Case 1:20-cv-00929-RDB Document 32 Filed 04/24/20 Page 1 of 34
`Case 1:207-cv-00929-RDB Document 32 Filed 04/24/20 Page 1 of 34
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`Fla-2 .
`IN THE UNITED STATES DISTRICTnéfictEi} Elaggfimg
`
`FOR THE DISTRICT OF MARYLAND
`2923 EPR ZB- Mi 95142
`
`LEADERS OF A BEAUTIFUL
`STRUGGLE, eral,
`
`Plaintiffs,
`
`v.
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`BALTIMORE POLICE
`
`-
`
`DEPARTMENT, at (1].,
`
`Defendants.
`
`*
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`*
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`*
`
`*
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`*
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`*
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`‘
`
`.
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`,
`,
`, _._,,.
`C;§§§§,§,§§5REE ,
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`BYMDEPUT‘E’
`.
`
`Civil Action No. RDB-20-0929
`
`MEMORANDUM OPINION '
`
`Earlier this month, after a period allowing for public comment, the Baltimore City
`Board of Estimates approved a contract between the Baltimore Police Department (“BPD”)
`
`and Persistent Surveillance Systems (“PSS”) to conduct an initiative known as the Aerial
`
`Investigation Research (“AIR”) pilot program. This program is to run for approximately Six
`
`months, during which time PSS will fly three aircraft over Baltimore City approximately 12
`
`hours per day during daylight hours.
`
`Plaintiffs Leaders of a Beautiful Struggle, a Baltimore—based organization, and Errick‘a
`
`Bridgeford and Kevin James, Baltimore City residents (collectively, “Plaintiffs”), seek a
`preliminary injunction which would prohibit'the operation of the Alli program. On April 9,
`
`2020, Plaintiffs commenced this lawsuit against the BPD and Baltimore Police Commissioner
`
`Michael S. Harrison (collectively, “Defendants”) and filed a Motion for a Temporary
`
`Restraining Order 6: a Preliminary Injunction (ECF No. 2), alleging that the AIR program
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`violates their rights under the First and FOurth Amendments to the United States Constitution.
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`

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`-
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`1
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`On that same day, this Court conducted a telephone conference-and issued an Order which
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`effectuated a temporary agreement reached by the parties pursuant to which the BPD agreed
`that no surveillance flights would occur until this Court issued a decision on the preliminary
`
`injunction motion. On April 21, 2020, this Court conducted a public telephone conference
`
`and heard arguments on the motion.1
`
`The Plaintiffs contend that the technology in the AIR program will be so precise as to
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`invade the individual liberties of Baltimore citizens. The BPD contends that, though a
`potentially useful investigative tool, the AIR pilot program has significant limitations. The
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`Defendants contend that the program cannot provide real-time surveillance and that images
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`captured by.the program will depictindividuals as a single pixel—essentially, a dot on the map.
`
`Accordingly, the Defendants contend that individual physical characteristics will notbe
`
`observable, The resolution of this factual dispute must await discovery in this case.
`
`Plaintiffs have not met their heavy burden to Show that they are entitled to a
`
`preliminary injunction in this matter. The United States Supreme Court and the United States
`
`Court of Appeals for the Fourth Circuit have long upheld the use of far more intrusive
`
`warrantless surveillance techniques than the AIR program. The Plaintiffs place great reliance
`
`_ on the United States Supreme Court’s recent opinion in United .S'taz‘ei z). Carpenter, 138 S. Ct.
`
`2206 (2018), which addressed the use of historical cell site location information. The Supreme
`
`Court in that case specifically stated that its opinion did not “call into question conventional
`
`1 Pursuant to Standing Order 2020—07 of this Court, normal court operations have been postponed
`and continued through June 5, 2020. The parties agreed to proceed with the hearing on the Motion for a
`Preliminary Injunction by way of a teleconference which was made accessible to the public.
`
`2
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`

`

`.m-
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`Surveillance techniques and tools, such as securitycameras.” Id. at 2220. Accordingly, for the
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`reasons set forth below, Plaintiffs’ MotiOn for a Preliminary Injunction (ECF No. 2) is
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`DENIED and the AIR pilot program may proceed.
