Episode 84: Dangerous Crossroads
At a recent gathering of North Carolina municipal leaders, discussion briefly fell on a viral form of accountability activism from the public: "First Amendment audits," performed by citizen "auditors," with whom many local governments have had unforgettable experiences. Styles and practices of auditing vary, but generally in this context it's the term for when private citizens, equipped with recording devices, occupy public spaces and engage with government officials (police officers, mostly) to test or evaluate their conduct. It can get tense. YouTube is bursting with videos uploaded by auditors that appear to show police and other government employees failing their test -- for example, an auditor might use provocative language to get a reaction from the police officer, who is expected to be cool and respectful of the auditor's free speech and other constitutional rights throughout. There are several cases of auditors successfully suing towns or police agencies over how their officers handled encounters, and it's a subject the N.C. League of Municipalities has followed for many years, even offering a course (called "Dangerous Crossroads") meant to help with awareness of and readiness for peaceful outcomes with auditors, should they come around. On this episode, we talk with expert Scott MacLatchie about the subject and how the course, which he teaches, can help local agencies of any size.
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Transcript
From the North Carolina League of Municipalities, this is Municipal Equation, a podcast about cities and towns. Hello, everyone, and welcome to another episode of Municipal Equation. I'm Ben Brown with the North Carolina League of Municipalities, and I thank you for joining us. Today in the podcast, we're gonna talk about the intersection of the first and fourth amendments as it pertains to local police departments. A while back, I was photographing a meeting of the North Carolina Metropolitan Mayors Coalition. It's a great organization of mayors representing the state's large and midsize cities. And during the discussion, one of the mayors stood up and asked if anyone had any experience with these so called First Amendment auditors. Just to give a general definition, these First Amendment auditors are people who again, this is just a general definition because it can vary. But, generally, these are people who go to public spaces and film the scene with their phone or sometimes with a real deal camera filming the scene around them, whether it's outside a government building or sometimes even in the lobby of a government building or these are just examples. And typically what happens in the First Amendment audit scenario is some government official, often a police officer, will notice the person filming, maybe it looks a little strange, and the officer will come out to ask the auditor what they're up to. Maybe the officer thinks the person is acting suspicious and wants to check it out. And from there, the auditor kinda tests the the professionalism of the officer or official interacting with them, you know, getting it all on video, documenting everything. And there are lots and lots and lots of these on YouTube. Again, people videotaping or otherwise somehow recording their own interactions with officials like police officers and testing how that officer handles the situation, the interaction. Sometimes, it goes badly where it becomes a tense showdown between the investigating officer and the first amendment auditor who's holding the camera. And when it goes badly, like, say, if the officer unlawfully detains or otherwise violates the constitutional rights of this private citizen, then you can get lawsuits and payouts, and it's embarrassing for the town government because it's all over YouTube, and it'll be in the news and and so on. As I've described it, it sounds like it might just be some occasional incidental thing, you know, just some sort of activism that kinda rarely shows up here and there. And indeed, when the mayor I was referring to, you know, recently asked his colleagues if they were familiar with this kind of thing happening, not everybody was familiar, but it is pretty widespread. These these first amendment audits are a thing indeed. And the League of Municipalities actually has education programming to make sure our cities and towns are informed and know how to handle these situations appropriately without incident. Because, again, it can go badly, but it doesn't have to. And what I wanted to do based on that mayor's recent question was talk to an expert on the subject. His name is Scott McClatchy. He's someone we partner with at the League of Municipalities to offer this class. It's called dangerous crossroads. Let me just read you the description real quick, and we'll we'll get to it. It's a really interesting interview with Scott McClatchy about the topic and implications with these first amendment audits. But here's what Dangerous Crossroads is all about according to the program description. The interaction between citizens and law enforcement officers is nothing new. However, as technology has evolved and created the ability for anyone to share personal recordings widely online, these interactions have become the topic of ongoing national conversations for better or worse. This course examines the intersection of the first and fourth amendments with regard to police citizen interactions and provides practical tips for dealing with situations where citizens legitimately exercise their constitutional rights, as well as those instances where the goal is capturing a negative reaction from officers. Here's my interview with Scott McClatchy about the issue and a bit about the class and how it can get everybody up to speed on what's going on. Alright. Well, Scott, appreciate you taking the time to join us today and talk to us about Dangerous Crossroads and some of the happenings that have inspired it. First off, could you tell us a little bit about your background and just what you do professionally and what your background is that kinda got you here.
