Fourth Circuit Changes Course: Directs Preliminary Injunction To Prohibit Baltimore Police Department's Access To Aircraft-Based Surveillance Program Data

Published date21 September 2021
Subject MatterTransport, Aviation
Law FirmSchnader Harrison Segal & Lewis LLP
AuthorMr Jordan Mark Kelso

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...

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