Maryland Court Says Baltimore Prosecutors Can't Hide Their 'Do Not Call' List Of Bad Cops From The Public

from the one-of-ten-BPD-cops-useless-in-court dept

Changes in law, court decisions, and transparency efforts have resulted in the public release of names of officers prosecutors consider too unreliable to ask to testify in court. Officers with histories of misconduct or perjury are placed on "do not call" lists by prosecutors who are supposed to hand this information over to criminal defendants.

The lists -- known by names referencing precedential decisions (Giglio, Brady) -- have historically been closely guarded by prosecutors. But that's no longer considered acceptable behavior in many parts of the country. Precedent creates an obligation that prosecutors are having a tougher time ignoring as police reform efforts continue to gain traction across the nation.

But are these records public records? Many prosecutors and police unions have argued they aren't. While they're ok with begrudgingly handing these over to criminal defendants, they appear unwilling to let the rest of the uncharged public know which officers are considered too problematic to be counted on in court.

Fortunately, the public is scoring a few wins in court over this issue, represented (so to speak) by journalists and transparency activists who seek these records with the intent of making them publicly available. The Maryland Court of Special Appeals has just handed one such win to the Baltimore Action Legal Team (BALT) which requested copies of the Office for the State's Attorney (SAO) "liar list" of Baltimore cops found to be too untrustworthy to be called on in court. (h/t FourthAmendment.com)

This loss for Baltimore PD opacity started as a temporary win for the department's bad cops. From the decision [PDF]:

Between December 2019 and January 2020, appellant Baltimore Action Legal Team (“BALT”) made three requests under the Maryland Public Information Act (“MPIA”) to appellee, the Office of the State’s Attorney for Baltimore City (“SAO”). BALT specifically requested that the SAO provide:

1. A list of 305 Baltimore City (hereafter, “City”) Police Department officers with questionable integrity, and supporting information, that Baltimore State’s Attorney Marilyn Mosby stated she maintained;

2. Records relating to any investigations of all City police officers that were closed in 2019 and any such investigations held open for over sixteen months;

3. Charges filed on January 30, 2020 regarding a specific City police officer and records relating to any open or closed investigations of that officer.

BALT also asked the SAO to waive the costs required to reproduce the records sought in requests #2 and #3. The SAO denied the request for the list of 305 officers in its entirety and did not respond to the fee waiver requests accompanying the other two inquiries. Instead, the SAO informed BALT that the estimated cost of production for the records in request #2 would be approximately $15,000 and would require over 438 hours of work, and the cost of production for the records in request #3 would be $3,000.

The lower court agreed with the SAO, finding that this list was exempt from disclosure under the personnel records exemption. The Appeals Court, however, says the list compiled by the SAO (rather than the Baltimore PD) is not a personnel record in the legal sense of the word. The list of 305 officers (roughly 10% of the Baltimore police force) can be publicly disclosed.

An agency cannot claim a personnel records exemption under the MPIA unless (1) the agency has supervisory authority both over the records and the person who is the subject of the records; and (2) the records contain what would be considered “personnel issues,” such as a performance rating, or, generally, “an employee’s ability to perform a job.” The record suggests that the SAO has generated the list, rather than the City’s police department. We understand from the State’s Attorney’s motion for summary judgment that the list was created from City police department’s Internal Affairs documents. Critically though, the internal affairs documentation—whatever an officer did to call into question their credibility—is not part of the list. Only the names of the officers the SAO has deemed compromised appear on the list.

[...]

Simply because an officer’s name appears on a list generated by the SAO does not mean that it is now a personnel record, based on the “commonly understood meaning of the term.” It seems to us that the SAO uses the list as a tool to ensure that prosecutions are not compromised by the testimony of officers whose veracity is questioned.

Neither can the SAO claim these are records that would jeopardize ongoing misconduct investigations or criminal proceedings against police officers if the list of names was revealed. The Attorney's Office apparently made no attempt to determine which officers on the list were currently under investigation. Instead, it chose to treat a narrow exemption like a blanket to shield these officers from BALT's encroaching sunlight. That hurts its case, says the court.

In this case, the SAO declined to disclose the names of the officers on the “do not call list,” by asserting that the disclosure would interfere “with a valid and proper law enforcement proceeding under GP § 4-351(b)(1).” In response, BALT asked whether all 305 officers were under investigation, to which they received no reply. In not responding, the SAO failed to “demonstrate that it legitimately was in the process of or initiating a specific relevant investigative proceeding.”

[...]

Based on the foregoing, we conclude that the trial court erred in prohibiting disclosure given that the SAO invoked a blanket exemption as though all 305 officers were under investigation. That simply was not demonstrated here. And even if the SAO had shown that it was actively investigating an individual police officer, the SAO has not demonstrated how they could have complied with the MPIA request by shielding that individual officer’s name from the list.

Neither are the records "attorney work product," as the SAO tried to claim. Again, the court says this is a narrow exemption from Maryland public records law, not a preemptive shield to be raised by an office that is hip-deep in litigation at any given time.

From our review of the record, we conclude that even though the SAO constantly faces the prospect of litigation, the “do not call” list was not necessarily created in response to the prospect of litigation. Rather, the list was created for the purpose of alerting prosecutors to the fact that a cohort of officers have questionable reputations and putting them on the witness stand to testify, or to base an investigation on a search warrant submitted by one of these officers, to cite two examples, would potentially jeopardize a prosecution. Consequently, we conclude that the “do not call” was not created in anticipation of litigation, but instead is used more as a tool that the SAO may use to assess the strength of a prosecution.

