Polic­ing in the sun­shine

Could city’s se­cret surveil­lance im­ages have ex­on­er­ated cit­i­zens?

Baltimore Sun - - COMMENTARY - By Kelly Swanston Kelly Swanston is an as­sis­tant public de­fender in the Felony Trial Di­vi­sion of the Mary­land Of­fice of the Public De­fender. Her email is KSwanston@opd.state.md.us.

As a public de­fender in Bal­ti­more read­ing the Depart­ment of Jus­tice’s Aug. 10 re­port find­ing that the Bal­ti­more City Po­lice Depart­ment en­gaged in a pat­tern and prac­tice of vi­o­lat­ing con­sti­tu­tional rights, I felt a glim­mer of hope. Maybe the BPD would fi­nally be forced into bet­ter prac­tices. Maybe this meant an end to se­cret surveil­lance and un­con­sti­tu­tional ha­rass­ment of the peo­ple of Bal­ti­more. My hope was short-lived. Last week, it was re­vealed that since Jan­uary, city po­lice have been us­ing a Cessna plane to trans­mit and store pho­tographs of 32 square miles of the city at a time. The spy plane cap­tures move­ments of the same cit­i­zens who were told to fo­cus on heal­ing from law en­force­ment in­jus­tices.

The surveil­lance tech­nol­ogy was la­beled An­gel Fire when used in Iraq and then re­branded in Bal­ti­more with the friend­lier la­bel of Com­mu­nity Sup­port Pro­gram. The founder of Per­sis­tent Surveil­lance Sys­tems, the com­pany that brought the surveil­lance tech­nol­ogy to Bal­ti­more, de­scribed the tech­nol­ogy as “Google Earth with TiVo ca­pa­bil­ity.” One of the em­ploy­ees in the non­de­script Com­mu­nity Sup­port Pro­gram of­fice could cur­rently be sit­ting with a BPD of­fi­cer, comb­ing through your move­ments from last week. They could be not­ing where you go to church, what sus­pi­cious-look­ing pack­age you carry and the color of your car. The DOJ re­port en­cour­aged the BPD to en­gage in com­mu­nity polic­ing that was grounded in re­la­tion­ship-build­ing and “jointly solv­ing prob­lems,” not se­cretly watch­ing peo­ple from a Com­mu­nity Sup­port Pro­gram spy plane.

My col­leagues at the Of­fice of the Public De­fender and I first heard about the pro­gram from a Bloomberg News ar­ti­cle. Un­like in Day­ton, Ohio, where the Day­ton Po­lice Depart­ment and City Coun­cil held public hear­ings on whether to use Per­sis­tent Surveil­lance Sys­tems and ul­ti­mately de­cided against it af­ter com­mu­nity op­po­si­tion, the BPD de­cided to in­sti­tute this surveil­lance in se­cret. Our of­fice did not know the BPD was work­ing with the Com­mu­nity Sup­port Pro­gram to col­lect data on our clients’ move­ments and then us­ing the data to charge our clients with crimes with­out dis­clos­ing the source of the ev­i­dence. For our in­no­cent clients, we missed op­por­tu­ni­ties to sub­poena ex­on­er­at­ing footage col­lected by the spy plane. For our clients who were mis­treated by of­fi­cers, or whose ver­sions of the truth dif­fered from an of­fi­cer’s re­port, we failed to cor­rob­o­rate the truth be­cause we Bal­ti­more Po­lice spokesman T. J. Smith (cen­ter) an­swers ques­tions at a news con­fer­ence on the depart­ment’s undis­closed aerial surveil­lance of Bal­ti­more. did not know that a plane had cap­tured footage of the city. The BPD, and by ex­ten­sion the Bal­ti­more City state’s at­tor­ney’s of­fice, had data that likely could have cor­rob­o­rated our clients’ in­no­cence in the face of an of­fi­cer’s in­con­sis­tent state­ment, but they de­cided to keep it a se­cret.

