1st Amendment auditors make police walk the line between enforcement, constitutionality
People near Fair Drive and Newport Boulevard in Costa Mesa on the afternoon of June 28 may have witnessed an unsettling scene as police officers approached a lone individual with guns drawn, calling out orders over a loudspeaker.
The subject sat on the ground near an entrance to the Orange County fairgrounds as he was instructed to keep his hands visible and the amplified voice advised him to comply with all commands.
Later, when a Costa Mesa police officer asked for his name, the man refused to provide it.
“Once I’m placed under arrest for a crime I will provide my information,” he shouted back. “Until that point, I don’t have to give you jack s—.”
The two argued for a short time until the man was eventually released. Costa Mesa Police Department spokeswoman Roxi Fyad said in a June 30 interview officers received a call about a suspicious male walking around near Vanguard University and the fairgrounds with some kind of device in a holster on his hip.
“We responded, believing he had a gun in that holster,” she said. “It took time to determine what he had on him was a civilian taser. We tried to get his information, and he refused to give that to us so, ultimately, we had to end that contact and let him go.”
Within a few days, an edited video of the incident titled, “I thought my time on Earth was over” appeared all over Costa Mesa Police Department’s Facebook page as comments to department posts on fireworks safety or recent accomplishments.
A litany of critical comments about the department followed, though none of the commenters have apparent ties to the city of Costa Mesa and none responded to a request for an interview and the opportunity to explain their viewpoints.
Meanwhile, a full 46-minute video of that June 28 confrontation in Costa Mesa has amassed 32,438 views on YouTube, where people can subscribe to watch similar content provided by the poster.
Such behavior is not uncommon in Orange County, where local law enforcement officials can describe any number of encounters with individuals arriving at crime scenes, DUI checkpoints or even inside police department lobbies — cameras in hand — waiting to capture a 1st Amendment violation.
They call themselves 1st Amendment auditors, people who test the constitutional knowledge of government employees or police officers and then post the results on social media and in YouTube channels that can have hundreds of thousands of followers and where content is monetized and contain advertisements. Posters may also perform “audits” related to 2nd Amendment rights, by carrying a legal firearm in public, or other legally protected rights.
Brian Levin, director of Cal State San Bernardino’s Center on Hate and Extremism, said citizens have the right to be in and record videos in public, so long as they are not loitering, trespassing or committing disorderly conduct.
But the trend of putting recordings before a wide audience on social media, often with rhetoric regarding the video’s subjects, is more recent. And the motives of the filmmakers vary.
“Some people are opportunists out for social media grandiosity,” Levin said Thursday. “There are others who really believe they are establishing the parameters of how far the government can go with respect to people’s presence in particular situations, even if it’s an annoying presence.”
Sgt. Josh Vincelet works in internal affairs and professional standards for the Newport Beach Police Department, which began experiencing a rise in auditing behavior about five years ago. Agencies now train officers how to walk the line between diffusing tense situations and respecting constitutional rights.
“There’s intelligence sharing between different agencies because these people will go to multiple cities,” he said. “At a very basic level, officers are taught these constitutional rights in the academy. But it’s just about educating them — understanding where these people are allowed to be and what they’re allowed to do.”
Vincelet said most auditors are not local and use pseudonyms. He advised locals to educate themselves about such behaviors, so they can understand the potential for risk and avoid escalating a situation should it happen to them.
“I wouldn’t confront them — allow a law enforcement officer to do that,” he said. “And if you see something suspicious, just call.”
Representatives from other law enforcement agencies, including the Orange County Sheriff’s Department, Fountain Valley and Laguna Beach police departments all said they’d had experience with 1st Amendment auditors in recent years. Huntington Beach officials said the practice is rare but has happened there.
In December, Zhoie Perez, a YouTube personality known for testing the limits of the 1st Amendment, stood on a sidewalk outside a church in Northridge filming with her iPhone.
Numerous videos of filmmakers interacting with Fountain Valley police personnel are posted to YouTube, some with a note indicating officers “passed” a particular audit. In one video, a woman asks police why a man is recording her. The officer replies, “I don’t know, but he’s allowed to record here.”
Laguna Beach Police Lt. Cornelius Ashton said his department rarely encounters provocateurs but knows what to do when they come around.
“We don’t confront them,” he said Thursday. “We don’t want to violate anyone’s 1st Amendment rights. [But] we’ve trained from watching other agencies, so when someone comes in with a camera, we know what’s going on.”
Levin, a former New York City police officer, said while most filming is conducted largely within the limits of the law, certain situations can put innocent people, even the auditors themselves, at risk.
In 2019, a self-proclaimed auditor and YouTube personality Zhoie Perez got into an altercation that provoked a security guard at a Los Angeles synagogue to fire a shot that grazed her leg.
Given the current polarization of the nation, and the rise of people intentionally causing friction at public meetings and gatherings, Levin said the antics of auditors, while legal, only serve to crank up the heat.
“It’s really important we preserve a fundamental right to free expression and presence in public places, but this is not the way to do it,” he said. “This just adds another wrinkle to an already fraught and polarized time.”
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