The win goes to Baltimore Action Legal Team. The records will be freed and the city of Baltimore will be paying BALT's legal fees. The police department's bad cops can no longer hide behind abused public records exemptions. If these officers are bad enough they can put prosecutions at risk, the public deserves to know who they are.

Filed Under: bad cops, baltimore, baltimore police, police, prosecutors, transparency

Baltimore Police Union Blames City's Murder Rate On Defunding Efforts That Never Happened

from the kindly-shut-your-noisehole dept

In response to the killing of a Baltimore police officer, the head of the Baltimore police union, Mike Mancuso, has decided to accuse everyone who doesn't love cops as being responsible for her killing. The statement from the Baltimore City Fraternal Order of Police (FOP) was delivered via Twitter, portraying itself as an "Open Letter to the People of Baltimore."

It's not really an open letter. It's a rant that makes false claims, punctuated with one particularly meaningless statistic to drive its point home: the Baltimore PD no longer feels it has the support of the city government, nor the people it serves. FOP President Mancuso is probably correct on both counts. But nowhere does he even hint that part of the problem might be the Baltimore Police Department.

Here's where the letter goes off the rails. It starts in the second paragraph which means you won't have to read much of the "open letter" [PDF] before your eyes start rolling. Let's turn it over to the head of the FOP:

In this time of contemplation, I have come to realize that Baltimore and its citizens have reached a crossroads in the path toward the future. You can no longer be still, as the path ahead has so completely diverged as to make silence no longer an option. The politicians running Baltimore and Annapolis have defunded the police in a now obvious way allowing attrition and recruitment to be ignored, causing our ranks to fall some six hundred officers short of what is needed.

First off, there has been no defunding. This claim is clearly contradicted by the city's annual budget numbers, which are posted publicly. Mancuso obviously hopes no one will check his math. Certainly the choir he's preaching to won't.

The Baltimore PD has never been defunded. It didn't happen during the recent wave of defunding efforts across the nation. And it didn't happen during any of the years Macuso has chosen to bracket his arguments with:

What has happened to our city is devastating. Since 2015, there have been 2318 victims of homicide and 4848 victims of shootings, all while in conjunction with a mass exodus of dedicated members of our agency.

I wonder what happened in 2015 that would have possibly led to (1) more gun violence and/or (2) a mass exodus of Baltimore police officers?

On April 12th, 2015, a 25-year-old black man from the west side of Baltimore named Freddie Gray was arrested for possession of a “switchblade,” put inside a Baltimore Police Department (BPD) transport van, and then, 45 minutes later, was found unconscious and not breathing, his spinal cord nearly severed. Following a seven-day coma, Gray died on April 19th; his untimely death and citizen video of his arrest, which showed Gray screaming in pain, prompted both the peaceful protests and headline-grabbing riots. The subsequent two-week police investigation ultimately concluded that Gray’s injury happened sometime during the van’s route – over six stops, with two prisoner checks, and another passenger pick-up.

This killing of Freddie Gray by BPD officers resulted in protests and backlash against the police department. The intervening years did nothing to improve the PD's reputation nor its relationship with Baltimore residents.

In 2017, body camera footage of an officer planting drugs led to a department-wide investigation that resulted in the indictment of eight officers on racketeering charges for stealing money, fabricating evidence, and other misconduct. Hundreds of criminal cases were dismissed.

At that point, the PD was already subject to a consent decree from the DOJ, following its investigation of the department, which found:

BPD engages in a pattern or practice of: (1) making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans; (3) using excessive force; and (4) retaliating against people engaging in constitutionally-protected expression.

By 2020, the number of indicted or convicted police officers had reached 14, adding in even more allegations (many sustained) of evidence theft, evidence planting, falsified paperwork, and a ton of rights violations.

So, it was not simply the backlash caused by the "rough ride" death of Freddie Gray, a man arrested for carrying a legal knife. The results of the DOJ's investigation were published in 2016. The consent decree arrived January 2017, followed shortly thereafter by reports of corrupt cops planting drugs and stealing evidence.

Back to the FOP's president's statement. He claims the PD has been shedding officers steadily since that point. According to Mancuso, it's the city holding the department back by somehow preventing the department from recruiting or hiring cops. But there has never been a hiring freeze. Some expenditures were put on hold during the COVID crisis. But, for the most part, the PD has had five out of the last six years to hire as many officers as it can.

There are several reasons the BPD might be leaking cops. Some of its worst officers might have left the force, realizing even a minimal amount of scrutiny might uncover their wrongdoing. Others may have left the force because they no longer wished to be associated with the corruption observed in several high-profile cases.

The same can be said for the PD's inability to outpace departures with new hires. Good cops most likely would prefer to steer clear of a department with a reputation as terrible as Baltimore's. Bad cops most likely steered clear of the BPD because officers were being overseen by a DOJ consent decree and the heightened scrutiny that always follows massive scandals. Realizing it might be more difficult to engage in lawless behavior, potential officers likely looked elsewhere.

With that out of the way, we can get back to looking at the department's budget, which the FOP claims has been "defunded." The stats are easily available, compiled and published by the City of Baltimore. Here's how the years in question break down in terms of dollar amount and number of officers, which are the only stats the FOP cares about.

