(Posted June 24, 2021) June often turns out to be high season for major rulings, and today is no exception. The Fourth Circuit Court of Appeals hands down two interesting decisions today that share a common theme.

In Courthouse News Service v. Schaefer, a panel of the court affirms a declaratory judgment in favor of a news service. The service alleged that two Virginia circuit court clerks – one in Norfolk and one in Prince William County – unreasonably delayed public access to newly filed lawsuits. The opinion recites testimony in the district court that Norfolk made only 19% of complaints available on the filing date, and 22% took two or more days to release. In Prince William, 42% of the complaints were accessible on the filing date, and a comparable percentage took two or more days.

The service sued the two clerks, at which point a remarkable thing happened: The clerks sped things up admirably. Norfolk began to make 92% of its complaints available on the filing date, and all of them by the next day; Prince William’s figures were 88% and 96%, respectively.

This increased efficiency backfires on the clerks. They acknowledged that they hadn’t hired anyone or changed hours of operation. All it took, it seems, was the gentle cattle prod of a federal lawsuit. Why is this a backfire? Because it demonstrated that the earlier lack of access was essentially voluntary.

The Fourth today considers a number of challenges to the district court’s declaratory order before rejecting each of them and affirming in a unanimous opinion by Judge Motz. Judges King and Wynn join her fully.

The other decision is a bolt of lightning: Leaders of a Beautiful Struggle v. Baltimore Police Department implicates a pilot program by the department to operate aerial surveillance in the city, using airplanes that circled the city, taking pictures. The planes flew about 40 hours a week during daylight, and their images covered almost all of the City. The plaintiff, a group of community advocates, sued the department, claiming that this surveillance violates the Fourth Amendment. They sought declaratory and injunctive relief.

The district court held a hearing on the request for a preliminary injunction, and denied that relief in April 2020. A week later, the surveillance program started.

Meanwhile, the plaintiff had noted an appeal of the injunction denial. A divided panel of the Fourth affirmed, but the court granted that rare treat, en banc rehearing. By now we’re in December, and the City has operated the program for almost eight months.

At this point, we get a surprise: “Based on the pilot’s mixed results, the City ultimately decided not to continue the AIR program. BPD initially continued storing the data that it had retained to that point; 1,916.6 hours of coverage comprised of 6,683,312 images. Then, over two weeks in January 2021, BPD and PSS deleted most of the data.”

Having discontinued the program, the department moved the Fourth to dismiss the case as moot. That argument was one of the issues that the entire court took up in oral argument in March of this year.

Today a sharply divided court reverses and remands the case to the district court. Eight judges hold that the case isn’t moot: “While the planes have stopped flying, the fruits of the AIR program persist. BPD stores AIR program images and reports and is free to access them at any time. The information relates to around 200 criminal cases, roughly 150 of which remain open investigations.” Because those cases are still “alive,” injunctive relief can address an ongoing legal issue.

The majority – penned by Chief Judge Gregory – concludes that the surveillance program impinges the reasonable expectations of privacy of residents and visitors in the City. Use of the data “is a search, and its warrantless operation violates the Fourth Amendment.” With a warrant, of course, everything changes; but this program effectively surveils everyone outside during daylight hours in the City.

Judge Wilkinson authors a strongly worded dissent, joined in parts by six other judges. He feels that the simple response to the appeal should be “a brief order dismissing the appeal as moot.” But because the majority “is determined to puff this case up, to keep it going at all costs,” he embraces the merits, seeing dire consequences.

The dissent focuses on the underlying problem of violent crime in the City. It accuses the majority of prioritizing concerns about over-surveillance despite the plague of murders there – nearly one per day in each of the past two years. Judge Wilkinson believes that the police department should be free to choose suitable policing tactics to combat this terrible scourge, and the courts shouldn’t engage in second-guessing law-enforcement pros.

The dissent next notes a procedural anomaly: This is an appeal of the denial of a preliminary injunction. In essence, the majority holds that the district court had no discretion on these facts to refuse the injunction. Judge Wilkinson insists that “the majority’s rush to judgment leaves only hopelessness in the face of rising violent crime.” As usual, his prose soars.

Judge Niemeyer is more blunt. His one-paragraph dissenting opinion begins, “Our court’s majority opinion in this case is the most stunning example of judicial overreach that I have ever witnessed on this court.” Well, now. He goes on to join Judge Wilkinson in full, and concludes with a plea that The Robes across the Potomac step in. Judge Diaz files a short dissent on the grounds of mootness.

Today’s opinions run long – 76 pages in all – but the legal discussion is fascinating and I encourage you to click on the link and read them. I particularly encourage you to read two relatively short concurrences, one by Judge Gregory – yes, he files a concurring opinion even though he writes the majority – and one by Judge Wynn. These opinions begin at page 33, and are well worth your attention because of their discussion of the modern social problems facing the City and the Nation.


The common theme in these two decisions is the mootness challenge. In both cases, the court rules that despite the termination of the offending program, the appellate challenges can continue.