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Case Name Leaders of a Beautiful Struggle v. Baltimore Police Department PN-MD-0010
Docket / Court 1:20-cv-00929-RDB ( D. Md. )
State/Territory Maryland
Case Type(s) Policing
Attorney Organization ACLU Affiliates (any)
Case Summary
On April 1, 2020, the Baltimore Board of Estimates approved a contract between the Baltimore Police Department (BPD) and Persistent Surveillance Systems, LLC (PSS) for an “Aerial Investigation Research” (AIR) pilot program in Baltimore, Maryland. The pilot program was to take place for six ... read more >
On April 1, 2020, the Baltimore Board of Estimates approved a contract between the Baltimore Police Department (BPD) and Persistent Surveillance Systems, LLC (PSS) for an “Aerial Investigation Research” (AIR) pilot program in Baltimore, Maryland. The pilot program was to take place for six months during which PSS would fly planes over the city for approximately twelve hours per day. While in flight, the planes would use advanced wide-angle camera systems to collect images of the city that would be reconstructed as slow-frame-rate video recordings of pedestrians and vehicles to be used by BPD.

Eight days after the contract was approved, on April 9, 2020, the plaintiffs, Leaders of a Beautiful Struggle (a self-described “grassroots think tank” that advocates for policy change to improve conditions for Baltimore’s black community) and two individual activists, filed this lawsuit in the U.S. District Court for the District of Maryland (in Baltimore). Represented by the ACLU of Maryland, the plaintiffs sought declaratory and injunctive relief against the BPD for two types of Constitutional violations. The first set of claims arose under the Fourth Amendment. The plaintiffs argued that AIR violated the Fourth Amendment’s warrant requirement because its ability to capture images of pedestrians and vehicles amounted to indiscriminate searches that lacked “individualized suspicion or judicial approval.” The use of these images by the BPD similarly violated the Constitution, according to the plaintiffs, because the police could analyze information from the planes without warrants. The second claim was based on the First Amendment’s protection of freedom of association. The plaintiffs claimed that planes' ability to capture aerial images of 90 percent of the city every second during their 12 hour flights was “constant and inescapable” monitoring that violated the Constitutional right to association. For example, the plaintiffs cited the effect that the surveillance would have on one of the named plaintiffs who regularly visited Baltimore neighborhoods affected by street violence to meet with community members shortly after events like murders occurred as part of her work as an activist. This plaintiff was apprehensive about how her work would be unjustifiably scrutinized by police because the AIR program would be likely to generate an individualized report of her movements based on the frequency that she visited these high-crime areas. Because the contract between BPD and PSS established an official municipal policy under color of state law, the plaintiffs sued under 42 U.S.C. §1983. The plaintiffs asked the district court to: 1) declare the AIR program to be violative of the First and Fourth Amendments; 2) permanently enjoin the BPD from operating the AIR program or collect any images from it; 3) to order the BPD to expunge all records of plaintiffs gathered as a result of AIR surveillance; 4) award them attorneys’ fees. District Judge Richard Bennett was assigned to the case.

On the same day that they filed the complaint, the plaintiffs moved for a temporary restraining order and preliminary injunction to prevent the defendants from operating the AIR pilot program and using any of the data collected from it. District Judge Bennett held a telephone hearing on the afternoon of April 9, 2020. On the same day Judge Bennett entered an order prohibiting any AIR program flights to collect, retain, or access photographic imagery of Baltimore until a hearing on the preliminary injunction could take place on April 21, 2020. However, the District Judge did allow the BPD to continue undertaking preparatory activities for the launch of the AIR program.

On April 21, 2020 the court conducted a telephone hearing and heard arguments on the motion for a preliminary injunction. On April 24, 2020 Judge Bennet issued an opinion denying the plaintiff’s motion for a preliminary injunction. He held that the AIR program did not constitute a “search” under the Fourth Amendment or violate the First Amendment, that the balance of the equities weighed against the grant of a preliminary injunction, and that it was not within the public interest to grant a preliminary injunction. 456 F. Supp. 3d 699. Because the plaintiffs did not succeed on their motion for a preliminary injunction, Judge Bennett entered an order allowing the AIR pilot program to proceed. On the same day, the plaintiffs filed an appeal on the denial of their motion for a preliminary injunction to the Fourth Circuit Court of Appeals.