2015
Budget: $440,793,081
Employees: 3,470

2016
Budget: $467,608,064
Employees: 3,125

2017 (report for this year returns a 404 error, est. budget from 2016 request listed below)
Budget: $451,472,227
Employees: 3,125

2018
Budget: $486,079,670
Employees: 3,243

2019
Budget: $499,575,448
Employees: 3,243

2020
Budget: $508,291,238
Employees: 3,241

2021 (budgeted)
Budget: $500,357,075
Employees: 3,193

2022 (requested)
Budget: $521,725,791
Employees: 3,197

The FOP's statement about defunding is a lie. So is its count of officers. It claims 600 have walked away and never been replaced. At best, the actual numbers show the BPD has shed less than 300 employees (not all of them officers) since 2015. As of last August, the BPD was only short 108 officers, nowhere near the number stated by the FOP.

Meanwhile -- despite lower labor costs -- the department's budget has increased by nearly $81 million over the past five years. There was a slight dip between 2020 and 2021, but that dip is purely conceptual at this point. The BPD may end fiscal 2021 having spent more in 2021 than in 2020. Its budget may have been slightly lower than 2020 but its actual expenditures have yet to be tabulated.

There is no evidence of defunding here. And there's no evidence the situation -- in terms of officers -- is anywhere near as dire as the FOP portrays it.

These are the factors the FOP ties to the increase in homicides. One has been exaggerated. The other is nonexistent.

It's true the murder rate in Baltimore has been climbing since 2015. The FOP boss wants to blame it on everyone turning against the cops, resulting in a mass exodus of officers (isn't happening) and the stripping of funding (isn't happening either). Baltimore's murder rate is the highest its been since the mid-1990s, which was a highwater mark for criminal activity almost everywhere in the country.

Maybe the explanation is closer to home than the FOP wants to admit. It could be the murder rate is rising because would-be murderers know the odds are with them. Even at its own, self-reported best, the PD only solves half the murders committed in Baltimore.

The official clearance rates for those years have been reported as 51% (2017), 43% (2018), 32% (2019), and 40% (2020).

At worst, the odds are even better for murderers. These clearance rates are inflated, according to the former Deputy Attorney General of Maryland, Thiruvendran "Thiru" Vignarajah. Vignarajah has examined the BPD's reported crime stats and has some insight into how the department handles clearances. A cleared case doesn't always mean the perp has been arrested or convicted. In some cases, the clearance means nothing has happened.

Vignarajah calculates it — without “exceptional clearances” and without arrests in homicides from previous years — the clearance rate for each of those years was much lower. “Less than a quarter [24%] of all 1,336 murders from the beginning of 2017 through the end of 2020 resulted in an arrest,” Vignarajah says.

Even if we give officers credit for closing cases that began the previous year, the abuse of "exceptional clearances" allows the PD to overstate its effectiveness.

The most common use of "exceptional clearances" is to pin murders on corpses. Subject only to a cursory review by supervisors and prosecutors (both of which clearly benefit from higher clearance races), investigators can claim a body in the morgue was responsible for the death of others. Sometimes they may be correct. But it certainly looks like an easy way to juice clearance rates, all without having to actually prove the cadaver committed the crime.

The actual number of exceptional clearances may seem small compared to the ~300+ murders committed in Baltimore every year, but it's enough to turn a disappointing number into something that appears to show a supposedly undermanned and underbudgeted homicide unit is exceeding expectations.

The number of cases closed by exception in Baltimore has increased in each of the last four years, data obtained by The Sun through a Maryland Public Information Act request show, from 11 in 2014 to 18 in 2015 to 26 in 2016 to 34 last year. The practice has helped police improve their homicide clearance rate over that time, from 30.7 percent in 2015 to 51.4 percent last year.

In 2018, there were 309 murders in Baltimore. The PD allowed more than 10% of those cases to be closed by blaming it on someone who could no longer defend themselves against these charges. In some cases, this may have been true. But the easy out dead-ends investigations and allows the PD to rack up unearned wins. It also, obviously, allows some murderers to go free.

All of this undermines the breathless conclusion to Mike Mancuso's open letter. If the claims he makes and the correlations he implies are false, then this is all just pro-cop agitation, completely devoid of meaning.

This is not a political issue of left vs. right, nor is it a rift between Baltimore's citizens and their sworn protectors. This is simply a fight between good vs. evil, and we must decide where we stand.

Sorry, Mr. Mancuso. The PD has proven capable of housing plenty of evil. And the murder stats cited are meaningless without the uncomfortable context that the BPD is just kind of terrible at solving murders. The claim about defunding is flat-out false. If the PD can't find a way to attract and retain officers despite remaining fully funded for the last half-decade (this includes the governor's $150 million budget boost for 2022 -- one delivered by the governor with verbal attacks on defunding efforts), the problems are mostly internal. Heal thyself, BPD. And kick this ridiculous charlatan to the curb. He's useless and he's a liar.

Filed Under: baltimore, baltimore police department, defund the police, fraternal order of police, mike mancuso, police unions

Baltimore Police Department Sued For Seizing Phones, Cash, And Jewelry From Crime Victims Recovering From Shootings

from the adding-insulting-of-rights-to-shooting-injuries dept

It's not enough that law enforcement can seize property if it pretends it must be linked to some criminal endeavor, even if the cops can't be bothered to actually find any direct evidence of said criminal endeavor… or even bring charges against forfeiture victims. It's not enough that almost anything can be seized when accompanied by criminal charges, which can lead to officers stripmining someone's residence while serving warrants.

When alleged criminals are difficult to find, sometimes the cops just take stuff from crime victims. Multiple people are suing the Baltimore Police Department for grabbing all sorts of property from shooting victims while they were hospitalized and recovering from their injuries.

