 STAY OF MANDATE of USCA as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle. (slss, Deputy Clerk) (Entered: 11/20/2020)

49 ORDER of USCA"Granting" rehearing en banc as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle (slss, Deputy Clerk) (Entered: 12/22/2020)

50 (ELECTRONICALLY FILED IN ERROR)ORDER of USCA

"Granting" rehearing en banc as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle (slss, Deputy Clerk) Modified on 12/22/2020 (slss, Deputy Clerk). (Entered: 12/22/2020)

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51 ORDER of USCA "Granting" the motion by Rachel A. Simmonsen to
withdraw fromfurther representation on appeal as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle (slss, Deputy Clerk) (Entered: 06/10/2021)
52 JUDGMENT of USCA (certified copy) "Reversing" the judgment of the District Court and "Remanding" to the District Court for further
proceedings consistent with the Court's decision as to 34 Notice of Interlocutory Appeal filed by Erricka Bridgeford, Kevin James, Leaders of a Beautiful Struggle. (Attachments: # 1 Opinion)(slss, Deputy Clerk) (Entered: 06/25/2021)

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 Case 1:20-cv-00929-RDB Document 1 Filed 04/09/20 Page 1 of 21

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

LEADERS OF A BEAUTIFUL STRUGGLE 25 W. Fayette St. Baltimore, MD 21201
ERRICKA BRIDGEFORD 136 Garden Ridge Rd. Cantonsville, MD 21228
KEVIN JAMES*
Plaintiffs,
v.
BALTIMORE POLICE DEPARTMENT 601 East Fayette Street Baltimore, MD 21202
MICHAEL S. HARRISON, in his official capacity as Baltimore Police Commissioner
601 East Fayette Street Baltimore, MD 21202
Defendants.

Civil Action No. 20-929

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This lawsuit challenges the Baltimore Police Department’s (“BPD”) deployment of aircraft to conduct long-term, wide-area aerial surveillance of the entire city of Baltimore. The BPD’s mass surveillance system will persistently record the movements of virtually all of Baltimore’s 600,000 residents, including Plaintiffs. This surveillance system presents a novel and society-changing threat to individual privacy and to free association, and it violates the Constitution.

* In a concurrently filed motion, Plaintiff Kevin James has requested a waiver of his obligations under Local Rule 102.2(a) to provide his home addresses in the caption of this complaint.
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Case 1:20-cv-00929-RDB Document 1 Filed 04/09/20 Page 2 of 21
2. The BPD calls this system the “Aerial Investigation Research” program, or “AIR.” The BPD has contracted with a company, aptly named Persistent Surveillance Systems, LLC (“PSS”), whose planes will fly over Baltimore at least 40 hours a week. Once per second, advanced wide-angle camera systems on those planes will collect images of over 90 percent of the city at a time, creating slow-frame-rate video recordings of pedestrians on sidewalks, parks, driveways, and back yards, and vehicles moving about on public streets and private lots. To Plaintiffs’ knowledge, the BPD has not yet commenced the program.
3. The AIR program would put into place the most wide-reaching surveillance dragnet ever employed in an American city, giving the BPD a virtual, visual time machine whose grasp no person can escape. And though the program’s objectives to reduce crime and violence are laudable, the Constitution dictates that this all-seeing and ever-present “eye in the sky” is not an available solution.
4. Plaintiffs Leaders of a Beautiful Struggle (“LBS”), Erricka Bridgeford, and Kevin James are Baltimoreans deeply concerned about their community, its relationship with law enforcement, justice, and equality. The ability to associate with others, free from unwarranted government scrutiny, is essential to Plaintiffs’ political activity and advocacy. If the AIR program is permitted to proceed, it will violate Plaintiffs’ privacy rights and burden their freedom of association; it will undermine the ability of LBS to carry out political activities crucial to its mission; and it will hinder Ms. Bridgeford’s and Mr. James’s advocacy and community organizing.
5. Through this action, Plaintiffs seek a declaration that the BPD’s policy and practice of persistent aerial surveillance violates their First and Fourth Amendment rights; an
2

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injunction against Defendants’ operation of the AIR program; and an order requiring the BPD to destroy the information about them that it has collected in violation of their constitutional rights.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983 because this lawsuit alleges violations of the U.S. Constitution. 7. The Court has authority to grant declaratory and injunctive relief, and any other appropriate relief, under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and under the Court’s inherent equitable jurisdiction. A substantial, actual, and continuing controversy exists between the parties with respect to Plaintiffs’ claims for declaratory and injunctive relief. 8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendants reside in this district and the events giving rise to the claim occurred in this district.
PARTIES 9. Plaintiff LBS is a Baltimore-based grassroots think-tank, founded in 2010, that advances the public policy interests of Black people in the city through youth leadership development, political advocacy, and intellectual innovation. LBS’s work addresses historic and structural impediments to Black people’s quality of life, including poverty, violence, and white supremacy in the American political and socio-economic order. To this end, LBS advocates for policing reform, and it has spearheaded numerous legislative efforts aimed at policing accountability. LBS has been a frequent critic of law enforcement’s use of surveillance technologies against Black communities. LBS sues on its own behalf and on behalf of its staff. 10. Plaintiff Erricka Bridgeford is a Black activist in Baltimore City, where she was born and raised. Ms. Bridgeford is the co-founder and current co-organizer of Baltimore Ceasefire 365 (“Ceasefire”), a movement that serves as a hub for organizations and citizens to support one another, work together, and share resources with the goal of seeing an end to murder
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in Baltimore City. Ceasefire organizes quarterly “ceasefire weekends” in the city, and one recent study has shown that these efforts have led to more than a 50% reduction in gun violence in Baltimore while in effect.
11. Plaintiff Kevin James is an information-technology professional, hip-hop musician, activist, volunteer Emergency Medical Technician, and community organizer. Mr. James lives in Baltimore City and has lived in the area since 2001, when he joined Teach for America in Baltimore. He has been involved with many grassroots movements in the city, including advocacy related to school funding, housing rights, mental health, and immigration.
12. Defendant Baltimore Police Department (“BPD”) is the police department for the City of Baltimore. No state official or agency exercises any supervisory authority over the BPD or the Police Commissioner of the BPD. The BPD operates only within the City of Baltimore. The BPD is the entity responsible for the implementation of the AIR program.
13. Defendant Michael S. Harrison is the Police Commissioner of the BPD. He has supervisory authority over all operations of the BPD, including policymaking authority over the AIR program. On behalf of the BPD, Commissioner Harrison signed the contract with PSS to implement the AIR program. He is sued in his official capacity.
FACTUAL ALLEGATIONS Background
14. Wide-area, persistent aerial surveillance is not entirely new. It was first developed as a military program, named Gorgon Stare, for use over battlefields abroad.
15. It is also not entirely new to Baltimore. In 2016, the BPD and PSS initially deployed this technology for several months, keeping it secret from the public, the Mayor of Baltimore, and the city’s prosecutors. It was only after news reports revealed the existence of this system—which led to an overwhelming public outcry—that the BPD halted this surveillance.
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Ultimately, the BPD recorded more than 300 hours’ worth (and one million images) of the movements of ordinary Baltimoreans as they moved about the city. Although PSS publicly represented that the information it collected would be deleted after 45 days, PSS instead saved all of the recordings indefinitely.
16. In September 2019, PSS pitched the BPD on a three-year, $6.6 million revival of the aerial surveillance program. In December 2019, Baltimore Police Commissioner Michael Harrison announced that, despite the program’s “controversial history,” he intended to enter into a contract for a 180-day pilot program of wide-area, persistent aerial surveillance, beginning in the spring of 2020.
17. In March 2020, as Baltimoreans were reeling from a State of Emergency declaration by Governor Larry Hogan concerning the fast-evolving coronavirus pandemic, and the shuttering of enormous portions of the local and national economies, the BPD held three public meetings about its imminent aerial surveillance program. The meetings were conceived as steps to assuage the public in the wake of the BPD’s secret aerial surveillance trials with PSS in 2016. The first, on March 11, was attended by just 20 people. Two other meetings, rescheduled to March 23 and March 30, were held as online Facebook events, as Baltimoreans were under emergency orders prohibiting gatherings of more than ten people.
18. On April 1, 2020, the Baltimore Board of Estimates approved the BPD’s contract with PSS to implement the AIR program (the “Contract”) by a 3-to-2 vote.
The AIR Program 19. According to the Contract, the BPD will authorize PSS to use its aerial technology and analytics to assist in the investigation of certain crimes in Baltimore during a six-month “pilot” period. The BPD acknowledges that this technology’s “effect on crime has not been
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analyzed and is unknown.” The cost of the 180-day program, funded by Texas-based philanthropists, is estimated to be $3.69 million.
20. Under the AIR program, PSS will fly three manned aircraft over Baltimore equipped with its “Hawkeye Wide Area Imaging System.” While neither the Contract nor Defendants have described that system in detail, PSS’s website describes a “Hawkeye II” system as “consist[ing] of twelve, full color cameras” equipped with a “192 million pixel, full color, geo and ortho rectified airborne wide area surveillance sensor” with a “1/2 meter resolution throughout” its coverage area. Commissioner Harrison explained in his March 30 Facebook Live presentation that the BPD and PSS have “agreed” that resolution of the surveillance cameras will be “one pixel per person,” but the “technology has the ability to upgrade the [image] quality.” According to the Contract, the aircraft over Baltimore will capture one image per second covering up to 32 square miles each, and Commissioner Harrison has stated during his community presentations that the system will capture images of 90 percent of the city at once. The Contract provides that the planes will fly a minimum of 40 hours per week, weather permitting. While the system will not employ infrared or night vision technology, the Contract states that the aerial surveillance cameras are “sensitive enough to capture images at night with ambient City lighting.” Although these images are technically photographs taken from cameras, the high frequency of these photographs, taken once per second, produces data akin to a slow frame-rate video feed.
21. Unlike lawful forms of aerial surveillance, the warrantless AIR program subjects Plaintiffs and virtually all of Baltimore’s 600,000 residents to long-term, wide-area, and indiscriminate surveillance that will capture the whole of an individual’s movements and thereby reveal their privacies of life. This surveillance is inescapable, and revelation of private
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information to the AIR program is involuntary: short of never leaving home when the planes are in the air, there is no way to avoid Defendants’ surveillance system. But even one’s home is not entirely safe from the surveillance, as the AIR program will also inevitably capture movements in the curtilage surrounding homes, including driveways and yards. The data collected through the AIR program will amount to a comprehensive record of the movements of Plaintiffs and nearly everyone in Baltimore—facilitating an unprecedented police power to engage in retrospective location-tracking.
22. Although the resolution of the AIR program cameras will be one pixel per person—meaning that an individual cannot immediately be identified through a single image alone—Baltimoreans captured by the surveillance are in no way anonymous. That is the case for at least two reasons.
23. First, with persistent aerial surveillance, it will be trivially easy to roll back the tape to trace pedestrians’ or vehicles’ paths to the homes they left in the morning, and roll it forward to the homes they returned to at night, thereby deducing identity. Moreover, it takes only a small number of unique location points to identify even an “anonymous” person. Researchers have shown that, using cell-phone location data, just four points are enough to identify an individual based on their pattern of movements. In short, the AIR program’s ongoing collection of location data every second in Baltimore will yield unique and easily identifiable information about every resident who moves in the city over time, including Plaintiffs.
24. Second, as explained in the Contract, the BPD and PSS will link AIR program data with the BPD’s other surveillance technologies to identify individuals in the vicinity of crime scenes, as well as others who have “met with” those individuals. As set forth in the Contract and discussed by Commissioner Harrison in his community presentations, these
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additional surveillance technologies include automated license plate readers and ground-based, closed-circuit television (“CCTV”) security cameras. Both systems are far-reaching and will readily facilitate identification of individuals of interest to Defendants. And identifying individuals is the entire point of the AIR system technology.
25. Particularly in light of the broad scope of data that Defendants will amass through the AIR program, the procedures governing the implementation of the program and the use of the resulting data are weak, vague, and incomplete. These procedures fail to adequately protect Plaintiffs’ rights to privacy and free association.
26. In his community presentations, Commissioner Harrison has emphasized that, as a technical matter, PSS will possess the AIR program’s massive trove of aerial imagery and will provide specific data to the BPD only upon request. However, as discussed below, the Contract reveals that BPD and PSS personnel and systems will be deeply intertwined—and that PSS personnel will be responsible for tapping into the BPD’s other surveillance technologies.
27. According to the Contract, PSS will employ between 15 and 25 analysts in two seven-hour daily shifts, some of whom may work out of BPD’s “Watch Center to be teamed with a sworn BPD officer or BPD analyst.”
28. Upon request by the BPD, PSS analysts will review AIR program data, as well as data from other BPD surveillance technologies, to produce reports for the BPD. The BPD will make requests of PSS in connection with investigations of any of four “Target Crimes”—murder, non-fatal shooting, armed robbery, or car-jacking. In addition, the Baltimore Police Commissioner retains the authority to approve other uses of AIR program data on a case-by-case basis.
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29. PSS analysts will also produce reports for the BPD in response to alerts from the BPD’s Computer-Aided Dispatch system. PSS analysts will access this system “from monitors in BPD facilities.”
30. In creating reports for the BPD, PSS analysts will not only analyze imagery data from the AIR program, but will also “track individuals and vehicles that pass the Baltimore CitiWatch CCTV cameras[,] noting the time the vehicles pass the cameras. [PSS] analysts will access or request CitiWatch camera information[.]” PSS analysts will also use the BPD’s Shot Spotter Acoustic Gunshot Detection System to “speed the identification of the location of active gun shots within the imagery,” “allowing analysts to quickly identify the location and time of gunshots.”
31. Within 18 hours of a BPD request or PSS’s notice of a Target Crime on the Computer-Aided Dispatch system, PSS will provide to the BPD an “investigative briefing” that will include “imagery analysis,” “the tracks of vehicles and people to and from the crime scene,” “the location the vehicles and people from the crime[] scene visited after and before the crime,” and “observations of driving patterns and driving behaviors of vehicles from the crime scene prior to and after a crime.”
32. Within 72 hours of a BPD request or PSS’s notice of a Target Crime, PSS will provide to the BPD a detailed “Investigation Briefing Report,” which will include “ground-based camera video made available to [PSS] by BPD including but not limited to CitiWatch camera video images of the vehicles and people tracked from the crime scene for the cameras they pass on the way to and from the crime scene.” In addition, the report will include “tracks of people and vehicles that met with people who were tracked from the crime scene and the locations they came from and went to.”
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33. The Contract contemplates no role for judicial review before, or during any stage of, implementation of the AIR program.
34. The standards related to the retention and deletion of AIR program data are both insufficiently protective and unclear. Commissioner Harrison’s cover letter to the Contract, sent to the Baltimore Board of Estimates, states that “[u]nanalyzed imagery data will be stored for 45 days[,] after which point it will be deleted during the pilot period.” In his community presentations, Commissioner Harrison has likewise represented that “Data is only stored for up to 45 days during the pilot.” However, the Contract itself merely states that PSS “will retain the AIR imagery data for forty-five (45) days,” without specifying that PSS will in fact purge the data. Notably, during the secret 2016 aerial surveillance trial run, PSS represented that it stored data for only 45 days. But a January 2017 National Police Foundation report found that, following the trial run, PSS simply moved the data to indefinite storage on backup servers.
35. At present, according to the Contract, it appears that the lone mechanism for auditing “unauthorized use of the system” is “self-report[ing]” by PSS. Although Commissioner Harrison has stated in his presentations about the AIR program that an independent auditing firm will ensure that the program is used only for its intended purpose, Defendants have not yet identified the firm they or their funders intend to retain.
36. In terms of physical security of the AIR program data, which will include information about every Baltimorean, the Contract states that it is left to PSS to “institute physical, technical and policy systems to ensure the integrity of the data it records in its surveillance and analysis.” It is unclear whether these systems are in place, let alone whether they are adequate to protect this highly sensitive information.
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37. The Contract states one of Defendants’ explicit goals in implementing this experimental pilot surveillance system is to enable BPD to collect and “to test and rigorously evaluate” data to determine whether to permanently implement wide-area aerial surveillance in Baltimore. Although Commissioner Harrison has stated in his presentations about the AIR program that the BPD will work with one of four “research partners” to evaluate the efficacy of the program, Defendants have not yet identified the particular research partner that they or their funders intend to retain.
38. The data collected over the coming months will be of severely limited value due to the present circumstances of the COVID-19 pandemic. Due to Maryland’s stay-at-home order, movement and activity are greatly reduced throughout Baltimore. Under these circumstances, the collection of data regarding the impact of the AIR program on the city’s crime rates is effectively useless if meant to inform decisions about the system’s use in times of ordinary city life.
PSS’s Activities Are Fairly Attributable to Defendants 39. The Contract makes clear that PSS will engage in long-term wide-area aerial surveillance over Baltimore at the BPD’s direction, and that Defendants have delegated policing functions—namely, law enforcement surveillance—that are traditionally reserved for state actors to PSS. Every aspect of the AIR program is conducted pursuant to the Contract, which was negotiated by the BPD and signed by Commissioner Harrison, a final policymaker for the BPD. In the absence of the Contract, PSS would not be collecting imagery for 40 hours each week over 90 percent of Baltimore, nor would it be voluntarily submitting “investigative briefings” or “Investigation Briefing Reports” to the BPD. Defendants are affirmatively initiating, directing, encouraging, and facilitating PSS’s surveillance through the AIR program, and PSS is participating in the AIR program to assist law enforcement. Accordingly, Defendants’ and PSS’s
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conduct is under color of state law, and Defendants are responsible for PSS’s execution of the AIR program.
40. As discussed in paragraphs 19 to 38, Defendants have plainly delegated policing functions to PSS, encouraged PSS’s implementation of the AIR program, and established a close nexus between themselves and PSS. In addition to the examples above, several other provisions of the Contract reflect Defendants’ delegation, encouragement, and/or the close nexus between Defendants and PSS, such that PSS’s operation of the AIR program is fairly attributable to Defendants.
41. For example, the Contract provides that, “BPD shall provide [PSS] with access to its offices and personnel as are reasonably required for [PSS] to perform its duties and responsibilities under this Agreement.”
42. The Contract also provides that, “[t]o the extent of [PSS’s] negligence, [PSS’s] insurance coverage shall be primary insurance as respects the . . . BPD, its elected/appointed officials, employees, and agents.” The BPD also dictates the Best’s rating of the insurers providing coverage to PSS and the BPD.
43. The Contract also provides that, if PSS should cease to exist, “custody of all records related to this Agreement will be transferred to BPD.”
44. The Contract also provides that, “[a]t any time during business hours and as often as BPD may deem necessary, there shall be made available to BPD for examination, [PSS’s] records with respect to matters covered by this agreement”—including, presumably, data from the AIR program.
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45. The Contract also provides that, to the extent any images or other materials prepared by PSS under the Contract include material subject to copyright protection, “such materials have been specifically commissioned by BPD.”
46. The Contract also provides that PSS “shall obtain prior written approval regarding any advertising, publicity, or promotional materials from the BPD before such advertising, publicity, or materials can be released.” In addition, “BPD will be responsible for answering all media requests related to the operation of the Pilot Program, and [PSS] will notify BPD of any media inquiry made to [PSS].”
Plaintiffs Leaders of a Beautiful Struggle 47. LBS is a Baltimore-based LLC organization that advances the public policy interests of Black people in the city through youth leadership development, political advocacy, and intellectual innovation. LBS strives to address the complex issues facing Black Baltimore residents in every arena of civil society. To do this, LBS seeks to radically change the discourse around local and regional politics by injecting community voices into political conversations through policy research, advocacy, and community organizing from a grassroots perspective. 48. LBS’s staff includes a Chief Executive Officer, a Chief Operating Officer, a Director of Public Policy, a Director of Research, a Cultural Curator, an Events and Projects Manager, and a Bookkeeper, all of whom advance LBS’s activities in Baltimore. 49. A central focus of LBS’s work is addressing historic and structural impediments to Black people’s quality of life, including poverty, violence, and white supremacy in the American political and socio-economic order. To this end, LBS has been heavily involved in policing reform and has spearheaded numerous legislative efforts aimed at policing accountability. For example, it helped pass Christopher’s Law, which requires police officers to
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be trained in CPR, cultural sensitivity, the proper use of force, and interacting with people with physical and cognitive disabilities. During the 2019 Maryland General Assembly, it vigorously fought the creation of a private police force at Johns Hopkins University. And during the 2020 Maryland General Assembly, it supported bills focused on restricting police use of force, reforming Maryland’s Law Enforcement Officer Bill of Rights to increase police accountability, and amending Maryland’s public records law to increase transparency and accountability in how departments address police misconduct.
50. In addition to its direct political activity, LBS also strives to support activists within its community, through hosting talks, engaging in collaborations with local institutions, and conducting civic engagement trainings.
51. An important component of LBS’s advocacy is maintaining close proximity to the communities it represents in order to prioritize the needs of these communities in its agendasetting. This requires its staff to travel throughout Baltimore, by foot, by bus, and by car.
52. The AIR program intrudes on LBS’s and its staff’s reasonable expectations of privacy. In particular, it intrudes on LBS staff’s reasonable expectation of privacy in the whole of their long-term physical movements, by foot, by bus, and by car. The AIR program’s surveillance of these physical movements will capture LBS staff’s privacies of life, thereby comprehensively revealing the private activities of LBS itself.
53. The AIR program also infringes on LBS’s and its staff’s freedom to associate privately. If Defendants’ wide-area aerial surveillance program is permitted to proceed, it will undermine and significantly burden LBS’s work. LBS will have to be more cognizant of the individuals and groups with whom it associates, because many of its relationships are private and sensitive. The nature and extent of these relationships are also private and sensitive. The BPD’s
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continuous, comprehensive aerial recording of LBS staff’s movements throughout Baltimore will force staff to change their behavior to maintain the privacy of their relationships, including by altering the timing of certain meetings and the means by which they travel. This effort will divert time and staff resources from other LBS work. LBS also believes that, as a result of the program, some of its present and future partners will decide not to engage with the organization out of fear the association would provoke government retaliation.
Erricka Bridgeford 54. Plaintiff Erricka Bridgeford is a Black activist in Baltimore City, where she was born and raised. Ms. Bridgeford has been an involved community activist since the late 1990s, and has focused on a range of social justice issues during that time, in particular abolishing the death penalty and supporting survivors of homicide victims. She currently works full-time as the Director of Training for Community Mediation Maryland, which advances collaborative conflict resolution in Maryland. 55. Ms. Bridgeford is also the co-founder and current co-organizer of Baltimore Ceasefire 365 (“Ceasefire”), a movement that serves as a hub for organizations and citizens to support one another, work together, and share resources with the goal of seeing an end to murder in Baltimore City. Ceasefire organizes quarterly “ceasefire weekends” in the city, and one recent study has shown that these efforts have led to more than a 50% reduction in gun violence in Baltimore while in effect. 56. As part of her work for Ceasefire, Ms. Bridgeford conducts significant community outreach in neighborhoods throughout Baltimore, including by visiting every murder site in the city within two weeks of the crime occurring—and, on ceasefire weekends, visiting those sites within a day or even a matter of hours.
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57. The AIR program intrudes on Ms. Bridgeford’s reasonable expectation of privacy in the whole of her long-term physical movements in Baltimore, by foot and by car.
58. As part of Ms. Bridgeford’s community organizing and engagement, she often visits and speaks with people in high-crime neighborhoods. The very nature of that work involves visiting murder scenes and talking with people who are processing the trauma associated with being in the vicinity of a murder. Accordingly, if the AIR program is permitted to go forward, Ms. Bridgeford believes it is likely that the program will generate an individualized report about her, pursuant to the terms of the Contract. This warrantless reporting will further intrude on Ms. Bridgeford’s reasonable expectation of privacy.
59. The AIR program also infringes on Ms. Bridgeford’s freedom to associate privately. In her work for Ceasefire, Ms. Bridgeford drives from neighborhood to neighborhood throughout Baltimore to engage with communities affected by violence. Once in a neighborhood, she spends two to three hours walking along public streets and parks to interact with community members. She also sometimes walks with people she meets back to their homes to meet their family members and continue the conversation. Under the AIR program, Ms. Bridgeford will have to be far more cognizant of her associations in public, out of concern that each and every association will be captured by the AIR program, and that those associations will subject her to unjustified BPD scrutiny.
60. The AIR program will also burden the effectiveness of Ms. Bridgeford’s work as a Ceasefire co-organizer. Ms. Bridgeford believes that some people will likely no longer feel comfortable having private and sensitive conversations with her, given that the very fact of their meeting will be captured by the BPD’s blanket aerial surveillance. Furthermore, Ms. Bridgeford cannot change the timing of her outreach work to avoid surveillance without compromising her
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work. If she were to only conduct community outreach when the planes are not flying (perhaps at night or during bad weather), she would encounter far less foot traffic on the streets, and she would have far less time in each neighborhood, because she cannot feasibly work every night and all night long. Because people will know definitively that they will be subject to aerial surveillance when associating with Ms. Bridgeford in public or inviting her into their home—and for that reason linked to every other person she meets with—Ms. Bridgeford believes the AIR program will undermine her role as a safe resource within the communities she serves.
61. The AIR program’s comprehensive and continuous surveillance will impair Ms. Bridgeford’s work with Ceasefire in still other ways. Ms. Bridgeford believes that awareness of the AIR program will discourage others from volunteering and joining her in the streets to work with Ceasefire, because every association with individuals in high-crime areas will be captured by the BPD. In addition, Ms. Bridgeford anticipates that she will have to shift most of her outreach and conversations to be over the phone, over social media, or over email, which will severely impact the nature and quality of the inherently personal and sensitive work she does through Ceasefire.
Kevin James 62. Kevin James is an information-technology (“IT”) professional, as well as an activist, community organizer, and hip-hop artist who lives in Baltimore City. He volunteered for many years with the Baltimore Algebra Project to advocate for a number of issues that face Baltimore youth, such as increasing funding for schools and starting a bus pass program. He has also worked with organizations such the United Worker and the Right to Housing Alliance in Baltimore. In addition, Mr. James is a former trained paramedic, and he has periodically
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volunteered as an Emergency Medical Technician in Baltimore County and as a street medic in Baltimore City during the 2015 protests.
63. Currently, Mr. James works full-time for an IT company. In his spare time, he remains committed to serving the Baltimore community. He is especially focused on educating and reducing stigma in Black and Brown communities around mental health issues. He and fellow advocates organize meetings and workshops to educate others around mental health and to create opportunities to reduce the associated stigma. In addition, Mr. James is involved in advocacy and protests to call for equitable and fair treatment of immigrants and other marginalized groups.
64. Mr. James typically spends his day outside of his home: driving public roads to his job, meeting friends to get dinner, and visiting the Tubman House community garden. He also spends time each day in the curtilage in front of and behind his home.
65. The AIR program intrudes on Mr. James’s reasonable expectation of privacy in the whole of his long-term physical movements, by foot and by car. It also intrudes on Mr. James’s reasonable expectation of privacy in the curtilage surrounding his home.
66. As part of his community organizing and engagement, Mr. James often visits and speaks with people in Tubman House and the Gilmor Homes, two areas with high rates of violent crime. He believes it is therefore likely that, during the operation of the AIR program, he will be in the vicinity of a crime scene involving one of the four Target Crimes, or he will meet with individuals who were in the vicinity of such a crime scene. Accordingly, he believes it is likely that the AIR program will generate an individualized report about him, pursuant to the terms of the Contract. This warrantless reporting will further intrude on Mr. James’s reasonable expectation of privacy.
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67. The AIR program also infringes on Mr. James’s freedom to associate privately. Mr. James often participates in protests and community events that require him to leave his home. The implementation of the AIR program will undermine and significantly burden his political advocacy and organizing. Mr. James will have to be more aware of and deliberate about whom he meets and associates with, whether in his home or elsewhere, because all of his associations will be captured by the AIR program. He will also have to spend time deliberating about whether those associations could result in unwarranted government scrutiny. In addition, when Mr. James recruits individuals to participate in community events, protests, and rallies, he will be obligated to tell them about the program and explain the risks the program poses. The time spent explaining the AIR program will often reduce the time available for substantive discussion, and Mr. James believes that the chilling effect of the AIR program will result in fewer people being willing to participate in the community events, protests, and rallies for which he is recruiting them.
CAUSES OF ACTION First Claim for Relief 42 U.S.C. § 1983 Claim for Violation of Plaintiffs’ Fourth Amendment Rights (Against all Defendants by all Plaintiffs) 68. Plaintiffs incorporate by reference paragraphs 1 through 67 as if fully set forth herein. 69. Defendants’ warrantless AIR program violates the Fourth Amendment because it infringes upon a reasonable expectation of privacy in the whole of Plaintiffs’ movements and captures information about the privacies of life. First, this program results in indiscriminate searches of Plaintiffs lacking any individualized suspicion or judicial approval, which are prohibited by the Fourth Amendment, and no exception to the Fourth Amendment’s warrant
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requirement applies. Second, Defendants’ use and analysis of information collected through the AIR program absent judicial authorization also violates the Fourth Amendment. And third, Defendants’ procedures governing this surveillance are constitutionally unreasonable.
70. By entering into the Contract with PSS to implement the AIR program, Defendants, acting under color of state law, have established an official municipal policy that violates Plaintiffs’ Fourth Amendment rights. This policy consists of persistent, wide-area aerial surveillance pursuant to the Contract. Commissioner Harrison, the signatory to the Contract for the BPD, is an officer with final policymaking authority. Once flights commence under the AIR program, the resulting surveillance will also constitute a persistent and widespread practice in violation of Plaintiffs’ Fourth Amendment rights.
Second Claim for Relief 42 U.S.C. § 1983 Claim for Violation of Plaintiffs’ First Amendment Rights
(Against all Defendants by all Plaintiffs) 71. Plaintiffs incorporate by reference paragraphs 1 through 67 as if fully set forth herein. 72. Defendants’ warrantless AIR program violates the First Amendment because it infringes on Plaintiffs’ exercise of associational freedoms through constant and inescapable monitoring by the BPD. 73. By entering into the Contract with PSS to implement the AIR program, Defendants, acting under color of state law, have established an official municipal policy that violates Plaintiffs’ First Amendment rights. This policy consists of persistent, wide-area aerial surveillance pursuant to the Contract. Commissioner Harrison, the signatory to the Contract for the BPD, is an officer with final policymaking authority. Once flights commence under the AIR program, the resulting surveillance will also constitute a persistent and widespread practice in violation of Plaintiffs’ First Amendment rights.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment against Defendants as follows:
1. Declaring that the policies, practices, and acts of Defendants described here are unlawful and violate the First and Fourth Amendments to the Constitution of the United States;
2. Permanently enjoining the Defendants and their agents, employees, successors, and all others acting in active concert with them, from operating the unconstitutional AIR program, including collecting or accessing any images through the program;
3. Ordering Defendants to expunge all records of Plaintiffs created and maintained as a result of the unconstitutional and unlawful practices described here;
4. Awarding Plaintiffs’ counsel reasonable attorneys’ fees and litigation costs, including but not limited to fees, costs, and disbursements pursuant to 42 U.S.C. § 1988; and
5. Granting such other relief as this Court may deem just and proper.

April 9, 2020
Ashley Gorski* Brett Max Kaufman* Alexia Ramirez* Nathan Freed Wessler* Ben Wizner* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 T: 212.549.2500 F: 212.549.2654 agorski@aclu.org bkaufman@aclu.org aramirez@aclu.org nwessler@aclu.org bwizner@aclu.org
* pro hac vice application forthcoming

Respectfully submitted, /s/ David R. Rocah David R. Rocah (Bar No. 27315) American Civil Liberties Union Foundation of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 T: 410.889.8555 F: 410.366.7838 rocah@aclu-md.org
Counsel for Plaintiffs

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 Case 1:20-cv-00929-RDB Document 15 Filed 04/09/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

LEADERS OF A BEAUTIFUL

STRUGGLE, et al.

*

Plaintiffs,

*

v.
BALTIMORE POLICE DEPARTMENT, et al.,

* Civil Action No. RDB-20-0929 *

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM ORDER

Today, April 9, 2020, Plaintiffs Leaders of a Beautiful Struggle, Erricka Bridgeford, and

Kevin James (collectively, “Plaintiffs”) commenced this lawsuit against the Baltimore Police

Department and Baltimore Police Commissioner Michael S. Harrison (collectively,

“Defendants”) alleging that the Defendants’ Aerial Investigation Research (“AIR”) program

violates their rights under the First and Fourth Amendments to the United States Constitution.

The Plaintiffs contemporaneously filed a Motion for a Temporary Restraining Order and

Preliminary Injunction (ECF No. 2), in which they seek an injunction prohibiting the

Baltimore Police Department from collecting or accessing any images of Baltimoreans through

the AIR program.

This Court promptly scheduled a telephone conference with counsel for the parties at 2:30 p.m. today to discuss a preliminary agreement between the parties and the scheduling of a Preliminary Injunction Hearing. Accordingly, it is HEREBY ORDERED this 9th day of April, 2020, that:

Case 1:20-cv-00929-RDB Document 15 Filed 04/09/20 Page 2 of 2
1. Pending a decision of this Court on the Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 2), Defendants and their agents, employees, successors, and all others acting in concert with them may undertake preparatory activities related to the AIR program that is the subject of this litigation, provided that no flights to collect, retain, or access any photographic imagery are permitted whatsoever.
2. The Defendants shall respond to Plaintiffs’ Motion by Wednesday, April 15, 2020 at 4:00 p.m.;
3. The Plaintiffs shall file a reply by Friday, April 17, 2020 at 4:00 p.m.; 4. This Court will conduct a Preliminary Injunction Hearing on Tuesday, April 21, 2020
at 11:00 a.m.; 5. This Court shall issue a decision on the Plaintiffs’ Motion (ECF No. 2) by Friday, April
24, 2020 at 5:00 p.m.; 6. The Clerk of Court shall transmit copies of this Memorandum Order to counsel.
___ /s/ ____________ Richard D. Bennett United States District Judge

 
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 Case 1:20-cv-00929-RDB Document 2 Filed 04/09/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

LEADERS OF A BEAUTIFUL STRUGGLE et al.,
Plaintiffs,
v.
BALTIMORE POLICE DEPARTMENT et al.,
Defendants.

Civil Action No. 20-929
TELEPHONIC ORAL ARGUMENT REQUESTED

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER & A PRELIMINARY INJUNCTION
PLEASE TAKE NOTICE that as soon as counsel may be heard, Plaintiffs, through undersigned counsel, will move the Court for entry of a Temporary Restraining Order and a Preliminary Injunction in the form attached and asking that this matter be set down for a hearing to convert those temporary restraints into a Preliminary Injunction pursuant to Fed. R. Civ. P. 65 and Local Rule 65.1. In support of their motion, Plaintiffs submit the accompanying Memorandum of Law in Support of Their Motion for a Temporary Restraining Order; the declarations of Plaintiffs Leaders of a Beautiful Struggle (through Dayvon Love), Erricka Bridgeford, and Kevin James; and the declaration of attorney Alexia Ramirez with attached exhibits.*
WHEREFORE, Plaintiffs respectfully request that this Court: 1. Grant this Motion for a Temporary Restraining Order and/or Preliminary

* Plaintiffs respectfully request that, given the restrictions in place surrounding the present public-health crisis around the country and the geographic locations of Plaintiffs’ counsel, any oral argument ordered by the Court take place telephonically.

Case 1:20-cv-00929-RDB Document 2 Filed 04/09/20 Page 2 of 2

Injunction; 2. Enter the Proposed Order Granting Plaintiffs’ Motion for a Temporary
Restraining Order and/or Preliminary Injunction; and 3. Grant such other and further relief as justice may require.