`
`BACKGROUND
`
`Plaintiffs seek a preliminary injunction prohibiting the operation of an aerial
`surveillance project known as the Aerial Investigation Research (“AIR”) pilot program. The
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`program is to be conducted by the Baltimore Police Department (‘I‘BPD”) with the assistance t
`of Persistent Surveillance Systems (“13893, an Ohio-based private contractor. The AIR pilot
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`program has been the subject of public discourse for some time. In August 2016, news reports
`
`revealed that theBPD had collaboratedrwith PSS to conduct aerial surveillance over the City
`
`of Baltimore for several month‘s.2 Ultimately,
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`this initial program was discontinued.
`
`In
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`December 2019, Commissioner Harrison announced that
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`the City would resume its
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`collaboration with PSS after holding a series of community meetings to inform the public
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`about the program.3
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`In March 2020, the Baltimore Police Department conducted three public meetings to
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`discuss how the AIR pilot program would operate.4 As a result or the exigent circumstances
`
`presented by the COVID—19 Pandemic, two of these meetings were conducted through
`
`2 Monte Reel, Secret Camera! Record Baltimore? Every More From Above, Bloomberg Businessweelg Aug.
`23, 2016, https://www.bloomberg.com/features/2016-baltimore-secretsurveillance; Kevin Rector &. Luke
`Bridgewater, Report of Aerial Surveillance @y Baltimore Pmraptr Queetioae, Outrage, Bait. Sun, Aug. 24, 2016,
`https: / /www.baltimoresun.com/maryland/ba1rimore-city/bs-md-ci—secret—surveillance—ZO160824-st0ry.html.
`3 Justin Fenton & Talia Richman, Baltimore Polite Barre Pilot Program fir Surveillance Planet, Reviving
`Coatmyerrial Program, Balt. Sun, Dec. 20, 2019, https:/ /www.baltimoresun.com/news/crime/bs—md—ci—cr—
`baltimore-police-support—surveillance-plane—ZO191220—thd5ndtlbdurlj5xfr6xhoe21—story.html.
`4 See Eddie Kadhim, Baltimore Polite met with the community to give imigbt or: pilotprogram, WNIAR, Mar. 11,
`2020, https:/ /www.wmar2news.com/spyplane.
`
`

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`Facebook Live.5 Consistent with the BPD’s obligations under a Consent Decree issued in
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`United State: a Baltimore Police Dep’r, at al. (IKE-110099), the BPD announced the AIRlpilot
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`program on its Website, which provided public educational materials de3cribing the AIR
`program’s objectives.6 On April 1, 2020, the Baltimore City Board of Estimates authorized
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`the execution of a Professional Services Agreement between the Baltimore Police Department
`
`and Persistent Surveillance Systems for the purpose of implementing the AlR pilot program.
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`(Professional Services Agreement (“PSA”), ECF No. 3—2.)
`
`Pursuant to the Professional Services Agreement, Persistent Surveillance Systems will
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`fly three aircraft over Baltimore City using the “Hawkeye Wide Area Imaging-System.” (Id. at
`22.) The planes will cover about 90 percent of the City, capturing about 32 square miles of
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`the City per image every second.
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`(Id; Community Education Presentation, ECF No. 3-1.)
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`Each of the three planes will fly for a “minimum” of forty hours per week, resulting in total
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`coverage of about 12 hours per day for a period of six months, weather permitting.
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`(PSA 22;
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`Decl. of Ross McNutt, Ph.D 1i 5, ECF No. 30—1.) The Baltimore Police Department hopes
`
`to use these images to solve violent crimes, specifically: homicides and attempted murder,
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`shootings resulting in injury, armed robbery, and carjacking (the “Target Crimes”).
`
`(PSA 21.)
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`The AIR program’s observational capabilities are limited. PSS cannot providereal-
`
`time surveillance. WCNutt Decl. 1i 8; PSA 22-24.) The on—board technology does not have
`
`https://www.facebook.com/BaltimoreCityPolice/
`at
`available
`meeting
`1 1
`5 March
`\ddeos/1062399994125598/; March 23 meeting available at https://www.facebook.com/BaltimoreCityPolice/
`videos/3400646286628872/; March 30 meeting available at https://www.facebook.com/BaltimoreCityPolice/
`videos/212014970074066/.