It would seem these seizures would be illegal, but the Baltimore PD pretends it's all about rounding up evidence -- even when said "evidence" has nothing to do with the crime being investigated.

On an unusually warm spring evening in the early days of Covid-19, Amber Spencer turned out to celebrate her boyfriend’s birthday at a front stoop cookout in East Baltimore.

Suddenly, bullets flew, hitting her in the chest. When she turned to run, a bullet struck the back of her head and lodged itself in her skull. Then Spencer lost consciousness.

“When I came to, I had been shot in the head. I asked, ‘Where’s my phone?’ and my mom said, ‘The police took it,’” she said.

And once this property is gone, it's gone. The BPD has no interest in giving up what it's taken, even if the crime is no longer being investigated.

To date, none of the plaintiffs or their loved ones have been able to get their property back even though none of the four is accused of a crime.

It's not just phones. It's whatever crime victims happened to have on them when they were assaulted by actual criminals. This is from the lawsuit [PDF] seeking to have these seizures found unconstitutional.

Plaintiff Damon Gray is a 23-year-old Black man who resides in the City of Baltimore, Maryland. On June 29, 2019, a stranger shot Mr. Gray approximately seven times in the back, neck, and chest while Mr. Gray was walking in and around Catherine Street in the southwest area of Baltimore. Mr. Gray was transported by ambulance to the hospital where BPD officers seized without consent his cell phone, a bracelet, a necklace, and several articles of clothing. These items remain in BPD custody.

While it's possible the clothing might have some evidentiary relevance in terms of recreating the crime and performing ballistic examinations, it's difficult to see how a phone adds anything to the evidentiary mix, much less the victim's jewelry.

This isn't an aberration.

Plaintiff Amber Spencer is a 27-year-old Black woman who resides in the County of Baltimore, Maryland. Just before midnight on March 20, 2020, a stranger shot Ms. Spencer in the head and chest while she was attending a cookout near 1800 North Chapel Street in Baltimore, Maryland. After the shooting, Ms. Spencer was transported by ambulance to Johns Hopkins Hospital, where BPD officers seized her personal property without her consent, including her cell phone, jeans, shirt, shoes, car key, and approximately $400 in U.S. currency. These items remain in BPD custody.

The same questions are raised here, but with the addition of shoes (the victim was shot in the chest and head), car keys, yet another phone, and $400 in cash that cannot possibly have anything to do with the criminal act being investigated.

Plaintiff Faye Cottman is a 36-year-old Black woman who resides in the City of Baltimore, Maryland. On March 14, 2019, a woman that Ms. Cottman did not know shot Ms. Cottman and her then-11-year-old son in the head while he was playing with his brother at a playground in the Cherry Hill area of Baltimore, Maryland. BPD officers arrived at the scene and seized Ms. Cottman’s personal property without consent, including her jacket, cell phone, wig, and shoes. Despite numerous unsuccessful attempts to reclaim her personal property from BPD, these items remain in BPD custody.

Once again, this appears to be BPD officers taking all of a hospitalized person's belongings and then refusing to return them.

One more time:

Plaintiff Audrey Carter is a 58-year-old Black woman who resides in the City of Baltimore, Maryland. On June 9, 2018, her son, Dwayne D. Cheeks, was shot and killed in the 2200 Block of Germania Avenue in Baltimore City. BPD officers seized, inventoried, and logged in the Evidence Control Unit (“ECU”) all of Mr. Cheeks’s effects, including his driver’s license, cell phone, a lottery ticket, keys, and cash.

In this case, the victim's mother was able to talk the BPD into giving her back her son's cash. That happened in December 2019, a year-and-a-half after officers took control of it. The BPD refused to give back anything else officers took. Worse, the department claimed the rest of "evidence" officers had seized had been destroyed.

Not only did officers take property, but they took advantage of unconscious shooting victims in other ways. Faye Cottman's phone was warrantlessly searched by officers while she recovered from surgery. The officers claimed the phone was "evidence," remarked that they were able to search "pretty far back" in her messages to see if she had had any communications with the shooting suspect, and then refused to give the phone back despite closing the investigation in September 2019.

In some cases, victims were not given inventory lists of the property seized or any receipt showing the BDP had taken their property, making it extremely difficult to talk the department into giving them back their stuff. In other cases, officers and detectives stonewalled requests, citing COVID policies or ongoing investigations. Even when investigations concluded, the BPD made no effort to return seized property. And, in the case described above, the BPD destroyed property officers knew was being sought by its previous owners, in direct contravention of their own evidence policies.

The justifications for these seizures don't work. And if the BPD expects crime victims to believe officers are operating in good faith, it would ensure property is returned as soon as an investigation concludes. It would also seek consent from fully cognizant crime victims, rather than stripping them of their belongings while they undergo surgery or recover from their wounds. And if they really need to see the contents of someone's phone, they need to obtain warrants supported by probable cause, rather than taking advantage of situations where crime victims can't actually provide consent to engage in warrantless searches.

Filed Under: baltimore, baltimore pd, civil asset forfeiture, evidence, police, theft

Appeals Court Reverses Earlier Decision, Says Baltimore's Aerial Surveillance Program Is Unconstitutional

from the on-the-other-hand,-this-does-look-constitutionally-sketchy dept

After two court decisions declaring the Baltimore Police Department's Persistent Surveillance Systems-provided aerial surveillance system wasn't actually persistent surveillance, the en banc Fourth Circuit Appeals Court has reversed itself, finding that the system capable of capturing the movements of people and vehicles over an area of 32-square-miles violates the Fourth Amendment.