April 9, 2020
Brett Max Kaufman* Ashley Gorski* Alexia Ramirez* Nathan Freed Wessler* Ben Wizner* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 T: 212.549.2500 F: 212.549.2654 bkaufman@aclu.org agorski@aclu.org aramirez@aclu.org nwessler@aclu.org bwizner@aclu.org
* pro hac vice application forthcoming

Respectfully submitted, /s/ David R. Rocah David R. Rocah (Bar No. 27315) American Civil Liberties Union Foundation of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 T: 410.889.8555 F: 410.366.7838 rocah@aclu-md.org
Counsel for Plaintiffs

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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1495

LEADERS OF A BEAUTIFUL STRUGGLE; ERRICKA BRIDGEFORD; KEVIN JAMES,
Plaintiffs – Appellants,
v.
BALTIMORE POLICE DEPARTMENT; MICHAEL S. HARRISON, in his official capacity as Baltimore Police Commissioner,
Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:20-cv-00929-RDB)

Argued: September 10, 2020

Decided: November 5, 2020

Before GREGORY, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Brett Max Kaufman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Rachel Simmonsen, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Ashley Gorski, Alexia Ramirez, Nathan Freed Wessler, Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants.

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WILKINSON, Circuit Judge: Plaintiffs appeal the district court’s denial of their request for a preliminary
injunction against Baltimore’s aerial surveillance program. For the reasons set forth herein, we conclude that the district court did not abuse its discretion in denying the preliminary injunction.
I. Baltimore sadly has experienced a serious recent rise in homicides. For each of the past five years, Baltimore has been victimized by at least three hundred murders. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population. See Alec MacGillis, The Tragedy of Baltimore, N.Y. Times Magazine, Mar. 17, 2019, at 32. Moreover, the Baltimore Police Department (BPD) has struggled to respond effectively to this increase in murders. In 2019, it cleared just 32.1% of homicide investigations, its lowest rate in several decades. Jessica Anderson, Baltimore Ending the Year with 32% Homicide Clearance Rate, One of the Lowest in Three Decades, Balt. Sun, Dec. 30, 2019. As Judge Bennett noted during the preliminary injunction hearing, “even a pandemic cannot slow the pace of killings” in Baltimore. Transcript of Preliminary Hearing at 74, Leaders of a Beautiful Struggle v. Balt. Police Dep’t, No. RDB-20-0929, 2020 WL 1975380 (D. Md. Apr. 24, 2020). As of April 21, the date of the district court’s hearing, Baltimore was on pace for a higher number of murders this year than in 2019. Leaders of a Beautiful Struggle v. Balt. Police Dep’t, No. RDB-20-0929, 2020 WL 1975380, at * 15 (D. Md. Apr. 24, 2020).
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One step taken by the BPD to strengthen its hand against violent crime is the Aerial Investigative Research program (AIR). It is a carefully limited program of aerial observations of public movements presented as dots, and 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.
To implement and test this program, the BPD has partnered with a private company, Persistent Surveillance Systems (PSS). The program operates by flying three small planes over Baltimore during daytime hours, weather permitting. The planes are equipped with cameras that cover about ninety percent of the city at any given time. The cameras employ a resolution that reduces each individual on the ground to a pixelated dot, thus making the cameras unable to capture identifying characteristics of people or automobiles.
The resulting photographs are transmitted to a control room, staffed by fifteen to twenty-five analysts employed by PSS along with BPD officers. The control room can access the photographs only when specific violent crimes—shootings, robberies, and carjackings—are reported in a particular location. Upon receiving a notification, analysts can “tag” the dots photographed around the crime scene and track those dots’ public movements in the hours leading up to and following the crime. The process takes about eighteen hours and provides the BPD with a report that includes the location and timing of the crime, the observable actions at the crime scene, the tracks of people and vehicles to and from the crime scene, and the locations the individuals at the crime scene visited before
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and after the crime. Using that data, the police can employ existing surveillance tools, such as on-the-ground surveillance cameras and license-plate readers, to identify witnesses and suspects. Within seventy-two hours, analysts can give the police a more detailed report about those present at the crime scene that potentially includes identifying information.
The partnership between PSS and the BPD began in 2016, when AIR was used to obtain about three hundred hours of surveillance. The BPD did not disclose the privately funded program’s existence to the public, Baltimore’s elected officials, or even the city solicitor. Then-Police Commissioner Kevin Davis later stated that he wanted to see if the program worked before bringing it to the City Council. After a news article exposed the program’s existence, it was temporarily shut down.
Under a new police commissioner, defendant Michael Harrison, the BPD moved to reactivate AIR and introduced safeguards intended to guard against potential abuses. In the name of transparency, the BPD has made public its contract with PSS and hosted public fora via social media networks like Facebook to explain and answer questions about AIR. Further, the BPD rallied substantial political support for the project, including from Governor Larry Hogan, dozens of crime victims, community groups, business advocacy groups, and the United Baptist Ministry Convention. The BPD has also adopted several limitations on the collection, use, and retention of photographs obtained through AIR surveillance in its contract with PSS. See J.A. 69–73. Those limitations are as follows:
• AIR’s planes fly only the daytime hours, weather permitting, and never at night.

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• AIR uses limited resolution cameras that identify individuals only as pixelated dots in a photograph. Analysts examining these photographs are not able to identify an individual’s race, gender, or clothing.
• If a dot is seen entering a building in a photograph, analysts cannot know if the same person is leaving the building when they see a dot leave the building without the use of other surveillance tools.
• The cameras do not utilize zoom, infrared, or telephoto technologies.
• Analysts cannot access photographs until they receive a notification related to the investigation of a specific murder, non-fatal shooting, armed robbery, or carjacking.
• There will be no live tracking of individuals. Analysts can only use AIR’s photographs to look at past movements.
• If an arrest is made using the AIR technology, the photos related to the arrest will be given to the prosecutor and defense counsel. Otherwise, all photographs collected by AIR will be deleted after forty-five days.
After the district court denied the plaintiffs’ request for a preliminary injunction,
AIR became operational. It is currently near the completion of a six-month testing period,
at the end of which its continued use will be assessed. As part of this assessment, the BPD
has invited several independent research partners to study the program. The RAND
Corporation will study how effective the program is at solving crimes. The Policing Project
at the New York University School of Law will assess possible civil rights and civil
liberties concerns. The University of Baltimore will study how residents of Baltimore
perceive the program and whether, if at all, the program affects views of police legitimacy.
II.
On April 9, 2020, plaintiffs sued the BPD and Commissioner Harrison under 42
U.S.C. § 1983 challenging the constitutionality of the AIR program under the First and
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Fourth Amendments. They alleged that the program would infringe their reasonable expectations of privacy because the police were likely to generate activity reports about them, that it would hinder their work in the community by making people afraid to talk to them on the streets for fear of being surveilled, and that it would chill their First Amendment rights by making them more hesitant to associate with people for fear of being observed. They sought a preliminary injunction.
After a hearing, the district court judge denied plaintiffs’ request for a preliminary injunction. After finding that plaintiffs had standing, the court concluded that a preliminary injunction was inappropriate because plaintiffs were not likely to succeed on the merits of their complaint. Leaders of a Beautiful Struggle, 2020 WL 1975380 at *8–13. The court discussed the various technical limitations of the AIR program, including that the planes can only fly twelve hours and only during the day (weather permitting) and that individuals would only be represented as pixelated dots to the persons looking at the captured images. Id. at *4. The upshot of these limitations, Judge Bennett explained, was that individuals’ movements could not be tracked over the course of multiple days. Id. at *12. He reasoned that the Supreme Court and the Fourth Circuit had upheld more intrusive forms of aerial surveillance, and that the Supreme Court’s decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), did not abrogate those precedents. Leaders of a Beautiful Struggle, 2020 WL 1975380 at *9–12.
III. As a preliminary matter, we reject the defendants’ argument that plaintiffs lack standing to bring this lawsuit. Article III of the Constitution limits the judicial power of the
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United States to “Cases” and “Controversies.” U.S. Const. art. III, § 2. To implement this limitation on judicial power, the Supreme Court has explained that a litigant must show an injury in fact, that the injury is caused by the defendant’s unlawful conduct, and that the injury is redressable by a favorable judicial ruling. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
Defendants argue that plaintiffs’ alleged injuries are too speculative to establish standing. They reason that the potential injury lies at the end of an attenuated chain of possibilities where the BPD successfully identifies who plaintiffs are. But the injury plaintiffs complain of is not being identified by the BPD, but merely that they are being photographed. And that is almost certain to occur, considering that AIR’s cameras can capture around ninety percent of Baltimore in a given moment.
In Wikimedia Foundation v. National Security Agency, 857 F.3d 193 (4th Cir. 2017), this court found a concrete injury in a very similar case. There the plaintiffs alleged that the government was unlawfully intercepting and copying their Internet communications. Id. at 209–10. The government argued the plaintiffs lacked standing because they did not allege the NSA’s collection involved human review, making it speculative the plaintiffs would be identified as their communications were collected. But this court found standing—the fact that the NSA collected and copied the communications was sufficient. Id. at 209–11. So too here. It is enough to confer standing that plaintiffs are likely to be photographed.

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IV. By asking us to reverse the district court’s denial of a preliminary injunction, plaintiffs face a doubly heavy burden on appeal. First, we review a district court’s denial of a preliminary injunction for abuse of discretion. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006). This deference recognizes the traditional power district courts have had to craft remedies appropriate “to the necessities of the particular case,” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982), and it reflects a commitment by appellate courts not to second-guess a district court’s remedial decision absent special circumstances. Second, plaintiffs seek an extraordinary remedy that should “be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal quotation marks omitted). As the Supreme Court explained in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 24. This principle reflects the reality that courts are more likely to make accurate decisions after the development of a complete factual record during the litigation. DOUGLAS LAYCOCK & RICHARD L. HASEN, MODERN AMERICAN REMEDIES 453 (5th ed. 2019). To satisfy this standard, plaintiffs must make a “clear showing” that they satisfy four independent requirements. Winter, 555 U.S. at 22; see also Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009) (clarifying that all four requirements must be independently satisfied by the party seeking a preliminary injunction). Plaintiffs must demonstrate that: (1) they are likely to succeed on the merits of
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their legal claims; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities favors the grant of preliminary relief; and (4) that “an injunction is in the public interest.” Winter, 555 U.S. at 20. These requirements make clear that preliminary injunctions should not be casually awarded.
We shall first address plaintiffs’ likelihood of success on the merits. A.
The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. In evaluating whether a search is reasonable, the Supreme Court has established a variety of doctrinal tests to be used depending on the specific context of the search. The reasonable expectation of privacy test is the Court’s most prominent standard, and we will evaluate the AIR program under it.
The Court has also tailored its standard to programs of searches designed to solve important public safety problems. Mindful that, “[a]s the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a government search is ‘reasonableness,’” Maryland v. King, 569 U.S. 435, 447 (2013) (quoting Veronica School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995)), courts are sometimes required to balance the degree of invasion of Fourth Amendment rights against the public safety interests furthered when assessing the reasonableness of a surveillance program. The Supreme Court has held that this standard applies to assess drunk driving checkpoints, see Michigan Dep’t
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of State Police v. Sitz, 496 U.S. 444 (1990), suspicionless searches at the border, see United States v. Flores-Montano, 541 U.S. 149 (2004), and programmatic searches in prisons. See Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012). Therefore, we will also evaluate the AIR program under the balancing test used for programmatic searches.
We conclude initially that the AIR program does not violate a reasonable expectation of privacy. This test has both a subjective and an objective component. The court must first ask whether an individual actually expects that something will be kept private from surveillance and then whether society is prepared to recognize that expectation as reasonable. Carpenter, 138 S. Ct. at 2213. “Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.’” Id. at 2213–14 (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). The Court recognized two “guideposts” to assist the inquiry. First, a court should ask whether the government action arbitrarily invades the privacies of life. Id. at 2214. Second, courts should be wary of “a too permeating police surveillance.” Id. (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)).
A cardinal rule that emerges from the Supreme Court’s caselaw is that an individual has a limited expectation of privacy in his or her public movements. “What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Thus, “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281 (1983).
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In light of that rule, the Supreme Court has found no Fourth Amendment violation when the police used a tracking device placed inside a container to track an automobile on public streets. Id. at 285.
In United States v. Jones, 565 U.S. 400 (2012), five Justices qualified this rule through separate opinions by Justices Alito and Sotomayor. These two concurring opinions reasoned that long-term surveillance using GPS tracking violated a reasonable expectation of privacy. Id. at 414–15 (Sotomayor, J., concurring); id. at 430–31 (Alito, J., concurring in the judgment) (distinguishing between a long-term surveillance using GPS for twentyeight days, which he thought was impermissible, and a shorter-term surveillance of public movements).
The lesson from these cases is that short-term surveillance of an individual’s public movements is less likely to violate a reasonable expectation of privacy. And under that rule, the AIR program passes muster. As Judge Bennett explained, the built-in limitations of the AIR program mean that it only enables the short-term tracking of public movements. First, the AIR program’s cameras are only able to track outdoor movements. They cannot track an individual who enters a building, and analysts cannot tell if the person leaving the building is the same person who entered it. Second, AIR’s surveillance planes only fly during twelve daylight hours. Because they do not fly at night, AIR surveillance cannot be used to track individuals from day-to-day.
In response, plaintiffs object that the police may be able to use preexisting surveillance tools, like security cameras and license plate readers, in conjunction with AIR photographs to track individuals from day to day. But plaintiffs do not challenge these
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existing tools—only the AIR program in particular. And for good reason. The Supreme Court specifically stated that traditional surveillance tools, specifically security cameras, remain lawful in light of Carpenter, 138 S. Ct. at 2220, and we are not at liberty to revisit that conclusion.
Further, the Supreme Court has already held that various types of aerial surveillance do not invade a reasonable expectation of privacy. In California v. Ciraolo, 476 U.S. 207 (1986), the government flying a plane a mere one thousand feet over an individual’s home to photograph items within a fenced-in backyard did not violate a reasonable expectation of privacy. Id. at 209. The Court held that this intrusive surveillance was permissible as long as the surveillance plane remained “within public navigable airspace” and the surveillance was done “in a physically nonintrusive manner.” Id. at 213. Both of those requirements are satisfied by AIR. Indeed, the AIR cameras cannot photograph an individual item within a backyard—the program is decidedly less intrusive than the surveillance in Ciraolo.
Similarly, in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), the Supreme Court found no invasion of a reasonable expectation of privacy when the government repeatedly flew a plane over a factory and photographed items as small as one half inch in diameter. Id. at 239. In this case, AIR does not use cameras capable of photographing objects that small. Not even close. Individuals are just dots, and analysts cannot identify a person’s race or sex from an AIR photograph. And like the surveillance in that case, AIR captures no “intimate details” of the sort that might implicate Fourth Amendment protections. Id. at 238.
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Finally, in Florida v. Riley, 488 U.S. 445 (1989), the Court again upheld surveillance more intrusive than that in AIR. There, government agents circled four hundred feet above a home in a helicopter to look into a greenhouse partially within the home’s curtilage. Id. at 450. AIR involves no surveillance of an individual’s home or curtilage, and its aerial planes do not harass individual homeowners by hovering closely above their homes.
In light of these precedents, we cannot hold that AIR violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases. See also Brandon Nagy, Why They Can Watch You: Assessing the Constitutionality of Warrantless Unmanned Aerial Surveillance by Law Enforcement, 29 BERKELEY. TECH. L.J. 135, 155 (2014) (“[T]he Supreme Court's guidance, as derived from Riley, Dow, and Ciraolo, appears to be that aerial surveillance, whether by naked eye or assisted by some technology, conducted from lawful airspace that is traversed by aircraft with sufficient regularity, and that does not interfere with the victim's use of her property, is not a Fourth Amendment search and does not require a warrant.”). Unlike the aerial surveillance previously upheld, AIR photographs cannot even be used to identify specific items within backyards or a person’s identifying characteristics.
The Supreme Court’s decision in Carpenter does not require a different result. In Carpenter, the Supreme Court considered whether targeting an individual and tracking his
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specific movements over a six-day period invaded a reasonable expectation of privacy. 138 S. Ct. at 2217. The technology at issue in Carpenter was cell-site location information (CSLI), which was obtained because cell phones report their location to wireless towers several times every minute. Id. at 2211–12. In Carpenter’s case, the government had, on average, 101 location data points for each of the seven days it obtained CSLI data. Because “a phone goes wherever its owner goes,” CSLI provides a “comprehensive record of the person’s movements.” Id. at 2217. In summary, the Court held, CSLI “is detailed, encyclopedic, and effortlessly compiled.” Id. at 2216. But the Court also emphasized the narrowness of its holding, insisting it did not “call into question conventional surveillance techniques and tools, such as security cameras.” Id. at 2220.
The district court recognized the important technological differences between CSLI and the aerial surveillance at issue in this case. Leaders of a Beautiful Struggle, 2020 WL 1975380, at *12 (“Carpenter simply does not reach this case because CSLI offers a far more intrusive, efficient, and reliable method of tracking a person's whereabouts than the AIR pilot program.”). Whereas CSLI could be used to reliably track an individual’s movement from day to day, AIR can only be used to track someone’s outdoor movements for twelve hours at most. See Carpenter, 138 S. Ct. at 2220 (stating CSLI gives law enforcement a “detailed chronicle of a person’s physical presence compiled every day, every moment, over several years”). The technologies are also used quite differently. CSLI is used by law enforcement to learn detailed information about someone it is already monitoring. Id. at 2218 (explaining that CSLI tracking reveals an extensive amount of private information to law enforcement). In contrast, AIR is used to identify suspects and
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witnesses to crimes; it takes no deep dive into an individual’s life and in fact can tell the police very little about an identified person. Finally, Carpenter emphasized that CSLI surveillance was “remarkably easy” and “cheap,” which meant that CSLI could easily be used to track large numbers of identifiable people. Id. at 2217–18. AIR, in contrast, is not. After flying a plane over the city, it takes an analyst hours to tag a person of interest and reconstruct a couple of hours of his public movements.
Our opinion should not be overread. Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance. We only address the AIR program, which has built-in limitations designed to minimize invasions of individual privacy. We do not address a surveillance program that includes, for example, twenty-four hour surveillance of indoor and outdoor spaces using photographs that allow analysts to immediately identify the specific people being photographed. Although plaintiffs insist that AIR could spawn something more intrusive than the program here, we must adjudicate each case based on the facts before us. By proceeding cautiously, we heed Justice Frankfurter’s warning to tread carefully in cases involving new technology, lest we “embarrass the future.” Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944).
B. 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. In such programmatic contexts, the Court assesses searches and seizures by balancing the burden on constitutional rights against other law enforcement and public
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safety needs. See, e.g., Grady v. North Carolina, 575 U.S. 306, 310 (2015) (per curiam); Samson v. California, 547 U.S. 843, 848 (2006) (“Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.’” (quoting United States v. Knights, 534 U.S. 112, 118–19 (2001)).
The Supreme Court has not given comprehensive guidance on when this balancing test applies. It has, however, applied it in a wide variety of cases upholding programs and policies addressing imperatives of public safety so long as—and this is crucial—the program does not unreasonably burden personal privacy rights. See, e.g., King, 569 U.S. at 447 (upholding policy of swabbing the DNA of all arrestees for violent offenses); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822 (2002) (upholding program of drug testing of students who wished to participate in competitive extracurricular activities); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) (holding that policy requiring employees seeking promotions to positions involving drug enforcement to submit to urine tests was reasonable under balancing test). And in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), for example, the Supreme Court upheld a program of drunk-driving checkpoints at which police officers randomly stopped motorists without individualized suspicion. Id. at 447. The Court justified its decision, in large part, by emphasizing the “magnitude” of the threat posed by drunk drivers to public safety. Id. at 451 (“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”).
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We emphasize that the Court has not just issued sweeping approvals of suspicionless search programs. The key word is balancing. For example, the Court has repeatedly reaffirmed that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border . . . .” United States v. Ramsey, 431 U.S. 606, 616 (1977). But although the government’s interest in conducting searches and seizures is high at the border, the Court still balanced that law enforcement need against the privacy interests invaded. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 154–56 (2004) (considering the privacy interests of an individual whose car was partially disassembled during a border search). And it recognized that a search could be intrusive enough or so destructive of property so as to make it constitutionally unreasonable. Id. at 155–56.
Two factors support the validity of Baltimore’s AIR program under the Supreme Court’s reasonableness balancing test for such programs. First, this program is not being used to target particular individuals. Instead, it is used to track non-identified individuals only under certain circumstances—namely, once a shooting, armed robbery, or carjacking has been reported in a specific location. An individual will not have his public movements tracked unless he happens to be at the scene of one of these violent crimes. Ignoring this dynamic, plaintiffs complain they are particularly likely to be targeted because of their community activism. But the AIR program cannot be used to target them as individuals; they do not appear in the photographs as individuals, but as featureless pixelated dots.

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Second, the AIR program is designed to serve critical government purposes. Von Raab, 489 U.S. at 665–66. Baltimore is plagued by violent crime, and the BPD has struggled to capture the perpetrators. Although the BPD can take advantage of existing networks of cameras and license plate readers, holes in their coverage may leave the police dependent on eyewitnesses, who may not exist or be feasible to find. The AIR program is designed to assist in that effort.
Baltimore’s AIR program thus passes the Supreme Court’s balancing test. On the one hand, the BPD has a clearly demonstrated need for this surveillance. The violent crime rates in Baltimore are astonishing, being indisputably among the worst in the country. And despite law enforcement’s best efforts, its low clearance rate—just 32.1% in 2019 for murders—shows the challenge is formidable and this additional tool important.
On the other hand, the program has been carefully designed to impose a minimal burden on constitutional rights. We stress yet again that the BPD’s contract with PSS establishes important limitations on how the AIR program can be used. Individuals photographed by AIR are, as noted, represented as mere dots without race, gender, or other identifiable characteristics. AIR only captures outdoor movements, and individuals cannot be tracked once they enter a building. Analysts only access photographs when a violent crime has occurred in a particular area. Unless photographs are being used in a prosecution, they are discarded after forty-five days.
Moreover, this program burdens privacy substantially less than a well-established staple of existing surveillance: security cameras. “Cameras mounted in public and semipublic places . . . are increasingly unremarkable, their presence taken for granted.” David
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Alan Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth Amendment, 102 CALIF. L. REV. 1069, 1085 (2014). Especially in large cities, these cameras are ubiquitous, allowing “law enforcement to search for any individual, anywhere in a city, going back for weeks or months . . . .” Rebecca Lipman, Protecting Privacy with Fourth Amendment Use Restrictions, 25 GEO. MASON L. REV. 408, 436–37 (2018). Baltimore itself has around eight hundred ground-based surveillance cameras. Our point is not to endorse this or that use of such cameras, but to note that the AIR program is less intrusive by comparison.
Precedent suggests law enforcement can use security cameras without violating the Fourth Amendment. In Carpenter, the Supreme Court explicitly said it was not calling these cameras into constitutional question. Carpenter, 138 S. Ct. at 2220. The lower courts have generally upheld the use of security cameras against Fourth Amendment challenges. See United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009); United States v. Houston, 813 F.3d 282 (6th Cir. 2016); United States v. Bucci, 582 F.3d 108 (1st Cir. 2009).
Assuming that these cameras are constitutional, as the Supreme Court has instructed, it follows that the aerial surveillance in this case is too. The aerial cameras serve a similar purpose as ground-based cameras: capturing public movements. Admittedly, they are more effective at doing this than ground-based cameras because there are gaps in the coverage of ground-based cameras. But as Judge Bennett recognized, AIR is less invasive in most ways. Leaders of a Beautiful Struggle, 2020 WL 1975380 at *11 (“The AIR pilot program does not approach the surveillance capabilities of a pole camera.”). Often employing facial recognition software, ground-based cameras capture the individual
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characteristics of those surveilled, allowing the police to immediately conclude who someone is and what they look like. See Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 EMORY L.J. 527, 539–41 (2017). AIR’s surveillance cannot do that. Indeed, it is telling that the BPD cannot identify someone photographed by AIR without relying on groundbased cameras.
Rapid advancements in technology hold real promise in preventing and resolving crimes. But they also pose unprecedented threats to personal privacy. Sometimes legitimate concerns manage to meet at a sensible mean. So it is here. We agree with plaintiffs that there are aerial surveillance programs that would transgress basic Fourth Amendment protections. We further agree that investigative tools, whether aerial or electronic, should not operate without restrictions. See, e.g., Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22 (establishing safeguards to regulate wiretapping). But we also agree with the district court that this particular limited investigative tool does not violate the Constitution. Finally, any search or seizure of a car, home, or person that follows from an AIR investigation must of course satisfy the applicable probable cause and warrant requirements expressly embedded in the Fourth Amendment.
V. Plaintiffs also allege that AIR will violate their First Amendment rights to freely associate with others. Although they did not extensively develop this argument below, their basic theory is that the fear of being surveilled will deter them from associating with others on the streets of Baltimore.
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We conclude plaintiffs are unlikely to succeed on the merits of this claim. The Supreme Court has explained that the First Amendment protects two types of free association: intimate association and expressive association. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984). Plaintiffs do not plead that either type of association is infringed here. The AIR program does not in any way affect the personal affiliations that “attend the creation and sustenance of a family,” such as marriage, childbirth, “the raising and education of children,” or “cohabitation with one’s relatives.” Id. Nor can plaintiffs assert that the AIR program interferes with their right “to speak, to worship, [or] to petition the government for the redress of grievances.” Id. at 622.
The basic problem with plaintiffs’ argument is that people do not have a right to avoid being seen in public places. And even if that were not so, it is a stretch to suggest people are deterred from associating with each other because they may show up as a dot under the AIR program. We thus conclude plaintiffs have failed to prove they will likely succeed on the merits of their First Amendment claim.
VI. In sum, the district court exercised sound equitable discretion in denying a preliminary injunction. Allowing Baltimore’s AIR program to continue is the equitable course of action and serves the public interest. In deciding whether to grant a preliminary injunction, district courts “‘should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’” Winter, 555 U.S. at 24 (quoting Romero-Barcelo, 456 U.S. at 312). In Winter, the Supreme Court explained that a preliminary injunction under the environmental laws
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against Navy training exercises was inappropriate because of the public interest in national security and safety. Id. at 24–25.
The equitable balance here favors Baltimore. After a controversial initial roll-out of the AIR program, the BPD pulled it back and consulted with the people of Baltimore. In building political support for the program, the BPD agreed to the important limitations on AIR’s capabilities that we have repeatedly underscored. Baltimore’s multiple partners in the AIR program depict a community initiative in the process of ongoing evaluation. To respond to such an initiative with an immediate “No” risks leaving a fine city with lessened hope and not knowing where to turn.
In United States v. Jones, four justices of the Supreme Court recognized that elected officials should play a leading role in crafting policies that balance the need for public safety and the need for privacy. Jones, 565 U.S. at 429–30 (Alito, J., joined by Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment) (“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”). That is exactly what Baltimore’s government officials have done in this case. After the program’s secret rollout raised legitimate privacy concerns, the program was halted. Constituents were heard and the BPD’s contract with PSS was approved by elected officials with modified and substantially less intrusive conditions.
Baltimore and its citizens have a strong interest in the AIR program not being strangled in its infancy. The AIR program is carefully designed to slow the recurrent increases in violent crime in Baltimore. As noted above, Baltimore is one of the more
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dangerous cities in America, with hundreds of people being murdered every year. Alec MacGillis, The Tragedy of Baltimore, N.Y. Times Magazine, Mar. 17, 2019, at 32. But lest we be swept up in harrowing statistics, remember that 348—the number of Baltimore homicide victims in 2019—is not merely a number. These were 348 individual people, with family and friends, hopes and dreams. Such a tragedy cannot be subsumed under some new normal of indifference, and the public interest, see Winter, 555 U.S. at 24, is surely not served by terminating at its very inception a program with the potential to help.
Plaintiffs have failed to persuade us that this program violates their constitutional rights. As cherished as constitutional rights are, the Founders understood that the Bill of Rights was not the only source of rights worthy of protection. They understood that all people are endowed with “certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration of Independence para. 2 (U.S. 1776). And because these rights are “exposed to the invasion of others,” not just the government, the Founders believed that government must exist for the “mutual preservation of [the people’s] lives, liberties, and estates.” JOHN LOCKE, SECOND TREATISE ON GOVERNMENT 178 (Mark Goldie ed., 1993) (1689). Thus our Constitution was ratified, in no small part, to “establish justice,” “insure domestic tranquility,” and “secure the blessings of liberty to ourselves and our posterity.” U.S. Const. pmbl.
When hundreds of Baltimore residents are killed on their streets each year, their rights to life are not protected. When murders remain unsolved, their rights to liberty are not protected. When criminals can rob Baltimoreans at gunpoint with apparent impunity, their rights to property are not protected. All these rights are denied without due process,
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nothing remotely resembling the protections an accused will receive, rightly and deservedly, from the Bill of Rights. It is all so sad. Now and then the gunshots pause, leaving only the silence of loved ones lost long before their time.
The AIR program just might help reduce this most aching of silences—giving it a chance to succeed is in the public interest.
VII. For the foregoing reasons, we hold that the district court did not abuse its discretion in declining to issue the requested injunction.
AFFIRMED

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GREGORY, Chief Judge, dissenting: 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 professors1 or a slippery-slope concern for litigants.2 But with the Aerial Investigative Research (“AIR”) program, Persistent Surveillance Systems (“PSS”) and the Baltimore Police Department (“BPD”) bring the thought-exercise to life. Because the majority concludes the warrantless surveillance program is constitutional, I respectfully dissent.

I.
I agree with the majority’s standing analysis. Maj. Op. at 6–7. I also broadly agree
with the majority’s presentation of the Fourth Amendment framework that applies here.
1 See, e.g., Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 527, 528 (2017) (“The 2002 movie Minority Report, which seemed wildly futuristic at the time, effectively predicted many of the technologies now available to police at the click of a button . . . . [D]oes an eye in the sky . . . constitute a search under the Fourth Amendment . . . when it is used for public surveillance?”); Marc Jonathan Blitz, The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space, 63 Am. Univ. L. Rev. 21, 24 (2013) (“Do police need to obtain a warrant . . . before they use a drone to track a person’s movements or reconstruct those movements using video footage from public cameras?”).
2 For example, in 1983, the Supreme Court considered a respondent’s fear that “the result of the holding sought by the government would be that twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” United States v. Knotts, 460 U.S. 276, 283 (1983) (internal quotations omitted). The Court was skeptical, but noted that “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. at 283–84.
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Maj. Op. at 9–10. We apply the reasonable expectation of privacy test, which has a subjective and objective component. United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013). First, we look to whether an individual’s subjective expectation of privacy is implicated; then, we ask whether that expectation is objectively reasonable. Id.
Our minds diverge, however, when applying this test to the AIR program. See Maj. Op. 10–20. The majority finds—as the district court found below—that no reasonable expectation of privacy is presented here because the AIR program is capable of only short-term surveillance. Maj. Op. at 10–15. Therefore, they reason, this case is more like those cases that have approved of public surveillance tactics—like ground-based security cameras or aerial “flyover” surveillance—than those that have struck down more revealing tracking. On this basis, the majority distinguishes the Supreme Court’s recent teachings in Carpenter v. United States, 138 S. Ct. 2206 (2018). Alternatively, the majority also finds that the AIR program is justified as a “programmatic search.” Maj. Op. at 15–20.
These conclusions rest on a fundamentally warped understanding of the facts, accepting the Government’s promises about the AIR program and ignoring the plaintiffs’ contrary evidence. The AIR program does, indeed, amount to long-term surveillance that compiles “a detailed and comprehensive record” of a person’s past movements. See Carpenter, 138 S. Ct. at 2215–19. Thus, Carpenter is not only relevant to this case. It controls the outcome.
A. Carpenter clarified the rules governing law enforcement surveillance of people’s public movements. Id. at 2215–16 (internal quotations omitted). The starting point was
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United States v. Knotts, 460 U.S. 276 (1983), where the Court held that the use of a location-tracking “beeper” on a suspect’s car was constitutional because a person “traveling on public thoroughfares has no reasonable expectation of privacy in [their] movements from one place to another,” given that they “voluntarily conveyed [their movements] to anyone who wanted to look.” Id. at 281–82. The Knotts court qualified, though, that if “dragnet type law enforcement practices . . . should eventually occur,” then “different constitutional principles may be applicable.” Id. at 284.
“Three decades later, the Court considered more sophisticated surveillance of the sort envisioned in Knotts and found that different principles did indeed apply.” Carpenter, 138 S. Ct. at 2215. In United States v. Jones, 565 U.S. 400 (2012), police used a GPS tracking device to “remotely monitor[] [a] vehicle’s movements for 28 days.” Carpenter, 138 S. Ct. at 2215. Though Jones ultimately rested on trespass principles, it also had privacy implications, as Carpenter explained: “Since GPS monitoring of a vehicle tracks ‘every movement’ a person makes in that vehicle, the [five] concurring Justices concluded that ‘longer term GPS monitoring . . . impinges on expectations of privacy’—regardless whether those movements were disclosed to the public at large.” Id. (quoting Jones, 565 U.S. at 430 (Alito, J., concurring); Jones, 565 U.S. at 415 (Sotomayor, J., concurring)).
Thus, “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” Id. at 2217. Carpenter solidified the line between permissible short-term tracking of a person in public—just as law enforcement was capable of accomplishing “[p]rior to the digital age”—and an individual’s “expectation of privacy in the whole of their physical movements.” Id. For example, while most people understand
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that a security camera may record them as they walk down a city block, they also reasonably expect that police will not “secretly monitor and catalogue every single movement of an individual’s car for a very long period.” See id. (quoting Jones, 565 U.S. at 430 (Alito, J., concurring)).
Based on this rule, the Court held that the Fourth Amendment protects cell-site location information (“CSLI”) because, “[m]uch like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Id. at 2216–19. CSLI reveals “an all-encompassing record of the holder’s whereabouts,” and “[a]s with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only [their] particular movements, but through them [their] ‘familial, political, professional, religious, and sexual associations.’” Id. at 2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). Such a record “hold[s] for many Americans the privacies of life.” Id. (quoting Riley v. California, 573 U.S. 373, 403 (2014)). Even more than a GPS device on a car, cell data “tracks nearly exactly the movements of its owner,” such that “when the Government tracks the location of a cell phone, it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.” Id. at 2218. And, the “retrospective quality” of cell data further distinguishes it from past surveillance techniques, because “the Government can now travel back in time to retrace a person’s whereabouts”; “[u]nlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.” Id. (“Whoever the suspect turns out to be, [they] ha[ve] effectively been tailed every moment of every day . . .

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and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.”).
Carpenter’s application here could not be clearer. The AIR program compiles a “detailed, encyclopedic” record of “the whole of” every resident of Baltimore’s movements in public. See id. at 2216–19; see also id. at 2217 (“Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of [their] physical movements . . .”) (emphasis added).
Carpenter identified Jones as applying new constitutional principles based on the possibility of dragnet surveillance anticipated in Knotts. Id. at 2215. Here, more like the cell phone data in Carpenter and GPS-tracking in Jones than the beeper-tracking in Knotts, the AIR program “tracks every movement” of every person outside in Baltimore. See id. And, like the cell data in Carpenter, the AIR program’s privacy implications are amplified because of the “retrospective quality” of its data; within a 45-day window,3 the Baltimore police can “travel back in time to retrace a person’s whereabouts.” See id. at 2218.

