By Leith Harrell
First Amendment audits may feel like a recent challenge, but the practice of citizens filming police has been evolving for decades. What has changed most is the exposure. Encounters that once would have gone unnoticed are now recorded, posted and scrutinized by thousands — sometimes millions — of viewers.
In that environment, small mistakes can carry outsized consequences. The same patterns appear again and again in audit videos and in civil litigation. Understanding those patterns is critical to avoiding unnecessary liability.
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Maintain control of the encounter and your response
DON’T allow the auditor to dictate the terms. Many auditors speak with a convincing tone of certainty. It sounds like there is absolutely no doubt they know what they are talking about, so you had better do what they say.
An example Florida peace officers hear regularly goes something like, “You are required by law to take my public records request! If you refuse, you’re violating state statute. Are you going to be a tyrant and violate my rights?” The law is rarely that black and white. You have got to know your laws and policies if you hope to deflect this type of attack. If you know you’re on solid ground, consider returning something like, “I beg to differ,” “Let’s agree to disagree” or “Our legal advisor doesn’t see it that way.” It’s never a bad idea to go on the record saying, “The last thing in the world we want to do is violate anyone’s rights.”
DO maintain control of your response by relying on your knowledge of law and policy. If you know you’re on solid ground, remain calm, professional and consistent rather than reacting to the auditor’s framing of the situation.
Use proper equipment and avoid creating unnecessary records
DON’T film the auditor with YOUR phone. First, this looks like you’re playing “tit for tat,” and the auditor will be quick to call you out for it. At this point, you’re making the kind of video they want. Worse yet, you’re creating a public record with your phone. Depending on the public records laws in your state, the auditor might be entitled to the video and possibly other data from YOUR device.
DO rely on your body-worn camera or agency-issued devices. If you are issued a body camera, let it do its job, or use an agency-issued device to capture any images you might need for legitimate investigative purposes.
Maintain officer safety and professional distance
DON’T invade their space. It’s hard to believe how many officers are willing to violate basic officer safety principles, knowing full well they are being recorded, to confront an auditor at a distance of mere inches. But the evidence is there on the internet in video after video. I won’t presume to suggest what the officers are thinking when they walk up to the person filming (close enough to smell what they ate for lunch), but I can tell you how it looks to the public: bullying, tyranny, incompetence.
DO maintain appropriate distance and follow officer safety principles. Your positioning should reflect both professionalism and safety, especially when the encounter is being recorded.
Give lawful commands and avoid bluffing
DON’T give orders you can’t enforce. The ancient Athenian playwright Sophocles is credited with first observing, “What you cannot enforce, do not command.” This is solid advice for peace officers in any situation. Eventually, someone is going to call your bluff. Then what? You can put your tail between your legs and skulk away, or you can show them who’s boss by enforcing that unlawful command. Neither is a desirable option.
DO ensure any order you give is grounded in law and policy. If you cannot legally enforce it, do not issue it.
Respect the right to film and avoid interference
DON’T try to block their camera or interfere with filming. One of the newest lawsuit strategies challenging officers comes not from use of force or unlawful detentions. Officers are now facing litigation for merely interfering with an auditor’s right to film in public. Intentionally standing between the auditor’s lens and the action being filmed, for no legitimate purpose other than spoiling their view, may now be challenged in court as a violation of their First Amendment right to practice journalism.
DO ensure any action you take around filming has a legitimate purpose. If you need to illuminate a person or an area for legitimate officer safety concerns, by all means light them up — but be prepared to articulate your reason.
Verify facts and avoid relying on assumptions
DON’T assume the complainant was accurate. Well-intentioned “concerned citizens” are famous for reporting what they thought they saw. More often than not, their perceptions don’t jive with reality. Complainants regularly report trespass, panhandle, assault and “shoved his camera in my face!” Most times, the auditor’s video will clearly show that these things didn’t happen.
DO take your time and follow the evidence. Talk to as many witnesses as possible. Ask if the auditor will show you the video. Don’t allow yourself to be drawn into favoring one side over following the facts.
Understand your role and serve professionally
DON’T forget that you actually do work for the taxpayers, though indirectly. No one likes to hear, “I pay your salary, so you work for me!” Nevertheless, the taxpayers are the reason your job even exists.
DO serve the public with professionalism, rational compassion and respect for constitutional rights, while operating within your chain of command.
Slow down enforcement decisions and avoid premature action
DON’T get in a hurry to detain or to trespass. Like them or not, First Amendment auditors do their homework. They know that an American peace officer must develop a reasonable, articulable suspicion that a person has, was or is about to commit a specific crime BEFORE that officer can detain that person. And remember, an actual First Amendment auditor doesn’t want to leave. They want to film the encounter with law enforcement.
DO take your time and ensure you have legal justification before taking enforcement action. Rushing is where many civil rights violations occur.
Handle digital evidence lawfully
DON’T go into a device without a search warrant and don’t erase anything. The contents of a smartphone are protected by the Fourth Amendment of the U.S. Constitution. If you find yourself in possession of a person’s smart phone — either subsequent to their arrest or in the course of an investigation — do not go into the phone before reviewing your department’s policy.
DO follow proper legal process and department policy when handling electronic evidence. In most cases, a search warrant will be required.
Stay focused and don’t let the camera change your behavior
DON’T be distracted by the filming. Smart phones have been part of the American landscape for almost two decades, and yet most of us are still uncomfortable when a stranger films us in public.
DO stay focused on the actual behavior. If the person is simply filming — committing no criminal violations nor posing any threat — leave them be. If they break the law, treat them like any other person committing the same offense.
Conclusion
Most of the liability associated with First Amendment audits is avoidable. It does not come from the existence of the audit itself, but from how the encounter is handled.
Officers who stay grounded in policy, apply the law correctly and maintain professional discipline consistently avoid the outcomes that lead to complaints and lawsuits. Those who do not often find themselves featured in the very videos auditors set out to create.
You may not control the encounter — but you do control the outcome.
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About the author
Leith Harrell retired from the Orlando Police Department in 2020 as a Master Sergeant with 28 years of service. He currently owns and operates Prokopton Training and Development, LLC, offering risk management training on First Amendment audits. He can be reached at Leith@Prokopton.net.