The 192-million megapixel camera system flew over the city for up to 12 hours a day, only shutting down when darkness or weather rendered the cameras useless. This footage was retained by the PD, which could review the footage to trace movements to and from crime scenes. The resolution meant people and vehicles were little more than unidentifiable pixels, but this information -- combined with a plethora of ground-based surveillance equipment -- made it possible to identify suspects and other persons of interest.

The AIR [Aerial Investigation Research] program was challenged by the ACLU, which cited the Supreme Court's Carpenter decision in its request for an injunction. The federal court said the surveillance wasn't persistent and its built-in limitations prevented it from tracking people's movements for days at a time. As such, AIR's surveillance was unlike the location tracking in the Carpenter decision, which involved the use of cell site location information obtained from cell service providers.

The Fourth Circuit Appeals Court reached pretty much the same conclusion seven months later. Despite covering a vast area for up to 12 hours a day, the court felt the surveillance was far from persistent. It also seemed to feel the surveillance was a means justified by the ends, citing the Baltimore PD's inability to solve more than a third of the city's murders over the past several years.

The court agreed to perform an en banc review of its November decision and has, somewhat surprisingly, declared this form of surveillance a violation of the Fourth Amendment. And it makes no difference that the PD has dumped the program. The ruling [PDF] serves to prevent the PD from trying it again the next time it runs out of better ideas.

Even though the program has ended, the PD has retained some of what was collected during its run. It's still quite a bit of footage and data.

Rather than store entire days’ worth of data, they elected to retain images from 15 minutes before and after the first and last “track point” for a case, and only within a quarter mile of any track point. They believed this data was the “minimum amount” necessary to support PSS’s reports and “to support the prosecution and the defense teams” in the 200 cases aided by the AIR program, including 150 open investigations. The deletion “result[ed] in a total retained imagery data of 14.2% of the captured imagery data.” Id. In raw numbers, that is 264.82 hours of coverage, comprised of 953,337 cropped images. Id. In addition, “[t]he 200 investigation briefings and other ground-based videos” generated by the AIR program “have already been uploaded to BPD’s Evidence.com.”

The city thought this deletion made everything ok. It was no longer untargeted surveillance of a 32 square mile area but rather targeted surveillance of criminal suspects. That's the wrong way of looking at this, the court says. The PD wouldn't have this stockpile of targeted surveillance if it hadn't engaged in broad surveillance first.

Defendants also stress that BPD has deleted “all but 14.2 percent” of AIR images. But 14.2 percent of all the data collected—millions of photographs documenting thousands of hours of public movements over six months—is a significant quantity of information. Indeed, the preserved 14.2 percent is the needle in the proverbial haystack that the AIR program was designed to discover. Only after recording movements across Baltimore for twelve hours per day could BPD zero in on specific dates and locations related to its investigations and then delete the excess. And BPD still has the briefings and reports, which feature AIR images and tracked movements, information and images from other BPD systems, and insights from PSS’s analysis. Even after the bulk deletion, Plaintiffs have a concrete interest in an injunction barring BPD from accessing what remains, “however small” the interest may be.

Then the court says the lower court failed to comprehend the program's impact on residents' privacy.

Plaintiffs argued the AIR program violates Carpenter. The district court rejected the analogy, relying on precedents that approved warrantless pole cameras and flyover photography, and distinguishing CSLI as “a far more intrusive, efficient, and reliable method of tracking a person’s whereabouts.” The district court’s conclusion arose from its read of the facts: “the AIR pilot program has limited location-tracking abilities” because it “will only depict individuals as miniscule dots moving about a city landscape”; the planes “will not fly at night and cannot capture images in inclement weather”; and “gaps in the data will prohibit the tracking of individuals over the course of multiple days.” From that premise, it believed the AIR program could not expose the “privacies of life.”

The district court misapprehended the AIR program’s capabilities.

This is long-term tracking of people's movements, even with periodic interruptions due to nightfall or inclement weather.

Because the data is retained for 45 days—at least—it is a “detailed, encyclopedic,” record of where everyone came and went within the city during daylight hours over the prior month-and-a-half. Law enforcement can “travel back in time” to observe a target’s movements, forwards and backwards. Without technology, police can attempt to tail suspects, but AIR data is more like “attach[ing] an ankle monitor” to every person in the city. “Whoever the suspect turns out to be,” they have “effectively been tailed” for the prior six weeks. (“[P]olice need not even know in advance whether they want to follow a particular individual, or when.”). Thus, the “retrospective quality of the data” enables police to “retrace a person’s whereabouts,” granting access to otherwise “unknowable” information.

[...]

[T]he program enables photographic, retrospective location tracking in multi-hour blocks, often over consecutive days, with a month and a half of daytimes for analysts to work with. That is enough to yield “a wealth of detail,” greater than the sum of the individual trips.

The fact that the surveillance ended at night doesn't matter. Most surveillance happened during the day and most activities people engage in happened during the time periods the surveillance was occurring

AIR data is a photographic record of movements, surpassing the precision even of GPS data and CSLI, which record variable location points from which movements can be reconstructed. And while the coverage is not 24/7, most people do most of their moving during the daytime, not overnight. Likewise, many people start and end most days at home, following a relatively habitual pattern in between. These habits, analyzed with other available information, will often be enough for law enforcement to deduce the people behind the pixels.