`5 I Baltimore Police Department, New Technology Initiatives, https://mvw.baltimorep olice.org/
`transparency/newtechnologyinitiatives.
`
`‘
`
`4
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`

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`zoom, telephoto, night vision, or infrared capabilities.
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`(McNutt Decl. 1] 5; PSA 22.) The
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`imagery is limited to “1 pixel per person”—essentially, a single dot on the map.
`
`(PSA_22.)
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`Accordingly, an individual’s characteristics are not observable in the images. (Id) As the planes
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`will not fly at night or during inclement weather, significant gaps in the imagery data will
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`emerge. (McNutt Decl. 11 14.) These gaps in the record prevent the monitoring of a person’s
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`movements over the course of multiple days. (Id)
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`Images collected by the aircraft will be transmitted to ground stations operated by
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`Persistent Surveillance Systems and stored in its servers.
`
`(PSA 22; ECF No. 3—1 at 13.)
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`Unanalyzed data will be stored for up to 45 days during the pilot program.
`
`(PSA 25.) Data
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`that is analyzed in connection with a crime will be compiled into packets and become a
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`permanent part of the case file. (Letter from Michael S. Harrison to the Honorable President
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`and Members of the Board of Estimates, dated Mar. 17,2020, ECF No. 3—2.) PSS'analysts
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`will only access the data after “receiving an incident number or other notification related to a
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`murder, non—fatal shooting, armed robbery, or car jacking.” (McNutt Decl. 1} 10.)
`In those
`circumstances, the PSS analysts will use the imagery data “to locate crimes, track individuals
`
`and vehicles-from a crime scene and extract information to assist BPD in the investigation of
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`target crimes.”
`
`(PSA 22.) This is a labor—intensive process. Analysts must “tag” the
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`individuals and vehicles appearing in the images, which appear as dots, and manually track the
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`tagged dots to and from the incident location.
`
`(McNutt Decl. 1] 12.) Using this process, PSS
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`analysts will require about 1 hour to track 2 hours’ worth of movements made by a single
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`vehicle. (Id)
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`

`

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`According to the Professional Services Agreement, Persistent Surveillance Systems will
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`be permitted to integrate its services with existing BPD technologies, including the Computer
`Aided Dispatch System, CitiWatch Ground-Based Cameras, the Shot Spotter Gun Shot
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`Detection System, and License Plate Readers._ Persistent Surveillance Systems is permitted to
`integrate its “iView software” with these systems “to help make all the systems work together
`
`to enhance their ability to help solve and deter crimes.” (PSA 23.) P88 will use the integrated
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`_ services to provide reports to the BPD.
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`In ordinary circumstances, Persistent Surveillance
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`Systems will provide 'an investigative briefing to the BPD withineighteen hours of PSS’s
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`‘inotice of a Target Crime on the CAD System monitors or BPD’S request .
`
`.
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`. to analyze a
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`Target crime.” (Id.) The briefing will include “imagery analysis” as well as “driving behaviors
`of vehicles from the crime scene prior to and after a crime.” (Id) Within 72 hours, PSS will
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`provide a more detailed Investigation Briefing Report, which will include ground-based
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`camera video (including CitiWatch video) and the tracked movements of people who met with
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`individuals at the crime scene.
`
`(Id. at 24.) Persistent Surveillance Systems will provide “real
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`time support” to the BPD “in exigent circumstances and only at the 'written request of the
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`BPD Police Commissioner.” (Id. at 23.)
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`The AIR pilot program will be subject to extensive evaluations and oversight. Morgan
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`State University has been asked to assess the program’s efficacy in fighting crime. The RAND
`Corporation will conduct a similar analysis,'focusing on whether the program produces higher
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`clearance rates and reduces crime. (PSA 31.) The public’s perception of the program will be
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`studied by the University of Baltimore.
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`(Id. at 32.) The New York University School of Law
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`will conduct a “civil rights and civil liberties audit” of the AIR pilot program.
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`(Id. at 32-33.)
