En Banc Court Shoots Down Aerial Surveillance Program

Leaders of a Beautiful Struggle v. Baltimore Police Department:You’ll recall last year when a divided panel of the Fourth Circuit rejected a Fourth Amendment challenged to Baltimore’s Aerial Investigative Research program (“AIR”). Although it covered 90% of the city, it was unable to identify particular people or structures, instead tracking “pixelated dots” that represented people or vehicles that were near the scenes of particular violent crimes. Such “short-term surveillance of an individual’s public movements” did not infringe on any legitimate expectation of privacy, the court held. 

The plaintiffs sought rehearing en banc, which the court granted. The full court changed course, holding 8-7 (although the breakdowns on the various issues gets complicated) that the program violated the Fourth Amendment. Before even getting to that point, the court (Chief Judge Gregory writing) held that the case was not moot. Although the AIR program itself was no longer up and running, the city had retained a good portion of the data collected. Since the plaintiffs had from the beginning sought a prohibition on the use of that data there was still a live case or controversy. On the merits, the court relied on Carpenter to hold that the kind (and amount) of data collected violated the Fourth Amendment.

Judge Wilkinson dissented (along with Niemeyer, Agee, and Quattlebaum as well as Diaz, Richardson, and Rushing as to certain parts), arguing that the case was moot and that the “majority is determined to puff this appeal way up, to keep it going at all costs.” The dissent also rejected the majority’s Fourth Amendment analysis, arguing that reaching the conclusion it did the majority was “further distancing our country’s most disadvantaged citizens from the opportunities so many other Americans enjoy.” Chief Judge Gregory also wrote a concurring opinion (joined by Wynn, Thacker, and Harris) taking issue with the dissent’s argument that the majority did not pay sufficient attention to the problem of violent crime in the inner city. Judge Wynn also wrote a brief concurring opinion (joined by Motz, Thacker, and Harris), noting his “regret” for the “dissent’s dire rhetoric, much of which insinuates that the dissent alone had Baltimore’s best interest at heart.”