As for the claims the PD never engaged in persistent surveillance with this system, the record says otherwise. The system may deliver unidentifiable pixels in its raw form, but the PD still found it useful enough to perform aerial stakeouts.

The Policing Project reported that one AIR investigation “monitor[ed] the home of a suspect’s mother over the course of two days and track[ed] the individuals who came and went.” Policing Project Br. App. at 16. And an AIR report “detail[ed] a vehicle’s movements over the course of three days, listing eleven locations at which the vehicle stopped, and noting the interactions the driver had with other individuals.”

The court says the surveillance planes can still fly if the city wants to try that approach again. But they'll need warrants to do it.

The AIR program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment.

There are several concurrences and a dissent that is criticized heavily by the concurring judges. The most stinging take on the "ends justifies the means" posturing of the dissent is delivered by Chief Judge Roger Gregory:

The dissent faults the majority for making “[n]o mention whatsoever” of Baltimore’s high murder rate. Because the dissent would not enjoin a police surveillance system, it purports to champion “our dispossessed communities” and “the most vulnerable among us.” It suggests the majority, by contrast, “contribute[s] to the continuation” of violence and “leaves only hopelessness” for “the good people of Baltimore.”

This critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons. Of course, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” Abraham Maslow, The Psychology of Science: A Reconnaissance, 15–16 (1966). But many Baltimoreans know these institutions all too well as the only response to violence.

Just because there's criminal activity doesn't mean citizens want fewer rights, especially those in neighborhoods where violent crime is most prevalent. And the Fourth Circuit Appeals Court shouldn't assume fighting crime is a higher calling than protecting the rights of Americans.

Wherever they call home—from East Baltimore to West Baltimore, from Sandtown to Roland Park, from Cherry Hill to Locust Point— Baltimoreans need not sacrifice their constitutional rights to obtain equal governmental protection.

Even though Baltimore's aerial surveillance program is dead (possibly just for the moment), its legacy lives on: more precedent saying persistent tracking of people's movements is unconstitutional.

Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, baltimore police department
Companies: persistent surveillance systems

Crime Rates Drop After The City Of Baltimore Decides It's Not Going To Waste Resources Prosecuting Minor Offenses

from the do-you-want-to-help-or-do-you-just-want-to-look-busy dept

The argument against anything perceived as "defunding" cops or going just a bit lighter on suspected criminals (like decriminalization of drug possession or the elimination of cash bail) is that the criminals will win. Apparently all they've been waiting for is fewer laws so they can break more laws… or something.

A few disingenuous people (some of them holding very powerful offices) have claimed it takes nothing more than people being angry at law enforcement to make crime rates rise. Others claim the only way to keep crime rates down is to harshly police every minor infraction.

There's no real answer here. Crime rates rise and fall. Mostly, they've been falling. Here in the United States, we've been enjoying historically low crime rates for most of the last decade. But law enforcement opportunists insist on viewing every deviation from this pattern as the start of an alarming trend, one that can be traced to almost any attempt to introduce accountability to policing.

Over in Baltimore -- where cops have been on a rampage -- crime rates continue to fall. The backlash from rampant law enforcement corruption has resulted in some changes meant to level the criminal justice playing field and direct law enforcement resources towards more serious crimes. The wild card was a worldwide pandemic. Here's Elizabeth Nolan Brown for Reason:

Baltimore State's Attorney Marilyn Mosby announced in March 2020 that her office would dismiss all pending charges for drug possession, prostitution, trespassing, open container, public urination, paraphernalia possession, attempted distribution of drugs, and minor traffic offenses. It would also stop prosecuting new cases for these offenses—a decision born out of the desire to thwart COVID-19 spreading through jails.

Critics of this action claimed this would embolden criminals. But the opposite has happened. Perhaps partially aided by COIVD-related restrictions, crime rates have fallen in the city.

Between March 2020 and March 2021, violent crime in Baltimore dropped 20 percent and property crime dropped 36 percent. Homicides were also down slightly (13 fewer compared to the previous year).

And, as a direct result of this action (which included dismissing nearly 3,000 pending cases and warrants), the city's jail system is no longer such a drain on residents and their tax dollars. According to the data, incarceration is down 18% and a 40% drop in people "entering the criminal justice system."

Whatever the underlying reasons, this is better for the city. Crime rates are going down one way or the other. And it's not due to aggressive enforcement or giving cops permission to run people in for minor legal infractions. Crime rates may increase as COVID restrictions roll back, but critics can't ignore the results of this criminal justice experiment. And it's not just that fewer people are out or that prosecutors are pushing as many prosecutions. Even citizens seem fine with these relaxed conditions:

The data showed that 911 calls about drug use, public intoxication and sex work (a proxy for public concern) did not increase following the policy; rather, from March – December 2020, there was a 33% reduction in calls mentioning drugs and a 50% reduction in calls mentioning sex work compared to the prior 2 years.

There was also a drop in recidivism, which indicates tons of nickel-and-dime prosecutions aren't essential to curbing crime rate growth. The good news is this is now permanent. The action taken during the beginning of the pandemic will be the way forward for the city of Baltimore. If the city can maintain this new status quo going forward, it should produce a useful dataset that may show the way to a safer nation is less law enforcement, rather than more.