3 Notably, though, the 45-day retention period is self-imposed by BPD and PSS. The data could theoretically be retained for longer periods or indefinitely. For example, when BPD initially, and secretly, piloted the AIR program in 2016, its data was retained indefinitely—even though there was, then too, a purported 45-day retention period. See Nat’l Police Found., Review of the Baltimore Police Department’s Use of Persistent Surveillance 18 (2017), https://perma.cc/Q277-QP8U (finding, after initial pilot of the AIR program, that “[t]he PSS Privacy Protection Policy states that after 45 days, the data will be destroyed unless an inquiry is received. However, PSS is retaining all the data from the . . . pilot program”) (saved as ECF opinion attachment).
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This capability transcends the expectation that was at issue in Knotts—that police officers could follow a person in public—and instead “gives police access to a category of information otherwise unknowable.” See id. Just like in Carpenter, the AIR program means that for every single resident of Baltimore, “[w]hoever the suspect turns out to be, [they] ha[ve] effectively been tailed every moment of every day” for 45 days. See id. Residents of Baltimore have a subjective expectation of privacy in the whole of these day-to-day movements, even though they take place outdoors. See id. at 2215–19; Jones, 565 U.S. at 415 (Sotomayor, J., concurring); Jones, 565 U.S. at 430 (Alito, J., concurring).
Long-term, recorded surveillance of public movements uncovers more than temporary trailing by a suspecting officer; it reveals a person’s most intimate associations and activities. Carpenter, 138 S. Ct. at 2217–18. Therefore, that subjective expectation of privacy is objectively reasonable because it concerns the “privacies of life”—the epitome of information expected to be beyond the warrantless reach of the government. See id. at 2214, 2218; Boyd v. United States, 116 U.S. 616, 630 (1886) (explaining that the fundamental principles of the Fourth Amendment protect “the sanctity of a [person]’s home and the privacies of life”). Accordingly, when police call upon AIR program data, the “information obtained . . . [is] the product of a search,” and the program’s warrantless operation violates the Fourth Amendment. Carpenter, 138 S. Ct. at 2217; see also Jones, 565 U.S. at 415 (Sotomayor, J., concurring) (questioning “the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary

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exercises of police power and prevent ‘a too permeating police surveillance’”) (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)).
B. The majority distinguishes Carpenter by finding that the AIR program is incapable of long-term and individually-targeted surveillance. On that basis, the majority concludes that plaintiffs have no reasonable expectation of privacy in the information the AIR program obtains. The majority also finds, alternatively, that the AIR program is constitutional as a “programmatic search.”
1. The majority, the district court, and the Government each emphasize certain aspects of the AIR program to distinguish Carpenter and Jones. In particular, the majority relies on the fact that the surveillance planes fly for “only” twelve hours per day, and that individuals, when photographed, appear “only” as “pixelated dots.” See Maj. Op. at 4–5. Indeed, the majority emphasizes this latter fact repeatedly throughout its opinion. See, e.g., Maj. Op. at 3–6, 12, 17, 18, 21. The majority derives far-reaching conclusions from these two facts. First, “[b]ecause [the planes] do not fly at night, AIR surveillance cannot be used to track individuals from day-to-day.” Maj. Op. at 11. Second, because people appear as “pixelated dots,” “individuals cannot be tracked once they enter a building,” and “the AIR program cannot be used to target them as individuals.” Maj. Op. at 17–18. Thus, the AIR program is “less intrusive” than ground-based security cameras, which also “captur[e] public movements”—with significantly more detail, though “[a]dmittedly” with “gaps in the
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coverage”—and remain constitutional after Carpenter. Maj. Op. 18–20. By conceiving of
the AIR program as incapable of identifying individuals or tracking them over time, the
majority finds Carpenter inapplicable. See Maj. Op. at 11–20.
However, these conclusions only hold up when limiting the Fourth Amendment
analysis of the AIR program to solely the photographic data its planes collect, as opposed
to what information that data can reveal. Carpenter precludes such a narrow focus. The
Carpenter court did not consider only what was revealed by raw CSLI, but also what
information law enforcement could deduce “from the . . . location data it received . . . in combination with other information.”4 138 S. Ct. at 2218 (emphasis added). The Court
rejected the Government’s argument that using the CSLI was not a search because “the
location records did not on their own suffice to place Carpenter at the crime scene.” Id.
(internal quotations and alterations omitted). Rather, because the CSLI enabled the police
to “deduce a detailed log of Carpenter’s movements,” a warrant was required. See id. at
2217–18. Thus, the rule from Carpenter is that if locational data enables police to deduce
a cumulative, retrospective “record of [a person’s] physical movements,” then “[t]he
location information obtained . . . was the product of a search.” See id.
4 In Carpenter, the records themselves were only a time-stamped log of cell tower locations pinged by the suspect’s cell phone number. See Carpenter, 138 S. Ct. at 2212– 13. Police then used that data to “produce[] maps” that “placed Carpenter’s phone near four of the charged robberies.” Id. Here, as in Carpenter, the police get raw locational data without a warrant and then apply policework to track and identify suspects using that data, just like producing maps of the Carpenter suspect’s likely movements. See, e.g., Kyllo v. United States, 533 U.S. 27, 36–37 (2001) (explaining that, where police used technology to warrantlessly infer information that violated reasonable expectations of privacy, it was “[t]he police activity” that “was held to be a search, and the search was held unlawful”) (emphasis added).
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This Court must apply the same scope of analysis here. While aerial photographs and ground-based security camera footage both capture people’s public movements, the plaintiffs challenge the AIR program specifically for capturing images of everyone, every day, and everywhere. It makes no Fourth Amendment difference that the AIR photographs may require further analysis to yield their investigatory value. See id. at 2218 (rejecting “the proposition that ‘inference insulates a search’”) (quoting Kyllo v. United States, 533 U.S. 27, 37 (2001)). So while the majority posits that AIR photographs “take[] no deep dive into an individual’s life and in fact can tell the police very little about an identified person,” Maj. Op. at 15, the question under Carpenter is whether the AIR program will nevertheless enable police to deduce a comprehensive record of people’s past movements. It is that capability that distinguishes CCTV cameras, or the temporary surveillance at issue in Knotts, and tells the police more than a little about an identified person. See Jones, 565 U.S. at 415 (Sotomayor, J., concurring) (explaining how retrospective records of public movements can reveal “a wealth of detail” about a person’s “familial, political, professional, religious, and sexual associations” and private activities like trips to a psychiatrist, plastic surgeon, abortion clinic, AIDS treatment center, and more).
Applying that broader perspective to this case, the limitations of the AIR program that the majority emphasizes do little to distinguish Carpenter and Jones. Indeed, it is hard to reconcile the majority’s portrayal of the AIR program’s capabilities with its insistence that the program is justified because it helps BPD police crime. That the AIR program’s surveillance planes will fly only during the daylight hours and capture individuals as

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solitary pixels5 does not mean that AIR program data cannot be used to track specific individuals over time. Presumably, the vast majority of Baltimore’s residents start and end most days in the same place: their homes.6 Who resides at a given address is often public information. Likewise, many people begin each day at home, then travel during the daytime based on a daily routine, and then return home again. In just one possible application, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. Police could then look through time and track the movements of people from that residence. Police could use any number of context clues to distinguish individuals and deduce identity. After all, that is the very purpose of the program.
The plaintiffs submitted evidence to the district court to support this intuitive reasoning. In a study based on cell phone locational data, researchers found that a person’s movements—looked at as a whole—tend to be so unique that 95% of people can be

5 Both of these limitations are self-imposed by BPD and PSS, not technological necessities. The plane-cameras are capable of taking decipherable photographs of city streets lit by ambient light during the nighttime. Likewise, BPD and PSS “agreed” to set the resolution of the cameras at “one pixel per person,” but “the technology has the ability to upgrade the quality.” See BPD, Aerial Investigations Research Pilot Program Presentation (AIR) at 23:46, Facebook (Mar. 30, 2020), https://www.facebook.com/58771761955/videos/212014970074066 (“BPD Facebook Live Townhall”) (saved as ECF opinion attachment).
6 C.f. U.S. Census Bureau, American Community Survey, 2018 American Community Survey 1-Year Estimates, Table B25033 (Baltimore City), https://perma.cc/CM9C-VC95 (estimating, among population living in occupied housing units, that over 75% of Baltimore City residents reside in single-unit housing structures) (sum of persons in owner-occupied and renter-occupied single unit structures, mobile homes, and “boats, RVs, van, etc.” divided by total population) (saved as ECF opinion attachment).
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individually identified based only on “[f]our randomly chosen points” of location data from their collective movements.7 In other words, when reviewing data showing a group of people’s collective movements, an individual’s movements tend to be so unique that it is not difficult to distinguish among people in the group. This is why the majority’s conclusion that individuals cannot be tracked is unsubstantiated. The police would have access to 45 daytimes’ worth of retroactive locational data to follow any given “pixel” as it moved through time and space. By analyzing patterns, it is possible—and often relatively easy—to identify the person behind the pixel based on the routines it follows.
And that is without even considering BPD’s ability to rely on other police information systems. BPD’s contract with PSS expressly provides for integrating BPD’s “CitiWatch CCTV cameras” and “License Plate Readers” into the AIR program, stating that “analysts will track individuals and vehicles” using both systems, “to provide more detailed descriptions” and “allowing the vehicles to be identified.” BPD’s “CitiWatch” surveillance camera network consists of more than 800 cameras in Baltimore City.8 Along with downtown Baltimore, those cameras are most prevalent in predominantly Black

7 The district court ignored the study by finding that the plaintiffs did not “proffer[] any evidence suggesting that the same analysis applicable to cell-phone location data may be grafted on to the imagery data produced by the AIR pilot program.” But no such evidence is necessary; the source of the location data is irrelevant to the findings. The study establishes the relative ease of “re-identifying” unique individuals from a pool of data showing their collective movements. It would make no difference whether that pool was sourced from cell phones, GPS trackers, surveillance airplanes, or some other source.
8 BPD Facebook Live Townhall at 28:07.
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neighborhoods.9 Thus, considering all of the above, the fact that AIR data does not include nighttime and indoor movements does not inherently inhibit “track[ing] individuals from day-to-day.”
According to the majority, “that the police may be able to use . . . security cameras and license plate readers[] in conjunction with AIR photographs” is beyond this Court’s review because “plaintiffs do not challenge these existing tools—only the AIR program in particular.” Maj. Op. at 11–12. But as discussed above, there is no basis for this insistence that the Court put on blinders when considering how the AIR program is being implemented.10 That plaintiffs do not independently challenge the legality of surveillance cameras and license plate readers does not mean that this Court must ignore their

9 Compare City of Baltimore, Open Baltimore: CCTV Cameras, https://data.baltimorecity.gov/Public-Safety/CCTV-Cameras/y3f4-umna (showing map of locations of CitiWatch CCTV cameras) (saved as ECF opinion attachment), with U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Baltimore City Police Department 13 (2016), https://perma.cc/EPN2-7G38 (showing map of Black population in Baltimore City) (saved as ECF opinion attachment).
10 There is no question that police “may be able to use” these other surveillance systems; their integration is expressly provided for in BPD’s contract with PSS and is fundamental to the operation of the AIR program. PSS provided that it will “hire between 15 and 25 analysts for this Project,” working “in two shifts per day, seven days per week in support of this effort.” And, the contract provides that PSS will integrate BPD’s existing surveillance systems—Computer Aided Dispatch, CitiWatch Ground Based Cameras Integration, Shot Spotter Gun Shot Detection System, and License Plate Readers—into its own. Within 18 hours of a “Target Crime,” PSS provides that it will analyze the scene of the crime, identify people and vehicles present, and then analyze “locations the vehicles and people visited prior to and after the crime,” as well as the “tracks of people and vehicles that met with people who were tracked from the crime scene and the locations they came from and went to,” by using, in addition to PSS’ own photographic data, “ground-based camera video made available to [PSS] by BPD.”
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availability to the police and integration in the AIR program when applying Carpenter.
See 138 S. Ct. at 2217–18.
Likewise, the twelve-hours-per-day, single-pixel nature of the AIR program’s data
hardly distinguishes Carpenter and Jones. The CSLI at issue in Carpenter was not a
comprehensive location log without any informational gaps. As the lower court explained,
each datapoint covered an area “typically anywhere from a half-mile to two miles.” United
States v. Carpenter, 819 F.3d 880, 885 (6th Cir. 2016). And datapoints were generated
only “at call origination and at call termination for incoming and outgoing calls.” See id.
at 884. Similarly, in Jones, police collected 28 days of data showing the movements of the
suspect’s car “within 50 to 100 feet.” 565 U.S. at 403. This kind of GPS-data would only
reflect a suspect’s movements in their own car and could only place a suspect in the vicinity
of a given site where their car was parked, without indicating, for example, which building
the suspect may have entered. See Carpenter, 138 S. Ct. at 2218. That the AIR data has
gaps overnight or when a suspect is indoors is no different from the gaps in Carpenter between phone calls or in Jones between car rides.11 And the AIR photographs provide a
more precise depiction of individuals’ locations than the data in either Carpenter or Jones.
11 It is worth mentioning, though, that even if we were to consider “only” the AIR program’s single twelve-hour daily recordings, there is still likely a Fourth Amendment violation. The most problematic aspect of the AIR program is its dragnet nature, surveilling every individual’s public movements across Baltimore. Carpenter emphasized this concern regarding CSLI. 138 S. Ct. at 2218 (“Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone.”); see also Jones, 565 U.S. at 415–16 (noting that developing technology means that “even short-term monitoring” that obtains “a precise, comprehensive record of a person’s public movements” can reveal private associations).
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Ultimately, 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. That latter capability, however, is what controls the Fourth Amendment analysis. See id. at 2219 (noting that the CSLI at issue “reflect[ed] the state of technology at the start of the decade,” but considering “new technology” for CSLI data that is even more precise); Kyllo, 533 U.S. at 35–36 (rejecting “a mechanical interpretation of the Fourth Amendment” that would leave protections “at the mercy of advancing technology,” and instead instructing that “the rule we adopt must take account of more sophisticated systems that are already in use or in development”).
2. Once the assumption that the AIR program cannot identify and track individuals over time is dispelled, the majority’s corresponding application of the law breaks down. First, conceiving of the program as short-term surveillance, the majority, like the district court, concludes that this case is governed by Knotts and its progeny, analogizing to the line of cases approving of “various types of aerial surveillance . . . more intrusive than that in AIR.” Maj. Op. at 11–13. The Supreme Court has approved of “flying a plane a mere one thousand feet over an individual’s home to photograph items within a fenced-in backyard”; using a plane flying over a factory to “photograph[] items as small as one half inch in diameter”; and circling a helicopter “four hundred feet above a home . . . to look into a greenhouse partially within the home’s curtilage.” Maj. Op. at 12–13. By contrast, “the AIR cameras cannot photograph an individual item within a backyard” and “AIR involves no surveillance of an individual’s home or curtilage,” so the program is “decidedly
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less intrusive.” Maj. Op. at 13. “Individuals are just dots, and analysts cannot identify a person’s race or sex from an AIR photograph,” such that “AIR captures no ‘intimate details’ of the sort that might implicate Fourth Amendment protections.” Maj. Op. at 12.
This reasoning is nonresponsive to the Fourth Amendment objections in this case. Plaintiffs do not challenge the AIR program on the basis of what any single photograph may reveal. Rather, they object to the planes photographing the city for twelve hours per day, seven days per week, and creating a retrospective database of everyone’s movements across the city. All of the cases the majority cites, and that the district court relied on, involved single instances of targeted surveillance of an individual suspect or location for a temporary period of time.12 Because that kind of surveillance can only reveal what is already being held out in the open and could be observed by traditional surveillance tactics—albeit, sometimes with the aid of “augmented” sensory perception—it is permissible under the Fourth Amendment. See Carpenter, 138 S. Ct. at 2215 (citing

12 See California v. Ciraolo, 476 U.S. 207, 209, 213–14 (1986) (describing single occasion of “fl[ying] over respondent’s house at . . . 1,000 feet, within navigable airspace” to “observe plants” with “the naked eye”); Dow Chem. Co. v. United States, 476 U.S. 227, 229, 238 (1986) (approving of “commercial aerial photographer” flying over a suspected industrial building without using “highly sophisticated surveillance equipment not generally available to the public”); Florida v. Riley, 488 U.S. 445, 449 (1989) (finding no violation where officer “circled twice over respondent’s property in a helicopter” at 400 feet to observe greenhouse “[w]ith his naked eye”); United States v. Breza, 308 F.3d 430, 433–34 (4th Cir. 2002) (finding no violation when, “[w]hile conducting a routine drug interdiction operation,” officers “flew over [the suspect’s] property in a helicopter” to observe marijuana plants); Giancola v. W.Va. Dep’t of Pub. Safety, 830 F.2d 547, 548, 550–51 (4th Cir. 1987) (looking to factors such as “the total number of instances of surveillance, the frequency of surveillance, [and] the length of each surveillance,” and finding no violation when “two helicopters . . . flew over [the suspect’s] property for ten to twenty minutes” to observe fields in plain view).
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Knotts, 460 U.S. at 281–82). But the ability to call upon a log of photographs revealing an individual’s movements in the past is not just augmented sensory perception; it “gives police access to a category of information otherwise unknowable.” See id. at 2218. Therefore, that information is the product of a search. See id. at 2217.
The AIR program reveals intimate details about the plaintiffs’ lives because it records where they go, not because any single photograph in isolation is especially revealing. The fact that the database of past movements comes from aerial surveillance planes instead of, say, a cell-service provider’s CSLI records is, ultimately, inconsequential. Thus, despite their discussion of flying police technology, the cases the district court relied on and the majority points to bear little relevance to this case.
3. Finally, the majority also considers the AIR program’s constitutionality as a “programmatic search,” applying the balancing test that applies to drunk driving checkpoints, searches at border crossings, and searches in carceral settings. Maj. Op. 15– 20. These cases are simply inapplicable. Indeed, the parties did not brief the issue because the Government did not argue that the AIR program is governed by the doctrine. Nevertheless, the majority reasons that it provides an alternative basis for affirming. What the majority refers to as programmatic searches are one type of search that “fit[s] within the closely guarded category of constitutionally permissible suspicionless searches.” See Chandler v. Miller, 520 U.S. 305, 309 (1997); see generally United States v. Curry, 965 F.3d 313, 339–43 (4th Cir. 2020) (Diaz, J., concurring). “The suspicionless search is the very evil the Fourth Amendment was intended to stamp out,” but
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individualized suspicion can be “dispensed with” as a component of Fourth Amendment reasonableness when certain kinds of searches are necessary to meet a “special need” of the Government. Samson v. California, 547 U.S. 843, 858 (2006) (Stevens, J., dissenting). Thus, “[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 624 (1989).
In addition to this balancing requirement, the suspicionless search also must take an especially “systematic” and “discretionless” form. See Curry, 965 F.3d at 339–43 (Diaz, J., concurring). For example, this doctrine provides the authority for routinized searches at a fixed Border Patrol checkpoint designed to intercept undocumented persons. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 448–55 (1990). Yet, the doctrine does not authorize “roving-patrol stops,” even for the same governmental purpose, because of their “sporadic and random” nature and the “unbridled discretion” they grant to officers. Almeida-Sanchez v. United States, 413 U.S. 266, 270–75 (1973).
Here, the majority concludes that the AIR program is an acceptable suspicionless programmatic search program for two reasons. The first is that “this program is not being used to target particular individuals. Instead, it is used to track non-identified individuals only under certain circumstances;” namely, when those individuals “happen[] to be at the scene of . . . violent crimes.” Maj. Op. at 17. This proposition defies reason. In one breath, the majority states that the AIR program is “not being used to target particular individuals,”
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while in the next, it specifies that the program “track[s] non-identified individuals” who are present at crime scenes. The fact that police may not know the name of the individual they are surveilling—at the time the surveillance initially takes place—does not change the reality of what is occurring. When police use the AIR program to track as-yet-unidentified individuals, they are “target[ing] particular individuals.” And the purpose of using the AIR program to track those non-identified individuals from crime scenes is to identify them, be it as witnesses or as suspects. What other reason could there be for investing millions of dollars in a city-wide aerial surveillance program?
Indeed, that is the very governmental purpose that the majority then provides as its second reason for finding a constitutional suspicionless search here:
Second, the AIR program is designed to serve critical government purposes. Baltimore is plagued by violent crime, and the BPD has struggled to capture the perpetrators. Although the BPD can take advantage of existing networks of cameras and license plate readers, holes in their coverage may leave the police dependent on eyewitnesses, who may not exist or be feasible to find. The AIR program is designed to assist in that effort. Maj. Op. at 18 (internal citation omitted). If the AIR program is justified because it assists in the effort of capturing the perpetrators of violent crime—by filling holes in police surveillance coverage and providing eyewitness leads—then the AIR program is targeting and identifying individual people. Such a program is clearly incompatible with the “discretionless” and “systematic” suspicionless search rubric that the majority attempts to force onto it. The majority’s position is more comprehensible if one conceives of the “programmatic search” as being solely the act of taking photographs of the city, as distinct
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from the act of reviewing those photographs to deduce an individual’s movements. But, as discussed above, Carpenter precludes such a framing. Carpenter identified the “search” as occurring “when the Government accessed CSLI from the wireless carriers,” because “[f]rom the . . . location data it received, the Government could, in combination with other information, deduce a detailed log of Carpenter’s movements.” 138 S. Ct. at 2218 (emphasis added). In other words, because the interest at stake is one’s expected privacy “in the whole of [their] physical movements,” the conduct amounting to a “search” includes the police activity that “deduce[s]” the “detailed log.” See id.; see also Kyllo, 533 U.S. at 36 (finding “the dissent’s extraordinary assertion that anything learned through ‘an inference’ cannot be a search” is “blatantly contrary to United States v. Karo, where the police ‘inferred’ from the activation of a beeper that a certain can of ether was in the home. The police activity was held to be a search, and the search was held unlawful”) (emphasis added).
Regardless, even if accepting the majority’s framing, the “programmatic search” doctrine cannot render the AIR program constitutional. A foundational rule of the doctrine is that the “special need” justifying the suspicionless search must be “beyond the normal need for law enforcement.” Curry, 965 F.3d at 340 (Diaz, J., concurring); see, e.g., Ferguson v. Charleston, 532 U.S. 67, 79 (2001) (referring to whether the “special need” is “divorced from the State’s general interest in law enforcement”); City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (holding that “narcotics-detection” checkpoint lacked sufficient “special need” because its “primary purpose was to detect evidence of ordinary criminal wrongdoing”); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (looking to whether
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“special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable”).
Here, the “critical government purpose” identified by the majority as the “special need” is that “Baltimore is plagued by violent crime, and the BPD has struggled to capture the perpetrators.” Stopping violent crime by capturing perpetrators is a paradigmatic example of “the normal need for law enforcement.” See Edmond, 531 U.S. at 37–40. Because the majority does not identify a special need other than “the general interest in crime control” to justify the AIR program as a suspicionless search system—and the program serves no other special purpose—the doctrine does not apply. See id. at 40.

II. I therefore find that the plaintiffs established a strong likelihood of success on the merits of their Fourth Amendment claim. The remaining preliminary injunction factors counsel in favor of plaintiffs as well. Because the plaintiffs identify a Fourth Amendment violation, they are irreparably harmed. See, e.g., Ross v. Meese, 818 F.2d 1132, 1134–35 (4th Cir. 1987) (finding, in Fourth Amendment context, that “the denial of a constitutional right, if denial is established, constitutes irreparable harm for purposes of equitable jurisdiction”); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (finding, where plaintiff established a likelihood of success on First Amendment claim, that the violation “unquestionably constitutes irreparable injury”); Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“[A] continuing constitutional violation constitutes proof of an irreparable harm.”).
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Likewise, the balance of the equities favors plaintiffs because they have established an ongoing constitutional violation. By contrast, “precedent counsels that ‘a state is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional.’” See Centro Tepeyac v. Montgomery County, 722 F.3d 184, 191 (4th Cir. 2013) (quoting Giovani Carandola Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)) (“If anything, the system is improved by such an injunction.”). Moreover, BPD has emphasized in its public-facing materials that the present AIR program is only “a 180 day pilot program” designed to “collect enough data that can be analyzed and reviewed” to determine the program’s effectiveness. BPD has also represented that “if research determines little to no impact on the measures for success, then BPD will ground the plane and discontinue operations.” That limited purpose would be unimpeded if it takes place after this case is resolved, whereas plaintiffs’ injuries are accruing every passing day.
Finally, for these same reasons, the public interest favors the plaintiffs. “Surely, upholding constitutional rights serves the public interest.” Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 248 (4th Cir. 2014) (same); Giovani Carandola, 303 F.3d at 521 (same). The Government’s desire to find innovative solutions to respond to crime is also generally in the public interest, but not when that purpose comes at the expense of the public’s constitutional rights.

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III. Therefore, the district court abused its discretion in denying plaintiff’s request for a preliminary injunction. The district court portrayed the AIR program’s capabilities as unrealistically limited while ignoring countervailing evidence. And the district court relied on precedents that bear little relevance to plaintiff’s Fourth Amendment objections to the AIR program. Instead, Carpenter controls this case. Throughout its opinion, the majority emphasizes that “Baltimore is one of the more dangerous cities in America, with hundreds of people being murdered every year.” Maj. Op. at 22–23. And BPD “has struggled to respond effectively.” Maj. Op. at 2. The majority concludes that, because “[t]he AIR program just might help reduce” these levels of violence, we should “giv[e] it a chance to succeed.” Maj. Op. at 24. But dragnet law enforcement tactics are nothing new for many neighborhoods in Baltimore. See generally Lucius T. Outlaw III, Unsecured (Black) Bodies: How Baltimore Foreshadows the Dangers of Racially Targeted Dragnet Policing Let Loose by Utah v. Strieff, 50 N.M. L. Rev. 25, 36–45 (2020). A Department of Justice report, following a 14-month investigation into BPD’s unconstitutional practices, provides several examples. See U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Baltimore City Police Department (2016), https://perma.cc/EPN2-7G38 (“DOJ Report”) (saved as ECF opinion attachment). The DOJ found “a widespread pattern of BPD officers stopping and detaining people on Baltimore streets without reasonable suspicion that they are involved in criminal activity.” Id. at 27. BPD officers “routinely violate” the Fourth Amendment-based rules
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governing Terry-stops by detaining and questioning people who are simply “sitting, standing, or walking in public areas, even where officers have no basis to suspect them of wrongdoing.” Id. at 28. And “overwhelming” statistical evidence established that these strategies targeted predominantly Black neighborhoods and “produce severe and unjustified disparities in the rates of stops . . . of African Americans.” Id. at 3, 5–6, 48–74. Yet these discriminatory practices “uncover[ed] evidence of criminal activity” at an “extremely low rate.” Id. at 28; see, e.g., id. at 50 (“One African-American man in his mid-fifties was stopped 30 times in less than four years” based only on a suspicion of “‘loitering’ or ‘trespassing’” and “none of the 30 stops resulted in a citation or criminal charge”). Although DOJ’s investigation resulted in a federal consent decree with the BPD, discriminatory policing continues to affect city residents.13

13 See, e.g., Morgan State Univ. Inst. for Urban Research, The Community’s Experiences and Perceptions of the Baltimore City Police Department Survey Report 8–21 (2020), https://perma.cc/WX8D-GXX8 (finding, in survey conducted as part of federal consent decree monitoring, that a majority of respondents had personally witnessed BPD officers engaged in racial profiling, among other findings of community dissatisfaction) (saved as ECF opinion attachment); Justin Fenton, Corrupt Squad Scoured Baltimore Streets in Pursuit of Black Men to Search, Arrest—and Steal From, Baltimore Sun (June 12, 2019), https://perma.cc/2W8Q-44VN (reporting on the now-infamous “Gun Trace Task Force” scandal involving a unit of BPD officers who routinely planted false evidence and stole from vulnerable community members, continuing even through DOJ’s investigation and the imposition of the federal consent decree) (saved as ECF opinion attachment); see also Brief of Amici Curiae Victims of the Baltimore Police Department in Support of Appellee at 6–26, Baltimore City Police Department v. Potts, Misc. No. 6 (Md. Dec. 16, 2019), available at https://perma.cc/ZLA2-H6ZY (collecting evidence to show that the conduct underlying the Gun Trace Task Force scandal more broadly pervades BPD’s policing and continues through the present-day) (saved as ECF opinion attachment).
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This recent history provides important context to the majority’s conclusions that
BPD has “consulted with the people of Baltimore,” such that the AIR program is ultimately
“a community initiative.” See Maj. Op. at 22. It counsels that the consequences of the AIR
program’s unconstitutional nature are likely to be felt in the same overpoliced
neighborhoods where BPD’s discriminatory practices have already left generational
legacies.14
14 In particular, several of the historically Black neighborhoods in West Baltimore have been shaped by decades of segregationist and exclusionary policy and policing. See DOJ Report at 12–15, 70–73. Baltimore was the first city in America to “establish[] blockby-block segregation,” enforced over the decades by tactics including “restrictive covenants, aggressive redlining, a contract system for housing loans, and racially targeted subprime loans.” Id. at 12. As a result, “Baltimore remains among the most segregated cities in the country.” Id.
For example, the West Baltimore neighborhood of Sandtown-Winchester—now marked in history as the home of Freddie Gray—has been at least 90% Black “for the past five census periods,” and is currently more than 95% Black. Id. at 13, 16–18 (citing No Boundaries Coalition, Over-Policed, Yet Underserved (“Over-Policed Report”), March 2016, https://perma.cc/KD7V-PZRG) (saved as ECF opinion attachment). The neighborhood has “a rich history of arts, culture, and civil rights activism”; “[p]erformers such as Billie Holliday and Diana Ross performed at venues along the historic Pennsylvania Avenue, often called ‘Harlem of the South,’” and “‘The Avenue’ was known as the heart of Baltimore’s Entertainment scene during the time of prohibition through the civil rights movement.” Over-Policed Report 6.
But through the mid-twentieth century, as Baltimore’s industrial sector declined and middle-class “flight” to the suburbs proliferated, Sandtown suffered from “economic depression, housing abandonment, [and] increased crime.” Id. Today, one-in-three of the neighborhood’s houses are vacant or abandoned, more than one-fifth of residents are unemployed, and more residents are imprisoned than those of any other Baltimore neighborhood. Outlaw, supra, at 38. Life expectancy in Sandtown is 69.7 years, compared to 84.4 years in the majority-white neighborhood Roland Park. Id. The Sandtown infant mortality rate is 9.7 per 1,000 births, compared to Roland Park’s 3.4, and Sandtown has been the neighborhood most heavily impacted by Baltimore’s long-standing lead poisoning epidemic. Id.; DOJ Report at 14.
(Continued)
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Yet the majority reasons that—“[a]s cherished as constitutional rights are”—“the
Bill of Rights was not the only source of rights worthy of protection.” Maj. Op. at 23.
“When hundreds of Baltimore residents are killed on their streets each year,” or “[w]hen
criminals can rob Baltimoreans at gunpoint with apparent impunity,” their “rights to life,”
“rights to liberty,” and “rights to property” are not protected. Maj. Op. at 23. Therefore,
“Baltimore and its citizens have a strong interest in the AIR program not being strangled
in its infancy.” Maj. Op. at 22.
Under this line of reasoning, which rights—and whose rights—are regarded as
expendable in the name of protecting life, liberty, and property? Why must the people of
Baltimore, that the majority regards as so thoroughly victimized by crime and violence,
“decide between their constitutional rights against unwarranted searches and seizures or
forgo governmental protection that is readily afforded to other communities[?]” Curry,
965 F.3d at 333 (Gregory, J., concurring).
Yet while Sandtown remained under-resourced, it became over-policed. See Over-Policed Report 10–19; see also DOJ Report at 51 (showing, on a map, how the frequency of police stops correlates with the Blackness of a given Baltimore neighborhood, with Sandtown among the highest density of stops). Under BPD’s “zero tolerance” approach to policing, implemented during its “War on Drugs,” the police prioritized “broken windows” strategies, “stop and frisk” searches, and brutal physical confrontations. Over-Policed Report 11–12. When Sandtown residents have requested a more supportive police presence in the neighborhood they have been rebuffed, while predominantly-White neighborhoods received those same services. See id.; DOJ Report 4–5, 65–66, 156. Thus, residents report “that the legacy of racism in Baltimore is a defining feature of community life and is experienced through concentrated poverty, disinvestment, discrimination, and police profiling and abuse in Sandtown.” Over-Policed Report 19. In neighborhoods like Sandtown, trauma caused by policing has made a “transgenerational impact” with “long-term consequences . . . [that] cannot be understated or ignored.” See Over-Policed Report 19. This is the living and breathing history that should inform our understanding of the consequences of police practices that trample the Fourth Amendment’s protections.
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No crime rate can justify warrantless aerial surveillance of an entire city, wholly unchecked by the judiciary. This case presents another circumstance in which “we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures” to prevent “the slow systematic erosion of Fourth Amendment protections for a certain demographic.” United States v. Black, 707 F.3d 531, 534, 542 (4th Cir. 2013). Any innovation by the police must occur within the confines of the Constitution. C.f. Curry, 965 F.3d at 345 (Thacker, J., concurring) (“Technology cannot override human flaws.”).
I cast no aspersions on the majority’s sincere concerns regarding the problem of crime in the city of Baltimore. “Certainly, the law-abiding residents of Baltimore want and welcome policing. They want safe streets for their families, to feel secure in their homes, and to go about their lives without being robbed, assaulted, or killed.” Outlaw, supra, at 40. “However, the manner in which policing occurs is just as important as the level of policing.” Id. Here, the manner selected by BPD violates the Constitution.
However, the majority posits that halting the AIR program—in the face of “hundreds of people being murdered every year”—would acquiesce to “some new normal of indifference.” Maj. Op. at 23. Granting plaintiffs an injunction would leave the City “with lessened hope and not knowing where to turn.” Maj. Op. at 22.
But Baltimore is not a hopeless place. One need only look to the plaintiffs themselves to find proof of that. For example, Plaintiff Erricka Bridgeford is a longtime activist in Baltimore, most prominently as an organizer behind Ceasefire Baltimore 365, an organization devoted to ending gun violence in the City. Ms. Bridgeford has organized
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high-profile “ceasefire weekends” and personally visits every murder site within the city shortly after violence takes place.15
When hearing about Baltimore’s crime statistics, Ms. Bridgeford has responded: “But the thing about Baltimore is that it has never been the one to just be defeated. So the story about the Baltimore ceasefire is that Baltimore looked the murder rate in the eye and said, ‘What you’re not going to do is snatch our greatness.’” Erricka Bridgeford, How Baltimore Called a Ceasefire, TED (Oct. 2017), https://perma.cc/Q97D-D89G (saved as ECF opinion attachment). In fact, Ms. Bridgeford was moved to begin organizing ceasefire weekends specifically in response to hearing that common refrain about the city’s high murder rate. “[B]ecause my city looks broken and is always yearning to show up in its wholeness,” she knew that “people around this city wanted to do something great together.” Id. And through her work, Ms. Bridgeford “ha[s] seen the power of collective consciousness. . . . [P]eople around this world mischaracterized [Baltimore] and misunderstood it. What you failed to realize is Baltimore has the power to rise up, and that is what we continue to do.” Id. Ms. Bridgeford’s leadership shows that—regardless of this Court’s dicta—the people of Baltimore do, in fact, know where to turn. They turn to each other.
This Court should not invoke the tragedies imparted by gun violence in Baltimore to justify its grant of sweeping surveillance powers to the BPD. This Court should not
15 One study—cited in Ms. Bridgeford’s declaration to the district court—found a 52% reduction in gun violence in Baltimore City during the ceasefire weekends, with no evidence of a “postponement effect” in the days immediately following. Peter Phaylen et al., Baltimore Ceasefire 365: Estimated Impact of a Recurring Community-Led Ceasefire on Gun Violence, 110 Am. J. Pub. Health 554, 554 (2020), https://perma.cc/MZ79-82EC (saved as ECF opinion attachment).
51

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Filed: 11/05/2020 Pg: 52 of 52

Case 1:20-cv-00929-RDB Document 45-1 Filed 11/06/20 Page 52 of 52

“[p]ermit[] unconstitutional governmental intrusions into these communities in the name of protecting them.” Curry, 965 F.3d at 332 (Gregory, J., concurring). “If merely preventing crime was enough to pass constitutional muster, the authority of the Fourth Amendment would become moot.” Id. at 334.
The dragnet aerial surveillance program implemented by the BPD violates the Fourth Amendment, and the plaintiffs are entitled to a preliminary injunction to halt its operation. Meanwhile, in the face of strife and struggle, the people of Baltimore will continue to turn to their resiliency, their beauty, and their hope.