Sure. I am a partner in the Charlotte office of Paul Booth Smith, which is an Atlanta based law firm with somewhere close to 400 lawyers, in a number of states. My practice is limited to representing law enforcement agencies and their officers and their chiefs and sheriffs, in litigation when they get sued by members of the public for allegedly violating people's rights, allegedly making false arrests. And, of course, a lot of my cases involve uses of force, including, police shootings. And so, I have been doing that, since, I began in California, doing that in the year 1986. And I have been doing it ever since. And I have tried, a lot of cases, in front of juries, particularly federal court juries, all representing law enforcement agencies in both California and North Carolina.
And so one thing that we've been seeing really across the country, I'm not sure what it looks like on a global picture, but just speaking of The US constitution and these constitutional out audits that have been happening, I I think I first heard about them about ten years ago. Started seeing these things show up on YouTube, and people were sharing them on social media. Usually, a POV kind of video of someone holding a camera, interacting with a police officer. Sometimes, it it can get into a tense kind of way. Usually, the officer is being tested on their professionalism or their knowledge of the the constitution, that sort of thing. Can you give us a little bit of a a brief history of of this? Like, when did you become aware of this sort of activism if or whatever you wanna call it? So the practice you referred to is called by those who perform it as a first amendment audit. In other words, they believe they are auditing or testing
the response of government officials to what they perceive is their constitutional right to video, to film government officials, usually police officers, going about their business, in public. I first became aware of it around ten years ago, like you did. With the advent of smartphones, it was very easy for people to start filming police officers conducting traffic stops to film police officers handling calls for service, standing on sidewalks in people's front yards. And it became very easy to then take that content, share it through social media. And as we have seen with the monetization of some people's YouTube and other channels, some of these auditors are actually making money doing it because they are developing and putting out so much content that they have attracted a number of followers from around the world, which will then monetize their activities through, you know, as some of the auditors will say, hey. If you like my video of the such and such police department right now, hit that like button, ring that bell, because that then drives, the advertising and makes the money.
Yeah. And and in doing a little bit of research for this episode, like I said, I was already aware of the existence of this kind of content. And and and looking at it just recently on YouTube, there are a lot more accounts than I remember seeing. There may be an educational aspect of it, or maybe that's how it's being presented to the public, but it it does often capture tense interactions. There are some different styles, I guess. Some auditors, I guess, you know, they have different styles of interaction. Maybe they try to keep a pleasant demeanor the whole time or but it's it's it's sensitive no matter what. But when it comes to government officials, like police officers, people working in city hall, maybe, there may be some kind of expectation to respond or maybe even some kind of requirement based on what the interaction is like or what the request is. What what just generally, what makes these interactions with the public so sensitive?
Well, I think particularly, like you said, when you're government you're dealing with government officials. Most government officials, whether they're law enforcement or they're civilian, they work in a city hall, they view themselves as ambassadors of that government to the public. They serve the public. The public is their client. So most want to be or appear, as able to assist if it's a genuine inquiry. And for those who have never experienced it or haven't had the education, they often misperceive, which it would say very carefully scripted effort to get under their skin to poke their buttons. They may, up until close to the end, view it as just a legitimate inquiry to, by someone who's interested in public services and and whatnot. And so it it, in a way, what this does is the efforts by very good auditors kind of create a head on collision with the very laudable goal of most local governments these days, and that's transparency. We have nothing to hide. We wanna be transparent. And and that's where you can have that collision, and that's where if you are caught unprepared, you don't know about this or the end game for a lot of these people, our local public officials end up becoming unwitting YouTube stars, and sometimes it can be very embarrassing. And, of course, once something is out there in the public domain, it's hard to reel it back in.