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`

`

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`.I
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`The record reflects significant public support for the AIR pilot program. The United
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`Baptist Ministry Convention, comprised of more than 100 Maryland churches, submitted a
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`letter to Commissioner Harrison expressing support for the AIR program.
`(Letter from Dr.
`Cleveland T. A. Mason, 2nd to commissioner Michael Harrison (Mar. 30, .2020), ECF No.
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`30-2.) The Greater Baltimore Committee, the leading business advocacy organization in
`
`Baltimore, has also urged the adoption of the AIR program.7
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`Support is not completely unanimous, however. Plaintiffs Leaders of a Beautiful
`
`Struggle, Erricka Bridgeford, and Kevin james (collectively, “Plaintiffs”) seek a preliminary
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`injunction which would prohibit the operation of the AIR program. The Plaintiffs, all three
`of whom contribute to various Baltimore-based public advocacy initiatives, argue that the
`
`program violates their rights under the First and Fourth Amendments to the United States
`
`Constitution. On April 9, 2020, Plaintiffs commenced this lawsuit against the BPD and
`
`Michael S. Harrison, in his official capacity as the Baltimore Police Commissioner (collectively,
`
`“Defendants”), and filed a Motion for a Temporary Restraining Order & a Preliminary
`
`Injunction (ECF No. 2).
`
`The Plaintiffs’ Complaint contains two Counts: a Fourth
`
`Amendment claim (Count I) and First Amendment claim (Count II), both brought pursuant.
`
`to 42 U.S.C. § 1983.
`
`On that same day, this Court conducted a telephone conference and issued an Order
`which effectuated a temporaryagreement reached by the parties pursuant to which the BPD
`
`agreed that no surveillance flights would occur until this Court issued a decision on the
`
`7 Position Statement on Public Safety in Baltimore and Support of the Use of Aerial Surveillance in
`Baltimore, Oct. 15, 2019, https://gbc.0rg/statement—on—public—safety—in—baltimore-and—support—for—the—use—
`of—aerial—surveillance/.
`
`7
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`

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`preliminary injunction motion. On April 21, 2020, this Court conducted a public telephone
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`conference and heard arguments on the motion.
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`STANDARD OF REVIEW
`
`A preliminary injunction is an “extraordinary remed[y] involving the exercise of very
`
`far-reaching power to be granted only sparingly and in limited circumstances.” Mz'oroftratogy
`
`Ina a. Motorola, Ina, 245 F.3d 335, 339 (4th Cir. 2001). In determining whether to issue a
`
`preliminary injunction, the Court must follow the test set forth by the Supreme Court in Winter
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`o. Natural Rat. Dry? Council, Inn, 555 U.S. 7, 20, 129 S. Ct. 365 (2008) which requires a showing
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`that:
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`(1) the movant is likely to succeed on the merits; (2) the movant is likely to suffer-
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`irreparable harm absent preliminary relief; (3) the balance of equities favors the movant'; and
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`'
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`(4) that an injunction is in the public interest. 555 U.S. at 20; auroral Roe v. Dep’f QthE‘f, 947 F.3d
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`207, 219 (4th Cir. 2020); League Qf Women Voters ofNC. v. NC, 769 F.3d 224, 236 (4th Cir.
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`2014);
`
`The movant must show more than a “grave or serious question for litigation”; instead,
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`it bears the “heavy burden” of making a “clear showing that [it] is likely to succeed at trial on
`the merits.” Real Tmtlo Alma: Obama, Inc. a. Pod. Eleanor Comm’a, 575 F.3d 342, 346 (4th Cir.
`
`2009); Int”! Brotherhood of Teamsten‘ a. Az'rgar, Imz, 239 F. Supp. 3d 906, 912 (D. Md. 2017)
`
`(“Because a preliminary injunction is ‘an extraordinary remedy,’ it ‘may only be awarded upon
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`a clear showing that the plaintiff is entitled to such relief.” (quoting IVz'nter, 555 U.S. at 22,
`129 S. Ct. 386)). Still, an injunction “is not granted as a matter of course, and whether to grant
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`the injunction still remains in the equitable discretion of the [district] court even when'a
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`

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`plaintiff has made the requisite showing.” Berberda Safiwonér, LL C. a Interplay; Entry: ’r Corp, 452
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`F. App’x 351, 353 (4th Cir. 2011) (internal citations omitted).