52

 
 Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

2021 WL 2584408 Only the Westlaw citation is currently available. United States Court of Appeals, Fourth Circuit.
LEADERS OF A BEAUTIFUL STRUGGLE; Erricka Bridgeford; Kevin James, Plaintiffs –
Appellants, v.
BALTIMORE POLICE DEPARTMENT; Michael S. Harrison, in his official capacity as Baltimore Police Commissioner, Defendants – Appellees. NAACP Legal Defense & Education Fund, Inc.; Casa De Maryland, Inc.; Rabbi Daniel Cotzin
Burg; Citizens Policing Project; Equity Matters; Reverend Grey Maggiano; Electronic Frontier
Foundation; Brennan Center for Justice; Electronic Privacy Information Center; Freedomworks Foundation; National Association Of Criminal Defense Lawyers; Rutherford Institute; Policing Project; Center on Privacy & Technology At Georgetown Law, Amici Supporting
Rehearing Petition.
No. 20-1495 |
Argued: March 8, 2021 |
Decided: June 24, 2021
Synopsis Background: Community advocates filed § 1983 action against city police department and city’s police commissioner, alleging that department’s aerial surveillance program violated their Fourth Amendment protection against unreasonable searches. The United States District Court for the District of Maryland, Richard D. Bennett, J., 456 F.Supp.3d 699, denied plaintiffs’ motion for preliminary injunction, and they appealed. The Court of Appeals, 979 F.3d 219, affirmed. Rehearing en banc was granted.
Holdings: The Court of Appeals, Gregory, Chief Judge, held that:
action was not rendered moot by city’s decision not to renew program’s operation, and
1

plaintiffs were likely to succeed on merits of their Fourth Amendment claim.
Reversed and remanded.
Gregory, Chief Judge, concurred and filed opinion in which Wynn, Thacker, and Harris, Circuit Judges, joined.
Wynn, Circuit Judge, concurred and filed opinion in which Motz, Thacker, and Harris, Circuit Judges, joined.
Wilkinson, Circuit Judge, dissented and filed opinion in which Niemeyer, Agee, and Quattlebaum, Circuit Judges, joined, and in which Diaz, Richardson, and Rushing, Circuit Judges, joined in part.
Niemeyer, Circuit Judge, dissented and filed opinion.
Diaz, Circuit Judge, dissented and filed opinion.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:20-cv-00929-RDB)
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Floyd, Judge Thacker, and Judge Harris joined. Chief Judge Gregory wrote a concurring opinion, in which Judge Wynn, Judge Thacker, and Judge Harris joined. Judge Wynn wrote a concurring opinion, in which Judge Motz, Judge Thacker and Judge Harris joined. Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer, Judge Agee, and Judge Quattlebaum joined, in which Judge Diaz joined Part I, Judge Richardson joined Parts I, II, and III, and Judge Rushing joined Parts I and II. Judge Niemeyer wrote a dissenting opinion. Judge Diaz wrote a dissenting opinion.
Attorneys and Law Firms
ARGUED: Brett Max Kaufman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Andre M. Davis, Baltimore, Maryland, for Appellees. ON BRIEF: David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland;

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

Ashley Gorski, Alexia Ramirez, Nathan Freed Wessler, Ben Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Dana M. Moore, Acting City Solicitor, Elisabeth S. Walden, Chief Legal Counsel, Kara K. Lynch, Chief Solicitor, Police Legal Affairs Practice Group, Rachel Simmonsen, Co-Director, Michael Redmond, Co-Director, Appellant Practice Group, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees. Sherrilyn A. Ifill, President and Director-Counsel, Samuel Spital, Kevin E. Jason, New York, New York, Christopher Kemmitt, Mahogane Reed, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., Washington, D.C., for Amicus NAACP Legal Defense & Educational Fund, Inc. Rachel Levinson-Waldman, Laura Hecht-Felella, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Washington, D.C.; Elizabeth Franklin-Best, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina; John W. Whitehead, Douglas R. McKusick, RUTHERFORD INSTITUTE, Charlottesville, Virginia; Sophia Cope, Mark Rumold, Adam Schwartz, Saira Hussain, Hannah Zhao, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici Electronic Frontier Foundation, Brennan Center for Justice, Electronic Privacy Information Center, Freedomworks Foundation, National Association of Criminal Defense Lawyers, and Rutherford Institute. Laura Moy, Michael Rosenbloom, Communications & Technology Law Clinic, GEORGETOWN LAW, Washington, D.C., for Amicus Center on Privacy & Technology at Georgetown Law. Barry Friedman, Farhang Heydari, Max Isaacs, POLICING PROJECT AT NEW YORK UNIVERSITY SCHOOL OF LAW, New York, New York, for Amicus The Policing Project.
Before GREGORY, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Floyd, Judge Thacker, and Judge Harris joined. Chief Judge Gregory wrote a concurring opinion, in which Judge Wynn, Judge Thacker, and Judge Harris joined. Judge
2

Wynn wrote a concurring opinion, in which Judge Motz, Judge Thacker and Judge Harris joined. Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer, Judge Agee, and Judge Quattlebaum joined, in which Judge Diaz joined Part I, Judge Richardson joined Parts I, II, and III, and Judge Rushing joined Parts I and II. Judge Niemeyer wrote a dissenting opinion. Judge Diaz wrote a dissenting opinion.
ON REHEARING EN BANC
GREGORY, Chief Judge:
*1 The Plaintiffs—a group of grassroots community advocates in Baltimore—moved to enjoin implementation of the Aerial Investigation Research (“AIR”) program, a first-of-its-kind aerial surveillance program operated by the Defendants—the Baltimore Police Department (“BPD”) and Commissioner Michael Harrison.
While appeal was pending, the program completed its pilot run and Baltimore City leadership decided not to renew its operation. Defendants deleted the bulk of the AIR data, only retaining materials that relate to specific investigations. Defendants then moved to dismiss this appeal as moot. Because Plaintiffs also sought to enjoin Defendants’ access to any data collected by the AIR program, and Defendants retain the data that proved fruitful, we hold that the appeal is not moot.
On the merits, because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment. Therefore, we reverse and remand.
I.
“Any Fourth Amendment analysis ... must be grounded on an accurate understanding of the facts.” United States v. Curry, 965 F.3d 313, 316 (4th Cir. 2020). In this case, reaching such an understanding has been controversial. We present the facts in detail, given their high degree of relevance. See generally Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 456 F. Supp. 3d 699, 703–06 (D.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

Md. 2020).
A.
In August 2016, the public learned for the first time that the BPD was using new aerial technology—planes equipped with high-tech cameras—to surveil Baltimore City. News reports revealed that, several months earlier, BPD partnered with a private contractor based in Ohio, Persistent Surveillance Systems (“PSS”), to conduct aerial surveillance. In the face of public outcry, the program was discontinued.
In December 2019, BPD Commissioner Michael Harrison announced the AIR program, a renewed aerial surveillance partnership with PSS. This time, BPD planned a series of townhall-style community meetings to inform the public about the program ahead of a six-month pilot run. BPD held the first meeting on March 11, 2020. Two additional meetings were cancelled due to the COVID-19 pandemic; as a substitute, BPD streamed its presentation on its Facebook page on March 23 and again on March 30. The following day, April 1, 2020, the Baltimore City Board of Estimates voted to execute the contract between BPD and PSS—the Professional Services Agreement (“PSA”)—approving the AIR program. The funding for the contract—an initial request of $3,690,667—did not come from the City budget; a private philanthropic organization, Arnold Ventures, sponsored the program.
The AIR program uses aerial photography to track movements related to serious crimes. Multiple planes fly distinct orbits above Baltimore, equipped with PSS’s camera technology known as the “Hawkeye Wide Area Imaging System.” The cameras capture roughly 32 square miles per image per second. The planes fly at least 40 hours a week, obtaining an estimated twelve hours of coverage of around 90% of the city each day, weather permitting. The PSA limits collection to daylight hours and limits the photographic resolution to one pixel per person or vehicle, though neither restriction is required by the technology. In other words, any single AIR image—captured once per second—includes around 32 square miles of Baltimore and can be magnified to a point where people and cars are individually visible, but only as blurred dots or blobs.
*2 The planes transmit their photographs to PSS “ground
3

stations” where contractors use the data to “track individuals and vehicles from a crime scene and extract information to assist BPD in the investigation of Target Crimes.” J.A. 70, 130. “Target Crimes” are homicides and attempted murder; shootings with injury; armed robbery; and carjacking. Between 15 and 25 PSS contractors analyze the data, working in two shifts per day, seven days per week. The AIR program is not designed to provide real-time analysis when a crime takes place, though.1
Rather, the analysts prepare “reports” and “briefings” about a Target Crime as requested by the BPD officers on the case. PSS aims to provide an initial briefing within 18 hours and a more in-depth “Investigation Briefing Report” within 72 hours. The reports may include, from both before and after the crime: “observations of driving patterns and driving behaviors”; the “tracks” of vehicles and people present at the scene; the locations those vehicles and people visited; and, eventually, the tracks of the people whom those people met with and the locations they came from and went to. J.A. 72, 132. Further, PSS may “integrate ... BPD systems” into its proprietary software “to help make all of the systems work together to enhance their ability to help solve and deter crimes.” J.A. 71, 132. The PSA lists BPD’s dispatch system, “CitiWatch” security cameras, “Shot Spotter” gunshot detection, and license plate readers as systems to be integrated. As a result, AIR reports may include ground-based images of the surveilled targets from “the cameras they pass on the way.” J.A. 70–72.
AIR data is stored on PSS’s servers, and “[PSS] will retain the AIR imagery data for forty-five days.”2 J.A. 73. PSS maintains the reports, and related images, indefinitely as necessary for legal proceedings and until relevant statutes of limitations expire. Finally, BPD and PSS enlisted independent institutions to evaluate the AIR program in its pilot period. For example, the RAND Corporation was awarded a grant to evaluate effectiveness in improving policing outcomes; the University of Baltimore was assigned to study community perceptions and reactions; and the Policing Project at New York University School of Law (“Policing Project”) was enlisted to conduct a “civil rights and civil liberties audit.” J.A. 79–82, 132.
B.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

Plaintiffs are grassroots community advocates in Baltimore. Their advocacy necessarily involves traveling through and being present outdoors in areas with high rates of violent crime. For example, Erricka Bridgeford leads Ceasefire Baltimore and, in that capacity, visits scenes of gun violence as soon as possible after a crime takes place. On April 9, 2020—about a week after the City executed the PSA and just before the pilot program commenced—Plaintiffs filed suit against the BPD and Commissioner Harrison in his official capacity. As relevant here, Plaintiffs challenged the constitutionality of the AIR program under the Fourth Amendment via 42 U.S.C. § 1983.
*3 Among other relief, Plaintiffs requested that the district court enjoin the Defendants from operating the AIR program, “including collecting or accessing any images through the program.” J.A. 27. Plaintiffs moved for a temporary restraining order and preliminary injunction. Given that the program was set to launch, the district court acted quickly to conference with the parties and hold a preliminary injunction hearing. On April 24, 2020, the district court denied the motion for preliminary relief. The planes took flight a week later.
Plaintiffs filed notice of appeal the same day the district court denied their motion. As soon as their appeal was docketed, Plaintiffs moved to accelerate the proceedings, which Defendants opposed. We granted the motion on May 1, adopting an accelerated briefing schedule. By mid-June, Plaintiffs filed another motion to accelerate the proceedings, this time requesting accelerated scheduling of oral argument, which Defendants opposed. We denied that motion on July 20, and oral argument was eventually calendared for September 10.
The panel issued an opinion on November 5, 2020. The split decision affirmed the district court, agreeing that Plaintiffs’ Fourth Amendment claim was unlikely to succeed on the merits. Plaintiffs filed a petition for rehearing en banc two weeks later, which we granted on December 22, 2020.
C.
Meanwhile, the AIR program’s pilot period concluded. Although the planes stopped flying on October 31, 2020, BPD continued sending PSS requests for analysis of AIR data through December 8, 2020—the day that the new
4

Mayor of Baltimore City, who publicly opposed the program, began serving a four-year term.
Based on the pilot’s mixed results, the City ultimately decided not to continue the AIR program. BPD initially continued storing the data that it had retained to that point; 1,916.6 hours of coverage comprised of 6,683,312 images. Then, over two weeks in January 2021, BPD and PSS3 deleted most of the data.
They announced the deletion event on February 2, 2021. Defs.’ Mot. to Dismiss, Ex. B, ECF No. 79. Their decision was based on the “desire to minimize retained data, and in light of the [Policing Project] report.”4 Id. at 1. Rather than store entire days’ worth of data, they elected to retain images from 15 minutes before and after the first and last “track point” for a case, and only within a quarter mile of any track point. Id. They believed this data was the “minimum amount” necessary to support PSS’s reports and “to support the prosecution and the defense teams” in the 200 cases aided by the AIR program, including 150 open investigations. Id. The deletion “result[ed] in a total retained imagery data of 14.2% of the captured imagery data.” Id. In raw numbers, that is 264.82 hours of coverage, comprised of 953,337 cropped images. Id. In addition, “[t]he 200 investigation briefings and other ground-based videos” generated by the AIR program “have already been uploaded to BPD’s Evidence.com.” Id.
*4 The next day, on February 3, 2021, the Board of Estimates voted to terminate the PSA. In public statements before the vote, Acting City Solicitor Jim Shea stated that the termination would moot this appeal and that the City planned to promptly file a suggestion of mootness. The next day, Defendants filed a motion to dismiss on mootness grounds. The en banc hearing took place on March 8, 2021.
II.
We first address mootness, which goes to our jurisdiction under Article III. See Chafin v. Chafin, 568 U.S. 165, 171–72, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013). Defendants argue that Plaintiffs’ request for preliminary relief is now moot because the AIR program has already concluded on its own terms. They emphasize that data collection has stopped, no new tracking analysis is taking place, and the PSA has been terminated.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

A case becomes moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. at 172, 133 S.Ct. 1017 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013)). For that to be the case, it must be “impossible for a court to grant any effectual relief whatever to the prevailing party.” Id. (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012)).
Plaintiffs’ appeal presents a live controversy. Plaintiffs moved the district court to enjoin BPD “from operating the [AIR] program” and from “accessing any stored images created ... during the pendency of this lawsuit.” While the planes have stopped flying, the fruits of the AIR program persist. BPD stores AIR program images and reports and is free to access them at any time.5 The information relates to around 200 criminal cases, roughly 150 of which remain open investigations. 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. Therefore, Plaintiffs have a concrete interest in the outcome of this appeal, and it is possible for this Court to grant them effectual relief. See Chafin, 568 U.S. at 172, 133 S.Ct. 1017.
Defendants respond that “BPD has no intention of accessing the data to track and potentially identify individuals,” and the termination of the PSA means that BPD has no ability to do so on its own.6 But Plaintiffs sought to enjoin BPD from “accessing” AIR data, full stop. There are any number of reasons why BPD might access the tracked movements, and underlying images, that it already has. Dozens of cases involving AIR data remain open. BPD could access AIR program materials to confirm or discredit new information that comes to light. In so doing, BPD would access images collected by allegedly unconstitutional means in which Plaintiffs may be depicted. And, in accessing tracks that PSS already created, BPD would access past movements that were derived only by virtue of recording all public movements across Baltimore, including those of the Plaintiffs. The requisite personal interest that Plaintiffs had at the beginning of the case continues to exist now. See Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017).
5

*5 Deletion of the unused AIR data does make it less likely that Plaintiffs appear in what remains. Still, as the district court found, Plaintiffs are more likely to be captured in AIR data than most because they work in high crime areas, sometimes soon after serious crimes take place. It remains at least possible that Plaintiffs appear in the remaining data, given that images were retained based on their connection to criminal incidents. As this Court recently explained, “improbability and impossibility are not the same thing.” N.C. State Conference of the NAACP v. Raymond, 981 F.3d 295, 302 (4th Cir. 2020).
Defendants also stress that BPD has deleted “all but 14.2 percent” of AIR images. Defs. Mot. to Dismiss 6. But 14.2 percent of all the data collected—millions of photographs documenting thousands of hours of public movements over six months—is a significant quantity of information. Indeed, the preserved 14.2 percent is the needle in the proverbial haystack that the AIR program was designed to discover. Only after recording movements across Baltimore for twelve hours per day could BPD zero in on specific dates and locations related to its investigations and then delete the excess. And BPD still has the briefings and reports, which feature AIR images and tracked movements, information and images from other BPD systems, and insights from PSS’s analysis. Even after the bulk deletion, Plaintiffs have a concrete interest in an injunction barring BPD from accessing what remains, “however small” the interest may be. See Chafin, 568 U.S. at 172, 133 S.Ct. 1017.
Undoubtedly, the effect of any preliminary injunction would now be narrower than when Plaintiffs first requested relief in April 2020, before the AIR planes ever took flight. But all that matters to Article III is that a genuine controversy exists. See Already, LLC, 568 U.S. at 90–91, 133 S.Ct. 721. So long as its threshold requirements are satisfied, we are obliged to consider the appeal. See, e.g., United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203–04, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (“But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it.”). Because an injunction would have some effect, this appeal presents a controversy with live issues and legally cognizable interests at stake. The questions presented “can[ ] affect the rights of litigants in the case before [us].” See CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 474 (4th Cir. 2015) (quoting DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974)). We may not deprive Plaintiffs of their appeal rights, which they

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

have litigated fastidiously, merely because the consequences of the appeal have shrunk considerably or because we judge the value of the prospective relief to be insignificant. Cf. Raymond, 981 F.3d at 302 (holding that “the present appeal may well matter, and the case is not moot,” even though recent events “might [have made] relief ... impossible”).
These facts distinguish our recent decision in Fleet Feet, Inc. v. NIKE, Inc., 986 F.3d 458 (4th Cir. 2021). In that case, the plaintiff obtained a preliminary injunction to bar the defendant from using a certain phrase in its advertising, interrupting an ongoing marketing campaign, and the defendant appealed. Id. at 462. In the meantime, the campaign ended, and the defendant represented that it did not plan to use the phrase again. Id. at 462–63. This Court held that the appeal was moot because the end of the campaign “foreclosed any possible relief to [the defendant] based on the preliminary injunction’s interference.” Id. at 463. The defendant argued it continued to be restricted by the injunction, which also precluded any use of “confusingly similar” language. Id. That argument presented only a “potential controversy” at best: the defendant “hasn’t engaged in speech barred by the order so far and doesn’t claim that it intends to do so in the future.” Id. at 464 (“There simply isn’t any injury for a court to redress.”).
*6 Both that case and this one concern a preliminary injunction ruling, where the conduct at issue diminished while appeal was pending. The similarities end there. In Fleet Feet, the injunction was granted, and the appellant was the enjoined party. Yet even the defendant-appellant agreed that the enjoined conduct was finished and would not restart. The mootness question turned on whether the injunction continued to impose some injury, such that its reversal could grant relief. Here, Defendants are both the party responsible for winding down the challenged conduct and the party raising mootness. In the absence of an injunction, the mootness question turns on whether any aspect of that conduct continues.7 And, indeed, Defendants’ access to AIR data continues, and Plaintiffs sought to enjoin any such access. There was no equivalent ongoing dimension in Fleet Feet.
Nor does BPD’s access present only a “potential controversy.” BPD has access to the data right now. True, Plaintiffs’ constitutional claims turn on BPD’s use of AIR data to track movements and identify individuals. But the controversy here does not require BPD potentially doing that again in the future. BPD has already tracked movements and identified individuals with AIR data and
6

now has access to the resulting intelligence. Just like when their Complaint was filed, 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. See Chafin, 568 U.S. at 172, 133 S.Ct. 1017.
Accordingly, we deny Defendants’ motion to dismiss the appeal. Since Article III is satisfied, we next consider the merits of Plaintiffs’ appeal from the district court’s denial of their motion for a preliminary injunction.
III.
A preliminary injunction is an extraordinary remedy. In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 170–71 (4th Cir. 2019). To justify its application, a plaintiff must establish that 1) they are likely to succeed on the merits; 2) they are likely to suffer irreparable harm absent preliminary relief; 3) the balance of the equities favors relief; and 4) the relief is in the public interest. Id.
We review a district court’s denial of a preliminary injunction for abuse of discretion, reviewing factual findings for clear error and legal conclusions de novo. Id. at 171. “A court abuses its discretion in denying preliminary injunctive relief when it ‘rest[s] its decision on a clearly erroneous finding of a material fact, or misapprehend[s] the law with respect to underlying issues in litigation.’ ” Id. (quoting Centro Tepeyac v. Montgomery County, 722 F.3d 184, 188 (4th Cir. 2013)). Likewise, the court abuses its discretion when it makes an error of law or ignores unrebutted, significant evidence. Id.
A.
The Fourth Amendment safeguards “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” providing that “no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. In Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), the Supreme Court repeated that “[t]he ‘basic purpose of this Amendment’ ... ‘is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ ” Id. at

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

2213 (quoting Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). “The Founding generation crafted the Fourth Amendment as a ‘response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’ ” Id. (quoting Riley v. California, 573 U.S. 373, 403, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)); see also Messerschmidt v. Millender, 565 U.S. 535, 560, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (Sotomayor, J., dissenting) (“Early patriots railed against these practices as ‘the worst instrument of arbitrary power’ and John Adams later claimed that ‘the child Independence was born’ from colonists’ opposition to their use.”) (quoting Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).
*7 In the time since, “technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes.” Id. Carpenter applied these founding principles to “a new phenomenon: the ability to chronicle a person’s past movements through the record of [their] cell phone signals.” Id. at 2213–23 (referring to cell-site location information (“CSLI”)). The Court concluded that this ability invades reasonable expectations of privacy and, therefore, accessing CSLI was a Fourth Amendment “search.” Id. (applying Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).
Plaintiffs argued the AIR program violates Carpenter. The district court rejected the analogy, relying on precedents that approved warrantless pole cameras and flyover photography, and distinguishing CSLI as “a far more intrusive, efficient, and reliable method of tracking a person’s whereabouts.” Beautiful Struggle, 456 F. Supp. 3d at 712–16. The district court’s conclusion arose from its read of the facts: “the AIR pilot program has limited location-tracking abilities” because it “will only depict individuals as miniscule dots moving about a city landscape”; the planes “will not fly at night and cannot capture images in inclement weather”; and “gaps in the data will prohibit the tracking of individuals over the course of multiple days.” Id. at 714, 716. From that premise, it believed the AIR program could not expose the “privacies of life.” See id.
The district court misapprehended the AIR program’s capabilities. We conclude that Plaintiffs are likely to succeed on the merits of their Fourth Amendment claim and, because the remaining factors counsel in favor of
7

preliminary relief, we reverse.
B.
The touchstone in Carpenter was the line of cases addressing “a person’s expectation of privacy in [their] physical location and movements.” 138 S. Ct. at 2214–16. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), a tracking “beeper” on a suspect’s car—which, using radio technology, required police to follow along—was not a search. See id. at 281–84, 103 S.Ct. 1081. The Court concluded that people have no reasonable expectation of privacy in their “movements from one place to another,” given that they “voluntarily conveyed [them] to anyone who wanted to look.” Id. at 281–82, 103 S.Ct. 1081 (qualifying that if “dragnet type law enforcement practices ... should eventually occur,” then “different constitutional principles may be applicable”). The beeper only augmented, to a permissible degree, warrantless capabilities the police had even before the technology. See id.; see also Kyllo v. United States, 533 U.S. 27, 33–35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (asking “how much technological enhancement of ordinary perception ... is too much,” and concluding that thermal imaging of a home was a search because officers used “sense-enhancing technology,” beyond “naked-eye surveillance,” to obtain information “that could not otherwise have been obtained”).
Decades later, in United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), location-tracking technology crossed the line from merely augmenting to impermissibly enhancing. There, police used a GPS-tracking device to remotely monitor and record a vehicle’s movements over 28 days. Id. at 402–04, 132 S.Ct. 945. Although the case was ultimately decided on trespass principles, five Justices agreed that “longer term GPS monitoring ... impinges on expectations of privacy.” See id. at 430, 132 S.Ct. 945 (Alito, J., concurring); id. at 415, 132 S.Ct. 945 (Sotomayor, J., concurring). Based on “[t]raditional surveillance” capacity “[i]n the precomputer age,” the Justices reasoned that “society’s expectation” was that police would not “secretly monitor and catalogue every single movement of an individual’s car for a very long period.” See id. at 430, 132 S.Ct. 945 (Alito, J., concurring); see also id. at 415, 132 S.Ct. 945 (Sotomayor, J., concurring) (agreeing).
*8 Applying Jones, Carpenter identified “a reasonable

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

expectation of privacy in the whole of [a person’s] physical movements,” and held that “government access to [CSLI] contravenes that expectation.” Carpenter, 138 S. Ct. at 2217 (“A person does not surrender all Fourth Amendment protection by venturing into the public sphere.”). A cell phone’s location over time “provides an all-encompassing record of the holder’s whereabouts,” and such a “deep repository of historical location information” opens “an intimate window into a person’s life.” Id. at 2217–18 (“[R]evealing not only [their] particular movements, but through them [their] ‘familial, political, professional, religious, and sexual associations.’ ”) (quoting Jones, 565 U.S. at 415, 132 S.Ct. 945 (Sotomayor, J., concurring)). Unlike the radio beeper in Knotts, the “retrospective quality” of CSLI enables the government to “travel back in time to retrace a person’s whereabouts,” granting access “to a category of information otherwise unknowable.” Id. at 2218. And, “[c]ritically,” because all cell phone locations are logged, not just those “who might happen to come under investigation,” that “newfound tracking capacity runs against everyone.” Id.
Thus, Carpenter solidified the line between short-term tracking of public movements—akin to what law enforcement could do “[p]rior to the digital age”—and prolonged tracking that can reveal intimate details through habits and patterns. See id. The latter form of surveillance invades the reasonable expectation of privacy that individuals have in the whole of their movements and therefore requires a warrant. See id.
C.
Carpenter applies squarely to this case. See id. at 2215–19. More like the CSLI in Carpenter and GPS-data in Jones than the radio-beeper in Knotts, the AIR program “tracks every movement” of every person outside in Baltimore. See id. at 2215–19. Because the data is retained for 45 days—at least—it is a “detailed, encyclopedic,” record of where everyone came and went within the city during daylight hours over the prior month-and-a-half. See id. Law enforcement can “travel back in time” to observe a target’s movements, forwards and backwards. See id. at 2218. Without technology, police can attempt to tail suspects, but AIR data is more like “attach[ing] an ankle monitor” to every person in the city. See id. “Whoever the suspect turns out to be,” they have “effectively been tailed” for the prior six weeks. See
8

id. (“[P]olice need not even know in advance whether they want to follow a particular individual, or when.”). Thus, the “retrospective quality of the data” enables police to “retrace a person’s whereabouts,” granting access to otherwise “unknowable” information. See id.
We do not suggest that the AIR program allows perfect tracking of all individuals it captures across all the time it covers. Though data is collected in 12-hour increments, the tracks are often shorter snippets of several hours or less. Still, the program enables 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. That is enough to yield “a wealth of detail,” greater than the sum of the individual trips. See Jones, 565 U.S. at 415–17, 132 S.Ct. 945 (Sotomayor, J., concurring) (suggesting people do not expect “that their movements will be recorded and aggregated in a manner that enables the government to ascertain” details of their private lives). It enables deductions about “what a person does repeatedly, what he does not do, and what he does ensemble,” which “reveal[s] more about a person than does any individual trip viewed in isolation.” United States v. Maynard, 615 F.3d 544, 562–63 (D.C. Cir. 2010).8 Carpenter held those deductions go to the privacies of life, the epitome of information expected to be beyond the warrantless reach of the government. 138 S. Ct. at 2214, 2218. And here, as there, the government can deduce such information only because it recorded everyone’s movements. See id. at 2218.
*9 Therefore, because the AIR program opens “an intimate window” into a person’s associations and activities, it violates the reasonable expectation of privacy individuals have in the whole of their movements. See id. at 2218–19. The district court reached the opposite conclusion because it believed, as Defendants argue on appeal, that the AIR program is capable of only short-term tracking. It emphasized that AIR images show people only as “a series of anonymous dots traversing a map of Baltimore,” and the planes do not fly over night, so “gaps in the data will prohibit the tracking of individuals over the course of multiple days.” See, e.g., Beautiful Struggle, 456 F. Supp. 3d at 714, 716.
But those facts don’t support the district court’s conclusion. The datasets in Jones and Carpenter had gaps in their coverage, too. The GPS data in Jones only tracked driving, in a specific car, precise to “within 50 to 100 feet.” See 565 U.S. at 404, 132 S.Ct. 945. The raw CSLI in Carpenter was a log of thousands of estimated location

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

points from which a cell phone pinged a cell tower. 138 S. Ct. at 2211–12, 2218 (“[The CSLI] placed [the suspect] within a wedge-shaped sector ranging from one-eighth to four square miles.”). Yet, in both cases, the surveillance still surpassed ordinary expectations of law enforcement’s capacity and provided enough information to deduce details from the whole of individuals’ movements. See id. at 2217–18 (“[Police] might have pursued a suspect for a brief stretch, but doing so ‘for any extended period of time was difficult and costly and therefore rarely undertaken’ .... [and] attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection.”) (quoting Jones, 565 U.S. at 429, 132 S.Ct. 945).
The same is true here. That Defendants chose to limit data collection to daylight hours and a certain resolution does not make the AIR program equivalent to traditional, short-term surveillance. 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. And if a track is interrupted by sunset, police will at least sometimes be able to re-identify the same target over consecutive days. For example, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. They could then look through time and track movements from that residence. 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.9
*10 The record supports these intuitive conclusions. Plaintiffs submitted research showing that, because people’s movements are so unique and habitual, it is almost always possible to identify people by observing even just a few points of their location history. The district court disregarded Plaintiffs’ study because it was based on CSLI.10 But the source of the underlying location data is entirely irrelevant: the study shows that identity is easy to deduce from just a few random points of an individual’s movements. Whether those points are obtained from a cell phone pinging a cell tower or an airplane photographing a city makes no difference.
9

Beyond Plaintiffs’ study, common sense and ample authority over the last decade corroborates this conclusion.11
Further, the AIR program does not deduce identity from randomly selected location points, like in a research study. Rather, the context of specific investigations narrows the pool of possible identities. Police can cross-reference against publicly available information and, even more valuably, their own data systems. PSS can enhance the process by integrating BPD systems—like its CitiWatch camera network, license plate readers, and gunshot detectors—into its “iView software,” “mak[ing] all the systems work together.” J.A. 71, 132. For example, if the tracking of a car is interrupted, license plate readers could help relocate it in the AIR data over the following days. Yet the district court disregarded these capabilities, reasoning that Plaintiffs were “lump[ing] together discrete surveillance activities as one Fourth Amendment ‘search.’ ” Beautiful Struggle, 456 F. Supp. 3d at 716. “The addition of one more investigative tool—in this case, aerial surveillance—does not render the total investigatory effort a Fourth Amendment ‘search.’ ” Id.
But Plaintiffs never identified “the total investigatory effort” as the “search” here. Carpenter was clear on that issue: a search took place “when the Government accessed CSLI from the wireless carriers.” 138 S. Ct. at 2219–20 (“The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.”) (emphases added). But to identify a “search,” we identify an invasion of a reasonable privacy expectation. To do that, we consider not only the raw data, but what that data can reveal. See id. at 2218. BPD can deduce an individual’s identity from AIR data, other available information, and some deductive reasoning. The integration of police information systems supports that conclusion. When coupled with a highly precise map of movements across at least 45 days, these abilities enable police to glean insights from the whole of individuals’ movements. Therefore, when BPD “accesses” AIR data, it invades the recorded individuals’ reasonable expectation of privacy, conducting a search. See id.
*11 Carpenter applied the same rationale: “From the 127 days of location data it received” (the search) “the Government could, in combination with other information, deduce a detailed log of Carpenter’s movements” (the reason a privacy violation occurred). See id. (emphasis added). The government needed to use additional information, beyond the CSLI, to deduce the suspect’s movements. Yet Carpenter was not “lump[ing]

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

together discrete surveillance activities” to form a single, hodgepodge search. Instead, because it was the CSLI that enabled the deductions, the search took place when the government accessed the CSLI alone. Regarding AIR data as just “one more investigative tool” does exactly what the Supreme Court has admonished against; it allows inference to insulate a search. See Carpenter, 138 S. Ct. at 2218; Kyllo, 533 U.S. at 36 & n.4, 121 S.Ct. 2038. The “analysis (i.e., the making of inferences)” involved in the AIR program may be more labor intensive than deducing location history from CSLI, or details about the inside of a home from its thermal image, or the fact of a beeper’s presence inside a home from its activation. See Kyllo, 533 U.S. at 36 & n.4, 121 S.Ct. 2038 (citing United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)). Nevertheless, because AIR data is what enables deductions from the whole of individuals’ movements, the Fourth Amendment bars BPD from warrantless access to engage in that labor-intensive process.
For all these reasons, the AIR program’s surveillance is not “short-term” and transcends mere augmentation of ordinary police capabilities. People understand that they may be filmed by security cameras on city streets, or a police officer could stake out their house and tail them for a time. See Maynard, 615 F.3d at 560 (“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work.”). But capturing everyone’s movements outside during the daytime for 45 days goes beyond that ordinary capacity. See id. (“It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.”).
With this proper factual perspective, a comparison to other “aerial surveillance methods” is misplaced. The district court concluded that warrantless pole cameras and flyovers by planes and helicopters, which “the Supreme Court and the Fourth Circuit have generally upheld,” are “far more intrusive means of aerial surveillance” than the AIR program. Beautiful Struggle, 456 F. Supp. 3d at 712–14 (“[AIR data] cannot capture a suspect’s bodily movements, observe facial expressions, record in real-time, zoom-in on suspicious activities, ....”). But those cases all involve some discrete operation surveilling individual targets. And pole cameras are fixed in place, meaning they generally only capture individual trips. Here, Plaintiffs do not object to what any one AIR image reveals or claim a privacy invasion related solely to being
10

photographed. See Carpenter, 138 S. Ct. at 2220 (“[T]his case is not about ... a person’s movement at a particular time.”). Rather, they challenge the creation of a retrospective database of everyone’s movements across the city. See id. (“It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, .... [and] [s]uch a chronicle implicates privacy concerns.”). Once police identify a tracked “dot,” its blurred image does little to shield against an invasion into its movements.
Thus, the AIR program’s “aerial” nature is only incidental to Plaintiffs’ claim, just as cell phone technology is ultimately incidental to the outcome in Carpenter. It is precedents concerning privacy in “physical location and movements” that control. See id. at 2215. And even though flyovers and pole cameras can sometimes reveal intimate information like the AIR program does, that does not mean the AIR program’s citywide prolonged surveillance campaign must be permissible as well. See Kyllo, 533 U.S. at 35 n.2, 121 S.Ct. 2038 (“The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.”); Maynard, 615 F.3d at 565–66 (“[W]hen it comes to the Fourth Amendment, means do matter.”).
*12 The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, 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.
D.
The remaining Winter factors counsel in favor of preliminary relief. Because there is a likely constitutional violation, the irreparable harm factor is satisfied. See Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’ ”) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). Likewise, the balance of the equities favors preliminary relief because “[our] precedent counsels that ‘a state is in no way harmed by

