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
