The so-called "First-Amendment auditing" is an informal hobby practiced by some people mostly in the United States (to a lesser extent in some other countries, like the UK), where people will go with cameras to some public place or federal building in order to see if the police, federal employees and security guards will respect their constitutional right to film in public.
(In the United States the First Amendment to the Constitution is interpreted by courts very "maximally" when it comes to, for example, journalism and public photography in that, essentially, when you are on public property you can watch and film whatever you can see, regardless of what or where it is. As the auditors often put it "your eyes cannot be trespassed", meaning that even if you are filming private property, as long as you yourself are located at public property, that's completely legal and constitutional. The courts have also decreed that publicly accessible areas of Federal buildings are to be considered public property in this regard as well.)
Their right to public photography is not the only thing that these auditors usually protect, but all other legal and civil rights, such as the right to not have to present your ID unless there's a lawful compulsion to do so. This is one of the core staples of FA auditors: They refuse to show ID if they are not being arrested for a crime, because in most states the law decrees this fundamental right: Police can demand ID only if they can articulate a crime that the suspect has committed or is going to commit. In some states it goes even further than that, and the police can only demand ID if the person has been lawfully arrested. "Failure to provide ID" as a charge can only be issued if the ID has been lawfully demanded and it was refused.
Most auditors are very familiar with the pertinent laws. However, many of them seem to still have a lot of misconceptions about these laws, even though of all people they should be extremely familiar with them, as they are the ones testing the limits of those laws.
Here are some typical mistakes that First Amendment auditors in the United States make:
1) Making wrong assumptions about the extent of public property
While some auditors will do research about where the limits of public property are before going to a particular site (there often are governmental services that can be checked to see where property lines are exactly), most of them don't, and they just assume in situ whether something is public property or not.
For example, a very common misconception among auditors is that if there are city utilities installed (such as electric or telephone poles), that indicates public property, as they believe that city utilities are always and can only be installed on public property. (Very typically they think that if there are for example electric poles alongside a road, that the road, especially its easement, has to be public property.)
This is not necessarily so. In most if not all of United States cities and states can install utilities on private land by agreement with the land owner. The utilities merely existing does not in itself indicate whether the area is public property or not. Even if there's some kind of fence surrounding the property, and there are city utilities installed outside the fence, it doesn't necessarily mean that it's public property up to the fence. It is possible for the private property to extend beyond the fence (there is no law that requires fences to be exactly on the property line), and it is perfectly possible for the utilities to be located on this private section of the land (ie. between the fence and the actual property line further out).
The only way to know for sure where the property line is, is by checking official governmental land surveys.
2) Not understanding when "RAS" applies
Quite often if police officers detain an auditor, the auditor will vehemently demand "reasonable articulable suspicion" (ie. "RAS") for the detainment (although sometimes they use slightly different wording), and assert that the detainment is not lawful if the officer cannot articulate a particular crime at that exact moment. Often police officers will mention "suspicious behavior" as the cause for the detainment, to which the auditor will typically quip "suspicious, is that a crime or a misdemeanor?" In other words, they imply that suspicious behavior all in itself cannot be a reason for detaining someone.
This is actually a surprisingly common misconception among first-amendment auditors (who should know the law better than this!) In this case, almost invariably, the police officers are actually correct: "Suspicious behavior" is legally a sufficient reason to temporarily detain someone, for the duration of an investigation. The police does not have to be able to articulate a specific crime by name in order to detain someone, as long as considering the totality of circumstances it's reasonable to suspect that some crime might be or might have been committed.
Auditors are completely confusing the laws governing demanding identification with the laws governing detainment. In most states the police cannot lawfully demand identification (and arrest someone who refuses) if they can't articulate a particular crime by name, and have a reasonable suspicion that that particular crime has been committed, is being committed, or is about to be committed.
This is different from detaining someone. While officers still need a reasonable suspicion of a crime in order to detain someone, they don't need, at that point, to be able to name the specific crime in question. The entire purpose of detainment is to investigate if a crime has happened or is in the process of happening. (The purpose of the detainment being, obviously, that if the person is guilty of a crime, he cannot escape.)
One could say that "RAS" applies to demanding identification, "RS" to detainment (without the "A").
3) Going to the audit in your car
If your intent is to not get identified by the police, going to the audit in your car is a rather silly thing to do. The car's plates are essentially your ID, so you are not only essentially carrying it with you, you are public displaying it to everybody, including the police. They can very easily run your plates and see who you are. There are examples of auditors standing next to their cars when auditing, and refusing to ID when the police arrives and demands it. Which is just hilariously silly.
Some auditors try to be more clever and park their cars farther away and walk a good distance to whatever they are auditing, but if their intention is not to get wrongfully ID'd, this is also risky. There are several video examples out there of the police checking cars on nearby parking lots and finding out who the auditors are. (In one particularly egregious example the police officer went away and later came back after having run plates, and talked to the auditors by their names with a really smug expression and tone of voice.)
The best auditors either do not go to the site by their own car at all (but using public transport or an Uber), or they leave their car so far away and it such a populated parking lot that it's essentially impossible for the police to check the hundreds and hundreds of cars that are within the several miles radius from the location.
Of course even this last part is slightly risky because there are cases where security guards or even the police will start following the auditor to see where he enters a car, to run the plates. (There are even videos out there of not only this happening, but the police then actually harassing the auditor by stopping the car and coming up with some bullshit traffic violation charges.)
4) Having your ID with you
If your intent is to not ID unless you are actually legally demanded to do so, carrying your ID with you is always a risk. While not extremely common, there are way too many examples out there of the police egregiously violating the auditor's Fourth Amendment rights by forcefully taking his ID from his pocket without his permission.
This is, of course, grounds for a Fourth Amendment violation lawsuit. However, even if you are of the litigating type, do you really want them to have your ID? You never know which terrorist watchlist your identification will go to (and once your name is one of those lists, it's almost impossible to have it removed, even by court order. There are layers on layers on layers of red tape and bureaucracy involved, and the entire system is so complex that it becomes almost impossible to purge your information from all such lists. There are myriads of such cases.)
There may be some states where carrying ID is mandatory. However, not doing so is just a misdemeanor. Do you really want to take the risk over a misdemeanor?
(Obviously if you are driving a car you need your driver's license with you. However, as mentioned above, do you really need to go by car? There are alternatives, you know.)
5) Being rude to cops who act completely professionally
While not extremely common, there are a few auditors who are extremely rude to all police officers no matter what they do or how they behave.
I don't think auditors should do this. The entire idea of First Amendment auditing is to see if your rights are respected. If they are, then a modicum of respect should be shown for it. If the police officers act completely professionally and respectfully, do not make any unlawful demands and fully respect your rights (and sometimes even go so far as to lecture the property owners or workers who called them of your rights), then you should reciprocate by likewise showing some respect and acting courteously and civilly, like an adult. Acting like a juvenile jerk does not help anybody, and it only makes you unlikeable and your videos cringy.
Whether to be rude towards cops who do violate your rights or are rude to you, that's more up to opinion I suppose, but in the cases where the cops act completely professionally being rude is completely unwarranted and should be avoided. Cops should be respected when they respect your rights, which is the whole idea of auditing.
Comments
Post a Comment