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.” See Centro Tepeyac, 722 F.3d at 191 (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)).12 Finally, it is well-established that the public interest favors protecting constitutional rights. See id. (“It also teaches that ‘upholding constitutional rights surely serves the public interest.’ ”) (quoting Giovani Carandola, 303 F.3d at 521). Therefore, we hold that the district court abused its discretion in denying Plaintiffs’ motion for a preliminary injunction, and we reverse.
IV.
Defendants told us that “this case is about as far from Carpenter as you’re ever going to get.” Oral Arg. at 1:46:40. They distinguished Carpenter as concerning “targeted investigative activity of individuals,” where investigators “already had the phone number and they already had the [suspect’s] identity” and then requested specific CSLI. Id. This does highlight an important distinction, but it cuts in the other direction. In Carpenter, service providers collected comprehensive location data from their subscribers. As Defendants point out, the government’s only role was to request that data as to specific investigations. Under the AIR program, the government does both. The government continuously records public movements. Then, the government—once officers know where (and when) to look—tracks movements related to specific investigations. Only by harvesting location data from the entire population could BPD ultimately separate the wheat from the chaff, retaining the 14.2 percent that was useful.
*13 Allowing the police to wield this power unchecked is anathema to the values enshrined in our Fourth Amendment. Cf. Jones, 565 U.S. at 416–17, 132 S.Ct. 945 (Sotomayor, J., concurring) (questioning “the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power”). By protecting the people against unreasonable searches, the Constitution “protects all, those suspected or known to be offenders as well as the innocent.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–57, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (emphasis added). By
11

rejecting the general warrant, the Constitution rejects searches based on “loose, vague or doubtful bases of fact,” which even “before the creation of our government,” we “deemed obnoxious to fundamental principles of liberty.” Id.
Protection against such harms remains a vital constitutional function. Baltimore is a thoroughly surveilled city. See generally J. Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag., Mar. 2021, at 96 (discussing cell site simulators, helicopters, security cameras, police access to residential cameras, police body cameras, and facial recognition software). “[Mass surveillance] touches everyone, but its hand is heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.” Barton Gellman & Sam Adler-Bell, Century Found., The Disparate Impact of Surveillance 2 (2017). While technology “allow[s] government watchers to remain unobtrusive,” the impact of surveillance “[is] conspicuous in the lives of those least empowered to object.” Id. Because those communities are over-surveilled, they tend to be over-policed, resulting in inflated arrest rates and increased exposure to incidents of police violence. See generally Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125 (2017) (explaining the “circuits of violence” caused by Black people’s disproportionate exposure to “ongoing police surveillance and contact”); see also Osagie K. Obasogie & Zachary Newman, Police Violence, Use of Force Policies, and Public Health, 43 Am. J. of L. & Med. 279 (2017) (finding that “the hyper- and over-policing of urban areas results in increased surveillance,” such that “race and class ... determine who is exposed to the risks of policing”).
That is not to express our opposition to innovation in policing or the use of technology to advance public safety. It is only to emphasize that the role of the warrant requirement remains unchanged as new search capabilities arise. See Riley, 573 U.S. at 401, 134 S.Ct. 2473 (“Our cases have historically recognized the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.’ ”) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); Curry, 965 F.3d at 336–37 (Wynn, J., concurring) (“[O]ur analysis must stay rooted in constitutional principles, rather than turn on naked policy judgments derived from our perception of the beneficial effects of novel police

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

techniques.”); see, e.g., Riley, 573 U.S. at 403, 134 S.Ct. 2473 (“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”). The Fourth Amendment must remain a bastion of liberty in a digitizing world. Too often today, liberty from governmental intrusion can be taken for granted in some neighborhoods, while others “experience the Fourth Amendment as a system of surveillance, social control, and violence, not as a constitutional boundary that protects them from unreasonable searches and seizures.” Carbado, Pathways to Violence, supra, at 130. 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.” See Messerschmidt, 565 U.S. at 560, 132 S.Ct. 1235 (Sotomayor, J., dissenting). Because that collection enables Defendants to deduce information from the whole of individuals’ movements, this case is not “far from Carpenter”; indeed, it is controlled by it.
*14 We reverse the denial of Plaintiffs’ motion for a preliminary injunction and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
GREGORY, Chief Judge, with whom Judges WYNN, THACKER and HARRIS join, concurring:
The dissent faults the majority for making “[n]o mention whatsoever” of Baltimore’s high murder rate. Diss. Op., infra, at –––– – ––––, –––– – ––––, ––––. Because the dissent would not enjoin a police surveillance system, it purports to champion “our dispossessed communities” and “the most vulnerable among us.” See Diss. Op. at ––––, ––––, ––––, ––––. It suggests the majority, by contrast, “contribute[s] to the continuation” of violence and “leaves only hopelessness” for “the good people of Baltimore.” Diss. Op. at ––––, ––––.
This critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons. Of
12

course, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Abraham Maslow, The Psychology of Science: A Reconnaissance, 15–16 (1966). But many Baltimoreans know these institutions all too well as the only response to violence. See generally Elizabeth Hinton, From the War on Poverty to the War on Crime (2016); James Forman Jr., Locking Up Our Own (2017); Policing the Black Man (Angela J. Davis ed., 2017).

I am skeptical that this logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for. Despite passing references to “systemic inequality,” “interrelationships,” and “foundational ill[s],” Diss. Op. at ––––, ––––, the dissent entirely disregards the systems, relationships, and foundational problems that have perpetuated Baltimore’s epidemic of violence. Most notably, Baltimore was the first city to implement formal racial segregation in 1910; subsequently, the federal government further “redlined” the city—assigning racial categories to city blocks and restricting homebuying accordingly. Garrett Power, Apartheid Baltimore Style: The Residential Segregation Ordinances of 1910–1913, 42 Md. L. Rev. 289, 298–303 (1983); Antero Pietila, Not in My Neighborhood, 5–31, 47–74 (2012). These policies divided the city largely along the lines of color.

Many measures of resource distribution and public

well-being now track the same geographic pattern:

investment in construction; urban blight; real estate sales;

household loans; small business lending; public school

quality; access to transportation; access to banking; access

to fresh food; life expectancy; asthma rates; lead paint

exposure rates; diabetes rates; heart disease rates; and the

list goes on. See Urb. Inst., The Black Butterfly (Feb. 5,

2019),

https://apps.urban.org/features/baltimore-investment-flow

s (saved as ECF opinion attachment); Marceline White,

Nat’l Cmty. Reinvestment Coal., Baltimore: The Black

Butterfly

(Oct.

8,

2020),

https://ncrc.org/the-black-butterfly (saved as ECF opinion

attachment). Segregation effectively plundered

Baltimore’s Black neighborhoods—transferring wealth,

public resources, and investment to their white

counterparts—and the consequences persist today. Cf.

Samuel Dubois Cook Ctr. On Soc. Equity, The Plunder of

Black Wealth in Chicago (May 2019); see generally

Richard Rothstein, The Color of Law (2017). So it is no

coincidence that gun violence mostly occurs in the

portions of the city that never recovered from

state-sanctioned expropriation. Absent reinvestment,

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

cycles of poverty and crime have proliferated.
*15 To suggest that the AIR program is so obviously a lifeline for these “islands without hope” is ahistorical at best. Diss. Op. at ––––. Baltimore spends more on policing, per capita, than virtually any other comparable city in America. See Vera Inst. for Just., What Policing Costs (2020) (comparing 2020 police spending across 62 cities). In 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined. Ctr. for Popular Democracy et al., Freedom to Thrive 2, 16–17 (2017). And Black neighborhoods in Baltimore are already disproportionately policed. See Judge Wynn Concurring Op., infra, at –––– – –––– n.****.
Ultimately, while the dissent has much to say about self-determination, that is exactly what motivates the Plaintiffs’ work. The Leaders of a Beautiful Struggle have explained that, in their view, opposition to increased police surveillance “is not about being anti-police,” nor “about ignoring the impact of violent crime.” Rather:
It is about challenging the racial imbued ideology of police-ism: the belief that all urban problems must be addressed primarily or exclusively through the lens of policing. ... [We] believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false ... choice between community instability created by violent crime, [and] the community instability caused by mass incarceration [and] unaccountable policing ....
Lawrence Grandpre, Who Speaks for Community? Rejecting a False Choice Between Liberty and Security, Leaders of a Beautiful Struggle Blog (June 5, 2020), https://www.lbsbaltimore.com/who-speaks-for-communit y-rejecting-a-false-choice-between-liberty-and-security (saved as ECF opinion attachment). To this end, the Leaders of a Beautiful Struggle have organized projects like the renovation of a vacant building as a “safe house” “to serve as a hub for food drives, mentoring, community cookouts and art classes.” Catherine Rentz, Activists
13

Focus Efforts on West Baltimore Neighborhood Where Freddie Gray was Arrested, Balt. Sun, Apr. 22, 2016, A16. They have partnered with Baltimore Ceasefire, Plaintiff Erricka Bridgeford’s organization, to hold a “resource fair where residents can receive help getting their records expunged, mental health support, child support information, ... good food, and fun.” Dispatches from Baltimore Ceasefire, Balt. City Paper, Aug. 09, 2017.

For the Plaintiffs, these efforts are the very essence of

community-driven

self-determination

and

self-governance. The dissent highlights other voices in the

community, those who endorse the AIR program, to

support its contrary view. These opposing perspectives

are no surprise, as Black communities in Baltimore are far

from monolithic. But this Court is not the arbiter of who

speaks for “the community.” In this case, it is only the

arbiter of Article III mootness and the application of the

standard of review for a preliminary injunction to the

police program at issue. I accept that we disagree on these

issues, even vehemently so.

I do not accept, however, that some neighborhoods in Baltimore are hopeless absent this aerial surveillance. See Grandpre, Who Speaks for Community?, supra (“The community,” which some portray as “clamoring for more police presence, is not a monolithic mass of helpless victims”). Wherever they call home—from East Baltimore to West Baltimore, from Sandtown to Roland Park, from Cherry Hill to Locust Point—Baltimoreans need not sacrifice their constitutional rights to obtain equal governmental protection. And even amidst strife and struggle, hope and talent still flourish. Cf. Ta-Nehisi Coates, THE BEAUTIFUL STRUGGLE 180 (2008) (“No matter what the professional talkers tell you, I never met a black boy who wanted to fail.”).

WYNN, Circuit Judge, with whom Judges MOTZ, THACKER, and HARRIS join, concurring:
*16 My good colleague Judge Wilkinson is admirably consistent in his belief that states and our coequal branches of government, not the courts, should take the lead in policymaking matters. See, e.g., Kolbe v. Hogan, 849 F.3d 114, 149–51 (4th Cir. 2017) (en banc) (Wilkinson, J., concurring) (arguing that because “[n]o one really knows what the right answer is with respect to the regulation of firearms,” we federal judges ought not

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

“[d]isenfranchis[e] the American people on this life and death subject” by arrogating to ourselves “decisions that have been historically assigned to other, more democratic actors”). On that point, he and I can agree. But his dissent goes too far in its claim that the majority opinion is tripping over itself in a desperate rush to dismantle a democratically enacted solution, blind to the consequences for the lives and wellbeing of Baltimoreans. We all know Baltimore—like any other large city, and many smaller ones—has a serious policing problem, and that the solutions to that problem are likely to be every bit as complex as the problem itself.* We all agree those solutions are beyond the ken of the Fourth Circuit or any other court. As a court, we are charged with adhering to the law, not determining what is best for Baltimore. The majority takes this duty seriously and has correctly resolved the legal issue before us. I therefore regret his dissent’s dire rhetoric, much of which insinuates that the dissent alone has Baltimore’s best interests at heart.
WILKINSON, Circuit Judge, with whom Judges NIEMEYER, AGEE, and QUATTLEBAUM join, and with whom Judge DIAZ joins with respect to Part I, Judge RICHARDSON joins with respect to Parts I, II, and III, and Judge RUSHING joins with respect to Parts I and II, all dissenting:
*17 This case should have been handled in a brief order dismissing the appeal as moot. Straightforward resolution; single paragraph. But the majority is determined to puff this appeal way up, to keep it going at all costs, and I cannot let its many errors pass unchallenged.
The majority inflicts damage on many fronts. First to the case or controversy requirement. Second to the law governing the issuance of preliminary injunctions. Third to the place of trial courts within our judicial system. Fourth to the place of states and localities within our federalist structure. Fifth to the ability of our nation’s cities to combat the surge of criminal violence in their midst.
All these errors build to a singular consequence—the further distancing of our country’s most disadvantaged citizens from the opportunities so many other Americans enjoy. America is at its best when it draws contributions from all quarters, yet my friends in the majority are pushing law in a direction that will leave our dispossessed
14

communities islands without hope.
* * *
“Reasonableness” lies at the heart of the Fourth Amendment. Reasonableness in turn requires balance. Balance in turn requires recognition of both public needs and privacy concerns. The majority has taken a one-dimensional swipe at what is by any reckoning a multi-dimensional problem.
One would think from reading the majority’s opinion that all is well in Baltimore. No mention whatsoever is made of the three hundred and thirty-five people that were murdered there in 2020. Associated Press, Baltimore Had 335 Homicides in 2020, U.S. News & World Rep., Jan. 1, 2021. Nor the three hundred and forty-eight who were killed in 2019. Baltimore’s Plague of Gun Violence Continues, Balt. Sun, Sept. 15, 2020, at A10. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population. See Alec MacGillis, The Tragedy of Baltimore, N.Y. Times Mag., Mar. 17, 2019, at 32. These numbers make Baltimore one of the most dangerous cities in America. Yet somehow the majority sees oversurveillance as Baltimore’s big problem, see Maj. Op., ante at –––– – ––––, and it ventures on a crusade to eradicate it.
It would be unfair to suggest that the spread of the most serious crimes is confined to Baltimore. See Holly Bailey & Kim Craig, Nationwide Rise in Violent Crimes Leaves Officials Tense, Wash. Post, May 31, 2021, at A3. We “know that recent data suggests that homicides spiked in the United States’ largest cities last year by an average of 30 percent.” Megan McArdle, More Policing Can Help Disadvantaged Communities, Wash. Post, May 24, 2021, at A19. But this problem is one the majority chooses inexplicably to ignore. Crime statistics are not some disembodied metric, but indicia of a foundational ill whose presence prevents other civic virtues and other social institutions from taking proper hold. These interrelationships quite elude the majority as Baltimoreans are left to pay a lasting price.
Many Baltimoreans recognized that something needed to be done about the scourge of violence afflicting their beloved city. Inaction was not solving anything. In that spirit, the Baltimore Police Department (BPD) adopted a new aerial surveillance program, Aerial Investigation Research (AIR). BPD explicitly recognized this was just an experiment, establishing a six-month test run to see

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

how effective it would be, and whether its law enforcement benefits would outweigh burdens on civil liberties. To protect those liberties, BPD enunciated important limitations on how the program would be used. The department enlisted community support for the program and retained experts to study any potential civil liberties problems.
*18 I do not contend that the Baltimore AIR program was the one and only answer, or indeed the best answer, to what ails the city. The question before the court is only whether it deserved a try. Today the majority says “No.” Worse still, it announces its veto with unseemly haste. The majority races forward needlessly, killing a program that is no longer in effect and where there exists no realistic prospect of it being reactivated. Rejecting appellees’ modest request to dismiss this appeal and to remand for further proceedings before the district court, if necessary, the majority leaps over mootness barriers it finds inconvenient.
Surging onward, the majority eviscerates the traditional rules governing the issuance of preliminary injunctions. By enjoining a program that no longer exists and cannot injure anyone, the majority ignores the indispensable requirements that plaintiffs demonstrate an irreparable injury and that the balance of equities favors them. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In reversing the denial of a preliminary injunction, the majority strips the district court of its right and responsibility to develop an evidentiary record that would elucidate how this program actually worked. Relying on a record of less than one hundred pages assembled in just a few weeks, the majority voids this program at its inception. It is not content to wait, to let normal legal processes take their course. In reversing the denial of a preliminary injunction, it ignores essential remedial principles designed to limit judicial interferences like that occurring today.
This unseemly haste does great harm to the people of Baltimore and our federalist constitutional system. Federalism means, as most famously expressed, that “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). In its indecorous rush to quash any experimentation on Baltimore’s part, the majority has signaled to American cities that future initiatives and attempts at solving the rapid rise of violent crime will likely meet with disfavor
15

from the courts. I fear cities like Baltimore will be unwilling to put forth the effort in the future, so predetermined has become this judicial “No.” The takeaway is clear: why even try? Given the fact that this program is discarded with so little attention to even the rudiments of orderly judicial process, cities will be led to believe that any initiative will be answered with resounding judicial disapprobation. Dwelling in the eternal negative, the majority offers no solutions and can only reject answers that others have tried industriously to provide. Its decision strikes a heavy blow against democratic experimentation and innovation that is essential if our nation is to make headway in protecting those most vulnerable to the ravages of crime.
This decision is not justified by law. It nullifies decades of Supreme Court precedent making clear that limited aerial surveillance like that in this case does not violate a reasonable expectation of privacy under the Fourth Amendment. It dramatically transforms Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), into an effective ban on all short-term warrantless tracking of public movements. It ignores a long line of cases giving representative governments the power to adopt reasonable and non-discriminatory programs in response to serious law enforcement needs.
No one claims that police departments are without their blemishes, or that history is without its stains, or that reforms themselves are without their problems and complexities. I have nothing but respect for my fine colleagues’ points of view, and I value their perspectives. See Chief Judge Gregory Concurring Op., supra; Judge Wynn Concurring Op., supra. But the question before us is, again, whether the people shall be left a proper latitude to address those problems or whether courts will presume to decide what is best for them. Embracing the latter choice, the majority’s rush to judgment leaves only hopelessness in the face of rising violent crime. In short time, the good people of Baltimore may realize that “[s]omeone had blundered.” Alfred, Lord Tennyson, The Charge of the Light Brigade (1854). Because the majority’s own rash charge is contrary to law, antithetical to self-governance, and devoid of any forward illumination, I respectfully dissent.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

I.
*19 In its haste to deny Baltimore any room for community initiatives, the majority opines at length on an appeal that is now moot. “If an event occurs during the pendency of an appeal that makes it impossible for a court to grant effective relief to a prevailing party, then the appeal must be dismissed as moot.” Fleet Feet, Inc. v. NIKE, Inc., 986 F.3d 458, 463 (4th Cir. 2021) (internal quotation marks and citation omitted). The intervening event here is obvious. The program which plaintiffs sought to preliminarily enjoin no longer exists. After the newly elected Mayor of Baltimore opposed the program, the Board of Estimates cancelled its contract with the program vendor. See Emily Opilo, City Board Votes to Cancel Surveillance Plane Contract, Balt. Sun, Feb. 4, 2021, at A12. The BPD announced that it would no longer collect and analyze data, and the vendor has deleted all but 14.2 percent of the previously collected data, which it must retain to comply with disclosure obligations in criminal prosecutions. Appellees’ Mot. to Dismiss at 5–6 (citing Letter from Ross McNutt, President of Community Support Program, to BPD Commissioner Michael Harrison (Feb. 2, 2021), at 1).
In light of those developments, we should grant the BPD’s request to dismiss this appeal as moot. The BPD’s elimination of the AIR program is not some maneuver to avoid judicial review that would justify application of the voluntary cessation exception to mootness. See Porter v. Clarke, 852 F.3d 358, 364 (4th Cir. 2017) (“[T]he [voluntary cessation] exception seeks to prevent a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after.” (internal quotation marks and citation omitted)). The factual circumstances are different now because Baltimore’s leaders responded to democratic pressures (the proper pressures to suspend such a program), rather than to a federal court about to rule in an adversary’s favor. Due to these new democratic hurdles, it is exceedingly unlikely that the AIR program as challenged by plaintiffs—with a particular vendor, with particular constraints, and with particular aims—will be revived at any point. And if the democratic winds do start blowing in favor of surveillance again, it would take a considerable amount of time to reestablish an aerial surveillance program of any type, and any program would likely be different in material ways from AIR.
It is similarly clear that the capable of repetition, yet
16

evading review exception to mootness is inapposite. Simply put, the AIR program is not in danger of evading review. Even if the majority had found that the appeal was moot, the case would continue to be litigated below, making this exception to mootness wholly inapplicable. See Indep. Party of Richmond Cty. v. Graham, 413 F.3d 252, 256 (2d Cir. 2005).
All that appellees request here is a dismissal of the appeal, since we can award no relief on that which no longer exists. Again, this is an interlocutory appeal from the denial of a preliminary injunction—not the dismissal of an entire case in which plaintiffs seek nominal damages. See Uzuegbunam v. Preczewski, ––– U.S. ––––, 141 S. Ct. 792, 801–02, 209 L.Ed.2d 94 (2021). There is potentially still work to be done, but that work, if it is found necessary, appropriately lies with the district court. For example, the court could determine the content of the remaining 14.2 percent of data not already deleted; how, when, and why that data is used; and who can access it. Those determinations are intricately fact-bound. A remand would also allow the litigants the possibility of reaching a compromise as to the data and as to the issuance of a properly tailored protective order with regard to it. During oral argument, the two sides indicated a measure of agreement. But the majority insists on pushing ahead, determined to adjudicate a moot appeal, and oblivious to the prospect of any future concord between the parties.
Finally, the majority is not providing any relief beyond the status quo. The only alleged injury is the BPD’s and vendor’s possession of 14.2 percent of the data collected by AIR and the related investigative reports. But even the majority professes that enjoining the program “would not require BPD to destroy the remaining AIR data.” Maj. Op., ante at –––– n.12. It agrees that BPD may “possess[ ]” materials so that prosecutors, defense counsel, and the court may access files “in an individual prosecution.” Id. The BPD has made clear that it has no intention to access the material outside these necessary uses. Appellees’ Mot. to Dismiss at 5–6. Although we have no reason to doubt this representation, the district court would remain free to act if it found the promise was not kept. Simply put, “the specific relief sought here no longer has sufficient utility to justify decision of this case on the merits.” S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 1987). The fact that the majority is opining on the law without the prospect of a tangible remedy to the plaintiffs strongly indicates that this appeal is moot.
*20 To repeat: we can award no relief as to that which no

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

longer exists. As discussed below, multiple considerations counsel the inadvisability of continuing to wade through factual matters during the appeal of a denial of a preliminary injunction. The one issue before us has disappeared. What, if anything, remains of the case is within the purview of the district court.
II.
A.
Even were we to assume this appeal is not moot, the majority engages in an indefensible exercise of judicial overreach. Let us be clear about what it is doing. The majority is not merely ordering Baltimore to change the way it protects its citizens and solves crime. It is telling a district court that it was so patently unreasonable not to issue that order that the court must be reversed for, even preliminarily, staying its judicial hand.
This is remarkable. Plaintiffs sought a preliminary injunction. The district court was right to deny it. This is a remedy that should “be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal quotation marks and citation omitted). As the Supreme Court explained in Winter v. Natural Resources Defense Council, Inc., “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Therefore plaintiffs must make a “clear showing” that they are likely to succeed on the merits of their legal claims, are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities favors the grant of preliminary relief, and that “an injunction is in the public interest.” Id. at 20–22, 129 S.Ct. 365. These requirements make clear that preliminary injunctions should not be casually awarded and reflect a long history and a traditional understanding about the limited power of the courts. The majority undermines that tradition today.
The district court’s refusal to grant preliminary injunctive
17

relief was proper for many reasons. First, our legal system generally eschews the casual issuance of injunctions because they often thrust courts into a posture of institutional governance and they can impose onerous burdens on the enjoined party not presented by other remedies. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 572 (2016) (arguing that “equitable remedies and managerial devices can be costly, both to courts and litigants”). At the time of the Founding, equitable remedies like injunctions were controversial. Whether Article III of the Constitution granted federal courts the authority to issue injunctions was a contentious subject during the ratification debates. See Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2426, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring). These concerns about judicial power were assuaged by assurances from the Federalists that equitable remedies like injunctions, “which are exceptions to general rules,” would only be given in “extraordinary cases” according to well-established rules. See The Federalist No. 83, at 505 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658, 8 L.Ed. 532 (1832) (explaining that “remedies in equity,” which include injunctions, “are to be administered ... according to the practice of courts of equity in [England]”).
The history is one thing. The district court was also right to deny the preliminary injunction for other more practical reasons. Our law disfavors preliminary injunctions even more than final, permanent injunctions. The difference between these categories is that preliminary injunctions, as their name implies, are issued before a full evidentiary record is assembled and a final adjudication on the merits is given. Courts are more likely to make accurate decisions after the development of a complete factual record during the litigation. See Douglas Laycock & Richard L. Hasen, Modern American Remedies 453 (5th ed. 2019). In contrast, when a court issues a preliminary injunction, it is in greater danger of shooting from the hip. It can assemble only limited factual information and must make haphazard guesses about who will ultimately win the case. See id. (explaining that a court is “more likely to err when it acts on partial information after a preliminary hearing”). It should be unsurprising that the casebooks are replete with examples of lawsuits where preliminary injunctions were initially given, only to be taken back later when the initial beneficiary ended up losing. See id. at 457–58 (asserting that a higher bar exists for obtaining a preliminary injunction than a permanent injunction). But the damage inflicted upon the defendant in the meantime can be irreparable. See, e.g., Coyne-Delany Co. v. Capital Dev. Bd., 717 F.2d 385, 393 (7th Cir. 1983) (explaining

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

how a wrongfully issued preliminary injunction can “easily” halt work on major projects for “two or three years” and impose great costs on the defendant).
*21 This case demonstrates why our law prefers that courts wait until the end of the case to issue any injunctive relief. The district court had only a few weeks to consider the plaintiffs’ motion for a preliminary injunction and relied on an evidentiary record of less than one hundred pages. If Judge Bennett had issued a preliminary injunction, held a trial, and reversed the initial injunction years later, the disruption to Baltimore would have been significant. Due to the preliminary injunction, a substantial amount of financing would have been tied up. The employees hired to run the AIR program might have lost their jobs or been reassigned. And of course, the will of the people of Baltimore—expressed through the representative branches of government—would have been wrongly stymied by an improvident exercise of judicial power.
To his credit, Judge Bennett did not put Baltimore in that situation. He was faithful to the law of remedies and the traditional principles of judicial restraint. He declined to issue a preliminary injunction—a dramatic and consequential remedy—preferring instead to let the parties submit evidence, develop their arguments, and perhaps even hold a trial. He proceeded cautiously and prudently, as a good district judge generally should.
That decision is entitled to deference by the court of appeals. We review a district court’s denial of a preliminary injunction for abuse of discretion. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). This deference recognizes the traditional power district courts have had to craft remedies appropriate “to the necessities of the particular case,” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), and it reflects a commitment by appellate courts not to second-guess a district court’s remedial discretion absent special circumstances. This makes eminent sense because the “district court is better positioned than we are to weigh the costs and benefits of injunctive relief.” Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211, 217 (4th Cir. 2015). Further, because the law places a thumb on the scale against the issuance of preliminary injunctions, our deference should be even greater when the district court denies a preliminary injunction. See id. (discussing the traditional power of the district court to deny injunctive and other equitable relief).
18

Yet tossing deference to the winds is exactly what the majority does today in finding the trial court abused its discretion in failing to preliminarily enjoin the Baltimore AIR program. Although I do not believe the plaintiffs can satisfy any of the prerequisites for a preliminary injunction, see infra Part III (discussing their remote chance of success on the merits), intervening events have revealed a major additional problem with plaintiffs’ case. To reverse the district court’s order, plaintiffs must show that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20, 129 S.Ct. 365. Plaintiffs cannot by definition suffer irreparable harm from a failure to enjoin a program that no longer exists. And even if—somehow—there is irreparable injury inflicted by a non-existent program, I fail to see how the balance of equities favors the plaintiffs where any remedy provides such minimal relief while tying Baltimore’s hands in dealing with a serious public safety crisis. Hastily deploying equitable powers in these circumstances just makes no sense.
Moreover, the majority charges forward on shifting ground. As this appeal has progressed, the facts of the case have dramatically changed. The AIR program is suspended. The new Mayor of Baltimore largely agrees with the plaintiffs on the propriety of the program. The status quo is dramatically different from that considered by the district court. Instead of asking us to reverse the district court’s earlier denial of a preliminary injunction, the plaintiffs should be before the district court seeking relief based on the changed circumstances.
*22 Zeal consumes patience. Neither plaintiffs nor the majority want to go through any of the normal processes of litigation. The apparent reason for this was provided by the plaintiffs during oral argument. They urged us just to assume that the district court would decide future questions—including the propriety of a preliminary injunction under new circumstances—by simply “reenter[ing] its order” from before. And because plaintiffs asserted they “would be right back before” us, that (somehow) justified the majority’s insistence on an instantaneous preliminary injunction. This invitation to ignore and circumvent the district court’s role in gathering evidence and considering the propriety of equitable relief undermines the division of responsibilities within the judiciary. See, e.g., Brown v. Plata, 563 U.S. 493, 517, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (cautioning appellate courts not “to ‘duplicate the role’ of the trial court” (quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). But the

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

majority aggressively and preemptively invades the district court’s domain, striking at the “heartland of that court’s discretion to manage its own affairs.” Lord & Taylor, LLC, 780 F.3d at 219. What a strange and inverted judicial world this court creates, one where district courts are directed to strike down democratic initiatives in our nation’s great cities based on such scant consideration and so little evidence.
B.
The consequences of the majority’s aggression are evident. Because we did not let the district court do its job and put together a full evidentiary record, we are confronted with all kinds of factual uncertainties, forcing us to make speculative assumptions and assertions and creatively bend analysis to avoid contested factual issues. Of course, had we just remanded and allowed the district court to do its job of gathering more evidence, we would not be stuck in this quandary. See Salve Regina College v. Russell, 499 U.S. 225, 232, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (“With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues.”).
And it is indeed a quandary. For example, it is unclear what precisely AIR surveillance was actually used for. The BPD tells us that AIR was used only to track limited public movements to and from the scenes of violent crimes. Yet an amicus invited by the BPD to assist in evaluating the program tries to persuade us that this is not what is happening. It tells us that the BPD has used the surveillance in other, improper ways. See Br. of the Policing Project as Amicus Curiae in Support of Neither Party and in Support of Rehearing or Rehearing En Banc at 6–8, 10–11. It also alleges inaccuracies in the limited record we do have. See id. at 6. Even beyond amicus’s unusual attempt to supplement a factual record on appeal, the parties have spent much energy disputing the facts on the ground and assertively trying to frame our very limited factual record. The parties, for example, vigorously dispute whether the limitations on the AIR program allowed day-to-day tracking. Compare Appellee Br. at 35–36 (stating that AIR will allow “police to track an individual only for the few hours, or even minutes, it takes the person to travel from one place to another”
19

(internal quotation marks and citation omitted)), with Reply Br. at 6–7 (“[I]t will be straightforward for the BPD to repeatedly track the same individual day after day.”). Now the parties disagree on what the BPD may do with the remaining data retained following Baltimore’s decision to halt the program.
The factual uncertainties have only multiplied throughout this appeal. Amidst the gathering factual confusion, the majority stunningly accuses the district court of having “misapprehended” the facts of the case. Maj. Op., ante at ––––. It apparently views itself as more qualified to make factual findings based on its own “common sense” than the designated factfinder in our judicial system. Maj. Op., ante at ––––. It is just wrong for an appellate court to rebuke a trial court for “misapprehending” facts it never gave the court a proper chance to find.
Moreover, the factual quandaries that surround us now could have been avoided. Instead of relying on a report studying cell-site location information (“CSLI”)—like the majority does, Maj. Op., ante at –––– – ––––—we could have benefitted from data based on an examination of this program. If we had waited for the district court to conduct orderly proceedings, it would have compiled a full evidentiary record. It would have made factual findings on exactly how the AIR program worked in practice. It would have addressed what the AIR surveillance information is used for. It would have made factual findings on whether the BPD was sticking to the limitations on the use of AIR surveillance it publicly and contractually committed to. It would have applied the law to these factual findings with a sensitivity born of a detailed and carefully assembled factual record. Our Fourth Amendment law has developed in a common-law style in which facts are essential. See, e.g., Tennessee v. Garner, 471 U.S. 1, 13, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Facts in our profession are rocks, and the majority rules on sand.
C.
*23 The majority’s disregard for the rudiments of restraint is especially problematic in light of Supreme Court guidance that local officials should have leeway to experiment when designing surveillance programs that employ new technology. In United States v. Jones, four

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

Justices stated that elected officials should play a leading role in crafting policies that balance the need for public safety and the need for personal privacy. 565 U.S. 400, 429–30, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Alito, J., joined by Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment) (“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”); see also United States v. Graham, 796 F.3d 332, 388 (4th Cir. 2015) (Thacker, J., concurring) (“Congress and state legislatures are far better positioned to respond to changes in technology than are the courts.”).
Deference to elected officials in this area makes good sense. As the Justices in Jones recognized, there will sometimes be tradeoffs between public safety and privacy. Striking the proper balance is even more challenging when dealing with rapidly changing technologies, like aerial surveillance, that courts may struggle to understand. If we do not proceed with care, there is a risk we will “embarrass the future.” Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300, 64 S.Ct. 950, 88 L.Ed. 1283 (1944). Indeed, “[i]t would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.” Riley v. California, 573 U.S. 373, 408, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (Alito, J., concurring in part and in the judgment). Those “elected by the people” are “in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.” Id. This area poses sensitive and difficult decisions, ones that four Justices have already recognized that local officials should make in close consultation with the needs and wishes of their constituents. That is exactly what Baltimore’s government officials were doing in this case. But apparently not liking Baltimore’s efforts, the majority rejects them. I have no problem if the AIR program is discontinued. I have a big problem, however, if this court and not the citizens of Baltimore are the ones to terminate it.
III.
There can be only one logical reason for the majority’s decision to dash past traditional remedial rules and force a
20

decision before the assemblage of a full evidentiary record. It must think that Baltimore’s AIR program is so obviously unconstitutional that normal judicial and ordinary democratic processes are irrelevant. But the law is not on the majority’s side.
A.
The majority concludes that the AIR program violates a reasonable expectation of privacy, asserting a broad expectation of privacy in an individual’s public movement. See Maj. Op., ante at ––––, –––– (hinting that even “shorter snippets” of tracked public movements might violate the Fourth Amendment). This assertion defies precedent. The Supreme Court has made clear that an individual has a limited expectation of privacy in his or her public movements. “What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). The Court did qualify this rule in United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), where five Justices concluded that long-term surveillance using GPS tracking violated a reasonable expectation of privacy. Id. at 414–15, 132 S.Ct. 945 (Sotomayor, J., concurring); id. at 430–31, 132 S.Ct. 945 (Alito, J., joined by Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment) (distinguishing between a long-term surveillance using GPS for twenty-eight days, which he thought was impermissible, and a shorter-term surveillance of public movements).
*24 The lesson from Jones is that short-term surveillance of an individual’s public movements is less likely to violate a reasonable expectation of privacy. Under that rule, AIR checks out, at least under the factual findings the district court made on our limited record. Judge Bennett reasonably concluded that AIR’s built-in limitations meant it could only effectively track short-term public movements. Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 456 F. Supp. 3d 699, 704 (D. Md. Apr. 24, 2020). The program’s cameras were only able to track outdoor movements. Id. at 714. They