Is there any particular case that comes to mind when you think of, the sensitivity of this, you know, really getting exploited? Maybe even, you know you you mentioned use of force or or unlawful detainments or things that could go to court and result in someone getting awarded money. Yeah. I I think one of the,
most successful avenues for auditors trying to make a case that their ultimate detention by a police officer was unlawful and therefore entitles them to compensation arises. And this is multiple states, not just North Carolina, but in the scenario where they try to be provocative by filming, you know, let's say it's a police officer or, someone else their their personal vehicle, their personal comings and goings. But from a public place where they have a right to be and, basically what you can see with your eyes from a public place, you can also look out through the lens of the camera and record. I mean, that's basically a truth that's gonna be nationwide. But by acting in manners that look like you're trying to focus in on an officer's personal license plate or whatever, you provoke an encounter, and the encounter is gonna be, well, what are you doing? Well, I'm engaged in constitutionally protected activity. Well, that's my personal vehicle. I have a family. Who are you? I'm not gonna answer that. Well, I wanna see some ID. I'm not giving you anything. Well, if I ask you for ID, you have to give it to me. No. I don't. And you can see how it deteriorates from there. And where auditors know the law better sometimes than the public officials, they will know if they are in a state where the law requires the provision of ID to an officer on demand. And most states, the law does not require that. And you end up having officers put their hands on someone who turns to walk away, and now you have a use of force. And that's that slippery slope that you alluded to where an otherwise low level initial encounter can devolve exactly into the scenario that that auditor was hoping for, both maybe for their own monetary efforts if they wanna seek compensation, but their audiences love it.
This definitely puts agencies on notice that things like this might happen. You might have to have a plan for it. How have these interactions maybe some of these difficult interactions influenced procedures and and interactions from the policing and government side?
Well, education is first and foremost. I developed a class, which I have taught, I don't know, last count, 16 or 17 states around the country. I've been brought in to teach either at academy level or for, for example, chiefs of police or sheriff's conferences. And I began teaching that in the year 2016. So eight years later, you would think, okay, everybody knows what a First Amendment auditor is. They know how to deal with them. They know how to avoid the pitfalls. And unfortunately, while a lot more cops now know about this than they did eight years ago, there's still a huge gap of lack of knowledge, of misunderstanding, of figuring, okay, they have a right, but to what extent? A question I get asked frequently from audiences. Okay. So I guess they can film me while I'm out conducting a a traffic stop, but how close is too close? Right. And I have to tell the officers, this is an example. This is an example a perfect example of how constitutional law, it's a living, breathing area of the law that is constantly evolving. And right now on that question, and some others related to First Amendment auditors, we, meaning American law enforcement, are still waiting for our appellate courts around the country to develop law that addresses, or I should say, catches up to the reality of what's happening. There isn't guiding case law out there on some of these levels of details. The only guiding case law we have is that a majority of the federal appeals courts around the country, in the very broad sense, have recognized there is a constitutionally protected first amendment right to film, to record the government in public. But what that leaves unanswered is, as you alluded to earlier, what happens when the auditor brings his or her camera into the corridors of city hall and roams up and down the, you know, publicly accessible hallways, but stops at an open office door and starts filming a records clerk or someone in the finance department at their desk and refuses to leave the doorway saying things like, well, this is a public building. I own this building. Right. And you can have that person who now feels very intimidated. Who are they gonna call? They're gonna call law enforcement. And will that law enforcement officer know how to navigate the issues of what's allowed, what's been recognized, and where the law has not yet gone, and how best to address the situation. And that's what my class gets into.
And I I wanna talk about your class in just a minute. The, but you you had mentioned the, like, going into a city hall, for example. Is is that something we're seeing in the meantime? Like, you know, we generally talk about this in the context of interactions with law enforcement officers, but I've seen a couple of videos of people going into city halls. Is is is that kind of thing kinda permeating, like, you know, libraries or other places that we consider public and might try to test the limits of? Are are we seeing that?