While the parties were awaiting the Fourth Circuit’s decision on the preliminary injunction, the BPD filed a motion to dismiss for failure to state a claim on August 12, 2020. Before the plaintiffs could file a response to this motion, the Fourth Circuit affirmed the denial of the preliminary injunction on November 5, 2020. Circuit Judge Harvie Wilkinson wrote a majority opinion for a three judge panel. In the opinion, Circuit Judge Wilkinson held that District Judge Bennett did not abuse his discretion in denying the plaintiffs’ motion for a preliminary injunction because the plaintiffs were not likely to succeed on the merits of their claims that: 1) the AIR program violated the Fourth Amendment’s protection of a reasonable expectation of privacy, 2) the AIR program violated the Fourth Amendment under a balancing test, or 3) the AIR program violated the plaintiffs’ right to association under the First Amendment. Furthermore, Circuit Judge Wilkinson held that the equitable balance weighed against the issuance of a preliminary injunction, noting that the high-crime rate in Baltimore and newness of the pilot program supported the BPD’s effort to implement a technological innovation to stem violence. Chief Judge Roger Gregory wrote a dissenting opinion in which he disagreed with the majority’s characterization of the AIR program as a form of short-term surveillance and pointed to the program’s capacity to track individuals over time to reveal their “most intimate associations and activities” to support his conclusion that the AIR program violated the Fourth Amendment. 979 F.3d 219.

However, the November 5 decision was not the end of the battle over the preliminary injunction. On December 22, 2020, the Court of Appeals granted the plaintiffs’ petition for a rehearing en banc. A 15-judge panel heard arguments from both parties on March 8, 2021. Following an eight-seven vote, the Fourth Circuit overruled its prior decision and reversed the district court’s denial of the preliminary injunction on June 24, 2021. Chief Judge Gregory wrote the majority opinion supported by two separate concurrences. The first concurrence by Chief Judge Gregory himself was joined by Circuit Judges Wynn, Thacker, and Harris. The second concurrence was written by Circuit Judge Wynn and joined by Circuit Judges Motz, Thacker, and Harris. The minority filed three separate dissents. The first dissent was written by Circuit Judge Wilkinson and joined by Circuit Judges Niemeyer, Agee, and Quattlebaum, and joined in part by Circuit Judges Diaz, Richardson, and Rushing. Circuit Judges Niemeyer and Diaz filed their own independent dissenting opinions which no other Judges joined. 2021 WL 2584408.

One of the issues on appeal was whether the case was moot due to the fact that the Board of Estimates voted to terminate the AIR program on February 3, 2021. According to the majority opinion, while AIR program planes stopped flying over Baltimore on October 31, 2020, BPD submitted requests to RSS for analysis of data collected during the pilot program up until December 8, 2020. On February 2, 2021, BPD and PSS announced that they had deleted most of the data (all but 14.2 percent of images collected) that had been collected over the course of the AIR program. Because the remaining data that the BPD had access to documented thousands of hours of public movement and were being used in around 150 open criminal investigations, the Fourth Circuit held that the preliminary injunction sought by the plaintiffs was not moot as the requested relief, a prohibition on the usage of RSS data by police, could still be granted. 2021 WL 2584408.

On the merits of the plaintiffs’ claim for preliminary injunctive relief, Chief Judge Gregory’s analysis was similar to that in his dissenting opinion from November 5, 2020. Here, the Fourth Circuit found that District Judge Bennett erred in holding that the AIR program was capable only of short term tracking, pointing to the fact that the information collected by RSS from its planes was even more precise than GPS and cellphone tracking data. Further, Chief Judge Gregory wrote that the AIR program went beyond an “augmentation” of ordinary police capabilities. Instead, he described the data collected by the program as “record[ing] the movements of a city” in a way that can be readily analyzed to identify the locations of individuals over an extended period of time. The majority held that police access of AIR program data constituted a search and as a result, warrantless collection and analysis of the data violated the Fourth Amendment. The case was remanded to the district court for proceedings consistent with the en banc opinion. 2021 WL 2584408.