`‘ANALYSIS
`
`Plaintiffs have failed to satisfy their-heavy burden of showing that they are entitled to
`
`a preliminary injunction. rGiven the expedited nature of preliminary injunction proceedings,
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`this Court must make a decision based on “evidence that is less complete than in a trial on the
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`merits.” Um'a quexa: u-Camem'rcb, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981).
`
`.
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`In reaching its ruling, “[t]he court may consider otherwise inadmissible evidence.” Manda 2).
`
`Mayflower Textile Sam“. Ca, CCB—08—273, 2008 \WL 4735344, at *4 (D. Md. Oct. 14, 2008)
`(citation omitted). Findings of fact made at the preliminary injunction stage are not binding
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`at trialhBafielI 13y e’7’t/afaug/J Bafiek v. SaberHea/t/ere Gigi, LLC, 880 F.3d 668, 682 n.7 (4th Cir.
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`2018) (citing Cameflirc/J, 451 U.S. at 395).
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`The record presently before this Court indicates that images produced by the AIR pilot
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`program will only depict individuals as miniscule clots moving about a city landscape. The
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`movement of these dots cannot be tracked'without significant labor. Gaps in the imagery data
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`foreclose the tracking of a single person over the course of several days. This limited form of
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`aerial surveillance does not constitute a “search” under the'Fourth Amendment, nor does it
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`burden First Amendment speech activities. In a City plagued with violent crime and clamoring
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`for police protections, this COurt is loath to take the “extraordinary” step of stopping the AIR
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`program before it even begins. Mimftmtegy Inc. a Motorola, Ina, 245 F.3d 335, 339 (4th Cir.
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`2001)
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`

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`I. Nature of the Claims.
`
`This is a civil case. The Plaintiffs are suing the Baltimore Police Department and
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`Michael S. Harrison, in his official capacity, pursuant to 42 U.S.C. § 1983. Section 1983
`
`provides that “[e]very person,” who, under color of state law causes the‘ violation of another’s
`
`federal rights, shall be liable to the party injured by his conduct. See 42 U.S.C. § 1983. In Mane/l
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`1). New York Cay Dybartmmt of Social Sen/I'm, 436 U.S. 658, 690, 98 S. Ct. 2018 (1978), the
`
`Supreme Court held that a municipality or other local government may be subject to suit under
`
`§ 1983 when its official policies or customs result in constitutional rights deprivations. Bar/g;
`1). Baltimore Police Dep’t, .422 F. Supp. 3d 986, 1014 (D. Md. 2019).
`
`The Defendants do not raise any arguments concerning whether they may be sued
`
`under § 1983 or a Monell theory of liability, and instead focus on the preliminary injunction
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`standard, the issue of standing, and the merits of the Plaintiffs’ Fourth Amendment challenge.
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`However, in some recent cases, the‘Baltimore Police Department has taken the position that
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`it is not subject to liability under § 1983 or Mono/l. See, e.g.,]ol1moa a Baltimore Police Dep’t, SAG-
`‘18-2375, 2020 WL 1694349 (D. Md. Apr. 7, 2020). As Judge Gallagher of this Court has.
`
`recently explained, this'contention has been rejected and the issue is currently before the
`Fourth Circuit. Id. at *9 (citing Barley a. Ball. Police Dep't, 422 F. Supp. 3d 986 (D. Md. Nov. 22,
`
`2019), appeal dooéeted and coma/flared, No. 19—2029 (4th Cir. Sept. 27, 2019); Lacem o. Earp, No.
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`GLR-13—1036, 2019 WL 4673448, at ”'53-5 (D. Md. Sept. 25, 2019), @pealdoaéeted, No. 19-2072
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`(4th Cir. Oct. 4, 2019); Order, Par/é: a. Ball. Police Dep’t, No. TDC—18—3092 (D. Md. Sept. 9,
`
`2019), ECF 86, appeal docketed and coarolia’atea’, No. 19—2029 (4th Cir. Sept. 27, 2019)). This
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`10
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`Court adopts the rationale of these cases, and holds that the Baltimore Police Department and
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`Harrison, in his official capacity, may be subject to suit under § 1983 and Mane/l.
