A recent incident in Florida — where two men wearing body armor walked along a roadway carrying rifles to “test” officers’ response — underscores the challenge of handling so-called Second Amendment auditors or 2A audits. These encounters, often filmed to provoke a reaction, raise difficult questions about open carry laws, citizen rights and officer safety. In this column, Police1 contributor Joel Shults outlines how officers can respond lawfully and safely to armed citizens while protecting constitutional rights and maintaining public trust.
Law enforcement officers live in a universe of irony. They are called peace officers but are adorned with weaponry. They must protect the fundamental freedoms of life, liberty and the pursuit of happiness, yet are given legal authority to take those freedoms away. They must abide by what Justice Brandeis described as “the right to be left alone” but are obligated to intercede in suspicious behavior.
Perhaps nowhere is this tension more evident than when tested by gun-toting citizens anxious to find out how the police will respond to their display of weaponry. Getting dispatched to a person-with-a-gun call is typically a shot of adrenaline to a responding officer, but what happens when the call turns out to be a person just taking a walk with their trusty .223 slung over their shoulder? Here is some guidance.
Check yourself
Second Amendment auditors aren’t the only ones who invite potentially adversarial police contacts. First Amendment auditors with their cell phone videos can also be “victim-precipitated contacts” — those who invite encounters with the intent of becoming a victim of that encounter.
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Another, more tragic example, is the suicidal person hoping to be shot. This “invitation” naturally raises an officer’s alert level and things can turn argumentative quickly.
We often hear use-of-force experts say “awful but lawful,” meaning that what an officer did may look bad to the public — even a poor decision — but still fall within the bounds of the law. Citizens can do things that are awful but lawful too, like walking around toting an AK.
Know your jurisdiction’s firearms laws
When responding to open-carry audits or Second Amendment testers, officers must know exactly what their state and local statutes say:
- Does the law allow disarming during a lawful police contact?
- Are there time and place restrictions on concealed or open carry?
- Is there a compliance requirement for firearms owners during a police contact?
- What is the statutory definition of threatening, menacing, displaying or assault?
Being well-versed in local firearms laws is the first line of defense in preventing unnecessary escalation or rights violations during these encounters.
Understand the caller’s mindset
Despite our collective love of crime shows and murder mysteries, most people are as afraid of guns as they are of spiders and snakes. The pervasive use of the phrase “assault rifle” and the widespread reporting of attacks on schools and public events cue up immediate fear at the sight of a person carrying a long gun in public.
A caller may “feel threatened,” but their subjective sense of apprehension provides no objective grounds for law enforcement intervention. A good communications officer can help responders gauge whether the sight of an armed person poses an imminent threat.
Make your own case
Perhaps a parallel challenge to armed citizens is the challenge of third-party racial profiling. If an officer responds to a suspicious-person call based on a caller whose definition of “suspicious” is a person of a different race, should the officer make a contact based solely on that complaint?
Of course, the officer never knows what’s going on in a caller’s mind, but in any decision to contact a citizen, the officer must evaluate whether there exists reasonableness for the confrontation. That’s true for a citizen being reported for possessing a firearm where no other facts are known.
An officer may survey the situation and decide not to make contact if the activity appears lawful. Take all the time you have to observe.
Remember that consent is limiting
Most citizens will comply with officers’ requests in consensual contacts when given a reason — for example, “We’ve had a lot of burglaries in the area recently and wanted to check with folks to see if anybody might have information.”
But if a citizen wants to remain silent and walk away, refuse a pat-down or decline to identify themselves, that is the end of the conversation unless the officer has other justification to continue. That justification cannot be the citizen’s mere failure to consent.
If an officer decides to contact a person carrying a firearm and relies solely on the citizen’s decision to participate, that officer must be ready to accept the citizen’s lawful decision to walk away — unless they can articulate otherwise.
Observe and articulate
An officer observing a pedestrian with a long gun will have to account for their decision — regardless of whether they make contact — and justify any detention, search, request or enforcement action.
While the armed citizen engages in the street theater of “what will the cops do,” the officer isn’t interested in playing a role but in preventing a violent crime.
Being too cavalier or overly polite in a contact with a presumed auditor can pose a risk, even if it plays well on social media. The so-called auditor may be confident in their goal, but the officer can make no assumptions about whether the citizen is on their way to commit mass violence.
Was the citizen near a potential target? Was their body language overly calm or anxious? Were they more interested in videoing the contact than anything else?
As with any police decision — even the most apparently benign — the safety of the officer, the citizen and the public is at risk. The scrutiny of critics, lawyers and judges hangs over every decision. Don’t let an invitation become a provocation.
Tactical takeaway
Auditors are fishing for a reaction — don’t give them one. Confidence, clear articulation and command of the law are your best defense.
Have you dealt with a 2A auditor? Share your experience below.
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