We're seeing that a lot. And and it is there's been a huge shift ten years ago, even five years ago. The focus was almost exclusive on law enforcement officers out in public or maybe in the police department lobby. As more and more law enforcement officers around the country have gotten wise to what's going on in the real agenda, auditors have chosen softer targets. Non law enforcement, non legally trained municipal employees, and they're encountering them in park in municipal parking lots. As I say, they're coming into buildings. Some city halls, you know, where it's not limited access, they'll roam the hallways on multiple floors, and it can get very, very confrontational. So that is very much on the rise. Fortunately, there is case law that exists, some preceding the auditor movement, but basically as high as the US Supreme Court recognizing that the interior of a government building for First Amendment purposes, it's not considered what's called a public forum, meaning a public forum would be those areas where the First Amendment rights of a citizen are at their highest. And your your federal case law, your Supreme Court decisions talk about parks, public plazas, where people can stand, they can protest, they can exercise their first amendment rights. But federal case law has also said, in the context of the interior of government buildings, unless an area has been designated for free speech or first amendment activity, the fact that it's just a public building, the fact that it's publicly accessible does not make it a public place where first amendment rights are unlimited. In other words, the government can restrict it. And I, do teach about one federal court case out of Florida where a federal judge agreed that a city's prohibition on all filming inside city hall satisfied the first amendment and could be enforced.
So because there's case law and because the the fallout could be so big and and just because, you know, there's always sort of that tense conversation about interactions between private citizens and government officials, you know, there there's so much potential from any situation like this making awareness in which you teach extremely important. Could could you tell us a little bit more about the class and the kinds of things that, you know, is it meant for police chiefs, or who who's the the audience for this? And And and maybe give an example of something that people can take away from taking this kind of class.
Well, the class, I began teaching it in in 2016 at a law enforcement conference I was invited to speak out in in Phoenix, Arizona. And I've since since I think I've taught it in it's been about 16 or 17 states, and it is called Dangerous Crossroads, the intersection of the first and fourth amendments. What does that mean? Picture a crossroads. Picture an intersection. And, one part of that intersection is the first amendment, which, of course, is what the auditor is gonna say gives him or her the unfettered right to film anything they can see wherever they can see it if it's publicly accessible. On the other hand, you have the fourth amendment. What's that? Well, that's search and seizure. That is the training that all law enforcement officers get in the academy and throughout their career. The average officer can spout and accurately quote a lot about Fourth Amendment law because that's the law of detention, the law of arrest. They do that every day, but the average officer is not that familiar with the first amendment. So when you get into a scenario, or as I say in the class, into that crossroads where you have someone who is doing something that you deem or a reporting party deemed suspicious, and they're insisting they have a first amendment right to do it. How much does the fourth amendment allow you to detain that person against the will and against their will to investigate? What if during the course of that detention or investigation, the person the auditor starts dropping words that I like to call potty talk. And we know what we're talking about, f bombs. Other words, there are documented cases of officers placing people in handcuffs and arresting them for disorderly conduct for cursing during a detention of a first amendment auditor when you have basically every federal court I have ever seen around the entire country saying you, the government, cannot punish someone for potty talk when it's directed against you, the government. So that further gets down into that dangerous crossroads. And so I try and educate both law enforcement officers and public officials. Occasionally, I'm asked to do a class for non sworn municipal employees. You mentioned the library earlier. Does someone have a right to come into a library and walk around without restriction and film the little kids sitting at the kids' table reading Mary Poppins and focus in on them? I mean, there are a lot of distressing scenarios like that you can conjure up. And, unfortunately, because there is so little education on this, I have encountered both within and outside North Carolina, well meaning local officials who feel they have to allow an auditor to come up and film at close range the little kids at the little kids' table. Why? Well, because isn't it their first amendment right to film? And they say that it is. And and I asked our local lawyer who's our part time town attorney, he says, yeah. You better let him do it. We don't wanna get sued. And and that is a very, I hate to say it, but a very dangerous mindset.
So are we seeing better outcomes over the years as, awareness well, you you would mention there's still a lot of space for awareness to spread into. But, are are we seeing some elements of awareness set in and starting to maybe change how agencies would respond to situations like this? I I do think we are seeing a a definite,
heightened awareness, by law enforcement agencies in general. But there's still all those gaps. I mean, you know, how many sworn officers, how many agencies do we have in The US? I mean, just in North Carolina alone. Over the last eighteen months, I've conducted numerous classes across, let's say, North Carolina. In each class, I have shown video of and talked about a very, very successful auditor out of the state of Florida and talk about how his most common tactic over the last few years has been to go to a public building, stand out front with the sign that said, god bless homeless vets, and just stand there and watch what happens. He will have a secondary or a third camera strategically planted elsewhere. He's wired for sound, and you will see city clerks, others come and say, you can't panhandle here. Well, I respectfully disagree with you. I'm I'm I I am seek I am soliciting. Well, you can't solicit. We have an ordinance and you have law enforcement come out, and this man has filed litigation. My firm right now is handling litigation that he filed against the city of Alpharetta, Georgia for doing just that. And within the last sixty days, I have now seen numerous appearances on YouTube within the state of North Carolina where he's doing exactly what I told people he will do. Watch out for him, and they're taking the bait.
