First Amendment ‘audit’ leads to suspension of Conn. officer
The local police union has filed a grievance seeking to overturn the officer’s suspension
By Greg Smith
NEW LONDON, Conn. — On July 6, 2021, Police Chief Brian Wright emailed a memo to his officers, a reminder that the public has a First Amendment right to record in public settings.
Attached to Wright’s email was a link to a story about four officers in Danbury who were disciplined for unprofessional conduct ― some were suspended and one later retired ― after an encounter in 2021 with self-described “First Amendment auditor” SeanPaul Reyes, known on YouTube as Long Island Audit, who was filming inside the Danbury Public Library and contested his removal by police.
“Please do not let yourself be baited or engage in a manner that does not display our professionalism,” Wright had warned in the email.
The First Amendment activists are often individuals with YouTube channels posting videos of what they consider to be tests for police and public employees. There are numerous examples online of these individuals walking into city halls, libraries and police stations, flexing their freedom of the press rights. They are sometimes told to stop recording, threatened with arrest and told to produce identification.
The bigger the confrontation, the more chance they get noticed online, where some of the content can earn them money.
New London police were tested on Aug. 20, 2022, when Daniel Kokoszka and his partner strode into the police department parking lot using a cell phone to record the vehicles there. Kokoszka’s interaction with police led to an eight-day suspension and mandated retraining for Lt. Joshua Bergeson, who can be seen in body camera footage blocking and pushing Kokoszka in an attempt to force him to leave.
This week, the city released the body camera footage from Bergeson and other officers, as well as the internal investigation into the incident in response to a Freedom of Information request from The Day.
Kokoszka tells Bergeson he is in a public parking lot with no signs barring members of the public and it’s his First Amendment right to record video. Under threat of being charged with disorderly conduct or trespassing, he tells Bergeson “No. That’s not how it works.”
“Do you really want to do this?” Bergeson asks.
“I don’t care, because I haven’t done anything wrong. You’re making yourself look like a clown,” Kokoszka responds.
The argument broke down and expletives were exchanged. Kokoszka immediately filed a complaint against Bergeson and four other officers. Bergeson’s attempt to charge the two men with first-degree trespass was rejected by his supervisors.
Later, after a video of the exchange was posted to Kokoszka’s YouTube channel Constitution State, Mayor Michael Passero and Chief Wright received emails with links to the video. One of the subject lines in a letter to Passero reads: “Police officer needs to be fired.” An internal investigation was conducted and Bergeson was cited for violating department policy regarding “respect and courtesy,” “conduct unbecoming an officer,” and “use of force reporting.”
The findings of the internal investigation into the complaints against Sgt. Ryan Linderson, Officer Michael Lewis, Officer Eric Sadowski and Lt. Lawrence Keating were found to be unfounded.
During his interview as part of the internal investigation conducted by Captain Matthew Galante, Bergeson admitted calling the men in the parking lot "(expletive) losers,” and said, “It wasn’t a thought out decision but rather a reaction to the situation.”
In a statement provided during the investigation, Bergeson also said he thought he was justified, explaining that a month prior an individual in the parking lot, looking into vehicles, admitted he was “looking to steal a police vehicle.”
“There have been numerous acts of violence against police officers at police stations. Subjects have attempted to force entry into buildings, and even light occupied police buildings on fire,” Bergeson said. “So while their recording on the property is not suspicious, I believe in light of recent events and the current climate toward law enforcement, individuals wandering through our police department parking lot would be deemed suspicious.”
Bergeson also told investigators there are numerous examples of police removing individuals from public places like sidewalks, City Pier, Waterfront Park, Green Harbor Park and the Public Library of New London. Officers at the city’s annual Sailfest summer festival, Bergeson said, “have commonly used our hands to push” and “used our bodies and arms to block individuals” for failing to move from public sidewalks after being instructed by officers.
The local police union has filed a grievance seeking to overturn Bergeson’s suspension. It’s not the first time Bergeson has been disciplined. He was fired in 2011, allegedly for absenteeism, but rehired a year later.
Dan Barrett, legal director for the Connecticut Civil Liberties Union, said the First Amendment allows video recording of police officers and on public property.
“If you are standing in a place the public is allowed to be, you should be allowed to record what you see,” he said.
He said across Connecticut there have been mixed reactions when these First Amendment auditors show up. In some cases, there is no reaction and in others there are more aggressive responses.
Last year, YouTube personality Josh Abrams, who operates the Accountability for All YouTube channel, wandered into Ridgefield Town Hall, recording with his phone until he came upon town employee Patricia Pacheco at her desk. She asked him to stop recording. Abrams can be heard in the video laughing and calling Pacheco a “Grinch.” She hits the panic button under the desk that calls police and swats Abrams with a file folder before walking away. She was later charged with disorderly conduct.
“In this day and age, any public employee should understand there is a chance they’re going to be recorded,” Barrett said.
Cheshire Police Chief Neil Dryfe, president of the Connecticut Police Chiefs Association, said town employees in Cheshire have been reminded that people could come into municipal buildings recording on their phone and there should not be a knee jerk reaction of immediately calling police.
“We’ve sent a similar message to our officers not to get baited into a confrontation,” Dryfe said.
He is skeptical of the motivation of the people posting these videos and hesitates to call it First Amendment activism.
“It’s hard to look at what they’re doing and think they have a real deep-seated concern about freedom of the press or other protected activity. I think in many cases they’re trying to get a rise out of somebody,” Dryfe said.
East Lyme Police Chief Michael Finkelstein, said most officers have at some point in their careers been tested for their ability to remain calm in situations where it is hard not to overreact.
“People test police all of the time... It’s something they deal with from the first day they start the job. Certainly there are people that look to push those buttons,” Finkelstein said.
Elliot Spector, a former police officer and attorney with the firm Hassett & George who represented Bergeson and other police officers in similar situations, said “it’s a game,” to the YouTubers. Rather than First amendment auditors, Spector called them “agitators” and part of an increasing number of individuals “motivated by money, notoriety and bias against police.”
Spector said the objective is often to film the confrontation while attempting to incite a reaction.
“I don’t think they’re really testing the First Amendment. They’re confronting police officers who are usually responding to complaints that these people are being disruptive or annoying,” Spector said. “Apparently they’re making money off of this and they hope they can provoke police into making an arrest and sue to make more money.”
Bergeson hired Spector when state police became involved and investigated a possible criminal charged against Bergeson. New London County State’s Attorney Paul Narducci reviewed the report from the investigation and determined there were no violation of any criminal statutes.
Kokoszka, who was at the center of the New London controversy, said he had just started these “audits” with police departments and looking for places to travel when multiple people recommended New London.
Even if police thought he was acting suspiciously, Kokoszka said “why not come out and be cordial.”
“You can’t just kick me out of a parking lot because you want to,” he said. “If I’m not doing anything wrong and you’re going to try and make me leave, that’s when I stand my ground. I’m trying to show that anybody can stand up for yourselves. Don’t let these dudes push you around.”
Kokoszka has had multiple charges lodged against him, he claims unfairly, for doing similar things at other police departments.
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