Civil Rights Auditors: Defining Reasonable Time, Place, and Manner Restrictions on First Amendment Activities

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Gary Cummings

EXECUTIVE SUMMARY

In recent years, police officers across the country have increasingly encountered citizens who challenge the constitutional boundaries between civil rights and police power. These so-called “civil rights auditors” and “copwatchers” record government officials, including police, with cell phones or body cameras, while baiting or challenging them to cross constitutional lines established by the First and Fourth Amendments. While the copwatcher seeks out and films officials performing their duties in public, the auditor targets protected places and exhibits behavior intended to solicit a police response. Targeted locations include federal buildings, post offices, jails, courts, and even private organizations. Auditors record these locations, as they anticipate and welcome the ensuing police-citizen conflict. This thesis introduces the issue of civil rights auditors and explains the different between the auditor and the copwatcher. The distinction between copwatchers and auditors is significant and highlights a growing problem for law enforcement where auditors intentionally create police-citizen conflict that undermines police legitimacy and engagement.
Agency administrators must understand the specific legal challenges presented by auditors and develop responsive policies to address the reasonable time, place, and manner (TPM) restrictions applicable to their organizations. Unfortunately, the higher courts have yet to delineate “reasonable” restrictions concerning auditing (recording government facilities or other buildings). Most court decisions address copwatching groups (those recording police performing their duties in public) and rule that the First Amendment protects the activity. These cases also stipulate that “reasonable time, place, and manner restrictions” may be imposed upon this activity. Consequently, while generally asserting that a right exists to record police in public—subject to undefined TPM restrictions—higher courts have yet to address auditing. Literature on the subject either echoes court decisions or embraces copwatching for its perceived potential to increase police accountability and transparency. This information and discussion gap created ambiguity in the constitutional protections and boundaries for auditing activities; specifically, when the auditor target is a protected facility or private institution.
Preliminary examination of auditor activities and current legal and scholarly works leads to the thesis question: What are reasonable TPM restrictions to civil liberties with regard to recording police, government property, and the public? To answer this question, the author conducted a qualitative analysis of auditor videos. In this analysis, the author finds common tactics and targets exist among auditors around the nation. By examining the legality of these tactics and related case law, the author discovers that the Supreme Court has develop a framework for First Amendment challenges that directly applies to auditors. This framework is systematically applied to the 10 common target locations of auditors.
By defining constitutional boundaries, this thesis expands the scholarly knowledge about auditors, allows agencies to develop accurate training and policies, and equips officers for these encounters. Common auditor-created legal challenges and issues emerge in the research, and provide scenarios for legal analysis. In a review of the Baltimore Police and International Association of Chiefs of Police (IACP) policies for police response to First Amendment activities, the author affirms an auditor-related policy blindness in the Baltimore and IACP policies. For a detailed report on that assessment, see Appendix B. Furthermore, specific language of these policies and the mutual confusion of the terms of “public place” and “public space” potentially position agencies for failure. This thesis is paramount to law enforcement and the community, because an officer reacting incorrectly in these encounters can—through action—create conflict, loss of police legitimacy, or liability for the officers or their agencies, or conversely—through inaction—miss an opportunity to intercept a genuine threat.

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