So where is this headed? Where do you see this headed? Is this something we're gonna we're gonna settle one day, or where is this headed, these kinds of interactions?
I think, ultimately, as the audits, the tactics are more widely, you know, known, comprehended, understood, Most municipal officials will do what I've been preaching from the outset is be polite. Don't engage the people in conversation. Just let them do what they're if they're not disrupting police department's trophy case, let them do it. When they realize that they're not going to get the well, excuse me. What are you doing here? Why are you doing that? Who are you? Are you with the media? When they realize they're not gonna get and provoke that kind of response, guess what? They pack up their camera, and they go down the road somewhere else. I have video that I share in my class of that happening in Greenville County, South Carolina, where an auditor went to two different agencies, the police department, the sheriff's office, walked around the parking lot with a camera, looked like he was taking pictures, trying to get a rise, trying to get confronted. He didn't, and he went up by 85 about 10 miles to a smaller city, did the same activity, and he got a rise. And some otherwise very nice law enforcement folks ended up being you two stars, and it was somewhat embarrassing.
Yeah. That's one thing I ran into in my research was was lots of videos, where the officer being audited. You know, the the picture would be directly of them, and their name and badge number would be out there. And that that is information that people can get, but, you know, presented in that context is, you know, I'm glad you're doing what you're doing, and I really appreciate your time here today. Wanna make sure is there anything I didn't ask about? Anything I might have missed? Or maybe something that tends to get lost in the the conversation or or anything we should hit or anything you wanna make sure we, we cover?
No. I mean, I don't I don't think so. And, I'm, I'm not looking to, you know, self promote here, but there has been overall really very little that has been written or published about this movement despite the fact it's been going on now for approximately ten years.
Mhmm.
I did, at the request of Police Magazine, which was, may still be, I don't know, the nation's largest law enforcement monthly publication, they asked me to write an article in 2019. It was published in their October 2019 issue. And, I think it's still or I'm told it's still a great not a very long read, but it's got some citations to it. And it has, on their online version, a hyperlink to some example videos that are out there where I say, look at what's going on here. You can click the link and see exactly what I'm talking about and then see how I break it down. Anyway, the article is called citizen video audits, and it's in the October 2019 issue of Police Magazine. Also on YouTube, I was interviewed by the First Amendment Museum up in New England last year. I was on a panel with some First Amendment auditors. And, you know, that's out there as well. I mean, it's really something that public officials, if you haven't encountered it, you're very likely to encounter it at some point. What do you do when they show up at your lobby window at City Hall appearing to be zooming in on employees at computer screens. How do you address that? What are the, as you would say, the best practices, the not so good practices? These are things to think about ahead of time so that you don't end up being a YouTube star, in a not so flattering portrayal.
Thanks for listening. I hope you got something out of this episode and found it helpful. And speaking of, if you're interested in Dangerous Crossroads taking the class, there's one coming up on September 10 in Indian Trail, North Carolina, and it's free to members of our Property and Casualty Trust and or the Workers' Compensation Trust here at the League of Municipalities. Again, Dangerous Crossroads, September 10. Go to our new website. It's still at nclm.org. Again, nclm.org like it's always been, but we recently revamped and overhauled the website, made it way easier to find things. And you can just go to the search bar up top and simply type in Dangerous Crossroads to find more info about it. Or you might have seen announcements for it in our weekly league letter that goes out to members. Whenever there's a class coming up, there's info about it in the league letter, but I just wanted you to get more of the story and and more context on this one and why we're covering this as an issue. We appreciate you listening, and of course, if you have any questions at all or if you wanna pitch an episode topic, which is something people do, or provide any feedback of any kind, please email me. My name is Ben Brown, and my email address is bbrown@nclm.org. NCLM stands for North Carolina League of Municipalities. Working as one, advancing all. More online at nclm.org. Thanks for listening. This is Ben Brown.