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

could not track an individual who enters a building, and analysts could not tell if the person leaving the building was the same person who entered it. And because AIR’s surveillance planes could fly only during the daylight hours, AIR surveillance could not be used to track individuals from day-to-day. Id. at 704.
The majority also effectively nullifies the Supreme Court’s repeated decisions sanctioning 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, 106 S.Ct. 1809, 90 L.Ed.2d 210 (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, 106 S.Ct. 1819, 90 L.Ed.2d 226 (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, 109 S.Ct. 693, 102 L.Ed.2d 835 (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, 109 S.Ct. 693, 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.
The majority believes that the decision in Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), requires a different result. But it overreads Carpenter. The technology at issue in Carpenter, CSLI, was far more invasive of privacy than the limited aerial surveillance in this case. CSLI gave the government 101 location data points for each of the seven days it obtained CSLI data. Because “a phone goes wherever its owner goes,” CSLI provides a “comprehensive record of the person’s movements.” Id. at 2217. CSLI “is detailed, encyclopedic, and effortlessly compiled.” Id. at 2216. And, as discussed further below, CSLI is used by the government to target individuals of interest, whereas AIR was used only to track the public movements of non-preidentified individuals—those who happen to be present at the scene of a violent crime.
The majority asserts that AIR is at least as intrusive as CSLI. But the majority can only reach this conclusion by tossing out the district court’s factual findings and
21

replacing them with “facts” more convenient to its preferred conclusion. It dramatically declares that AIR was used to track every Baltimorean’s movements over a forty-five-day period, just as if the city had attached ankle bracelets to everyone in the city. Maj. Op., ante at ––––. It also claims that all Baltimoreans were effectively “tailed” for six weeks because of AIR. Id.
But these alternative “facts” trample upon reality and the record. The district court’s actual factual findings reveal substantial differences between AIR and CSLI. See Leaders of a Beautiful Struggle, 456 F. Supp. 3d at 715–16 (“Carpenter simply does not reach this case because CSLI offers a far more intrusive, efficient, and reliable method of tracking a person’s whereabouts than the AIR pilot program.”). Whereas CSLI could be used to reliably track an individual’s movement from day to day, the district court found that AIR could only be used to track someone’s outdoor movements for twelve hours at most. The majority in fact agrees that the “tracks are often shorter snippets of several hours or less.” Maj. Op., ante at ––––. This is not, like CSLI, a “detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” Carpenter, 138 S. Ct. at 2220. The technologies are also used quite differently. Whereas CSLI is used by law enforcement to learn detailed information about someone it is already targeting, id. at 2218 (explaining that CSLI tracking reveals an extensive amount of private information to law enforcement), the district court found that AIR was used to identify suspects and witnesses to crimes and takes no deep dive into an individual’s life. And while CSLI surveillance was “remarkably easy” and “cheap,” id. at 2217–18, the district court found that AIR surveillance was not, requiring hours of work by an analyst to tag a person of interest and reconstruct a couple of hours of that person’s public movements. Even the majority agrees with this finding. See Maj. Op., ante at ––––.
*25 Hedging on its exaggerations about the program’s capabilities, the majority then tips its hand by hinting that even “shorter snippets” of surveillance might cross the line. Maj. Op., ante at ––––, ––––. Candidly, the majority confesses that it opposes all warrantless surveillance. Maj. Op., ante at –––– – ––––. Carpenter did not come close to holding this. Make no mistake. The majority is not applying Carpenter’s “narrow” holding. Carpenter, 138 S. Ct. at 2220. It is extending it beyond recognition to bar all warrantless tracking of public movements. This is a breathtaking transformation of the law. Uncorrected, it comes very close to invalidating aerial surveillance and short-term tracking technologies altogether.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

B.
The majority also ignores caselaw suggesting that AIR represents a reasonable program of surveillance that meets a serious law enforcement need. In such programmatic contexts, the Court assesses searches and seizures by balancing the asserted burdens on constitutional rights against the claim of law enforcement and public safety needs. See, e.g., Grady v. North Carolina, 575 U.S. 306, 310, 135 S.Ct. 1368, 191 L.Ed.2d 459 (2015) (per curiam). “Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights, 534 U.S. 112, 118–19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)).
In Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), for example, the Supreme Court upheld a program of drunk-driving checkpoints at which police officers randomly stopped motorists without individualized suspicion. Id. at 447, 110 S.Ct. 2481. The Court there emphasized the “magnitude” of the threat posed by drunk drivers to public safety. Id. at 451, 110 S.Ct. 2481 (“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”).
This case has clear parallels to Sitz. Like the drunk-driving checkpoints, AIR surveillance was not used to target particular, preidentified individuals. Instead, it was used to track non-identified individuals who happen to be present at the scene of a violent crime. Those tracked will either be culpably or innocently there by random chance, precisely like those at a Sitz checkpoint. The AIR program could not be used to target them as individuals; they do not even appear in the AIR photographs as individuals, but, as noted, as featureless pixelated dots. In short, AIR was not used to isolate and target someone the government was already pursuing.
Further, like drunk-driving checkpoints, the AIR program was designed to assist in solving critical societal
22

problems. Sitz, 496 U.S. at 451, 110 S.Ct. 2481. To suggest Baltimore’s wave of violent crime is somehow less worthy of government attention than drunk driving is to minimize the hundreds of lives lost every year. If government can use programmatic surveillance to combat drunk driving, it surely can use it to reduce widespread and tragic carnage.
In sum, there is ample precedent to justify the legality of the AIR program. Yet somehow the majority thinks the law is so obviously one-sided as to justify the abrupt and dramatic step of reversing the district court’s denial of a preliminary injunction. Proceeding in the face of serious mootness problems and preemptively dismantling community reforms may seem to some perfectly justified. But ten years hence, others may survey the tragic landscape left by violent crime and wonder why nothing has changed.
IV.
A.
The majority does irreparable damage to our federal system with its precipitous strike against the Baltimore AIR program. If federalism is as natural to American citizens as self-governance, it is surely important that both remain a civic blessing. Today, they are compromised, and I make no apology for rehearsing principles, so indigenous for so many years, that we have lately come to take too much for granted. Back then to those basics the majority disregards.
*26 The unique genius of our Founding Fathers was that they “split the atom of sovereignty,” dividing power between the States and Federal government. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring). States in turn divide themselves into local government units, like counties and cities, in order that the people might remain close to their representatives. This is important because our country is diverse. As “Federal

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

Farmer” wrote in a 1787 pamphlet, “[O]ne government and general legislation alone never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded.” Letters from the Federal Farmer, Letter I (Oct. 8, 1787), in 2 The Complete Anti-Federalist 223, 230 (Herbert J. Storing ed., 1981). That diversity has only grown with time. The Montana rancher has quite different needs from the factory worker in Allentown or the single mother in West Baltimore. Federalism meets this need by “assur[ing] a decentralized government that will be more sensitive to the diverse needs of a heterogenous society.” Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
Of course, the exercise of state and local power is limited by the commands of the Constitution which was, after all, adopted by the whole people of the United States. For a long time, very few constitutional provisions applied against state and local governments. The Bill of Rights did not. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). State constitutions and representative institutions were to be the people’s primary protection. But sadly, this protection often did not extend to large parts of the population. A Civil War was fought. And the Fourteenth Amendment altered profoundly the relationship between the federal government and the States. See Timbs v. Indiana, ––– U.S. ––––, 139 S. Ct. 682, 687, 203 L.Ed.2d 11 (2019). The courts subsequently recognized that the Fourteenth Amendment incorporated the protections of the Bill of Rights—including the Fourth Amendment—against the States, thus ensuring that the federal government would play an increased role in ensuring the protection of individual rights.
But this alteration did not effect a complete transformation. The fundamental balance between the federal, state, and local governments remains intact. State and local governments remain the source of most laws and institutions that affect our daily lives. Property law, family law, and criminal law are just a few examples. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12–13, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (explaining how federal courts generally abstain from hearing cases related to family law and domestic relations because that is a traditional area of state-law regulation). And the Supreme Court has made clear that it will act to prevent invasions of the domains of state and local governments, thus preserving our Constitution’s guarantee of divided sovereignty. See, e.g., Murphy v. Nat’l Collegiate Athletic Ass’n, ––– U.S. ––––, 138 S. Ct.
23

1461, 1478, 200 L.Ed.2d 854 (2018) (striking down federal law due to unlawful interference with state sovereignty under the anti-commandeering doctrine).
B.
One area that remains a core part of state and local responsibility is criminal law. Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (“[P]reventing and dealing with crime is much more the business of the States than it is of the Federal Government ....”). The power to define crime is primarily a responsibility of state governments, and the power to prevent it belongs substantially to local governments, like the City of Baltimore. It may be tempting for federal judges to think we can do a better job protecting rights and fighting crime than states and localities. We may think it should be done only in particular ways and that we hold the exclusive franchise on enlightenment. And we have a ready source of constitutional authority to compel our will: the provisions of the Bill of Rights dealing with crime, especially the Fourth, Fifth, Sixth, and Eighth Amendments. These provisions contain broad and open-ended phrases, like provisions prohibiting “unreasonable searches and seizures.” U.S. Const. amend. IV.
*27 But the Supreme Court has instructed us to be respectful of federalism in enforcing these precious constitutional guarantees. Because the task of criminal justice belongs in significant part to state and local governments, the Court has said we “should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.” Patterson, 432 U.S. at 201, 97 S.Ct. 2319. Thus, the Court has interpreted these provisions so as to avoid imposing its own preferred criminal justice regimes on diverse states and localities. For example, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court considered whether the Sixth Amendment required the appointment of counsel in criminal cases where only fines were issued, i.e., a large percentage of the nation’s misdemeanor cases. Id. at 372, 99 S.Ct. 1158. Federalism considerations dominated the Court’s holding that it did not. The Court noted the “special difficulties” arising from the incorporation of the Sixth Amendment against the States because the “range of human conduct regulated

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

by state criminal laws is much broader than that of the federal criminal laws, particularly on the ‘petty’ offense part of the spectrum.” Id. It then reasoned that “any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.” Id. at 373, 99 S.Ct. 1158. After all, holding otherwise would have required the Court to impose its own vision of misdemeanor justice on the entire country, governing cases from the prairies of Kansas to the cityscapes of the Bronx.
Why must a similar sensitivity elude us here? “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Maryland v. King, 569 U.S. 435, 447, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). Reasonableness is not a word of exclusive federal content. It must account for local conditions and circumstances, mindful that public officials in different parts of the country face very different challenges. What is reasonable in Baltimore may differ from what is reasonable in New York or in rural jurisdictions.
By interfering with Baltimore’s federalist experimentation, the majority may think it is striking a great blow in the name of privacy. See Maj. Op., ante at –––– (claiming it is preserving the Fourth Amendment as a “bastion of liberty”). But this intervention may have unintended consequences. The majority apparently believes its decision will result in less surveillance, an outcome it favors because it claims that cities are bedeviled above all by too much policing. See Maj. Op., ante at –––– (complaining that Baltimore is a “thoroughly surveilled city” without AIR).
But cities cannot be expected to do nothing in response to rising violent crime rates. In 2020, the United States “experienced the largest single one-year increase in homicides since the country started keeping such records in the 20th century, according to crime data and criminologists.” Devlin Barrett, An Unprecedented One-Year Spike in U.S. Homicides, Wash. Post, Dec. 31, 2020, at A3. This rise in violent crime disproportionately strikes the most vulnerable among us, intensifying the breadth and depth of the tragedy. “Much of this violence has most significantly impacted poor Black and brown communities, exacerbating disparities already apparent in historical patterns.” Josiah Bates, 2020 Ends as One of America’s Most Violent Years in Decades, Time (Dec. 30, 2020). Simply hoping for police departments to work
24

harder and better is not enough. Cities like Baltimore may feel a need to adopt innovative surveillance systems to combat this pandemic of violence.

By slamming the door shut on AIR, the majority may

force cities to embrace surveillance systems posing a

greater threat to privacy than that the majority invalidates

today. For example, Chicago relies on a startingly

powerful surveillance system. The police department

employs a network of at least 35,000 on-the-ground

surveillance cameras. See Elizabeth Matthews, Vast

Network of Surveillance Cameras Help Chicago Police

Track Subjects, Fox 32 Chicago (Nov. 12, 2019),

https://www.fox32chicago.com/news/vast-network-of-sur

veillance-cameras-help-chicago-police-track-suspects.

The Department monitors this system in real-time,

twenty-hours a day, rain, snow, or shine. See Chicago

Police Department, Police Observation Device (POD)

Cameras,

https://home.chicagopolice.

org/information/police-observation-device-pod-cameras/

(last visited May 26, 2021). Officers can even monitor the

system in their squad cars while on patrol. See Dahleen

Glanton, Being Watched Could be a Good Thing, Even if

Done Unequally, Chicago Tribune, Feb. 26, 2019, at C2.

In addition to monitoring, officers can remotely pan

cameras 360 degrees and “zoom in ... to clearly see small

objects from great distances.” Adam Schwartz, Chicago’s

Video Surveillance Cameras: A Pervasive and Poorly

Regulated Threat to Our Privacy, 11 Nw. J. Tech. &

Intell. Prop. 47, 57 (2013); Chicago Police Department,

supra. And officers can automatically track a vehicle

across the city by simply inputting a license plate number.

See Matthews, supra. If Chicago wants to find a specific

person, it probably can.

*28 Newark, New Jersey, has taken a different but similarly proactive approach to surveillance. Like many cities, Newark’s police department has a system of street-level cameras, but it relies on additional enforcers beyond its patrol officers. Its “Citizen Virtual Patrol” program provides anyone the ability to monitor the city’s CCTV camera system in real time. Rick Rojas, Where Police Cameras and Web Users See You, N.Y. Times, June 10, 2018, at A1. “Anyone with a fast internet connection and a desire to watch” can surveil the network. Id.

These programs may well pose a more pervasive threat to privacy than AIR. I do not highlight this reality to cast doubt on their legality. Indeed, the Supreme Court stated explicitly in Carpenter that it was not calling into question systems of surveillance cameras. 138 S. Ct. at

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

2220. But by slamming the door shut on Baltimore’s attempt to find a better path, the majority is doing nothing more than forcing cities to choose between a smaller number of potentially more intrusive surveillance systems. This sort of dictation cannot be superior to federalist experimentation and giving Baltimoreans some leeway to chart their future course. Our Constitution requires balance between national and local authority, while in the case at bar a federal hand now lies heavy on the land.
V.
This imposition of a straitjacket on Baltimore’s officials is most unfortunate. The people most affected by a problem are denied by this court a say in ameliorating it. Our direction to them is simply to endure their disenfranchisement. Baltimoreans face grave challenges that are difficult enough without our interference. The briefest repetition is required here. Three hundred and forty-eight people were murdered in Baltimore in 2019. See Baltimore’s Plague of Gun Violence Continues, Balt. Sun, Sept. 15, 2020, at A10. In 2020, three hundred and thirty-five were killed. See Associated Press, Baltimore Had 335 Homicides in 2020, U.S. News & World Rep., Jan. 1, 2021. Baltimore shares with other localities an alarming incidence of homicides. It is a city where criminals have little concern for law enforcement because the police cleared homicides at a rate of just 32.1% in 2019. See Jessica Anderson, Baltimore Ending the Year with 32% Homicide Clearance Rate, One of the Lowest in Three Decades, Balt. Sun, Dec. 30, 2019; see also Daniel S. Nagin, Deterrence in the Twenty-First Century, in 42 Crime and Justice in America: 1975–2025, at 199 (Michael Tonry ed., 2013) (“[C]ertainty of apprehension ... is the more effective deterrent.”).
Numbers and statistics speak only in gross terms. Homicide strikes individuals. Statistics, cold as they are, give every sacred being short shrift. It is essential to appreciate in human terms the tragedy that has befallen the Baltimore community. Human life is being cut short at a terribly early stage; young people are not given a chance to develop their innate gifts. Nineteen-year-old Diamante Howard was the first in his family accepted to college when he was murdered by a Baltimore gang in 2018. See Justin Fenton, ‘Violent and Relentless’ Baltimore Gang
25

Charged with Dozens of Shootings, Including 18 Murders and 28 Attempted Murders, Balt. Sun, Jun. 3, 2021. Jaheem Atkins was only sixteen years old when he was the fifth teenager to be killed during a two-week span in October 2020. See Phil Davis & Phillip Jackson, City Nears Deadly Mark as Baltimore Closes in on 300 Homicides, Fresh Ideas Get a Look, Balt. Sun, Nov. 21, 2020, at A1. Cincere Johnson, a champion youth football quarterback who graduated from high school in January, was one of nine people killed in Baltimore over Memorial Day Weekend. See Colin Campbell, Former Champion Youth QB Killed, 7 Months After Coach, Balt. Sun, Jun. 4, 2021, at A2. More women and girls were killed in Baltimore in 2020 than in any previous year. See Associated Press, supra. The list goes on and on. This is a tragedy of immense proportions and a challenge whose magnitude cannot be masked by the hum of daily life and governance. If this court blocks initiative at every turn, cutting off reasonable experimentation before the results are even in, this sad situation will in time give way to social indifference and neglect as a preoccupied society turns to other priorities.

*29 Baltimore was not willing to adopt a new normal of

indifference. It tried to change this bleak reality and

pursued a solution that was at once measured, and

proportional to the enormity of the challenge. It saw in the

AIR program an opportunity for public policy to evolve

organically and empirically, relying on what works for the

people instead of the fixed visions of bureaucrats, central

planners, or judges. Gathering hard data on the efficacy of

the system was one of the program’s explicit aims. As put

by Police Commissioner Harrison, it was at least worth a

try. See Eddie Kadhim, Baltimore Police Met with the

Community to Give Insight on Pilot Program, WMAR2

Baltimore

(Mar.

11,

2020),

https://www.wmar2news.com/spyplane.

The city’s decision to test the program arose with a strong showing of community support. A secret rollout of a program under the prior police commissioner suffered from legitimate privacy concerns. It was halted in 2016, but the Baltimore community picked up the pieces and tried again. In early 2018, the vendor’s CEO and two community members began “visiting community associations, churches, businesses and government agencies trying to build support for,” as they put it, “a much-needed crime-fighting tool in one of America’s most violent cities.” Luke Broadwater, Surveillance Airplane Gains a New Sales Pitch, Balt. Sun, Feb. 25, 2018, at A1.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

As the message spread, enthusiasm grew; the group gained “pledges of support from the Baltimore City Chamber of Commerce and community leaders in East and West Baltimore.” Id. This included George Mitchell, a Park Heights community leader who runs Neighborhoods United. As he explained: “We have to do something. The murders are doing a lot of disruption to our city, especially in the black population.” Id. Former City Councilwoman Rochelle Rikki Spector noted the program would be paid for by an outside foundation and Baltimoreans would have the opportunity to work as analysts. Id. And another concerned citizen voiced her appreciation for testing the technology: “People are going to be worried about privacy. People are going to be worried about Big Brother. But our crime has escalated. How can we abate the situation if we can’t determine what they’re doing and why they’re doing it?” Id. This growing support was accompanied by a City Council community forum in the fall of 2018 and other community meetings that sought to demystify the program. See Ross McNutt, Plane Would Cut Crime: The Head of the Company that Flew a Surveillance Plane over Baltimore Promises He Can Prevent and Solve Crimes if We Give Him the Chance, Balt. Sun, Oct. 13, 2018, at A13.
Next came the Governor’s endorsement. Letter from Larry Hogan, Governor of Maryland, to Bernard C. “Jack” Young, Mayor of Baltimore, & Michael Harrison, Baltimore Police Department Commissioner (Sept. 10, 2019), at 2–3. And then the business community jumped in—in particular, the Greater Baltimore Committee (GBC), which is “the region’s premier organization of business and civic leaders” with board membership including the presidents of Johns Hopkins University, the University of Baltimore, and Morgan State University, the Senior Pastor of the Union Baptist Church, and the Archbishop of Baltimore. Greater Baltimore Committee, About Us, https://gbc.org/about-us/ (last visited May 26, 2021). The GBC recognized the preliminary nature of the pilot program and urged the BPD to live up to Baltimore’s “history of innovation” as a “City of Firsts.” Greater Baltimore Committee, Position Statement on Public Safety in Baltimore and Support of the Use of Aerial Surveillance in Baltimore (Oct. 15, 2019), https://gbc.org/statement-on-public-safety-in-baltimore-an d-support-for-theuse-of-aerial-surveillance/. It hoped the pilot program would demonstrate that AIR surveillance was “an additional investigative tool that could be used by the police department to bring perpetrators of crime to justice.” Id.
26

*30 As an exclamation point to this list of supporters, the United Baptist Missionary Convention—which “is comprised of more than 100 churches across the state”—voiced its support for “research[ing] the efficacy of aerial surveillance.” J.A. 126. It pushed for action because the “communities surrounding many of [its] churches are impacted by violent crime that impedes the quality of life of [its] members and its residents.” Id. All the while, BPD continued to hold public meetings. See Kadhim, supra.
The pilot program as challenged by plaintiffs was not hatched in the dark or behind closed doors. It did not spring up over night without a thought. It was carefully considered over multiple years and by many stakeholders. This is not to say that support for the program was universal; as with most policies in the criminal justice arena, there were both supporters and detractors. At first, the police commissioner himself was skeptical and withheld his support until the department “came up with a plan to address people’s privacy concerns.” Id. As those conversations took shape, he found the benefit of “treat[ing] it like a scientific experiment,” with a focus on creating “safeguards, measures of accountability, and transparency and bringing in external researchers and auditing to make sure the research will guide us to whether it works or not.” Id.
The ACLU itself voiced its concerns early on. See Broadwater, supra. But the city heard and considered privacy objections, and limitations designed to protect personal privacy were rightly folded into the program’s structure. See J.A. 47 (BPD Community Education Presentation slide outlining privacy protections). But the idea of scrapping the program in its entirety did not win the day in this first round of the democratic process. That the opponents of AIR eventually succeeded in halting it is no cause for dismay. The fact remains that Baltimore tried. And that stark contrast between the unceremonious haste with which the majority has dispatched this program and the seriousness with which the city debated its pros and cons could not be more apparent. Was AIR the answer? I hardly know. That was for the city, not the majority or this dissent, to decide. Baltimore’s effort was a constructive example of democracy at work. This court’s decision is a blow to self-determination everywhere.

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

VI.
Today’s precipitous and gratuitous ruling will contribute to the continuation of a great human tragedy. There is forever the temptation in the face of the horrific facts of human suffering to turn the eyes and avert the gaze. But no. Homicides in Baltimore and elsewhere rob children of their parents and parents of their children. Homicides envelop communities in greater fear and rising suspicion. Homicides leave too many empty chairs at too many kitchen tables. Homicides break the Declaration of Independence’s promise that Baltimoreans shall have “certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration of Independence para. 2 (U.S. 1776). Homicides deny our least fortunate citizens the opportunities that the more fortunate enjoy, perpetuating systemic inequality and suffering. Homicides make it more difficult for businesses and jobs to locate in Baltimore, for educational opportunities to take hold, for family and civic bonds to form and endure. How many youngsters are denied the chance to marry and raise children, and to give their talents to their country. There is no one answer to these problems, but surely Fourth Amendment reasonableness does not conscript us in an effort to deny cities the right to find answers, to discover what works for them.
*31 Baltimore tried. Our Constitution does and did not prevent it from doing so.

opinion that also oversteps an appellate court’s role. This is well-detailed in Judge Wilkinson’s most persuasive redress, in which I am pleased to concur. Were it ever fitting for the Supreme Court to oversee such inappropriate exercises of authority, this is undoubtedly a supreme example.
DIAZ, Circuit Judge, dissenting:
When this case first came before us, it presented a close constitutional question, namely, whether the warrantless operation of Baltimore’s AIR Program violated the Fourth Amendment. And indeed, my colleagues have eloquently made the case for the competing views.
But while this appeal was pending, the Baltimore Police Department terminated the AIR Program, cancelled its contract with Persistent Surveillance Systems, and deleted almost all of the data collected during the AIR Program’s operation. In these circumstances, the justification for granting a preliminary injunction—that the Department was using the images to track and identify individuals and produce detailed reports about their movements—has effectively evaporated. That, in turn, renders this appeal moot.
I therefore join Part I of Judge Wilkinson’s dissent, which ably explains why this is so.

NIEMEYER, Circuit Judge, dissenting:

All Citations

--- F.4th ----, 2021 WL 2584408

Our court’s majority opinion in this case is the most

stunning example of judicial overreach that I have ever

witnessed on this court. It is nothing short of an advisory

Footnotes

1

The district court found that “PSS cannot provide real-time surveillance,” J.A. 130, but real-time analysis is indeed

feasible and authorized by the PSA, albeit in limited circumstances. See J.A. 72 (“[PSS] will not provide BPD real time

support except in exigent circumstances and only at the written request of the BPD Police Commissioner.”).

2

Commissioner Harrison’s letter to the Board of Estimates states that “[u]nanalyzed imagery data” will be retained

for 45 days “after which point it will be deleted.” J.A. 51. The PSA does not specify an obligation or process for data

deletion. See J.A. 73.

27

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

3

In the intervening period, PSS rebranded as “Community Support Program.” For consistency’s sake, the entity will be

referred to as PSS here, as in the district court.

4

The Policing Project published the findings of its civil liberties audit. See Br. of the Policing Project as Amicus Curiae

in Supp. of Neither Party and in Supp. of Reh’g or Reh’g En Banc, ECF No. 59 (“Policing Project Brief”). The audit

found that, during the first three months of the program, due to “technical issues” and BPD officers’ “unfamiliarity

with the program,” all AIR data was retained indefinitely—not for 45 days only, as the PSA provided, as

Commissioner Harrison represented to the Board of Estimates, and as Defendants represented to the district court

and this Court. Policing Project Br. App. at 17 & n.18. Further, even after the first three months, BPD continued to

retain “a substantial majority of the aerial imagery generated during the AIR pilot” beyond 45 days because, “on any

day in which there was a request from BPD, and AIR has (Continued) captured relevant imagery,” PSS would retain

the entire day’s data indefinitely. Id. “Given the volume of cases BPD initiates, these policies mean all the imagery is

kept for most days.” Id. at 18. And, “once imagery has been retained for use in one investigation, nothing prevents

BPD from requesting that PSS use the imagery in another case.” Id.

5

BPD already has the AIR reports. And though PSS is custodian of the underlying data, the district court found that

PSS was a state actor, making its actions attributable to Defendants. That finding was based on the now-terminated

PSA, but BPD and PSS expressly preserved its data retention provisions: PSS “will maintain the retained imagery data

in accordance with the [PSA] ... until told the retention program is no longer needed to support trials, appeals, and

other legal actions.” Defs.’ Mot. to Dismiss, Ex. B.

6

For purposes of the mootness analysis, we take for granted BPD’s representation that, now that it terminated the

PSA with PSS, it can produce no further tracking information from the retained data. We note, however, that PSS’s

memo regarding the deletion of AIR data states, “The retained data allows for additional analysis by prosecution and

defense teams should the need arise in specific cases” and is enough to meet “the requirement and desire to

support future prosecution and defense team analysis requests.” Defs.’ Mot. to Dismiss, Ex. B, at 1.

7

Further, Defendants here could restart the challenged conduct, unlike appellants from a granted injunction.

Defendants emphasize that the PSA has been terminated and, when asked whether the program could restart,

replied: “Not under this Mayor.” See Oral Arg. at 1:05:51. But that is a statement about the perceived policy

preferences of the current occupant of the Mayor’s office. However clear an official’s intentions may appear, office

holders are fungible and policy positions change. For example, as recently as two months before announcing the

return of the AIR program, Commissioner Harrison publicly stated he was “skeptical” of the idea. J.A. 129 n.3 So,

while we agree there are practical barriers to restarting the AIR program, our analysis is informed by the fact that

are no legal barriers to doing so. If the leaders involved change their minds, or new leaders take their seats,

Defendants could choose to restart the challenged conduct that they chose to stop.

8

As the D.C. Circuit aptly explained:

The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the

distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did

not bark in the Sherlock Holmes story, may reveal even more. ... Repeated visits to a church, a gym, a bar, or a

bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a

month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells

little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different

story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy

drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of

particular individuals or political groups—and not just one such fact about a person, but all such facts.

United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010).

28

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

9

Indeed, the AIR program used these capabilities during its pilot run. The Policing Project reported that one AIR

investigation “monitor[ed] the home of a suspect’s mother over the course of two days and track[ed] the individuals

who came and went.” Policing Project Br. App. at 16. And an AIR report “detail[ed] a vehicle’s movements over the

course of three days, listing eleven locations at which the vehicle stopped, and noting the interactions the driver had

with other individuals.” Id. Defendants respond that their past representations—that the AIR program could not

“track[ ] over the course of several days” and is not used to “reveal ... the movements of an identified

person”—were accurate because they understood “tracking over the course of several days ... to mean a

continuous, uninterrupted track for that period of time.” Resp. to Pet’n for Reh’g En Banc at 20–21, ECF No. 61. We

do not impugn counsel’s candor. And we emphasize that the Policing Project’s audit report is not in the record, and

we do not rely on it. But the record alone supports—and requires—this understanding of the program’s capabilities.

The evidence before the district court showed that the AIR program was capable of surveillance it apparently did, in

fact, carry out. The district court’s contrary conclusions amount to error.

10 See Yves-Alexandre de Montjoye et al., Unique in the Crowd: The Privacy Bounds of Human Mobility, 3 Sci. Rep. 1376 (2013). The researchers analyzed 15 months of anonymized CSLI data from roughly 1.5 million people, which recorded hourly location points with precision ranging from .15 kilometers in urban areas to up to 15 kilometers in rural areas. They found that 95% of the cell phone owners could be identified from just four randomly chosen location history points.

11 See, e.g., Laura K. Donohue, The Fourth Amendment in a Digital World, 71 N.Y.U. Ann. Surv. Am. L. 553, 626–27 & n.444 (2017) (explaining that “the insight provided by [locational] data into individuals’ private lives is profound,” citing three empirical studies, in addition to the study Plaintiffs cited, to support that “[i]t can reveal an individual’s identity”); Dániel Kondor et al., Towards Matching User Mobility Traces in Large-Scale Datasets, 6 IEEE Trans. on Big Data 714, 715–26 (2018) (explaining that because “mobility traces are highly unique,” a “small number of records uniquely identifies an individual,” and “reidentification can be achieved based on a relatively small amount of information, e.g. by following someone for only a short amount of time, ... ”); Herbert B. Dixon Jr., Your Cell Phone is a Spy!, Judges’ J., Summer 2020, at 34 (discussing instances of private companies sharing locational data to track users’ movements and noting, “[a]lthough user data are anonymized, users’ identities can nonetheless be determined by following their movements back to their homes and other places”).

12 At oral argument, Defendants posited that an injunction “order[ing] the City and Police Department not to access the data,” would effectively mean “that when a criminal defendant moves to suppress three months from now, the City would be bound not to produce the relevant data.” Oral Arg. at 1:07:50. We do not think so. An order barring the Defendants in this case—the BPD and its Commissioner—from “accessing” any file containing AIR data would not seem to prohibit transferring such files to prosecutors, defense counsel, or the court in an individual prosecution. In other words, an order barring “access” does not bar possession; the injunction Plaintiffs requested would not require BPD to destroy the remaining AIR data. Regardless, we are confident that the parties and the district court can reach agreement on any definitional questions, craft any necessary exceptions, and ensure procedures for complying with all constitutional obligations.

*

Baltimore is over-policed: police surveillance is ubiquitous, and pointless, humiliating interactions between its

citizens and law enforcement are quotidian. See, e.g., W. Balt. Comm’n on Police Misconduct & the No Boundaries

Coal., Over-Policed, Yet Underserved: The People’s Findings Regarding Police Misconduct in West Baltimore, 1, 25–29

(Mar.

8,

2016),

http://www.noboundariescoalition.com/wpcontent/uploads/2016/03/No-Boundaries-Layout-Web-1.pdf (collecting

57 examples of such interactions). Of course, not every neighborhood in Baltimore is policed the same way. See,

e.g., Joanne Cavanaugh Simpson & Ron Cassie, Under Watch, Balt. Mag. (Mar. 25, 2021),

https://pulitzercenter.org/stories/under-watch-police-spy-plane-experiment-over-growing-surveillance-baltimore-c

ontinues (reporting that “more than a fifth of city police cameras [in Baltimore] surveil [the] 0.02 percent of [the

29

Leaders of a Beautiful Struggle v. Baltimore Police Department, --- F.4th ---- (2021)

city’s residents that live in (Continued) public-housing complexes], almost all of whom are Black or Brown”); id.

(documenting that approximately 99 percent of the AIR program’s flights centered on the predominantly Black

neighborhoods of East and West Baltimore).

Baltimore is also under-policed, suffering from tragic homicide and homicide-clearance rates. See Kevin Rector &

Phillip Jackson, Dysfunction in Baltimore Police Homicide Unit Went Unaddressed as Killings Hit Historic Levels, Balt.

Sun

(Apr.

16,

2020,

7:00

AM),

https://www.baltimoresun.com/news/crime/bs-md-ci-cr-homicide-unit20200416-gbqpcplpazd4jkjobiottrdxga-story

.html (documenting that Baltimore’s homicide clearance rate is “roughly half the national average for cities of [its]

size”).

Baltimore is also arguably just plain poorly policed. Though you would not know it from reading Judge Wilkinson’s

dissent, in 2016, the Department of Justice found “reasonable cause to believe that [the Baltimore Police

Department] engage[d] in a pattern or practice of conduct that violate[d] the Constitution or federal law” by “(1)

making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce[d] severe and

unjustified disparities in the rates of stops, searches and arrests of African Americans; (3) using excessive force; and

(4) retaliating against people engaging in constitutionally-protected expression.” U.S. Dep’t of Just., C.R. Div.,

Investigation of the Baltimore City Police Department, 1, 3 (Aug. 10, 2016),

https://www.justice.gov/crt/file/883296/download.

Matters do not appear to have improved substantially in the intervening years. For example, between 2015 and

2019, “there were 22,884 use of force incidents in Baltimore” and “13,392 complaints of misconduct were filed

against 1,826 Baltimore City officers.” Joe Spielberger, Chasing Justice: Addressing Police Violence and Corruption in

Maryland,

ACLU

of

Md.

1,

15,

17

(Jan.

2021),

https://www.aclumd.org/sites/default/files/field_documents/chasing_justice_report_2021_final.pdf. During this

time, “469 individual [Baltimore Police Department] officers were the subject of at least one complaint of physical

violence against a member of the public.” Id. at 18.

30

 
 Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 1 of 44

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

LEADERS OF A BEAUTIFUL STRUGGLE et al.,
Plaintiffs,
v.
BALTIMORE POLICE DEPARTMENT et al.,
Defendants.