The BPD down­plays the sig­nif­i­cance of their fail­ure to tell peo­ple about the plane cap­tur­ing pho­tographs with TiVo-like re­play abil­ity. The BPD claims this aerial surveil­lance is a mere ex­ten­sion of the city’s closed-cir­cuit tele­vi­sion, or CCTV, cam­eras. But, un­like the Com­mu­nity Sup­port Pro­gram, CCTV cam­eras are vis­i­ble orbs mounted on posts and build­ings, and some­times ac­com­pa­nied by a blue light. The list of each CCTV cam­era’s street in­ter­sec­tion, lat­i­tude, lon­gi­tude and cam­era num­ber is avail­able to the public through a Bal­ti­more City web­site. CCTV cam­eras do not ven­ture above the height of a build­ing, nor can they track our move­mentsa­long a 32-square-mile path.

More­over, the BPD has a his­tory of se­cret surveil­lance, in­clud­ing the use of ma­chines that act as cell­phone tow­ers to spy on the cit­i­zens of Bal­ti­more. Like the aerial surveil­lance tech­nol­ogy used by the Com­mu­nity Sup­port Pro­gram, the BPD kept the use and preva­lence of the cell site sim­u­la­tor ma­chines a se­cret.

Trans­parency cre­ates jus­tice. When de­fense at­tor­neys are told by our clients that an of­fi­cer is ly­ing about an en­counter, we sub­poena the CCTV footage. In a pub­li­cized 2014 case, Kollin Truss was charged with as­sault­ing po­lice of­fi­cers. The truth was that Of­fi­cer Vin­cent Co­som as­saulted Mr. Truss. If Mr. Truss’ as­sis­tant public de­fender had not sub­poe­naed the CCTV footage within the 28 days the BPD keeps the footage, then the court might not have be­lieved in Mr. Truss’ in­no­cence.

Hid­ing the tech­nol­ogy and surveil­lance sys­tems used to solve crimes does not cre­ate a fairer jus­tice sys­tem; it en­cour­ages of­fi­cers to leave ma­te­rial facts out of re­ports and­tolie about the real prob­a­ble cause for lo­cat­ing some­one, and it de­prives peo­ple of ac­cess to ev­i­dence that could lead to their ex­on­er­a­tion. If in­di­vid­u­als knew about the doc­u­men­ta­tion of their move­ments, they could sub­poena the footage when an of­fi­cer gives an un­true ac­count of a po­lice en­counter.

TheBal­ti­moreCity state’s at­tor­ney’s of­fice and the BPD should be open about the law en­force­ment tech­niques be­ing used. The BPD has a danger­ous ten­dency to over­sim­plify its right­eous­ness in its fight against the “crim­i­nal” dark­ness. At a news con­fer­ence dis­cussing the aerial surveil­lance, a BPD spokesman said: “The only peo­ple that should be con­cerned in the city of Bal­ti­more are crim­i­nals.” First of all, it is the rare per­son who has never gam­bled with friends for money, en­joyed a beer on a stoop, tried mar­i­juana, or had al­co­hol be­fore the age of 21 — all of­fenses for which my clients are reg­u­larly de­tained or ar­rested and hauled into Cen­tral Book­ing by the Bal­ti­more City po­lice. Ad­di­tion­ally, all of us are be­ing surveilled, and our pri­vacy is com­pro­mised. If this surveil­lance was only about fighting crime, then why is it be­ing done in se­cret?

Law en­force­ment should be trans­par­ent. Se­cret spy­ing can only lead to fur­ther dis­trust of the BPDat a time when the BPD’s “com­mu­nity sup­port” pro­grams should in­volve more di­a­logue with the com­mu­ni­ties they serve. TheDOJRe­por­t­ex­plain­sthat the BPD tar­gets African-Amer­i­cans and this dis­crim­i­na­tion is “most pro­nounced for highly dis­cre­tionary of­fenses,” like tres­pass­ing and dis­or­derly con­duct. We can­not trust the BPD to de­ter­mine that a group of peo­ple needs to be watched. If the BPD wants to move away from its his­tory of un­con­sti­tu­tional polic­ing in African-Amer­i­can com­mu­ni­ties, it should not be se­cretly fly­ing a pho­tograph­ing plane over those same com­mu­ni­ties.


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