Baltimore Legal Hackers discuss return of aerial surveillance program

When Jawan Richards was shot in the neck by a Gun Trace Task Force officer in early 2016, his attorney did not know that the entire incident — which began with a traffic stop on Piedmont Avenue — had been filmed by a surveillance plane thousands of feet above the city.

For several months in 2016, the plane was secretly used by Baltimore in criminal investigations. The city worked with Dayton, Ohio-based Persistent Surveillance Systems using a grant from Texas philanthropists John and Laura Arnold. Starting in May, the program will resume in expanded form.

After gaining access recently to the aerial footage, Richards’ attorney Ivan Bates discovered it contained evidence that contradicted two GTTF officers’ accounts of what transpired. Last month, Bates filed a motion to vacate Richards’ charges for assault and gun possession, using the footage as evidence.

(Richards’ were among several GTTF-related convictions vacated Monday in Baltimore City Circuit Court, Richards and Bates said Monday afternoon. Bates noted that the motion to vacate came from the Baltimore City State’s Attorney’s Office and did not involve the aerial surveillance evidence.)

Bates spoke about the case at a Feb. 25 meeting of the Baltimore Legal Hackers that focused on the resumption of the aerial surveillance program. He stressed that the aerial footage should be used to look into cases of police misconduct and police-involved shootings, as well as in criminal investigations.

“It allows citizens to put the cameras back on the police, to make sure they do their job in the proper way,” Bates said. “If we’re going to use the spy planes, it must be used in each and every police-involved shooting.”

There weren’t many fans of the program at the Baltimore Legal Hackers meeting.

Concerns about privacy — and concerns that only police can decide when to request aerial footage from the private company — were among the issues raised by the group of law professors, students and citizens.

Bates and Baltimore Beat reporter Brandon Soderberg took turns describing the program, which was announced in December by Baltimore Police Commissioner Michael Harrison.

According to Harrison, three planes will fly for a test period of between 120 and 180 days to assist investigations into murders, robberies and shootings. Flying at 8,500 feet, the planes, with banks of cameras, will photograph the entire city during daytime hours, said Soderberg, who said he has spoken often with Persistent Surveillance Systems’ president, Ross McNutt. The cameras can take one photo per second and individuals are reduced to the size of a pixel, he added.

Recorded footage will not be sent directly to Baltimore police but to technicians with Persistent Surveillance Systems, which conducts the aerial operations, Harrison said.

Harrison added that police will be able to request prepared “evidence packages” to track the locations of individuals involved in a particular incident.

After the test period, the city will assess whether it should use the planes on a long-term basis, Harrison said.

Bates learned of the Richards footage from an article by Soderberg that analyzed the plane’s images of the 2016 traffic stop that ended in Richards’ being shot by one of the two GTTF officers who pulled him over. Bates then called McNutt and asked him to review and explain the footage.

In a video of an online conversation between McNutt and Bates’ law clerk, Jessica Rubin, shown at the Baltimore Legal Hackers meeting, McNutt reviews the aerial footage and says the police stop of Richards lasted only “four or five seconds” before the officers began shooting. According to Bates, the statement of facts from the officers indicated the stop was a lot longer.

The footage also shows multiple police cars gathering on an adjacent street for about 10 minutes before the incident, McNutt said in his video review. Bates said he believes his client was unfairly targeted that day.

“They were doing traffic enforcement right after a snowstorm in a residential neighborhood, and it was clear from the video that it was pretextual,” Bates said in an interview.

Bates said the city must consider many issues with the program, such as whether plane footage should be turned over to defense attorneys who request it and whether McNutt is making correct observations. Bates noted that McNutt would be required to testify and explain the footage in any cases in which it was used.

“Let’s say I know my client wasn’t the ‘getaway driver’ of a drug deal because his aunt testified he wasn’t there, but police say it happened,” Bates said. “The way the department plans to use the data, I can’t use it to prove my client’s innocence.”

Colin Starger, a law professor at the University of Baltimore, discussed how surveillance planes could pose legal complications, since police officers typically need a warrant to perform a search unless an incident takes place in plain view. With the surveillance planes filming the entire city, he said, it’s possible to argue that many more incidents take place in plain view.

“This throws a monkey wrench in, since many, many things theoretically become in plain view now,” Starger said.