First Amendment Auditors
by James R. Westbury, Jr., JD, MBA, GMA Property and Liability Claims Manager
The Problem
A recent phenomenon in law enforcement is the
First Amendment “auditor.” The auditor engages in
lawful, but suspicious, activity; such as walking
around a neighborhood, a police parking lot, or a
public building while videotaping. Often, there are
at least two people, so that one person records and
interacts with the officer while the other records
that interaction. When the officer asks questions,
the auditor becomes combative and refuses to
answer or provide identification. As the episode
unfolds, the officer backs himself into a proverbial
corner. Typically, the officer will insist on identifica-
tion and arrest the auditor for loitering or obstruc-
tion. Afterward, the video is posted to YouTube by
the auditor and creates a departmental public rela-
tions nightmare. More importantly, the officer and
department are potentially subject to a civil action
under 42 U.S.C. § 1983 for violating the auditor’s
First and Fourth Amendment rights. What was at
first the natural response to suspicious behavior
has become a very expensive problem. An auditor
group has recently emerged in Georgia that calls itself
“Georgia Community Watch” and can be easily found
Legal Standards
A bedrock principle in street law enforcement is
the Terry stop. Under Terry v. Ohio , i officers may
engage in a very limited Fourth Amendment seizure
based on less than probable cause. The “officer
must be able to point to specific and articulable
facts which, taken together with rational inferences
from those facts, reasonably warrant an intrusion.”
ii Terry stops must be limited to the justification for
the intrusion and are evaluated based on an objec-
tive standard. Under Terry, a police officer may not
require identification unless there is a reasonable
suspicion to believe that the person was engaged
in or had engaged in criminal activity. iii Persons
temporarily detained for purposes of a traffic stop
are not “in custody” for purposes of Miranda.
Thus, Miranda warnings do not apply. iv While
police may request identification, the suspect may
refuse to answer. v Whether a Fourth Amendment
seizure is implicated turns on whether “the police
officer’s conduct would have communicated to a
reasonable person that the person was not free
to decline the officer’s requests or otherwise
terminate the encounter.” vi
With respect to videotaping, in the Eleventh Circuit
(which encompasses Georgia), persons have a First
Amendment right to videotape the police, subject
to valid time, place, and manner restrictions. vii
“The First Amendment ‘affords the broadest pro-
tection . . . to political expression . . . and protects
the rights of speech and to petition for redress . . .
and to photograph police activities.” viii
Finally, Georgia’s loitering and prowling statute ix
would appear to make it a crime for a suspect to
refuse to provide identification to an officer. If so,
the statute would violate the U.S. Constitution. In-
stead, the Georgia Court of Appeals has construed
the statute in a manner that is not unconstitutional
by not making it a crime to fail to provide identifica-
tion to a police officer. Instead, it provides the officer
the right to request identification, but the suspect is
not required to comply. The suspect may produce
identification to explain his conduct. x This statute is
very confusing in its application, and officers are
strongly cautioned not to arrest someone engaged in
otherwise legal activity – such as videotaping – with-
out evidence that the suspect is engaging in an inde-
pendent violation of the law.
Thus, First Amendment auditors are engaging in con-
stitutionally-protected conduct, and an officer who
arrests an auditor without probable cause of a crime
is likely violating clearly established law and will lose
qualified immunity from liability.
www.gachiefs.com • Page 22 • 2nd Quarter Newsletter