Filed Under: baltimore, crime, defunding police, minor offenses, police, prosecution

Appeals Court Says Baltimore PD's Aerial Surveillance Program Doesn't Violate The Constitution

from the long-term-tracking-of-people-is-fine...-as-long-as-it's-only-12-hours-a-day dept

The Baltimore PD can still use its flying spies, says the Fourth Circuit Court of Appeals. The aerial surveillance program -- first "introduced" on accident in 2016 -- allows the PD to track the movement of people across the entire city, thanks to high-powered cameras mounted on airplanes. The surveillance system (created by Persistent Surveillance Systems) can capture 32-square miles. People and vehicles are reduced to pixels despite the power of the 192-million-megapixel cameras, but combining this footage with street-level surveillance allows the PD to deanonymize moving pixels observed near crime scenes.

The entire system was paid for by a private donor, allowing the PD to sidestep its transparency obligations to the public. After the initial run ended, the PD resurrected it -- this time following the proper processes for introducing new surveillance systems to the city.

Earlier this year, a federal court rejected requests for an injunction, stating that the observations of moving pixels didn't amount to a Constitutional violation. Even though these pixels could be identified using ground-based surveillance, the court didn't see anything in the system that amounted to persistent, intrusive surveillance with Fourth Amendment implications.

The case went to the Fourth Circuit Court of Appeals. During oral arguments, the judges appeared mostly sympathetic to the city's arguments, claiming it was almost impossible to violate the rights of unidentified pixels whose movements have been observed on public streets.

The Appeals Court has delivered its decision [PDF]. And, as expected, it has declared the program to be Constitutional. The opinion opens with something suggesting the judges feel the ends justify the means.

Baltimore sadly has experienced a serious recent rise in homicides. For each of the past five years, Baltimore has been victimized by at least three hundred murders. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population.

It also presents this fact as though it were something that justifies persistent surveillance, rather than pointing out the shortcomings of the Baltimore PD's investigators.

Moreover, the Baltimore Police Department (BPD) has struggled to respond effectively to this increase in murders. In 2019, it cleared just 32.1% of homicide investigations, its lowest rate in several decades.

So, because murders continue to happen and the Baltimore PD seems mostly incapable of solving murders, the system is justified. As the court sees it, because it doesn't flagrantly violate rights, any rights violations it might enable are acceptable.

It is a carefully limited program of aerial observations of public movements presented as dots, and it is important at the outset to say all the things the program does not do. It does not search a person’s home, car, personal information or effects. It does not photograph a person’s features.

There are other limitations to the program. Planes can't fly in bad weather and the high-powered cameras are useless after sundown. But the planes still fly daily, if possible. The court's assumption this system will help Baltimore get a handle on its murder problem seems suspect. Data obtained through records requests show the system's failed to produce results. 700 hours of flights occurred but only led to a single arrest.

The court also claims the system can't be used to track people because [reads opinion] it can only be used to track people's movements.

There will be no live tracking of individuals. Analysts can only use AIR’s photographs to look at past movements.

So, tracking someone's past movements is apparently more Constitutional than tracking their current movements. Weird take, especially given the Supreme Court's Carpenter decision, which found that tracking people's past movements via cell site location info is unconstitutional without a warrant.

The Appeals Court says this is all very legal and very Constitutional.

In light of these precedents, we cannot hold that AIR [Aerial Investigation Research] violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases.

And this is how the Fourth Circuit says Carpenter doesn't apply:

Whereas CSLI could be used to reliably track an individual’s movement from day to day, AIR can only be used to track someone’s outdoor movements for twelve hours at most.

If there's anything positive about this decision, it's that the court has confined its decision solely to this particular surveillance program, which should prevent more intrusive programs from sneaking in under the Fourth Circuit's ruling.

Our opinion should not be overread. Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance. We only address the AIR program, which has built-in limitations designed to minimize invasions of individual privacy. We do not address a surveillance program that includes, for example, twenty-four hour surveillance of indoor and outdoor spaces using photographs that allow analysts to immediately identify the specific people being photographed.

The dissenting opinion says the other two judges have it wrong. There are Fourth Amendment implications and they're being ignored by the majority.

These conclusions rest on a fundamentally warped understanding of the facts, accepting the Government’s promises about the AIR program and ignoring the plaintiffs’ contrary evidence. The AIR program does, indeed, amount to long-term surveillance that compiles “a detailed and comprehensive record” of a person’s past movements. See Carpenter, 138 S. Ct. at 2215–19. Thus, Carpenter is not only relevant to this case. It controls the outcome.

The dissent goes on to point out that the arguments the majority uses to justify the surveillance under its "there's no Constitutional violation here" conclusion.

Applying that broader perspective to this case, the limitations of the AIR program that the majority emphasizes do little to distinguish Carpenter and Jones. Indeed, it is hard to reconcile the majority’s portrayal of the AIR program’s capabilities with its insistence that the program is justified because it helps BPD police crime. That the AIR program’s surveillance planes will fly only during the daylight hours and capture individuals as solitary pixels does not mean that AIR program data cannot be used to track specific individuals over time.

Presumably, the vast majority of Baltimore’s residents start and end most days in the same place: their homes. Who resides at a given address is often public information. Likewise, many people begin each day at home, then travel during the daytime based on a daily routine, and then return home again. In just one possible application, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. Police could then look through time and track the movements of people from that residence. Police could use any number of context clues to distinguish individuals and deduce identity. After all, that is the very purpose of the program.

But it's the majority whose opinion counts. The Baltimore PD can continue to track residents' movements for up to twelve hours a day, day after day (weather permitting). Perhaps the Supreme Court will take up the inevitable appeal and apply its own Carpenter decision a little more rationally.

Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, baltimore police, police

Federal Court Says City Of Baltimore Must Pay Resident Abused By Cops The Other Half Of Her Settlement

from the shut-up,-they-lawyered dept

For years, the city of Baltimore has handed out settlements to victims of government abuse. And for years, the city has forced them to remain silent about these settlements. The city tied every settlement to an extensive non-disparagement clause that effectively bought people's silence. If you can't say anything nice, you can't have half your settlement, as the old saying goes.

Ashley Overbey chose not to remain silent. She sued the city after her call to report a burglary resulted in officers beating, tasing, verbally abusing, and then finally arresting her. She received a $63,000 settlement that came with strings attached. She yanked some strings in response to the city choosing to disparage her as "hostile" in its public statements about the lawsuit. After her public statements, the city decided she owed it $31,500 for opening her mouth.

Her case made its way to the Fourth Circuit Court of Appeals. The Court was not amused by the city's multiple arguments in favor of its extortion tactics.

[W]hen the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.

It's a First Amendment violation. And an obvious one at that. The case has returned to the lower court and the district court is far less receptive of the government's arguments the second time around. (h/t Baltimore Sun)

On remand, the city argued it did not owe Overbey the other $31,500 it clawed back when she chose to speak up about the city's actions. Instead, it claimed the breach of contract claims were time-barred by the statute of limitations, leaving Overbey only the option of recovering nominal damages. And how nominal those damages are!

From the decision [PDF]:

Instead, it asserts the “better view” is that Ms. Overbey is only entitled to “nominal damages of one dollar” for an infringement of her First Amendment right to speak, “perhaps coupled with a formal declaration to that effect.”

Wrong, says the district court. The contract was violated by the city, thanks to its egregious First Amendment violations. Subtracting half the settlement caused damages to Overbey equal to the half the city withheld for her violation a contract that was unable to be enforced Constitutionally.

The City owes Ms. Overbey the other $31,500. By its conduct in unconstitutionally enforcing the now discredited clause, the City withheld half of the settlement proceeds. Thus, the civil rights violation caused $31,500 in economic harm.

Overbey will also be collecting interest accrued since October 8, 2014. The court has further comments on the city's inexcusable defense of its inexcusable settlement policy.

The City continues to defend its use of the non-disparagement clause and the “real and substantial questions presented” by facts that led to the settlement agreement in the first place. Therefore, it cites shock that “that the challenge would bear fruit” here and that the serendipity that allowed Ms. Overby’s claim to survive was akin to a “virtual lightning strike.” The seeming inference is that their illegal act should not be undone simply because no one thought, or even suspected, it was illegal at the time. Even if true, all this is beside the point. The City entered the settlement agreement it helped craft knowing that its severability provision contemplated this exact scenario: that a clause may be deemed “invalid, void and illegal,” and that it would subsequently be stricken from the agreement.

Almost six years after the city decided to punish Overbey for her refusal to remain silent, it will finally pay her what she's owed. Fortunately, future plaintiffs won't have to put up with this bullshit.

Filed Under: 4th circuit, ashley overbey, baltimore, extortion, police, police brutality, police misconduct, settlement

Fourth Circuit Appeals Court Seems Skeptical That Baltimore's Aerial Surveillance System Violates The Fourth Amendment

from the aloft-for-now dept

The legal fight over Baltimore's aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.

The city isn't paying a dime for these cameras and airplanes. The equipment -- provided by Persistent Surveillance Systems -- is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn't been all that successful. Reports show the program logged 700 flights but only one arrest.

The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD's cameras on the ground. Despite the word "persistent" being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.

There's an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn't appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.

Judge J. Harvie Wilkinson disagrees.

“Whose constitutional rights is this violating?” Wilkinson, a Reagan appointee, asked.

“These are simple observations of public movements, and it’s not inside someone’s dwelling, it’s public streets, where someone’s expectancy of privacy is minimal,” he said. “We’re not talking about excessive police force, so is it the right of the pixel whose rights are being violated?”

The judge is right that the expectation of privacy is lower in public areas. But this is too reductive. A pixel isn't just a pixel -- incapable of having its rights violated. It's a person, even if that person can't be clearly identified using these recordings alone. The entire purpose of the aerial surveillance system is to help police identify criminal suspects. And police do this by cross-referencing this footage with surveillance equipment on the ground, which is completely capable of turning a "pixel" into a person.

But Wilkinson isn't the only judge being asked to rule on this. Judge Roger Gregory is far more critical of the government's arguments. The government said there were no Constitutional concerns in tracking the movements of millions of Baltimore "pixels" since the PD was only interested in the "pixels" who may have been near a crime scene. Most of the recordings collected are never used by the Baltimore PD's analysts.

That doesn't make it okay, says Judge Gregory.

Gregory, a Clinton appointee, countered that it is unconstitutional to gather such information in the first place.

“That would turn the Fourth Amendment on its head,” he said. “That’s like invading someone’s home with a camera and taking a photograph of you, then say, ‘It’s no problem because we never developed the film.’”

It seems unlikely the Appeals Court will be any more impressed with the ACLU's arguments. As long as people are still rendered as pixels -- and planes incapable of capturing footage 24 hours a day -- there appears to be very little violation of privacy. If there's no sympathy for the mosaic theory of the Fourth Amendment -- where multiple Constitutional surveillance techniques combine to form an unconstitutional invasion of privacy -- Baltimore residents will still be watched by multiple eyes in the sky.

Filed Under: 4th amendment, 4th circuit, aerial surveillance, baltimore, drones
Companies: persistent surveillance systems