`
`Nevertheless, Defendants suggest that the actions of Persistent Surveillance Systems,
`as a private contractor, cannot be attributable to the Baltimore Police Department for
`
`purposes of assessing the Plaintiffs’ § 1983 claims. Liability arises under § 1983 when “the
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`conduct allegedly causing the deprivation of [the plaintiffs’ rights is] fairly attributable to the
`State,” or, in the case of a More]! action, to a policy of a local government entity. Comer a
`
`‘Donnell , 42 F.3d 220, 223 (4th Cir. 1994) (quoting Lugar a Edmondmn 01'] Ca, 457 U.S. 922,
`
`937, 102 S. Ct. 2744, 2753 (1982)); 563749/9 v. City ofMoamirw'lle, 195 F.3d 708, 712 (4th Cir.
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`1999), A private entity may be held liable under § 1983 when it “has exercised powers that are
`
`traditionally the exclusive prerogative Of the state.” (Tanner, 42 F.3d at 224 (quoting Blur}: a
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`Yawn/é}, 457 U.S. 991, 1005, 102 S. Ct. 2777 (1982)).
`
`In this case, Persistent Surveillance System’s actions may be attributable to the
`Baltimore Police Department for purposes of assessing the Plaintiffs’ § 1983 claims. The
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`Baltimore Police Department and Persistent Surveillance Systems have entered into a
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`Professional Services Agreement, ratified by the Baltimore City Board of Estimates,
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`to
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`conduct aerial surveillance over Baltimore. As Defendants conceded during the Preliminary
`
`Injunction Hearing, Persistent Surveillance Systems would be exercising powers which are
`
`traditionally within the exclusive domain of the BPD when undertaking the actions authorized
`by the Professional Services Agreement. Accordingly, the capture and analysis ofimagery data
`
`by Persistent Surveillance Systems is attributable to the Baltimore Police Department for
`
`purposes of the Plaintiffs’ § 1983 claims.
`
`11
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`II.
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`Standing.
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`Before proceeding to the merits, this Court must determine Whether the Plaintiffs have
`
`standing to sue the Defendants for First and Fourth Amendment Violations. “Standing is an
`
`‘essential and unchanging part’ of Article Ill’s case. or controversy requirement.” James M.
`
`Wagstaffe, Federal Civil Pmcedum Bqflme Trial § 24—III (2019) (quoting Vt. Aging) quat. RBI.
`
`:2.
`
`United 5mm ex 722/. Stewart, 529 US. 765, 771 (2000)). To establish Article III standing, a
`
`plaintiff must (1) Show an injury in fact, (2) demonstrate a causal connection betvyeen the
`defendants’ actions and the alleged injury, and (3) Show that the injury will likely be redressed
`
`by a favorable outcome. Lzy'cm y. Defender: of Wild/£19, 504 US. 555, 560—61, 112 S. Ct. 2130
`
`(1995). An injury in fact must be “concrete, particularized, and actual or imminent.” Marmara
`
`Ca.
`
`y. Geen‘mn seed Pam, 561 U.S. 139, 149, 130 s. Ct. 2743 (2010). “Allegations
`
`ofporrz'b/e future injury” are not sufficient. Clapper z). Aymara; Int’l, 568 US. 398, 409, 133 S. Ct.
`
`1138, 1147 (2013) (quoting Wbitmom v. Anécmmi, 495 US. 149, 158, 110 S. Ct. 1717 (1990)).
`
`In this case, only the “injury-in—fact” requirement is in dispute. The Defendants
`
`advance distinct standing arguments with respect to the Plaintiffs’ claims. As to their Fourth
`Amendment claims, Defendants contend that the Plaintiffs’ standing is contingent upon the
`
`potential,future review of the imagery data by the Baltimore Police Department. With respect
`3“
`
`to the First Amendment claims, Defendants argue that the Plaintiffs
`
`subjective expectation
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`' of a chilling effect on their associations” does not constitute an injury-in-fact sufficient to
`
`confer standing to bring a First Amendment claim. These arguments are addressed in turn.