The case is ongoing.

Sabrina Glavota - 05/22/2020
Esteban Woo Kee - 07/28/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Preliminary relief granted
Warrant/order for search or seizure
Defendant-type
Law-enforcement
General
Search policies
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Baltimore Police Department
Plaintiff Description A grassroots think-tank that advances the policy interests of black people in the Baltimore, Maryland community and two individual activists from Baltimore.
Indexed Lawyer Organizations ACLU Affiliates (any)
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Order Duration 2020 - 2020
Filed 04/09/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Leaders of a Beautiful Struggle v. Baltimore City Police Department
ACLU
Date: 2021
By: ACLU Maryland
[ Detail ] [ External Link ]

Court Docket(s)
D. Md.
06/25/2021
1:20-cv-00929
PN-MD-0010-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Md.
04/09/2020
Complaint for Declaratory and Injunctive Relief [ECF# 1]
PN-MD-0010-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Md.
04/09/2020
Plaintiffs' Motion for a Temporary Restraining Order & a Preliminary Injunction [ECF# 2]
PN-MD-0010-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Md.
04/09/2020
Plaintiffs' Memorandum of Law in Support of their Motion for a Temporary Restraining Order & a Preliminary Injunction [ECF# 2-1]
PN-MD-0010-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Md.
04/09/2020
Memorandum Order [ECF# 15]
PN-MD-0010-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Md.
04/24/2020
Memorandum Opinion [ECF# 32] (456 F.Supp.3d 699)
PN-MD-0010-0003.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
11/05/2020
[Opinion] [Ct. of App. ECF# 46] (979 F.3d 219)
PN-MD-0010-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
06/24/2021
[Opinion] [Ct. of App. ECF# 93] (2021 WL 2584408)
PN-MD-0010-0006.pdf | WESTLAW | Detail
Source: Westlaw
show all people docs
Judges Agee, G. Steven (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Bennett, Richard D. (D. Md.) show/hide docs
PN-MD-0010-0002 | PN-MD-0010-0003 | PN-MD-0010-9000
Diaz, Albert (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Floyd, Henry Franklin (D.S.C., Fourth Circuit) show/hide docs
PN-MD-0010-0006
Gregory, Roger L. (Fourth Circuit) show/hide docs
PN-MD-0010-0005 | PN-MD-0010-0006
Harris, Pamela Ann (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Keenan, Barbara Milano (Fourth Circuit) show/hide docs
PN-MD-0010-0006
King, Robert Bruce (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Motz, Diana Jane Gribbon (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Niemeyer, Paul Victor (D. Md., Fourth Circuit) show/hide docs
PN-MD-0010-0005 | PN-MD-0010-0006
Quattlebaum, A. Marvin Jr. (D.S.C., Fourth Circuit) show/hide docs
PN-MD-0010-0006
Richardson, Julius Ness (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Rushing, Allison Jones (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Thacker, Stephanie Dawn (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Wilkinson, J. Harvie III Court not on record show/hide docs
PN-MD-0010-0005 | PN-MD-0010-0006
Wynn, James Andrew Jr. (Fourth Circuit) show/hide docs
PN-MD-0010-0006
Plaintiff's Lawyers Gorski, Ashley (New York) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Kaufman, Brett Max (New York) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Ramirez, Alexia (New York) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Rocah, David Robert (Maryland) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Wessler, Nathan Freed (New York) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Wizner, Ben (New York) show/hide docs
PN-MD-0010-0001 | PN-MD-0010-0004 | PN-MD-0010-0007 | PN-MD-0010-9000
Defendant's Lawyers Lynch, Kara K. (Maryland) show/hide docs
PN-MD-0010-9000
Moore, Dana Petersen (Maryland) show/hide docs
PN-MD-0010-9000
Walden, Elisabeth (Maryland) show/hide docs
PN-MD-0010-9000

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