Filmed interactions with police that make headlines or spread on social media is not a new phenomenon. But a growing movement of self-described “First Amendment Auditors”—individuals who specifically film on public property and police stations to test the rights to film in a public space—has forced some police departments to review how to respond to First Amendment audits. The audits, often posted to YouTube, have become a form of activism: individuals stake out a public facility and record the location and any interactions with staff and the public. An uneventful audit is akin to “passing a test,” while a confrontational audit, usually an attempt by an employee to interfere with the filming, gets a failing grade. Many audits are non-violent and uneventful. But some encounters have escalated dramatically, resulting in arrest and litigation.
For a teaching guide on the rights and limitations of recording audio and video of police, click on the box below.
Updated Aug. 2, 2023.
Newsworthy First Amendment Audits
A journalist who was arrested for recording inside of a New York Police Department precinct sued the city July 24, claiming a department policy violates state law and his First Amendment right to record police.
Over the past two years, independent journalist SeanPaul Reyes has acted as a so-called First Amendment “auditor” — someone who specifically films on public property and police stations to test the rights to record in a public space — and has garnered over 500,000 subscribers to his YouTube channel, Long Island Audit.
In April, Reyes was arrested after he recorded in the lobby of the 61st Precinct in Brooklyn while waiting to file a complaint. Reyes was recording when two NYPD officers advised him that recording was prohibited, referring to a sign posted in the lobby. Reyes recorded the interaction until he was put in handcuffs.
The lawsuit, filed in the U.S. District Court for the Southern District of New York by LatinoJustice PRLDEF on behalf of Reyes, states that the policy prohibiting recording and photography within precincts violates New York law and “chills the First Amendment rights of those who refrain from recording and denies the First Amendment rights of those who choose to exercise them in the publicly accessible areas of NYPD facilities.”
Dec. 15, 2022: Man ‘tests’ First Amendment; village responds by restricting video
“A man who shot a video of the interior of Village Hall has sparked the Board of Trustees to unanimously pass a resolution that prohibits video and photography in the village’s office building without consent, a move that has at least one resident concerned that village officials are violating First Amendment rights.
Keith Lewis, a Democrat and close follower of local government, alleges that Mayor Frank Rossi, Jr. infringed on an unidentified individual’s First Amendment rights by calling Ballston Spa police to stop the man, who was likely what social media is calling a “First Amendment auditor,” from filming inside the village office.”
Dec. 10, 2022: Towns brace for YouTube 1st Amendment auditors after Ridgefield employee’s arrest
“After a Ridgefield Town Hall employee was arrested after allegedly swatting a file folder at a YouTuber who was filming her has prompted some area towns to take action to prevent similar situations.”
Aug. 24, 2022: He threatened ‘war’ with Mark Brnovich’s office. Now he’s been convicted of cyberstalking
“A so-called “First Amendment Auditor” who built a following on YouTube by provoking government workers throughout Arizona has been sentenced to five years of probation for unleashing a harassment campaign against the Arizona Attorney General’s Office.
Chauncey Hollingberry, 35, pleaded guilty recently to one count of cyberstalking for posting videos on YouTube that targeted one of Mark Brnovich’s employees and encouraging his followers to harass them.”
Nov. 2, 2020: Men Filming Voters in Littleton Were “First Amendment Auditors,” Police Say
Two men, one armed and wearing a tactical vest, filmed voters dropping off ballots in Littleton, Colorado.
County workers alerted the police about the men, who were filming outside the Arapahoe County administration building. When the police questioned the duo, the men told the officers that they were “First Amendment Auditors.” According to the responding officers, the men clearly understood their legal right to film people outside a government building and their right to carry guns under Colorado’s open carry law.
The men weren’t cited by the police because they did not prevent voters from dropping off their ballots.
According to Colorado Community Media , First Amendment auditors have made headlines in the state in recent years, including for disrupting city council meetings, winning settlements for wrongful detention, and one instance when a judge was allegedly threatened with his life.
April 12, 2019: The “Arizona Auditor”
A YouTuber, who goes by the alias “Arizona Auditor” and has more than 8,6000 subscribers, was charged with criminal trespassing, disorderly conduct, and harassment after filming inside and outside of a local post office.