`
`(t'
`The collection of imagery data associated with the Plaintiffs is an 1njury-in-fact”
`
`sufficient to support standing to bring a Fourth Amendment claim. As the United States
`
`12
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`Court ofAppeals for the Second Circuit held inACLU u. Clapper; 785 F.3d 787 (2d Cir. 2015),
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`data collection a10ne can confer standing to bring a Fourth Amendment claim. -In that case,
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`several non-profit civil rights organizations brought First and Fourth Amendment challenges
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`to the National Security Administration’s bulk telephone metadata collection program. 785
`F.3d at 792. The plaintiffs had established that their call records were among those collected
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`under the program.
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`Id. at 801. The Defendants, a collection of federal government entities
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`and officials, argued that Plaintiffs’ injury—in—fact could only arise if the government reviewed
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`I
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`this data.
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`Id. at 800. The Second Circuit explained that the Defendants had misapprehended
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`“what is required to establish standing in a case Such as this one.” Id. at 801. The Court held
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`that, regardless of whether the Plaintiffs’ claims ultimately prevailed, they nevertheless had
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`standing “to allege injury from the collection, and maintenance in a government database, of
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`records related to them.” Id. As further discussed infra, following the Second Circuit’s deCision
`in Clapper; the United States Court ofAppeals, for the Fourth Circuit held that the interception
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`and copying of communications sufficed to confer standing to bring Fourth Amendment
`claims. Wkimedia Found. 1). NSA, 857 F.3d 193, 210 (4th Cir. 2017).
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`In this case, Plaintiffs have standing to challenge the collection and retention of data
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`associated with them. There is no dispute that Plaintiffs’ imagesualbeit in the form of a pixel—
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`sized dot—will be captured by the airplanes deployed by Persistent Surveillance Systems and
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`that those images will be preserved in a server it maintains. All Plaintiffs engage in public
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`advocacy initiatives in Baltimore City, which requires them to traverse the city on foot, by bus,
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`or by car.
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`(Declaration of Dayvon Love 111] 3, 12, ECF No. 4; Declaration of Enicka
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`Bridgeford 1m 7, 14, ECF No. 5; Declaration of Kevin James W 2, 5, ECF No. 6.) Operating
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`Case 1:20-cv-00929-RDB Document 32 Filed 04/24/20 Page 14 of 34
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`roughly 12 hours per day in agreeable weather conditions and capturing 32-square miles of the -
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`city every second, the PSS planes will certainly capture individual imagery, even if only in the
`form of miniscule dots, as individuals move about Baltimore. Although P38 is not a
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`Defendant in this matter, its activity is attributable to the Defendants as an exercise of the
`powers delegated to it by contract, which otherwise would be reserved to the Baltimore Police
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`Department. Furthermore, as the Second Circuit explained in Clapper, it matters not that the
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`BPD may never review the “dots” associated with these Plaintiffs. The collection of this data
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`is alone sufficient to confer standing under Article III.
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`The Plaintiffs’ anticipated efforts to modify their speech activity to avoid surveillance
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`under the AIR pilot program constitutes an “injury—in—fact” in the First Amendment context.
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`As the Fourth Circuit has recognized, “‘standing requirements are somewhat relaxed in First -
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`Amendment cases,’ particularly regarding the injury-in-fact requirement.” Daw'mrz v. Randall,
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`912 F.3d 666, 678 (4th Cir. 2019) (quoting Con/erg; z). Futrell, 721 F.3d 226, 23.5 (4th Cir. 2013);
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`we alto Iflpez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010) (“First Amendment cases raise
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`unique standing considerations that tilt dramatically toward a finding of standing.” (internal
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`quotation marks and citations omitted». In the First Amendment context, “the injury—in—fact
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`element is commonly satisfied by a sufficient showing of ‘self—eensorship, which occurs when
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`a claimant is chilled from exercising his right to free expression.” Coy/erg), 721 F.3d at 235
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`(Ben/mm y. Cay afCl'mr/afle, 635 F.3d 129, 135 (4th Cir. 2011)).
