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Casey Witte ’24 edged out AJ Peterson ’24 in Friday’s championship round of the Hardt Cup, the annual oral advocacy competition for 1Ls.

The two finalists argued Baltimore Police Department v. Leaders of a Beautiful Struggle before a three-judge Supreme Court panel consisting of Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, who acted as chief justice, Judge Louise Flanagan of the U.S. District Court for the Eastern District of North Carolina, and Judge William Osteen of the U.S. District Court for the Middle District of North Carolina.

Representing the petitioner, the Baltimore Police Department, Witte asked the panel to reverse a Fourth Circuit decision in favor of the respondent, a community advocacy group represented by Peterson, that had sought a preliminary injunction against use of aerial surveillance data on the grounds that it constitutes a warrantless search in violation of the Fourth Amendment.

Witte argued that the Baltimore Police Department’s use of the data case was neither a search nor unreasonable, citing two cases in which the Court held that individuals have either a limited or no expectation of privacy regarding their movements in the public sphere. He distinguished the case from Carpenter v. United States, 138 S.Ct. 2206 (2018), in which the contested data came from 24-hour cell phone surveillance rather than what he described as intermittent photo surveillance in Baltimore.

Responding to early questioning by Diaz, Witte argued that even if the program were found to be a search, the police department’s use of the air program data would still be found reasonable. “The department is only following the Court’s precedent on cases that have previously upheld broad aerial searches in this field,” he said. “The air program is within those lines.”

He also said the lower court had misapplied the factors to be considered by federal courts when evaluating a motion for a preliminary injunction. That standard, which includes a strong consideration of the public interest and the likelihood of irreparable harm, was established by the Court in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008).

Arguing for the respondent, Peterson maintained that the program crossed the line into an unreasonable search, and that it both violated Carpenter’s reasonable expectation of privacy standard and constituted irreparable harm. She said the air surveillance program is “inescapable and automatic,” and that the public had been “sold a false bill of goods” as to how the data would be used.

Asked by Diaz about the public interest in safety and ameliorating the city’s high incidence of violent crime, Peterson responded, “Crime statistics do not supplant Fourth Amendment constitutional, fundamental freedoms. The fact that there are crimes in Baltimore at higher rates is unfortunate. However, it is the onus of the Baltimore Police Department to figure out a lawful and constitutional method to reduce that crime.”

Questioned by Flanagan on how the program’s aerial data collection differed from pulling data from pole cameras around the city, or from a police officer following an individual, Peterson said it offered efficiency unmatched by the other methods. “Certainly any officer can track an individual for any amount of time, but that’s not an efficient use of Baltimore’s resources and thus it wouldn’t be a reasonable expectation of an individual simply going about their business,” Peterson said.

Witte rebutted, “An unreasonable search opens an intimate window into somebody’s life and at best the air program offers an opaque glass. There is 127 days of constant surveillance in Carpenter, here we have surveillance that last for a few hours and is nowhere near that same capacity.”

Delivering the verdict, Diaz noted that he had been a member of the en banc panel that heard the case in the Fourth Circuit. He praised the finalists for their poise, joking that as a 1L he was still “drooling.”

“I will often come into the argument with a tentative vote but I am open to being persuaded otherwise, and good lawyers understand that and are keenly attentive to the fact that when a judge asks a question, that is an opportunity to persuade,” he said. “Both of you were really well prepared to respond to the questions that we had for you and that is phenomenal given the fact that you all are 1Ls. It would be an honor and a pleasure to have this kind of lawyering come before us on the court.”

Said Osteen: “I thought it was not only a very thoughtful set of arguments but it was well prepared for and well delivered, so I can commend you both for the talent you demonstrated today. It’s a fascinating case and I’m not sure I could do better than both of you.”

Witte graduated from the University of Florida with degrees in business and political science. He is the 1L representative on Duke Law’s lateral faculty appointments committee. This summer he will be an intern for Judge Robin Rosenberg JD/MA ’89 of the U.S. District Court for the Southern District of Florida.

Peterson graduated from the University of North Carolina at Chapel Hill with a degree in economics. A Mordecai Scholar, she is involved with the North Carolina Club, the Business Law Society, and the Black Law Students Association.

The Hardt Cup was established by the Duke Law class of 1964 in honor of A. Lee Hardt, a classmate who died after completing his first year. The intramural competition is organized by the Moot Court Board and held in the spring, with participation in the first round a mandatory component of the 1L Legal Analysis, Research and Writing curriculum. Participation in subsequent rounds, through which students can earn an invitation to join the Moot Court Board, is voluntary. This year 288 students participated in the first round and 87 elected to continue to the second round.

The Moot Court Board president is Erin Flood ’22, and the intramural chair is Emmy Wydman ’22. The Hardt Cup coordinators were Alexys Ogorek ’23, Rebecca Reeves ’23, Yoo Jung Hah ’23, and Julianna Ricigliano ’23, who won the 2021 Hardt Cup. Thirty-one of this year’s competitors have accepted invitations to join the Moot Court Board.