The Goodyear Arizona Police Department noted in a news release following the incident that it was not a crime to film, but claimed that the “auditor” and another individual trespassed a non-public area marked “No Entry,” and refused to leave. The two individuals also allegedly followed a woman to her car, prompting calls to 911.
“The Goodyear Police Department respects the First Amendment rights of citizens to film and be present in public places,” the department wrote in the statement. “When that right is pushed beyond legal limits, puts the safety of others at risk, and a crime is committed, then, under the law, police must enforce any laws that are being violated.”
Feb. 14, 2019: Auditor Shot While Filming
On Feb. 14, 2019, an armed security guard shot a First Amendment auditor in the leg outside of a Los Angeles synagogue.
The auditor, Zhoie Perry, was live streaming on YouTube outside the Etz Jacob Congregation and Ohel Chana High School. Perry, a transgender woman, told The Washington Post that she had been walking back from a nearby doctor’s office and started film the synagogue because she was intrigued by its architecture.
When Perry started filming the guard, who was standing behind a gate, questioned why Perry was filming him and the building, which also contained a school. The guard drew his gun, warning her to stop filming and to go away. Perry continued to film for another four to five minutes before the guard shoots her in the leg.
The incident came one year after the Tree of Life synagogue shooting in Pittsburgh, Pennsylvania that resulted in the death of 11 congregants. According the Post , Perry said she didn’t know about last year’s massacre nor that the building she filmed contained a school.
Perry was treated for minor injuries at Cedars Sinai hospital, and the security guard was arrested but prosecutors later declined to press charges.
May 31, 2018: City of Colorado Springs Settles With Videographer for $41K
A Colorado Springs, Colorado auditor photographed and filmed marked police cars in parking lot at a police substation. The police officers thought he was acting suspiciously and asked for identification, which he declined to provide. The officers detained him and took away his camera and cell phone. The auditor filed a complaint agains the officers for wrongful detainment, which the city eventually settled for $41,000.
Aug. 2, 2018: Green Bay Police Disciplined For Reacting To Audit
Three Green Bay, Wisconsin police officers were disciplined as a result of their response to an auditor that filmed inside and outside of police headquarters. The auditor was filming from the sidewalk, but was then tackled to the ground by a detective. He was detained for 20 minutes before being released without being charged. The detective that tackled the auditor was suspended one day without pay, another received a written reprimand, and the third received a verbal warning. A fourth officer, however, was commended for attempting to diffuse tension.
Facilities and Agencies Respond
The International Association of Chiefs of Police published a comprehensive Instructor’s Guide on Public Recording of Police Activities. The objective of the training is to teach participants about the constitutional rights and limitations of the public and media to record police activity, why law enforcement might perceive video and audio recording as unwarranted or threatening, how officers should respond, and when and how recording devices can be seized.
Securitas Critical Infrastructure Services Inc. (SCIS), one of the largest providers of specialized security services in the United States, offers a set of best practices for security officers to use when confronting First Amendment audits.
Public libraries in Wisconsin have anticipated audits, and its website has instructions for library staff on basic First Amendment issues and how to respond to an auditor.
A “Cutthroat” Industry
Auditors have recognized the financial payoff from dramatic encounters and heated altercations with the police. The Daily Beast interviewed a number of auditors about the business side of auditing, reporting that some auditors take aggressive positions when encountering police with the expectation that getting arrested will boost their views and profile. The Association of Labor Relations Officers warns its members that auditors often look “to have a poor contact with law enforcement” in order to create a viral incident.
Are Audits Dangerous?
Auditors maintain that their intent is to merely film public places and police officers undisturbed, but their critics say that they often act to provoke a negative response, and that their tactics are intimidating. There’s legitimate concern that some of these encounters could spiral into violent situations.
The Best Response Might Be Not to Respond
The Houston Chronicle reports that with some exceptions, First Amendment lawyers and some police groups support the auditors’ right to film police as long as it’s not interfering with their work.
Bill Aleshire, an attorney and former Texas County judge told the Houston Chronicle:
“[Auditors] are most valuable when they document and show the lawless, authoritarian behavior of some police officers. They are most divisive and least valuable when they, themselves, become nothing more than reality TV producers. When immature, hateful auditors attempt to create a scene for their reality TV notion, I wish cops would learn to laugh at them, and, while remembering their oath of office, avoid handcuffs, Mace, fists and clubs until these creeps have really threatened public safety.”