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`Measures taken to avoid data collection may suffice as an injury-in—fact supporting
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`standing to bring First Amendment claims. In [W/éimedz'a Found. 2). Nat"! Sec. Agengv, 857 F.3d
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`193 (4th Cir. 2017), educational, legal, human rights, and media organizations brought First
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`14
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`Case 1:20-cv-00929-RDB Document 32 Filed 04/24/20 Page 15 of 34
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`and 'Fourth Amendment claims against the National Security Agency (“NSA”) and other
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`government entities related to the NSA’s interception, collection, and review of text-based
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`communications.
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`Id. at 202.
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`'In response to these communication intercepts, Wikirnedia
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`Foundation alleged that it had taken “burdensome steps to protect the privacy of its
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`communications and the confidentiality of the information it thereby receives” and had “self-
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`censored communications or forgone electronic 'communications altogether.”
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`Id. at 204.
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`_ Citing the rule articulated in Coo/(2545]), rupm, the United States Court of Appeals for the Fourth .
`Circuit held that Wikimedia had standing to sue on First Amendment grounds because it had
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`“self-censored its speech and sometimes forgone electronic communications.” 857 F.3d at
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`211.
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`In this case, the Plaintiffs have clearly articulated how they will respond to the AIR
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`program’s implementation. Leaders of a Beautiful Struggle will “alter[] the means by which
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`[they] travel” and the “timing of certain meetings.” (Love Decl. 1] 13.) James avers that he will
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`“be more aware of and deliberate about whom [he] meet[s] and associate[s] with,” and feel
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`obliged to explain the risks he associates with the AIR program to people he recruits to
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`' participate in protest activity. Games Decl. 1] 8.) Bridgeford will “shift most of [her] outreach
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`and conversations to be over the phone, over social media, or over email, which will severely
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`impact the nature and quality of the inherently personal and sensitive work” that she does
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`through Ceasefire. (Bridgeford Decl. 1] 15.) These actions present the mirror image of those
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`at
`issue in Wizkimedim in response to electronic surveillance, Wikimedia took its
`communications offline and made efforts to shield its online work; in response to real—world
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`surveillance, Plaintiffs in this case will attempt to conceal their movements around Baltimore
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`15
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`Case 1:20-cv-00929-RDB Document 32 Filed 04/24/20 Page 16 of 34
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`and will move their communications online. These efforts, like the parallel efforts made in
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`Wéimedia, are sufficient to 'c0nfer standing to bring a First Amendment claim.
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`Relying on Laird a. Tatum, 408 US. 1, 92 S. Ct. 2318 (1972) and Dona/Joe a. Bailing, 465
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`F.2d 1.96 (4th Cir.- 1972), Defendants argue that Plaintiffs’ proffered injuries are too vague or
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`speculative to satisfy Article III’s injury—in—fact requirement. In Laird the Supreme Court held
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`that an alleged chilling effect on the exercise of First Amendment rights caused by “the mere
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`existence .
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`.
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`. of a governmental investigative and data-gathering activity” does not suffice to
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`establish Article III standing. Laird, 408 US. at 3', 92 S. Ct. 2318. The Laird Court readhed its
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`decision in part based on the Plaintiffs’ failure to clarify the nature of their purported injury.
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`'
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`This ambiguity caused the Court to speculate that the alleged chill “may perhaps be seen as
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`arising from respondents’ very perception of the system as inappropriate to the Army’s role
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`under our form of government .
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`.
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`. [or] speculative apprehensiveness that the Army may at
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`some future date miSuse the informatiOn-in some way that would cause direct harm .to
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`respondents.” Id. at 13. The Court further remarked that the plaintiffs “cast considerable
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`doubt on whether they themselves are in fact suffering from” a First Amendment chill.
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`Id. at
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`13 n.7. Following Laird, the Fourth Circuit likewise held that the “mere existence” of
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`_ intelligence gathering cannot satisfy Article I'II’s requirements. ‘Damboe y. Du/ing, 465 F.2d 196,
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`202 (4th Cir. 1972) (quoting Laird, 408 US. at 10, 92 s. Ct- 2324).
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`In this case, Plaintiffs have done far more than express vague concerns about the “mere
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`existence” of information—gathering. Rather, Plaint