The Fourth Circuit, sitting en banc, recently overturned a previously upheld denial1 of a preliminary injunction seeking to prohibit the Baltimore Police Department's (“BPD”) new aircraft-based surveillance program (“AIR”).  AIR used small planes to provide aerial observation of 90% of the city and used that data to track individuals and suspects in the vicinity of a violent crime.  The program was implemented in 2016 without informing the public.  The program's pilot period ended in October 2020, but the BPD continued to analyze AIR data through December 2020.

Plaintiffs sought a preliminary injunction in April 2020, alleging constitutional violations under the First and Fourth Amendments. Plaintiffs based the right to injunctive relief on infringement of the public's reasonable expectation of privacy and the alleged chilling effect the AIR system would have on public association.  To succeed, plaintiffs had to demonstrate (1) they were likely to succeed on the merits of their claims; (2) they were likely to suffer irreparable harm absent preliminary relief; (3) the balance of the equities favored relief; and (4) the relief would be in the public interest.  The preliminary injunction was denied by the district court, and that decision was affirmed by the Fourth Circuit.  On rehearing en banc, the Fourth Circuit held that, even though the AIR program had ceased conducting aerial surveillance, the appeal was not moot because plaintiffs sought to enjoin the BPD's access to data collected from the program.

Reversing its prior ruling, the Court held that plaintiffs were likely to succeed on the merits of their claim because the AIR program enabled police to make deduction from individuals' aggregate movements and accessing such data was a warrantless search in violation of the Fourth Amendment.  The Court stated, “[t]he district court misapprehended the AIR program's capabilities” because the AIR program's “prolonged tracking” enabled detailed deductions that created an “intimate window” into a person's life.  As a result, the program violated longstanding Fourth Amendment case law. 

Given that plaintiffs were likely to succeed on the merits of their Fourth Amendment claim and the remaining factors leaned in favor of preliminary relief, the Fourth Circuit reversed the denial of plaintiffs' motion for a preliminary injunction and remanded the case for further proceedings.  Leaders of a Beautiful Struggle v. Balt. Police Dep't, 2021 U.S. App. LEXIS 18868 (4th Cir. June 24, 2021).


1 The Fourth Circuit's initial decision was reported in Aviation Happenings Spring 2021 Edition (Vol. 7, Issue 1) (Leaders of a Beautiful Struggle v. Balt. Police Dep't, 979 F.3d 219 (4th Cir. 2020)).

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