Civil Action No. 20-929

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER & A PRELIMINARY INJUNCTION

Brett Max Kaufman* Ashley Gorski* Alexia Ramirez* Nathan Freed Wessler* Ben Wizner* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 T: 212.549.2500 F: 212.549.2654 bkaufman@aclu.org agorski@aclu.org aramirez@aclu.org nwessler@aclu.org bwizner@aclu.org

David R. Rocah (Bar No. 27315) American Civil Liberties Union Foundation
of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 T: 410.889.8555 F: 410.366.7838 rocah@aclu-md.org

* pro hac vice application forthcoming

Counsel for Plaintiffs

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 2 of 44
TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND .........................................................................................................2
I. Plaintiffs ..............................................................................................................................2 II. Defendants’ AIR Program ...................................................................................................4 ARGUMENT ................................................................................................................................11 I. Plaintiffs are likely to prevail on the merits of their claims that the BPD’s wide-area
aerial surveillance system is unconstitutional. ..................................................................12 A. The BPD’s wide-area aerial surveillance system violates the Fourth Amendment. .....12
1. The acquisition of location information through wide-area aerial surveillance is a Fourth Amendment search. .......................................................................................12
2. The warrantless use of wide-area aerial surveillance to collect and track the locations of all Baltimoreans at once is unreasonable under the Fourth Amendment..............19
3. The rules regulating the BPD’s wide-area aerial surveillance system are unreasonable under the Fourth Amendment..............................................................24
B. The BPD’s wide-area aerial surveillance system violates the First Amendment..........28 II. Plaintiffs will suffer irreparable harm as a result of the BPD’s wide-area aerial
surveillance system............................................................................................................33 III. The balance of equities favors granting preliminary injunctive relief...............................33 IV. The public interest favors granting preliminary injunctive relief......................................34 CONCLUSION .............................................................................................................................35
i

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 3 of 44
TABLE OF AUTHORITIES
Cases
[Redacted], 402 F. Supp. 3d 45 (F.I.S.C. 2018) ...........................................................................................25
ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) ......................................................................................................31
Arizona v. Gant, 556 U.S. 332 (2009) ............................................................................................................19, 21
Bates v. City of Little Rock, 361 U.S. 516 (1960) ..................................................................................................................30
Berger v. New York, 388 U.S. 41 (1967) ..............................................................................................................20, 25
Boyd v. United States, 116 U.S. 616 (1886) ..................................................................................................................13
Brigham City v. Stuart, 547 U.S. 398 (2006) ..................................................................................................................24
Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................................................................................29
Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) ...................................................................................................32
California v. Ciraolo, 476 U.S. 207 (1986) ..................................................................................................................15
Carpenter v. United States, 138 S. Ct. 2206 (2018) .......................................................................................................passim
Centro Tepeyac v. Montgomery Cty., 722 F.3d 184 (4th Cir. 2013) .....................................................................................................33
Chandler v. Miller, 520 U.S. 305 (1997) ..................................................................................................................21
City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ........................................................................................................21, 22, 24
ii

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 4 of 44
City of L.A. v. Patel, 135 S. Ct. 2443 (2015) ........................................................................................................19, 21
City of Ontario v. Quon, 560 U.S. 746 (2010) ..................................................................................................................19
Clark v. Library of Cong., 750 F.2d 89 (D.C. Cir. 1984)...............................................................................................29, 30
Conner v. Donnelly, 42 F.3d 220 (4th Cir. 1994) .......................................................................................................11
Dow Chemical Co. v. United States, 476 U.S. 227 (1986) ............................................................................................................15, 16
Elrod v. Burns, 427 U.S. 347 (1976) ..................................................................................................................33
Ferguson v. City of Charleston, 532 U.S. 67 (2001) ..............................................................................................................22, 23
Florida v. Riley, 488 U.S. 445 (1989) ..................................................................................................................16
Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) ..................................................................................................................30
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) ...............................................................................................33, 34
Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337 (4th Cir. 2000) .....................................................................................................11
In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (F.I.S.C. Rev. 2008) ....................................................................................25, 26
In re First Nat’l Bank, 701 F.2d 115 (10th Cir. 1983) ...................................................................................................32
In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ....................................................................................................29
In re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988) .....................................................................................................32
iii

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 5 of 44
Katz v. United States, 389 U.S. 347 (1967) ............................................................................................................19, 25
Kyllo v. United States, 533 U.S. 27 (2001) ........................................................................................................14, 18, 19
Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267 (2d Cir. 1981) ................................................................................................31, 32
Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003) .....................................................................................................11
Marron v. United States, 275 U.S. 192 (1927) ..................................................................................................................20
Maryland v. Garrison, 480 U.S. 79 (1987) ....................................................................................................................20
Maryland v. King, 569 U.S. 435 (2013) ..................................................................................................................22
Master Printers of Am. v. Donovan, 751 F.2d 700 (4th Cir. 1984) .....................................................................................................29
McDonald v. United States, 335 U.S. 451 (1948) ..................................................................................................................25
Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) ..................................................................................................................22
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009).................................................................................................33
Monell v. NY.C. Dep't of Soc. Servs., 436 U.S. 658 (1978) ..................................................................................................................11
NAACP v. Alabama, 357 U.S. 449 (1958) ..................................................................................................................30
New Jersey v. T.L.O., 469 U.S. 325 (1985) ..................................................................................................................21
New York v. P.J. Video, Inc., 475 U.S. 868 (1986) ..................................................................................................................30
iv

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 6 of 44
Owens ex rel. Owens v. Lott, 372 F.3d 267 (4th Cir. 2004) ...............................................................................................20, 27
Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379 (4th Cir. 2014) .....................................................................................................11
Riley v. California, 573 U.S. 373 (2014) ...........................................................................................................passim
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ...................................................................................................34
Roe v. Dep’t of Def., 947 F.3d 207 (4th Cir. 2020) .....................................................................................................11
Samson v. California, 547 U.S. 843 (2006) ..................................................................................................................25
Shelton v. Tucker, 364 U.S. 479 (1960) ............................................................................................................31, 32
Smith v. Balt. City Police Dep’t, No. MJG-13-1352, 2014 WL 12675230 (D. Md. Mar. 25, 2014).............................................12
Stanford v. Texas, 379 U.S. 476 (1965) ..................................................................................................................20
State v. Muhammad, 451 P.3d 1060 (Wash. 2019) .....................................................................................................15
Steagald v. United States, 451 U.S. 204 (1981) ..................................................................................................................20
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) ........................................................................................................30
United States v. Bobo, 477 F.2d 974 (4th Cir. 1973) .....................................................................................................24
United States v. Broadhurst, 805 F.2d 849 (9th Cir. 1986) .....................................................................................................16
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) .....................................................................................................16
v

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 7 of 44
United States v. Jones, 565 U.S. 400 (2012) ......................................................................................................13, 14, 29
United States v. Karo, 468 U.S. 705 (1984) ..................................................................................................................21
United States v. Knotts, 460 U.S. 276 (1983) ..................................................................................................................14
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ..................................................................................................................22
United States v. Moore-Bush, 381 F. Supp. 3d 139 (D. Mass. 2019)........................................................................................16
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ......................................................................................................................11
WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292 (4th Cir. 2009) .....................................................................................................33
Ybarra v. Illinois, 444 U.S. 85 (1979) ....................................................................................................................27
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ..................................................................................................................30
Statutes
42 U.S.C. § 1983 ...........................................................................................................................11
Other Authorities
Alissa Scheller, 6 Maps That Show How Deeply Segregated Baltimore Is, HuffPost, Dec. 6, 2017.................................................................................................................................7
Arthur Holland Michel, Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch All of Us (2019) ................................................................................................................9
Baltimore Police Department, Aerial Investigation Research Pilot Program, Facebook (Mar. 23, 2020)..........................................................................................................................11
Baltimore Police Department, Community Education Presentation: Aerial Investigation Research (AIR) Pilot Program (Mar. 2020) .......................................................................passim
vi

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 8 of 44
Baltimore Police Department, Aerial Investigation Research Pilot Program (AIR), Facebook (Mar. 30, 2020) ..................................................................................................passim
Benjamin Powers, Eyes Over Baltimore: How Police Use Military Technology to Secretly Track You, Rolling Stone, Jan. 6, 2017 .......................................................................................5
Brandon Soderberg & Raven Rakia, Baltimore’s ‘Eye in the Sky’ Plane is Back with a New Pitch: Surveil the Police, Oct. 28, 2018 ......................................................................................8
Brandon Soderberg, Persistent Transparency: Baltimore Surveillance Plane Documents Reveal Ignored Pleas to Go Public, Who Knew About the Program, and Differing Opinions on Privacy, Balt. Sun, Nov. 1, 2016 ............................................................................5
City of Baltimore, City of Baltimore Consent Decree ..................................................................29
City of Baltimore, Open Baltimore: CCTV Cameras .....................................................................7
Daniel Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007) ...................................................................................................30
David Collins, Crime-Fighting Technology Outpaces Ability to Regulate It, WBalTV, July 24, 2017 ...............................................................................................................................8
Editorial, Aerial Surveillance is Not the Answer to Baltimore’s Crime Problem, Balt. Sun, Oct. 14, 2019 .............................................................................................................................10
Elizabeth Janney, Maryland Tracks License Plates, Traffic With Surveillance, Patch, Dec. 11, 2019...............................................................................................................................8
Emily Opilo, Baltimore Spending Board Approves Surveillance Plane Pilot Program to Capture Images From City Streets, Balt. Sun, Apr. 1, 2020.................................................11
Homer, The Iliad (Robert Fagles tr., Penguin Classics 1990) (c. 1190 BCE).................................9
Jason Palmer, Mobile Location Data ‘Present Anonymity Risk’, BBC News, Mar. 23, 2013 ............................................................................................................................17
Justin Fenton & Talia Richman, Baltimore Police Back Pilot Program for Surveillance Planes, Reviving Controversial Program, Balt. Sun, Dec. 20, 2019, ...................................4, 10
Kevin Rector & Ian Duncan, State Lawmakers, ACLU Consider Legislation to Regulate Police Surveillance, Balt. Sun, Sept. 3, 2016 ..........................................................................4, 5
Kevin Rector & Luke Bridgewater, Report of Aerial Surveillance by Baltimore Prompts Questions, Outrage, Balt. Sun, Aug. 24, 2016 ............................................................................5
vii

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 9 of 44
Kevin Rector, Baltimore Officers Pitched on Putting Three Surveillance Planes in the Sky at Once, Covering Most of City, Balt. Sun (Sept. 19, 2019)...............................................10
Letter from Kevin Davis, Baltimore Police Commissioner, to Natalie A. McKeown Finegar, Deputy District Public Defender (Sept. 20, 2016) ......................................................................5
McKenna Oxenden, Baltimore Police Department Holds First Community Forum on Surveillance Plane That’s Set to Launch in April, Balt. Sun, Mar. 11, 2020............................11
Michael Calhoun, EXCLUSIVE: St. Louis Eyed as Test Market for Aerial Crime Surveillance Technology, KMOX NewsRadio 1120, June 19, 2019 ...............................................................9
Monte Reel, Secret Cameras Record Baltimore’s Every Move From Above, Bloomberg Businessweek, Aug. 23, 2016................................................................................................5, 29
Morgan Cloud, Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707 (1996) .................................................................................................20
Office of Gov. Larry Hogan, COVID-19 Pandemic: Orders and Guidance .....................10, 11, 34 Persistent Surveillance Systems, Hawkeye II .................................................................................6 Persistent Surveillance Systems, NightHawk II ............................................................................19 Professional Services Agreement, Aerial Investigation Research (“AIR”) ...........................passim Robert Sheckley, Watchbird, Galaxy Sci. Fiction (Feb. 1953) .....................................................12 Stephen R. Wilk, Medusa: Solving the Mystery of the Gorgon (2000)...........................................9 Tim Prudente, 2019 Closes With 348 Homicides in Baltimore, Second-Deadliest Year
on Record, Balt. Sun, Jan. 1, 2020 ............................................................................................23 Yves-Alexandre de Montjoye et al., Unique in the Crowd: The Privacy Bounds of Human
Mobility, 3 Sci. Reps. 1376 (2013)............................................................................................17
viii

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 10 of 44
INTRODUCTION The Baltimore Police Department (“BPD”) is set to imminently deploy aircraft to circle above Baltimore as part of a comprehensive system of long-term, persistent, wide-area aerial surveillance that will cover more than 90 percent of the city, recording second-by-second the movements of Baltimore’s 600,000 residents. This mass surveillance system presents a radical and society-changing threat to individual privacy and to free association, and it violates the Constitution. The BPD calls this system the “Aerial Investigation Research” program, but its objective is surveillance, not science. It is designed to enable the warrantless collection of information about all of Baltimore’s residents for law-enforcement use. The BPD has signed a contract with a private corporation to put this pervasive surveillance program into practice. The contract describes the work that the corporation, straightforwardly called “Persistent Surveillance Systems,” will do at BPD’s direction to track and record the movements of Baltimore’s residents; to link that information to other BPD-operated surveillance systems (including groundbased video cameras and automatic license plate readers); and to deliver reports to the BPD that comprehensively detail the movements of individuals who have been in the vicinity of crime scenes—and the movements of everyone those individuals have met. There is one thing that is conspicuously missing from the contract, though: any role whatsoever for the judicial branch. Despite launching one of the most expansive domestic surveillance systems in American history, the BPD will not seek judicial approval before sending its planes into the skies to record Baltimoreans from above, nor will it seek a warrant before accessing the information for use in criminal investigations and prosecutions.
1

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 11 of 44
That means that this Court will be the only one to pass on the legality of Baltimore’s novel mass surveillance system before it becomes a chilling and all-seeing part of daily life. The system would put into place the most wide-reaching surveillance dragnet ever employed in an American city, giving the BPD access to a comprehensive record of the movements and activities of every Baltimore resident each time they leave their home. “[T]his newfound tracking capacity runs against everyone,” “not just . . . persons who might happen to come under investigation,” and accordingly offends the bedrock protections for a free society that the Constitution has long provided. Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018). The program’s objectives to reduce crime and violence in Baltimore are laudable—indeed, that is one of the central aims of Plaintiffs’ own work. But Plaintiffs understand that the way to address the effects of entrenched structural power in Baltimore, including poverty and violence, is through community-building, education, and policy advocacy, not by granting futuristic policing powers to an entity that has historically and systematically infringed the rights of Black and Brown communities. The Constitution dictates that the use of the BPD’s indiscriminate aerial dragnet is not an available solution to Baltimore’s ills.
For the reasons that follow, the Court should stop this program before it ever gets off the ground.
FACTUAL BACKGROUND I. Plaintiffs
Plaintiffs are Baltimoreans. Plaintiff Leaders of a Beautiful Struggle (“LBS”) is a grassroots think-tank founded in 2010 that advances the public policy interests of Black people in Baltimore, through youth leadership development, political advocacy, and intellectual innovation. See Declaration of
2

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 12 of 44
Dayvon Love (“LBS Decl.”) ¶ 4. A central focus of LBS’s work is addressing historic and structural impediments to Black people’s quality of life, including poverty, violence, and white supremacy in the American political and socio-economic order. Id. ¶ 7. To this end, it has been heavily involved in advocacy surrounding policing reform, and it has spearheaded numerous legislative efforts aimed at policing accountability. Id. An important component of LBS’s advocacy is maintaining close proximity to the communities it represents in order to prioritize the needs of the community in its agenda-setting. Id. ¶ 12. It has been a frequent critic of law enforcement’s use of surveillance technologies against Black communities. Id. ¶ 8.
Plaintiff Erricka Bridgeford is a Black activist in Baltimore, where she was born and raised. See Declaration of Erricka Bridgeford (“Bridgeford Decl.”) ¶¶ 2, 4. She has been an involved community activist since the late 1990s and has focused on a range of social justice issues during that time, in particular abolishing the death penalty and supporting survivors of homicide victims. Id. ¶ 4. She is the co-founder of Ceasefire Baltimore 365 (“Ceasefire”), a movement that serves as a hub for organizations and citizens to support one another, work together, and share resources with the goal of seeing an end to murder in Baltimore City. Id. Ceasefire organizes quarterly 72-hour “ceasefire weekends” in the city—and they work. Id. ¶ 5– 6. One recent study has shown that these efforts have led to an estimated 52% reduction in gun violence in Baltimore during such weekends, with no evidence of a “postponement effect” in the following days. Id. ¶¶ 17. As part of her work for Ceasefire, Ms. Bridgeford conducts significant community outreach in neighborhoods throughout Baltimore, including by visiting every murder site in the city within two weeks of the crime occurring—and, on ceasefire weekends, visiting those sites within a day or even a matter of hours. Id. ¶ 7.
3

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 13 of 44
Plaintiff Kevin James is an information technology professional, hip-hop musician, activist, and community organizer. Mr. James has lived in Baltimore City and County since 2001, when he moved to join Teach for America at a city high school. Declaration of Kevin James (“James Decl.”) ¶¶ 2–4. He has been involved with many grassroots movements in Baltimore, working on issues that include school funding, housing rights, mental health, and immigration. Id. ¶¶ 2–3. He is also a trained paramedic, and has volunteered both as a periodic Emergency Medical Technician in Baltimore County and as a street medic during 2015 protests. Id. ¶ 2. Through his activism and music, Mr. James expresses his values of community-building, justice, and equality. See id. ¶¶ 3–4. II. Defendants’ AIR Program
Defendants are the BPD and Baltimore Police Commissioner Michael S. Harrison. In December 2019, Commissioner Harrison announced that the City of Baltimore would enter into a contract with Persistent Surveillance Systems (“PSS”) to conduct a “180 day pilot program” of a wide-area aerial motion-imagery surveillance system, to be launched in April 2020.1 But the system is not entirely new: the BPD deployed an earlier version of it for a period of months in 2016, keeping it secret not only from the public but from the Mayor of Baltimore and the city’s top prosecutors.2 The BPD halted its secret “trial” of PSS’s surveillance
1 BPD, Community Education Presentation: Aerial Investigation Research (AIR) Pilot Program at 3 (Mar. 2020) (“BPD Presentation”) (attached as Exhibit A to Declaration of Alexia Ramirez (“Ramirez Decl.”)); see Justin Fenton & Talia Richman, Baltimore Police Back Pilot Program for Surveillance Planes, Reviving Controversial Program, Balt. Sun, Dec. 20, 2019, https://www.baltimoresun.com/news/crime/bs-md-ci-cr-baltimore-police-support-surveillanceplane-20191220-zfhd5ndtlbdurlj5xfr6xhoe2i-story.html. 2 See Kevin Rector & Ian Duncan, State Lawmakers, ACLU Consider Legislation to Regulate Police Surveillance, Balt. Sun, Sept. 3, 2016, https://www.baltimoresun.com/politics/bs-mdpolice-surveillance-legislation-20160903-story.html.
4

