1st Amendment Audits: Practical Advice

Search on YouTube for 1st Amendment Audit and you will find videographers of varying legal expertise and demeanors face off with suspicious law enforcement and other public officials.

A common misconception in these activities is that because each activity (public photography, being on public property, refusing to provide ID if not suspected of a crime) is not illegal, that police will not be able to detain or arrest you.

This is the logic the Courts will accept:
The police may have suspicion about your activity.... police can pretend they don't know what you're doing.

Therefore, they can attempt to determine what you are doing using various means, by observing or by contacting you, or detaining you. Their actions are supposed to be PROPORTIONAL to the THREAT, so even detaining you for too long for a minor offense while making no attempt to investigate, may constitute a warrantless arrest!

WHEN CONTACTED AND ASKED WHAT YOU ARE DOING:

State you are a journalist gathering content for a story, OR that you are filming the police station and police cars.

REASON:

This establishes you are engaged in a 1st amendment protected activity. This will be important if you are arrested.

Now, the police will ask you for ID. 

They will lie and say you need press credentials or state you need a "real" employer. If they haven't left you alone and used their powers to observe and report suspicious activity instead of bothering you,
ask them:

Am I free to go?

You will get a response ranging from "Yes" to "Maybe" to "No.

Am I being detained?

At this point, the response will be Yes or No.

What crime do you suspect me of committing?

"well, you're out here taking pictures and we don't know what you're doing, if you're a terrorist, in this day and age" ... ALL OF WHICH, amazingly, IS REASONABLE enough to LEGALLY DETAIN YOU for "SUSPICIOUS ACTIVITY".... this is dependent on your LOCATION and how many other reasons Officers can rattle off about what crimes you may be committing, true or not. 


This is the part where (RAS) Reasonable Articulable (i.e. it can be EXPLAINED) Suspicion of the Criminal Activity should be explained to you.

At this point you are not under arrest, but you may or may not be in handcuffs. Do not argue but do state the facts and make sure facts are stated to you. Restate what you are doing, whether it be filming the police or filming in public, but be sure to state you are a journalist gathering content for a story (what story? the YouTube video of your interaction!) or state you are Filming the police or police station.

IF YOU ARE ULTIMATELY ARRESTED, YOU CAN SUE.  ...
..but... be advised of something that is designed to protect THEM and not YOU:

Qualified Immunity 

A very strange concept. To understand better, read:

Glik v Cunniffe
Fordyce v Seattle
Turner v Driver -- ESTABLISHED THAT FILMING POLICE IS PROTECTED 2017... read this decision fully


If you can't get an attorney to take your case, that doesn't mean you were treated fairly -- It means you haven't reached the threshold the system has set.

 Your recourse? Attempting to change policy and bring awareness to the problem. Attempting to heal.