Case 1:20-cv-00929-RDB Document 2-1 Filed 04/09/20 Page 14 of 44
technology only after news reports revealed it, leading to an overwhelming public outcry.3
During its 2016 trial run, PSS recorded more than 300 hours’ worth of the movements of
ordinary Baltimoreans as they moved about their city.4 And although PSS publicly represented
that the information it collected would be deleted after 45 days, it instead saved all of the
recordings indefinitely.5
According to a “Professional Services Agreement” signed by the BPD and PSS in March
2020, the BPD will authorize PSS to use its “experimental aerial investigation research
technology and analytics,” whose use in “any US City” is unprecedented and whose “effect on
crime has not been analyzed and is unknown,” to assist in the investigation of certain crimes in
Baltimore City during a six-month “pilot” period.6 While the contract represents that information
collected by PSS through this “Aerial Investigation Research” (“AIR”) program is intended to be
used in investigations related to only four categories of crimes—murder, non-fatal shootings,
armed robberies, and car-jackings—there is effectively no such limitation, as the Baltimore
3 See id.; Monte Reel, Secret Cameras Record Baltimore’s Every Move From Above, Bloomberg Businessweek, Aug. 23, 2016, https://www.bloomberg.com/features/2016-baltimore-secretsurveillance; Kevin Rector & Luke Bridgewater, Report of Aerial Surveillance by Baltimore Prompts Questions, Outrage, Balt. Sun, Aug. 24, 2016, https://www.baltimoresun.com/ maryland/baltimore-city/bs-md-ci-secret-surveillance-20160824-story.html. 4 See Benjamin Powers, Eyes Over Baltimore: How Police Use Military Technology to Secretly Track You, Rolling Stone, Jan. 6, 2017, https://www.rollingstone.com/culture/culture-features/ eyes-over-baltimore-how-police-use-military-technology-to-secretly-track-you-126885. 5 See Brandon Soderberg, Persistent Transparency: Baltimore Surveillance Plane Documents Reveal Ignored Pleas to Go Public, Who Knew About the Program, and Differing Opinions on Privacy, Balt. Sun, Nov. 1, 2016, https://www.baltimoresun.com/citypaper/bcp-110216-mobsaerial-surveillance-20161101-story.html; Letter from Kevin Davis, Baltimore Police Commissioner, to Natalie A. McKeown Finegar, Deputy District Public Defender, at 2 (Sept. 20, 2016), available at https://www.aclu.org/sites/default/files/field_document/opd_response_letter_ regarding_csp_-_signed.pdf. 6 Professional Services Agreement, Aerial Investigation Research (“AIR”) (“BPD/PSS Contract”) at 18 (attached as Exhibit B to Ramirez Decl.).
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Police Commissioner retains the unreviewable authority to approve other uses in “extraordinary and exigent circumstances” on a case-by-case basis.7
PSS’s aerial surveillance technology will bring the BPD an entirely novel capability, allowing it to amass a comprehensive record of the movements of every pedestrian and vehicle that moves about the city. Under the program, PSS pilots will fly over Baltimore in three manned aircraft, each equipped with its “Hawkeye Wide Area Imaging System.”8 While neither the contract nor a public BPD presentation provides a description of that system, PSS’s website describes a system called “Hawkeye II”—which is also listed in the contract’s budget9—as “consist[ing] of twelve, full color cameras” equipped with a “192 million pixel, full color, geo and ortho rectified airborne wide area surveillance sensor” with a “1/2 meter resolution throughout” its coverage area.10 The BPD has explained that these cameras will capture images of 32 square miles of the city every second—covering about 90 percent of the city.11 The spy planes will fly a minimum of 40 hours per week, “weather permitting.”12 While the system will not employ infrared or night vision technology, it is “sensitive enough to capture images at night with ambient City lighting.”13 The BPD and PSS have “agreed” that resolution of the surveillance cameras will be “one pixel per person,” but the “technology has the ability to
7 Id. 8 Id. at 19. 9 See id. at Ex. B. 10 See PSS, Hawkeye II, https://www.pss-1.com/hawkeye-ii (quotations from various web pages) (attached as Exhibit C to Ramirez Decl.). 11 BPD Presentation at 5. 12 BPD/PSS Contract at 19. 13 Id.
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upgrade the [image] quality.”14 The cost of the program—fully funded by Texas philanthropists John and Laura Arnold through an entity called Arnold Ventures—is almost $4 million.15
This surveillance power will be further supercharged by integration with existing BPD surveillance capabilities. Specifically, PSS will employ between 15 and 25 analysts in two seven-hour daily shifts, some of whom may work out of the “BPD’s Watch Center to be teamed with a BPD sworn officer or BPD analyst.”16 PSS analysts “will monitor BPD’s [Computer Aided Dispatch] system from monitors in BPD facilities.”17 PSS will also be permitted to “integrate its imagery data analysis with BPD systems,” including the BPD’s centralized “CitiWatch” network of ground-based surveillance cameras (which are not employed pursuant to any judicial authorization).18 The CitiWatch network includes more than 800 cameras in Baltimore City,19 predominantly located in Black and Brown communities (as well as the downtown business district).20 As part of the BPD’s aerial surveillance program, PSS analysts “will track individuals and vehicles that pass the Baltimore CitiWatch CCTV cameras,” and will
14 BPD, Aerial Investigation Research Pilot Program (AIR) at 23:40, Facebook (Mar. 30, 2020), https://www.facebook.com/BaltimoreCityPolice/videos/vb.58771761955/212014970074066 (“BPD 3/30 Facebook Live Video”). 15 See BPD/PSS Contract at 1; id. at Ex. B. 16 Id. at 19. 17 Id. at 20. 18 Id. 19 See BPD 3/30 Facebook Live Video at 28:07. 20 Compare City of Baltimore, Open Baltimore: CCTV Cameras (showing locations), https://data.baltimorecity.gov/Public-Safety/CCTV-Cameras/y3f4-umna, with Alissa Scheller, 6 Maps That Show How Deeply Segregated Baltimore Is, HuffPost, Dec. 6, 2017, https://www.huffpost.com/entry/baltimore-segregated-maps-riots_n_7163248 (showing racial makeup of the city); see LBS Decl. ¶ 18.
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“access or request CitiWatch camera information to provide more detailed descriptions.”21 PSS will also link the images it collects to the BPD’s warrantless automated license plate
reader (“ALPR”) network, directly allowing any “vehicles that are tracked from [a] crime scene . . . to be identified.”22 In 2016, the BPD’s ALPR system collected 6.5 million “reads”— which can include license plates, vehicle make and model, images of drivers and passengers, distinguishing features (such as bumper stickers and body damage), and registration information—in Baltimore City.23 According to the contract, PSS will be permitted to “integrate its iView software to accept and utilize” these and other BPD surveillance systems “to help make all of the systems work together to enhance their ability to help solve and deter crimes.”24
According to the contract, PSS will analyze collected data “upon specific request by BPD or based on alerts” from the BPD’s dispatch system.25 It will then create, within 18 hours, an “investigative briefing” that will include results of “imagery analysis, the location and timing of a crime, the observable actions at the crime scene, the tracks of vehicles and people to and from the crime scene, the location the vehicles and people from the crime[] scene visited after and
21 BPD/PSS Contract at 20. During the secret 2016 trial of PSS technology in Baltimore, PSS personnel also had “direct access to CitiWatch.” Brandon Soderberg & Raven Rakia, Baltimore’s ‘Eye in the Sky’ Plane is Back with a New Pitch: Surveil the Police, Oct. 28, 2018, Appeal, https://theappeal.org/baltimores-eye-in-the-sky-plane-is-back-with-a-new-pitch-surveil-thepolice. 22 BPD/PSS Contract at 20. 23 David Collins, Crime-Fighting Technology Outpaces Ability to Regulate It, WBalTV, July 24, 2017, https://www.wbaltv.com/article/crime-fighting-technology-outpaces-ability-to-regulateit/10353655; Elizabeth Janney, Maryland Tracks License Plates, Traffic With Surveillance, Patch, Dec. 11, 2019, https://patch.com/maryland/towson/maryland-tracks-license-plates-trafficsurveillance. 24 BPD/PSS Contract at 20; see BPD 3/30 Facebook Live Video at 28:07 (“It absolutely will work with the city’s camera system.”). 25 BPD/PSS Contract at 20.
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before the crime.”26 Within 72 hours, PSS will provide a more comprehensive report that includes “imagery of the crime scene,” “tracks” and locations of people whom PSS identifies as potential suspects or witnesses (as well as “people and vehicles that met with [those] people”) both prior to and after the crime, and CitiWatch-captured video.27 Data collected by PSS will be retained for 45 days and then, if unused and unanalyzed, allegedly deleted.28
Even evaluated on cold contractual language, it is clear that the BPD’s wide-area aerial surveillance system is a vast, powerful, and unprecedented domestic spying apparatus. Little wonder, then, that the military’s version of this aerial surveillance system—developed for use over battlefields abroad, beyond the ordinary reach of the Fourth Amendment—is codenamed “Gorgon Stare,” after a Greek mythological monster from the underworld whose defining characteristic is its “‘rigid, fixed, penetrating, unblinking stare.’”29 In fact, the President of PSS—Ross McNutt—worked on an early version of this technology as a military contractor.30 In recent years, McNutt has been seeking to contract with local law enforcement agencies to deploy this wartime apparatus over American cities.31
26 Id. 27 Id. at 20–21. 28 Id. at 22; BPD Presentation at 15. 29 Arthur Holland Michel, Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch All of Us 40 (2019) (quoting Stephen R. Wilk, Medusa: Solving the Mystery of the Gorgon 124 (2000)); see Homer, The Iliad, XI:39–40 (Robert Fagles tr., Penguin Classics 1990) (c. 1190 BCE) (describing “the burning eyes, the stark, transfixing horror” of the “Gorgon’s grim mask”). 30 See Michel, supra note 29, at 35–36. 31 See Michael Calhoun, EXCLUSIVE: St. Louis Eyed as Test Market for Aerial Crime Surveillance Technology, KMOX NewsRadio 1120, June 19, 2019, https://kmox.radio.com/articles/st-louis-being-considered-test-market-new-aerial-crimesurveillance-technology.
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The BPD’s revival of its aerial surveillance system has been a matter of public controversy since McNutt pitched the department on a three-year, $6.6-million contract in September 2019.32 While Police Commissioner Michael Harrison initially was “skeptical” of the program, he announced in December 2019 that despite its “controversial history,” he intended to enter into a contract for PSS’s services.33 Commissioner Harrison’s announcement took the public—as well as Baltimore State’s Attorney’s Office and the Office of the Public Defender, neither of which were consulted—by surprise.34 Despite having made a final decision about the pilot program, he indicated at the time that he “look[ed] forward to hearing from our community and to educate them on what this is and what this is not.”35
In March 2020, as Baltimoreans were reeling from a State of Emergency declaration by Governor Larry Hogan in response to the fast-evolving coronavirus pandemic, and the shuttering of enormous portions of the local and national economies,36 the BPD held three public meetings concerning its imminent aerial surveillance program. The meetings were conceived as steps to assuage the public in the wake of the BPD’s secret aerial surveillance trials with PSS in 2016. The first, on March 11, just after Governor Hogan’s COVID-19 emergency declaration, was
32 See Kevin Rector, Baltimore Officers Pitched on Putting Three Surveillance Planes in the Sky at Once, Covering Most of City, Balt. Sun (Sept. 19, 2019), https://www.baltimoresun.com/news/ crime/bs-md-ci-cr-surveillance-pitch-20190919-dkurugpjdretrjzcevzlc7eabu-story.html; see also Editorial, Aerial Surveillance is Not the Answer to Baltimore’s Crime Problem, Balt. Sun, Oct. 14, 2019, https://www.baltimoresun.com/opinion/editorial/bs-ed-1015-spy-plane-20191014xlk36warirai7emy54nu3kpen4-story.html. 33 Fenton & Richman, supra note 1. 34 Id. 35 Id. 36 See Office of Gov. Larry Hogan, COVID-19 Pandemic: Orders and Guidance, https://governor.maryland.gov/covid-19-pandemic-orders-and-guidance (“Maryland Pandemic Orders”).
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attended by just 20 people.37 Two other meetings, rescheduled to March 23 and March 30, were
held as online Facebook events,38 while Baltimoreans were under emergency orders prohibiting
gatherings of more than ten people.39
On April 1, the Baltimore Board of Estimates approved the BPD’s contract with PSS by a
3-to-2 vote.40 To Plaintiffs’ knowledge, the BPD has not yet sent up its planes.
ARGUMENT
Plaintiffs seeking temporary or preliminary injunctive relief must establish that they are
likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in their favor, and that an injunction is in
the public interest. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see Roe v. Dep’t
of Def., 947 F.3d 207, 219 (4th Cir. 2020). Plaintiffs readily meet this test.41
37 McKenna Oxenden, Baltimore Police Department Holds First Community Forum on Surveillance Plane That’s Set to Launch in April, Balt. Sun, Mar. 11, 2020, https://www.baltimoresun.com/news/crime/bs-md-ci-cr-community-forum-plane-20200312xmcrmbzivfc2jp5xgalclqhmyi-story.html. 38 BPD 3/30 Facebook Live Video; BPD, Aerial Investigation Research Pilot Program, Facebook (Mar. 23, 2020), https://www.facebook.com/BaltimoreCityPolice/videos/aerial-investigationresearch-pilot-program/3400646286628872. 39 See Maryland Pandemic Orders, supra note 36. 40 Emily Opilo, Baltimore Spending Board Approves Surveillance Plane Pilot Program to Capture Images From City Streets, Balt. Sun, Apr. 1, 2020, https://www.baltimoresun.com/ news/crime/bs-md-ci-baltimore-surveillance-plane-approved-20200401sskjob7dgrevpjfyygrlgitnqi-story.html. 41 The BPD’s contract with PSS establishes a municipal “custom, policy, or practice” under Monell v. New York City Department of Social Services, 436 U.S. 658, 689–90 (1978). Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014). And the collection of location information by PSS through the AIR program constitutes “state action” under 42 U.S.C. § 1983, as it involves the explicit delegation and direction of policing functions to PSS through a contract signed by a final policymaker—the Baltimore Police Commissioner. See, e.g., Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 342 (4th Cir. 2000); Conner v. Donnelly, 42 F.3d 220, 223–24 (4th Cir. 1994); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003); see also, e.g., Smith v. Balt. City Police Dep’t, No. MJG-13-1352, 2014 WL 12675230, at *4 (D. Md.
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I. Plaintiffs are likely to prevail on the merits of their claims that the BPD’s wide-area aerial surveillance system is unconstitutional. A. The BPD’s wide-area aerial surveillance system violates the Fourth Amendment. The surveillance machinery that is set to fly over Baltimore City puts into the BPD’s
hands a virtual, visual time machine whose digital eyes no person engaged in ordinary life can escape. This kind of panoptic surveillance infrastructure would have horrified the drafters of the Fourth Amendment, which was expressly designed to outlaw indiscriminate and wide-ranging searches conducted entirely at law enforcement’s discretion. Warrantless, around-the-clock recording of even a single individual’s movements is not a permissible exercise of executive power, and no warrant can authorize the constant recording of the movements of hundreds of thousands of people. Defendants’ implementation of such a system in Baltimore violates the Fourth Amendment.
1. The acquisition of location information through wide-area aerial surveillance is a Fourth Amendment search.
No one, anywhere, reasonably expects that government cameras in the sky will record the whereabouts of an entire city’s population second by second. That kind of surveillance is the stuff of dystopian fiction, not American cities.42 And those details of location and movement, in their whole, are private. When the government records people’s movements from above, around the clock and day after day, it has infringed upon the core of what the Fourth Amendment protects.
Mar. 25, 2014) (Baltimore Police Commissioner is an officer with “final policymaking authority” under Monell). 42 See, e.g., Robert Sheckley, Watchbird, Galaxy Sci. Fiction (Feb. 1953), available at https://www.law.upenn.edu/live/files/3400-sheckley-r-watchbird-1953 (“After all, murder was an old problem, and watchbird too new a solution.”).
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It is beyond dispute that people’s long-term physical movements, even in public places, enjoy constitutional protection. Almost a decade ago, a majority of the Supreme Court adopted that view over strenuous government objection, and less than two years ago the Court affirmed it as the law of the land. See Carpenter, 138 S. Ct. at 2217 (citing concurring opinions of five Justices in United States v. Jones, 565 U.S. 400 (2012)). That protection exists because the recording of individual movements over time reveals our “privacies of life,” id. (quoting Riley v. California, 573 U.S. 373, 403 (2014) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886))), “provid[ing] an intimate window into a person’s life, revealing not only . . . particular movements, but through them . . . ‘familial, political, professional, religious, and sexual associations,’” id. (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). Long-term location tracking, made possible through advanced technology, intrudes upon the reasonable expectation that the government “would not—and indeed, in the main, simply could not— secretly monitor and catalog [a person’s] every single movement . . . for a very long period.” Id. (citing Jones, 565 U.S. at 430 (Alito, J., concurring)). In Carpenter, the Court rejected the government’s argument that by carrying a cell phone, people forfeit their expectations of privacy in their movements such that the government can obtain reams of cell phone location information without a warrant. See id. at 2210. It reasoned that the use of a cell phone is so “indispensable to participation in modern society,” and the sharing of location data with third parties so involuntary, that the Fourth Amendment’s protections must apply. Id. That reasoning is an even better fit here, where the activity in question is ordinary people engaging in everyday human life on public streets. Short of never leaving home, there is no way to avoid the BPD’s surveillance.43
43 In fact, the location information collected through Defendants’ system is far more precise than the data at issue in Carpenter. There, the government asserted that the cell site location records at issue could place a person only within a “wedge-shaped sector ranging from one-eighth to four
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Defendants have assured Baltimoreans that the “use of aerial surveillance is constitutionally permitted in areas open to public view based on Supreme Court rulings.” BPD Presentation at 15. But that is a brazen misrepresentation, one that has little application to a novel and rapacious technology like the AIR program, which has the power to constantly log the movements of an entire city. The Carpenter Court sternly warned of such technologies, and their potential to undermine the “degree of privacy against government that existed when the Fourth Amendment was adopted.” Carpenter, 138 S. Ct. at 2214 (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)). As the Court explained, surveillance tools with the capacity to “effortlessly compile[]” highly “detailed” information, id. at 2216, to record indiscriminately and persistently in a way that “runs against everyone,” id. at 2218, and to generate “retrospective” data that could be indefinitely mined by law enforcement, grant “police access to a category of information [that is] otherwise unknowable,” id., and therefore trigger the protections of the Fourth Amendment.
Modern location-tracking technologies simply change the game. The practical constraints of traditional surveillance once placed natural checks on government power, since detailed, longterm, and expansive monitoring would have been “difficult and costly and therefore rarely undertaken.” Jones, 565 U.S. at 429. But advanced technology effectively removes those checks, allowing “a too permeating police surveillance.” Carpenter, 138 S. Ct. at 2214 (quotation marks omitted); see United States v. Knotts, 460 U.S. 276, 284 (1983) (observing that compared to the use of a beeper, which still requires painstaking, resource-intensive, individualized human monitoring, twenty-four hour “dragnet type law enforcement practices” would raise a distinct constitutional question); Riley v. California, 573 U.S. at 393 (rejecting the government’s analogy
square miles,” and only recorded location information at the start and end of incoming and outgoing calls. 138 S. Ct. at 2212, 2218. Here, of course, the stored footage pinpoints people’s location to the yard, each and every second.
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of a search of cell-phone data to that of a wallet because it equates a “ride on horseback” to a “flight to the moon”). Never before could police have perfectly reconstructed even one person’s past movements over days, weeks, and months; never could they have dreamed of reconstructing an entire city population’s movements in this way.44
It is true that in several cases decided a generation ago, the Supreme Court permitted limited and transitory information-gathering from aircraft, but the Justices who decided those cases could hardly have imagined the BPD’s long-term, omnipresent aerial surveillance system, and they certainly did not approve of it. And in recent years, “[w]hen confronting new concerns wrought by” new, digital-age surveillance technologies, the “Court has been careful not to uncritically extend existing precedents.” Carpenter, 138 S. Ct. at 2222 (citing Riley v. California, 573 U.S. at 386).
The three aerial surveillance cases date back more than thirty years, and each involved targeted, short-term aerial observations with unsophisticated equipment or no equipment at all. They involved nothing remotely as invasive, all-seeing, and comprehensive as the spying tool now in the hands of the BPD. The first, California v. Ciraolo, 476 U.S. 207 (1986), involved a one-time, “simple visual observation[]” of curtilage from 1000 feet with “the naked eye.” Id. at 214–15. The next, Dow Chemical Co. v. United States, 476 U.S. 227 (1986)—decided the same day as Ciraolo—concluded that the Fourth Amendment was not triggered by the aerial observation of an industrial area akin to an “open field” through a flyover technique the Court
44 In Carpenter, the Supreme Court found a Fourth Amendment search based on just seven days of an individual’s cell-phone location information, but under Defendants’ aerial surveillance system, they will retain a rolling 45 days’ worth of Baltimoreans’ location information in bulk. See BPD/PSS Contract at 22. Notably, one leading state supreme court recently held that the collection of a single location point of a single person through cell-phone location information was a Fourth Amendment search under the logic of Carpenter. See State v. Muhammad, 451 P.3d 1060 (Wash. 2019).
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called “conventional” and “commonly used,” without employing any “highly sophisticated
surveillance equipment not generally available to the public.” Id. at 233, 238. And the last,
Florida v. Riley, 488 U.S. 445 (1989), permitted a helicopter flyover for naked-eye observations
in a routinely used, publicly accessible airway. Id. at 449.45
The BPD’s new aerial surveillance system is light years beyond the single flights at issue
in those three old cases. It is not fleeting, but long-term—at least 180 days, and perhaps
indefinite.46 It is not targeted, but covers a wide area—indeed, 90 percent of Baltimore City. And
it does not just produce static images, but a comprehensive and reviewable log of video that will
be stored, analyzed, and linked to other surveillance technologies already in the BPD’s hands.
45 See Florida v. Riley, 488 U.S. at 448–49 (explaining that Ciraolo “control[led]” where a law enforcement officer made observations from a helicopter “[w]ith his naked eye”); United States v. Broadhurst, 805 F.2d 849, 854, 856 (9th Cir. 1986) (explaining that Ciraolo was limited to “unenhanced visual observations” and that its result “can hardly be said to approve of intrusive technological surveillance where the police could see no more than a casual observer”); United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (“It does not follow that Ciraolo authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial surveillance is possible.”); see also Dow Chemical, 476 U.S. at 238 (warning that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant”). 46 The BPD’s cameras will also inevitably capture activities and movements within the curtilage of many homes. The breadth and duration of this surveillance of the “area[s] immediately adjacent to a private home, where privacy expectations are most heightened,” Dow Chemical, 476 U.S. at 237 n.4, distinguishes this situation from Ciraolo’s fleeting, naked-eye surveillance of curtilage. Though a person might expect their curtilage to be observed from a passing plane during the few seconds it takes for the aircraft to fly by, no one expects a government agent to fly circles over their home for 40 or more hours a week, month after month, recording every movement they, their family members, and their guests make in their driveway, yard, and other adjoining private property. Cf. United States v. Moore-Bush, 381 F. Supp. 3d 139, 149 (D. Mass. 2019) (“[T]he Court is sensitive to the different expectations people reasonably may have about activities on their driveway and near their front door. Although these activities, taken one by one, may not give rise to a reasonable expectation of privacy, as on the public roads, the Court aggregates their sum total for its analysis. . . . Here, law enforcement officers surveilled the home for eight months [with a pole camera]. A home occupant would not reasonably expect that.” (citation omitted)).
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See BPD/PSS Contract at 19–20; supra Factual Background. The result is a system of “tireless and absolute surveillance,” Carpenter, 138 S. Ct. at 2218, that is incompatible with the Constitution.
The BPD has also suggested that the cameras it will mount on board its three surveillance aircraft are not precise enough to identify individuals on their own. See BPD Presentation at 5. But this is irrelevant to whether the recording of the Baltimoreans’ whereabouts amounts to a Fourth Amendment “search,” for three reasons.
First, with persistent aerial surveillance, it will be trivially easy to roll back the tape to trace pedestrians’ or vehicles’ paths to the homes they left in the morning, and roll it forward to the homes they returned to at night, thereby deducing identity. Moreover, it takes a startlingly small number of unique location points to personally identify even an “anonymous” person, meaning that ongoing collection of location data every second in Baltimore will yield unique and easily identifiable data about every Baltimore resident who moves about the city over time. In one leading study, the authors concluded that using cell-phone location data, just four points were enough to identify an individual based on their pattern of movements. See Yves-Alexandre de Montjoye et al., Unique in the Crowd: The Privacy Bounds of Human Mobility, 3 Sci. Reps. 1376 (2013), https://doi.org/10.1038/srep01376 (attached as Exhibit D to Ramirez Decl.); see Jason Palmer, Mobile Location Data ‘Present Anonymity Risk’, BBC News, Mar. 23, 2013, https://www.bbc.com/news/science-environment-21923360 (quoting one author of the Unique in the Crowd study explaining its conclusion that “[t]he way we move and the behaviour is so unique that four points are enough to identify 95% of people”). Indeed, identifying specific people is the entire point of deploying a system like this one. When the BPD implausibly insists that its cameras in the sky will not be able to identify individuals, or that its wide-area
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surveillance will only be used “to capture movements—not people,” BPD Presentation at 4–5, it is worth asking why, then, it is implementing this surveillance at all.
Second, it matters not under the Fourth Amendment that some degree of additional legwork may be required to fill in the blanks left by the government’s initial acquisition of information. In Carpenter, the Supreme Court “rejected the proposition that ‘inference insulates a search.’” 138 S. Ct. at 2218 (quoting Kyllo, 533 U.S. at 36). There, the government argued that the Constitution had nothing to say about the warrantless collection of cell-phone location information because that data was not especially precise—indeed, that the data was so inexact that it alone could not definitively place the defendant at the crime scene. See id. But the Court brushed that argument aside, observing that the government “could, in combination with other information, deduce a detailed log of Carpenter’s movements.” Id. Similarly, here, the BPD will explicitly use its AIR program in conjunction with other powerful surveillance technologies, including CitiWatch and ALPR (as well, presumably, as other data that is either publicly available or accessible to the government, like names and addresses). See BPD/PSS Contract 20. Syncing aerial imagery with existing systems to identify individuals and vehicles captured from above will be a straightforward task. Once again, that appears to be the entire point.
Third, even if the resolution of the BPD’s cameras today is “one pixel per person,” in assessing whether the government’s use or exploitation of a certain technology threatens to “shrink the realm of guaranteed privacy,” a court must also consider related, existing technologies that could further enhance the government’s surveillance capabilities. Kyllo, 533 U.S. at 34, 36. Thus, any rule a court adopts in a case involving even “relatively crude” surveillance technology, id. at 36, “‘must take account of more sophisticated systems that are already in use or in development,’” Carpenter, 138 S. Ct. at 2218 (quoting Kyllo, 533 U.S. at
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36), rather than “leave the [public] at the mercy of advancing technology,” Kyllo, 533 U.S. at 35. Cameras with far more precision and detail than those the BPD plans to use during its 180-day trial, as well as cameras with night vision and infrared capabilities, are just an upgrade away. See PSS, NightHawk II, https://www.pss-1.com/nighthawk-ii (discussing camera that provides “affordable nighttime, wide area surveillance” including in “[p]artial moonlight”) (attached as Exhibit E to Ramirez Decl.); see BPD 3/30 Facebook Live Video at 23:40 (Commissioner Harrison explaining that the “technology has the ability to upgrade the [image] quality”).
The BPD’s belief that the Fourth Amendment has nothing to say about their decision to send airplanes equipped with video cameras into the sky to indiscriminately compile data, all day and every day, about every movement of the people of Baltimore, is wrong. This norm-shattering use of wide-area surveillance to engage in a constant dragnet of a major American city is, among other things, a Fourth Amendment “search.”
2. The warrantless use of wide-area aerial surveillance to collect and track the locations of all Baltimoreans at once is unreasonable under the Fourth Amendment.
Defendants’ adoption of an advanced wide-area aerial surveillance system allows them to engage in a staggering number of warrantless searches, which are “per se unreasonable under the Fourth Amendment.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); accord City of Ontario v. Quon, 560 U.S. 746, 760 (2010); City of L.A. v. Patel, 135 S. Ct. 2443, 2452 (2015).
In fact, the BPD’s surveillance system will subject all Baltimoreans, including Plaintiffs, to the particular form of search that the authors of the Fourth Amendment found most offensive—those pursuant to the constitutionally repugnant “general warrant.” Stretching back to the origins of Anglo-Saxon law, such searches “have long been deemed to violate fundamental
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rights. It is plain that the amendment forbids them.” Marron v. United States, 275 U.S. 192, 195 (1927); accord Maryland v. Garrison, 480 U.S. 79, 84 (1987). The “general warrants” that the Framers deplored “specified only an offense,” leaving “to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched.” Steagald v. United States, 451 U.S. 204, 220 (1981).
Like a search conducted pursuant to a general warrant, Defendant’s aerial surveillance system permits searches not predicated upon “an oath or information supplying cause.” Morgan Cloud, Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707, 1738 (1996). Like a general warrant, it authorizes surveillance that “survive[s] indefinitely.” Id. And like a general warrant, it is “not restricted to searches of specific places or to seizures of specific goods.” Id.; see Berger v. New York, 388 U.S. 41, 59 (1967) (striking down electronicsurveillance statute that, like “general warrants,” left “too much to the discretion of the officer executing the order” and gave the government “a roving commission to seize any and all conversations” (quotation marks omitted)). Opposition to general warrants “helped spark the revolution itself,” Carpenter, 138 S. Ct. at 2213, as the Founders considered them to be “‘the worst instrument of arbitrary power . . . that ever was found in an English law book,’” Stanford v. Texas, 379 U.S. 476, 481 (1965) (quoting American Revolutionary James Otis). Wide-area aerial surveillance, like the general warrants the Founders feared, places unprecedented discretion in law enforcement and does away with the requirement that law enforcement develop some measure of individualized suspicion prior to engaging in a search—here, “monitor[ing] and catalog[ing]” a person’s “every single movement . . . for a very long period.” Carpenter, 138 S. Ct. at 2217; see Owens ex rel. Owens v. Lott, 372 F.3d 267, 276–77 (4th Cir. 2004) (holding that a warrant authorizing the search of “all persons” at a single residence violated the Fourth
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Amendment because it was “based on nothing more than their proximity to a place where criminal activity may or may not have occurred”).
In fact, the BPD’s aerial surveillance system is far more offensive to the Fourth Amendment than even the searches conducted pursuant to the general warrants of yore. Rather than conducting a general search of a single individual, the BPD is instead conducting indefinite warrantless surveillance of an entire city full of 600,000 people. Moreover, even a general warrant was—in name, at least—a warrant signed by a judge. But the BPD’s system—which aims to follow every Baltimore resident around their city, around the clock—imagines no role for the courts at all.
Government officials may conduct a warrantless search only if one of the “few specifically established and well-delineated exceptions” to the warrant requirement applies. Gant, 556 U.S. at 338 (quotation marks omitted); see United States v. Karo, 468 U.S. 705, 717 (1984). None do here.
The Supreme Court has explained that warrantless surveillance may be reasonable under the Fourth Amendment where “special needs” render the warrant and probable-cause requirements impracticable and where the “‘primary purpose’ of the searches is ‘[d]istinguishable from the general interest in crime control.’” Patel, 135 S. Ct. at 2452 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)); see New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring). But to bypass the Fourth Amendment’s warrant requirement, then, the government must identify a specific, primary objective that is distinct from the kind of ordinary evidence-gathering and deterrence associated with everyday criminal investigation. See Chandler v. Miller, 520 U.S. 305, 314 (1997). Courts rigorously enforce this threshold condition, refusing to “simply accept” a government assertion of a “special need,” and
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“carr[ying] out a close review of the scheme at issue.” Ferguson v. City of Charleston, 532 U.S. 67, 81 (2001).
For example, in Edmond, the Supreme Court considered the legality of a highwaycheckpoint program whose “primary purpose” was “unquestionably” the interdiction of illegal narcotics. 531 U.S. at 40. The city argued that because the Court had previously held that other checkpoints (including to detect drunk driving and border smuggling) were lawful under the Fourth Amendment, so was its own. See id. at 42 (discussing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). But the Court didn’t bite. Rejecting any special need, the Court explained that if the Fourth Amendment did not prohibit checkpoints whose primary purpose was to “serve the general interest in crime control,” it “would do little to prevent such intrusions from becoming a routine part of American life”— and that was a non-starter. Id. Further, the Court rejected the city’s plea to treat its narcoticscheckpoint program under the special-needs doctrine because its drug problem was “severe and intractable.” Id. “[T]he gravity of the threat alone,” the Court explained, “cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Id.; see Maryland v. King, 569 U.S. 435, 448 (2013) (“Urgent government interests are not a license for indiscriminate police behavior.”). Where the government’s primary purpose is “the ordinary enterprise of investigating crimes,” it may not sidestep the need for a warrant. Edmond, 531 U.S. at 44.
A year after Edmond, in Ferguson v. City of Charleston, 532 U.S. 67 (2001), the Court again rejected a government effort to recharacterize the primary purpose of a warrantless-search regime as something other than ordinary law enforcement. In Ferguson, the Court evaluated, against the special-needs threshold, a state hospital program that tested pregnant women for drug
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use and, upon a second positive test, transmitted test results to the police. Id. at 72. While the state identified the program’s “ultimate goal” as protecting the health of women and their unborn children, the Court, after “consider[ing] all the available evidence,” determined that the “immediate objective of the searches”—and thus their primary purpose—“was to generate evidence for law enforcement purposes in order to reach that goal.” Id. at 81–83. “[T]his distinction,” the Court explained, “is critical.” Id. at 84. “[L]aw enforcement involvement always serves some broader social purpose or objective,” and if that were enough, “special needs” would immunize “virtually any nonconsensual suspicionless search.” Id. But that is not how the Fourth Amendment works.
It may be that Defendants’ intentions in implementing their wide-area aerial surveillance system are benevolent and commendable. Baltimore City and its residents (including Plaintiffs) just suffered through their second-deadliest year on record.47 One of Plaintiffs’ central missions is to remedy these and other social ills that impede the quality of life of aggrieved communities in Baltimore, and especially the Black community. See LBS Decl. ¶ 7; Bridgeford Decl. ¶¶ 4–8; James Decl. ¶¶ 3–4. But rather than look to new and omniscient forms of governmental monitoring and social control that will fall (as usual) on Black and Brown communities, Plaintiffs understand that these issues are not susceptible to magic solutions. See LBS Decl. ¶¶ 8, 11, 18; Bridgeford Decl. ¶ 17; James Decl. ¶¶ 7, 9. Instead, it takes a broad commitment to deep and lasting work—through community-building, youth education, and unapologetic political advocacy—to transform the deep-seated structural arrangements that impede the quality of life of
47 See Tim Prudente, 2019 Closes With 348 Homicides in Baltimore, Second-Deadliest Year on Record, Balt. Sun, Jan. 1, 2020, https://www.baltimoresun.com/news/crime/bs-md-ci-cr-2019homicide-final-count-20200101-jnauuumukbdh3edsyypspsm3he-story.html.
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for people of color in this city and around the country. See LBS Dec. at ¶¶ 4–5, 7–9, 12; see Bridgeford Decl. ¶¶ 4–8, 17; James Decl. ¶ 9.
The gravity of Baltimore’s problems, and the city’s need for relief, cannot justify any invocation of “special needs.” See Edmond, 531 U.S. at 42. The surveillance system’s goal is explicitly and straightforwardly to combat crime by identifying suspects for arrest and prosecution. See BPD/PSS Contract at 1–2 (“The purpose of this Agreement is for BPD to test out and rigorously evaluate an innovative AIR technology used to assist BPD investigate and reduce violent crime in Baltimore City.”). And that is precisely the kind of general lawenforcement purpose—crime prevention and control—that the Supreme Court has time and again rejected as a reason to excuse the government from adhering to the strictures of the Fourth Amendment’s warrant requirement.
The upshot is this: the BPD does not have a warrant to engage in wide-area aerial surveillance through the AIR program; the BPD could not lawfully obtain a warrant to engage in that surveillance; and the BPD has no justification to engage in that surveillance without one. For those reasons, its warrantless wide-area aerial surveillance over Baltimore is unreasonable under the Fourth Amendment.
3. The rules regulating the BPD’s wide-area aerial surveillance system are unreasonable under the Fourth Amendment.
Even if the BPD were permitted to amass data about every Baltimorean’s location without a warrant, their overall scheme—including the procedures they have implemented to collect, store, and analyze that information—must still adhere to the Fourth Amendment’s reasonableness requirement. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” (quotation marks omitted)); United States v. Bobo, 477 F.2d 974, 979 (4th Cir. 1973) (“[W]e know that the Fourth
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Amendment means what it says—unreasonable searches are prohibited.”). But the measures Defendants have contractually implemented to cabin the use of their bulk-collected location data fail that test.
Under the Fourth Amendment, reasonableness is determined by examining the “totality of the circumstances” to “assess[], on the one hand, the degree to which [government conduct] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006) (quotation marks omitted). If “the protections that are in place for individual privacy interests are . . . insufficient to alleviate the risks of government error and abuse, the scales will tip toward a finding of unconstitutionality.” [Redacted], 402 F. Supp. 3d 45, 86–87 (F.I.S.C. 2018) (citing In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (F.I.S.C. Rev. 2008)).
First, the BPD’s overall scheme fails a test of reasonableness because it fails to interpose “the deliberate, impartial judgment of a judicial officer . . . between the citizen and the police.” Katz, 389 U.S. at 357 (quotation marks omitted). The Fourth Amendment reflects a judgment that the right to privacy is “too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.” McDonald v. United States, 335 U.S. 451, 455– 56 (1948). The Supreme Court recognized this principle in Berger, where it struck down New York’s wiretapping statute as unreasonable even though the state’s scheme involved a limited form of court approval. See 388 U.S. at 54–55, 56 (explaining that the use of “indiscriminate” surveillance tools imposes “a heavier responsibility” on the courts in supervising the surveillance). Yet the BPD’s contract imagines no role of any kind for a court—not before it puts mass surveillance into practice in Baltimore, and not before it accesses the data it collects to
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build detailed dossiers about Baltimoreans, including those who aren’t suspected of any crime. Simply put, Defendants have written and approved the rules for themselves, and even if those rules provided stronger privacy protections, they would not be enough. See Riley v. California, 573 U.S. at 398 (“[T]he Founders did not fight a revolution to gain the right to government agency protocols.”).
Second, the rules Defendants have put into place purportedly to protect the individual privacy of the hundreds of thousands of Baltimoreans subject to persistent, wide-area aerial surveillance are as weak as they are vague and incomplete. The initial collection of information under the BPD’s system is almost maximally permissive, widespread, and indiscriminate. The BPD’s spy planes will intentionally record, on a daily basis, information about every single Baltimorean who steps outside while the planes are in flight. In those circumstances, the Fourth Amendment demands stringent regulation of how that collected information is stored, processed, and utilized by law enforcement on the back end. See, e.g., In re Directives, 551 F.3d at 1015 (explaining that because foreign-intelligence surveillance by design reels in communications of United States persons, its lawfulness under the Fourth Amendment is contingent on the existence of minimization requirements that “serve as additional backstop against identification errors as well as a means of reducing the impact of incidental intrusions into the privacy of non-targeted United States persons”).
Yet the central protection in Defendants’ contract—which lays out a “Privacy Protection Program” over less than a single page—appears to be a promise to delete data that is not packaged by analysts after 45 days. See BPD/PSS Contract at 22.48 As a result, the BPD will
48 Notably, the contract states that data will be “retain[ed]” for 45 days, but it does not explicitly require data to be purged. See BPD/PSS Contract at 22. Even if this provision is eventually
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have a 45-day rolling log of the movements of every person in Baltimore, linked to information obtained (also warrantlessly) from BPD’s other surveillance networks, including its CitiWatch ground surveillance cameras and ALPRs. Critically, even beyond these comprehensive logs of the movements of countless people, including those who merely happened to be near a crime scene, see id. at 20–21, the BPD’s data packages encompass not just the tracks and locations of vehicles and people in the vicinity of a crime scene, but “people and vehicles that met with people who were tracked from the crime scene,” both backward and forward in time, id. at 20–21 (emphasis added). That means that Baltimoreans—and, given the nature of their work, especially Plaintiffs, see LBS Decl. ¶¶ 12–15; Bridgeford Decl. ¶¶ 10–12; James Decl. ¶¶ 5–6—are likely to be caught up in those data packages without justification. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (holding that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”); Owens, 372 F.3d 267, 276–77. The BPD’s procedures even fail to specify a time limit for these supposedly relevant interactions. If a resident of Baltimore gets lunch with a friend who, two days later, is present near the commission of a serious crime, would that be enough to be drawn into a permanently retained “evidence” file, and under the BPD’s microscope? The procedures do not say.
The AIR program procedures are weak and incomplete for still other reasons. At present, it appears that the lone mechanism for auditing “unauthorized use of the system” is “selfreport[ing]” by PSS. BPD/PSS Contract at 23. Although the contract with PSS contemplates the retention of an “Independent Verification & Validation” firm to assess the BPD’s use of mass
interpreted to constitute a purge requirement, the contract suggests that the 45-day period may be extended once the program becomes permanent. See id.
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aerial surveillance, see id. at Ex. D, there is no indication that such a firm has been retained, or that its oversight will even be based on effective and scientifically tested means. Not even the physical security of the data pool, which will include information about every single Baltimorean, is accounted for; it is, instead, left to PSS alone to “institute physical, technical and policy systems to ensure the integrity of the data it records in its surveillance and analysis.” Id. at 22. This raises the question whether those integrity-ensuring systems are already in place, or not. Finally, the contract says nothing about what happens to the data once the contract comes to an end. Id. at 21.
If the consequences of the BPD’s experimental surveillance system were not so serious, the protocols they have chosen to put in place to manage massive volumes of private information about ordinary Baltimoreans would be laughable. While Defendant’s law enforcement interests are of course entitled to some weight in the reasonableness analysis, their contract “acknowledge[s]” that wide-area aerial surveillance’s “effect on crime has not been analyzed and is unknown at this time.” Id. at 18; see BPD 3/30 Facebook Live Video at 28:47 (Commissioner Harrison stating that “[t]here is no expectation that this will work”). On the other hand, the privacy intrusions here are both known and substantial—and they operate on an unprecedented scale. The AIR program’s procedures fail to ameliorate those harms at either the individual or the collective level—indeed, they are designed to encourage the warrantless exploitation of constitutionally protected information. It is not a close question: the BPD’s extraordinary intrusions into Baltimoreans’ privacy are unreasonable under the Fourth Amendment.
B. The BPD’s wide-area aerial surveillance system violates the First Amendment.
The use of wide-area aerial surveillance to track and collect location information about Baltimore’s residents as they move about—from home to a friend’s, to a health clinic, to a
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protest site, to a church, to a gay bar, and beyond—violates their First Amendment rights to association. For Plaintiffs, this violation is particularly acute, given the political nature of their work and the scrutiny that police may bring to associational activity that seeks to remedy systemic racism and violence in Baltimore and, indeed, in its police force. See LBS Decl. ¶¶ 7–8, 10–14; Bridgeford Decl. ¶¶ 11–13, 16; James Decl. ¶¶ 5, 8; see also City of Baltimore, City of Baltimore Consent Decree, https://consentdecree.baltimorecity.gov (“court enforceable agreement to resolve [the Department of Justice’s] findings that it believed the [BPD] had engaged in a pattern and practice of conduct that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and certain provisions of federal statutory law”); Reel, supra note 3 (discussing PSS’s use of aerial surveillance in 2016, at the BPD’s direction, to “monitor[] the city’s reaction” to the acquittal of a BPD police officer tried for the murder of Freddie Gray).
Over the last decade, the Supreme Court has made clear that that sustained surveillance of individuals threatens freedom of association even when the surveillance is conducted in public places. See Carpenter, 138 S. Ct. at 2217–18 (citing concurring opinions of five Justices in Jones, 565 U.S. 400, and the majority opinion in Riley v. California, 573 U.S. at 401–03). Government surveillance that substantially burdens First Amendment rights, as the BPD’s widearea aerial surveillance program does, must survive “exacting scrutiny.” See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976); In re Grand Jury Proceedings, 776 F.2d 1099, 1102–03 (2d Cir. 1985) (grand jury subpoena); Clark v. Library of Cong., 750 F.2d 89, 94 (D.C. Cir. 1984) (FBI field investigation); Master Printers of Am. v. Donovan, 751 F.2d 700, 705 (4th Cir. 1984). It is constitutional only if it serves a compelling state interest and only if it is the “least restrictive
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means” of achieving that interest. See, e.g., Clark, 750 F.2d at 94–95, 98. The BPD’s system fails this standard.49
First, the BPD’s aerial surveillance system substantially impairs Plaintiffs’ First
Amendment rights because it exposes their private associations to government monitoring and
scrutiny. Every time Plaintiffs leave their homes, the BPD will have a record of where they went,
when, how long they stayed, who they were there with, and where they went next. That is, in
fact, the very purpose of the surveillance. See BPD/PSS Contract at 20–21. The system impairs
Plaintiffs’ right of associational privacy by placing a record of all of their sensitive movements in
the hands of the police. The scope of the BPD’s surveillance system far exceeds that of the
government surveillance that led to the Supreme Court’s seminal associational-privacy cases,
NAACP v. Alabama, 357 U.S. 449, 462 (1958); Bates v. City of Little Rock, 361 U.S. 516 (1960);
and Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963). While those cases
involved demands for specific organizations’ membership rolls, the information that the BPD is
now gathering yields a much richer web of private associational information about Plaintiffs and
49 When searches substantially burden First Amendment rights, a warrant is required. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (holding that First Amendment interests should be protected by applying Fourth Amendment warrant standards with “scrupulous exactitude” (quotation marks omitted)); New York v. P.J. Video, Inc., 475 U.S. 868, 877–78 (1986) (holding that a warrant was an adequate constitutional safeguard for a search of expressive materials); see also Daniel Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112, 154, 159 (2007) (First Amendment procedural protections apply when there is a “chilling effect,” and “a warrant supported by probable cause will, in most cases, suffice to satisfy the narrow tailoring requirement”).
But even where searches comply with the Fourth Amendment, they may violate the First. See, e.g., Tabbaa v. Chertoff, 509 F.3d 89, 102 n.4 (2d Cir. 2007) (“Our conclusion that the searches constituted a significant or substantial burden on plaintiffs’ First Amendment associational rights is unaltered by our holding that the searches were routine under the Fourth Amendment. . . . [D]istinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment border context.”).
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other Baltimoreans. It supplies a comprehensive map of the sensitive associational ties embedded in Plaintiffs’ everyday lives and community-based work. See LBS Decl. ¶¶ 10–18; Bridgeford Decl. ¶¶ 10–16; James Decl. ¶¶ 5–8.
The Supreme Court’s decision in Shelton v. Tucker, 364 U.S. 479 (1960), is instructive. In that case, the Court found that First Amendment rights were substantially burdened by an Arkansas law requiring teachers to “disclose every single organization with which [they had] been associated over a five-year period.” Id. at 487–88. In Shelton, the Second Circuit later observed, the Supreme Court “adopted a commonsense approach and recognized that a chilling effect was inevitable if teachers who served at the absolute will of school boards had to disclose to the government all organizations to which they belonged.” Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 272 (2d Cir. 1981). The chilling effect is equally inevitable here.
Second, the BPD’s aerial surveillance program fails exacting scrutiny because it is the very definition of indiscriminate—the BPD is collecting all Baltimoreans’ location information because some tiny fraction of them may become useful to an investigation at some point in the future.50 Courts have rejected investigative efforts that were far more targeted than the one at issue here. In Local 1814, the Second Circuit narrowed a subpoena for payroll records after concluding that the subpoena would otherwise have an “inevitable chilling effect” on
50 While it was part of a statutory holding rather than a constitutional one, the Second Circuit’s conclusion in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015), a challenge to the National Security Agency’s bulk collection of Americans’ phone records, is pertinent: “[T]he government takes the position that the metadata collected . . . are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” Id. at 812 (footnote omitted).
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constitutionally protected activity. 667 F.2d at 273–74. The modification, the Court held, would “appropriately limit the impairment of . . . First Amendment rights without compromising the [government’s] legitimate investigative needs.” Id. at 274.
The Supreme Court’s analysis in Shelton is again illuminating. There, the Court characterized the law at issue as “completely unlimited” because it required teachers to “list, without number, every conceivable kind of associational tie—social, professional, political, avocational, or religious.” 364 U.S. at 488. An inquiry into those associations could not be justified, the Court held, particularly when so many of them “could have no possible bearing” on the interests the government was seeking to protect. Id.; see Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972) (affirming refusal to answer grand jury questions on First Amendment grounds), overruled in part on other grounds, In re Grand Jury Proceedings, 863 F.2d 667, 669–70 (9th Cir. 1988); In re First Nat’l Bank, 701 F.2d 115, 119 (10th Cir. 1983) (remanding for evidentiary hearing to determine whether subpoena would chill associational rights and, if so, whether breadth of subpoena could be limited). Indeed, in this case the First Amendment analysis is more straightforward than it was in Shelton. It is plain that the BPD, whose surveillance system imposes a quintessentially “unlimited and indiscriminate sweep,” Shelton, 364 U.S. at 490, could advance its law enforcement objectives through less intrusive means.
Mass surveillance is designed to uncover private association, and the BPD’s aerial surveillance program threatens to do that all too well. Because the BPD’s AIR program will substantially burden Plaintiffs’ First Amendment rights without justification, it is unconstitutional.
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II. Plaintiffs will suffer irreparable harm as a result of the BPD’s wide-area aerial surveillance system. Unless enjoined, the BPD’s wide-area aerial surveillance system will cause irreparable
harm to Plaintiffs. First and foremost, the BPD’s system violates Plaintiffs’ constitutional rights, which alone constitutes manifest, irreparable harm. See, e.g., WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (“[I]n the context of an alleged violation of First Amendment rights, a plaintiff’s claimed irreparable harm is ‘inseparably linked’ to the likelihood of success on the merits of plaintiff’s First Amendment claim.”); Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))). And even if further demonstration of irreparable harm were required, such a requirement is surely met by evidence that the BPD’s surveillance will burden Plaintiffs’ and others’ associational and expressive activity, particularly that of marginalized groups. See LBS Decl. ¶¶ 10–18; Bridgeford Decl. ¶¶ 10–16; James Decl. ¶¶ 5–8. III. The balance of equities favors granting preliminary injunctive relief.
The balance of equities also weighs heavily in favor of an injunction. While Plaintiffs will suffer significant harm in the absence of an injunction as the BPD compiles video of their daily movements, Defendants face little, if any, injury from its issuance. As the Fourth Circuit has recognized, government officials are not harmed by the issuance of a preliminary injunction which prevents the state from implementing a likely unconstitutional practice. See Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)); see also Rodriguez v. Robbins, 715 F.3d 1127,
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1145 (9th Cir. 2013) (explaining that the government “cannot suffer harm from an injunction that merely ends an unlawful practice”).
Moreover, the injunction sought will impose no affirmative obligation, administrative burden, or cost upon Defendants. It will only pause implementation of their pilot program and maintain the status quo while the Court assesses its constitutionality. Furthermore, one of Defendants’ explicit goals in implementing this experimental pilot surveillance system is to enable BPD to collect and “to test and rigorously evaluate” data to determine whether to permanently implement wide-area aerial surveillance over Baltimore. BPD/PSS Contract at 1–2. But the data collected over the coming months will be of practically no value due to the present circumstances of the COVID-19 pandemic. See Maryland Pandemic Orders, supra note 36. Under Maryland’s stay-at-home order, movement and activity are greatly reduced throughout Baltimore. Under these circumstances, the collection of data regarding the impact of the AIR program on the city’s crime rates is effectively meaningless if meant to inform analyses of its causal impact on crime rates during times of ordinary city life. See BPD Presentation 9–10 (discussing “measures of success” upon which the BPD will evaluate the trial period). IV. The public interest favors granting preliminary injunctive relief.
Finally, preliminarily enjoining the BPD’s wide-area aerial surveillance program is manifestly in the public interest. It is a well-established principle that “upholding constitutional rights surely serves the public interest.” Bason, 303 F.3d at 521. Plaintiffs’ constitutional rights, and those of every other Baltimorean, will be violated by Defendants’ aerial surveillance system, and an injunction is the only way to protect them.
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CONCLUSION For the foregoing reasons, this Court should enjoin Defendants’ AIR program— specifically, by prohibiting the BPD from collecting or accessing any images of Baltimoreans through wide-area surveillance.

April 9, 2020
Brett Max Kaufman* Ashley Gorski* Alexia Ramirez* Nathan Freed Wessler* Ben Wizner* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 T: 212.549.2500 F: 212.549.2654 bkaufman@aclu.org agorski@aclu.org aramirez@aclu.org nwessler@aclu.org bwizner@aclu.org
* pro hac vice application forthcoming

Respectfully submitted, /s/ David. R. Rocah David R. Rocah (Bar No. 27315) American Civil Liberties Union Foundation
of Maryland 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 T: 410.889.8555 F: 410.366.7838 rocah@aclu-md.org
Counsel for Plaintiffs**

** Counsel thanks Tiffany Wong and David E. Wechsler, students in the New York University School of Law’s Technology Law & Policy Clinic, for their contributions to this brief.
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