Episode Transcript
[00:00:00] Speaker A: Hello everybody. Welcome back to the Guardian Mindset podcast. In this edition, we're going to start revisiting as we begin planning for our 2026 First Amendment Summit, a hot topic
[00:00:13] Speaker B: which I've been dealing with in multiple
[00:00:15] Speaker A: locations across this country. It is always a great topic for a refresher.
And the issues that we see having to do with First Amendment audits in recent training programs, I would call it audit or ambush. What are the legal strategies for navigating First Amendment audits? And like I said, we will have a class specifically on this during the Daigle Law Group First Amendment Summit which is May 27, 29th, 2026. It's a hybrid event, both in person in the state of Connecticut and also virtual attendance. So you have some options and really want to highlight the fact that I can't let you forget about these First Amendment issues because they're here to cause us havoc. So if you're ready, let's jump into the issues here and do a little refresher. Put this stuff at the forefront of your educational application.
[00:01:11] Speaker B: When I look at issues of First Amendment, there's a lot of them, but this is very hyper focused into what we call First Amendment auditors. So what we need to do is break down. We've learned over the years. And what I mean by learned over the years is that First Amendment auditors has been an issue since early 2011, 2012.
But unfortunately, while we've had some success across the country training it and clarifying it and getting policy on it, it kind of seems to go throughout the country. My east coast clients got it in my east coast and my west coast clients were very focused on this 10 years ago. My middle of the country clients are much focused on it right now. And so that just shows how long it takes to get these things across the country. So if your responsibility is to oversee these individuals, there's a couple of things that I want to focus on. First gotta, we gotta highlight the importance of civilian interest in recording police actions. The legal requirements that are there that really focuses on what we call defining the First Amendment, specifically in the area of right to record by citizens, examining liabilities and limitations of the First Amendment right to record police activities. Because there is, it's not absolute, there is some challenges. We need to explore government's responses to recorded activities and we need to recommend strategies when confronted with recording activities. So remember the key part to an audit which you're all very aware of, because it's probably not the first training class that you've taken the first part of an audit is going to be that it is just a, it is a, it is a confrontation. And confrontations have gotten much better over the last two decades. And the fact that one, we have a full view of what occurs utilizing body worn cameras, especially when it's applicable with law enforcement, and that gives us the ability to really do some analysis. And we also know that the First Amendment auditors or the individuals who are practicing their, their citizen right to record are going to post that somewhere. So we're going to see two different sides of that and be able to evaluate that.
So let's, let's jump into here and setting the baseline as we dive in. First and foremost, because a lot of you are involved in municipal operations, I always in my world will take an opportunity to identify what the legal issues are outside of the application. So for me, when I have the wonderful opportunity to instruct individuals around the country, there's a handful of words that I need to start with in the analysis. It's not as much about the legal applications, but we know it's about the words.
And even for today's training program, the most important phrase we're going to use is clearly established law. And a lot of you automatically recognize that clearly established law application as the second prong to qualified immunity. And we all are aware that qualified immunity has been under significant attack and challenges over the past decade, especially in the police reform applications from 2020 and 2021, after the death of George Floyd and the movement across the country to put police legislation, put legislation in action specifically related to use force in the world of qualified immunity. But the challenge is, is that they've always, the individuals who challenge government applications often challenge it by challenging the application of qualified immunity. And so as you all know, in the 2001 Supreme Court case Katz v. Saussier, the qualified immunity application, which is highly used by law enforcement, by defense in municipal matters, focuses on two things, two part test. Very simply, number one was their alleged constitutional deprivation from the perspective of the plaintiff and the view of the plaintiff or in the, in the fact favorable to the plaintiffs. And then second, was that right clearly established? And I think this is where recording police becomes very dangerous for us nowadays because here we are in 2026 and recording police, First Amendment protections for recording government officials and the performance of their duty is clearly established. It's as clearly established, it's only going to get more clearly established. But the one thing that we, so what that tells us to all of us is that, that we have to focus on the fact of are our people being given the information in the way that they need to digest it, which is, do we have proper policies to hold our municipal employees accountable? And number two, have we given them the training? And that's where I find a lot of challenges across the country, is that they. The First Amendment, as I'll show you in a minute, is not that active in our training agenda. And therefore we're a little behind the eight ball. And defense counsel and plaintiff's counsel both know this. Remember, when I'm explaining qualified immunity to a law enforcement entity, I always say that the qualified immunity basically is a concept where you can't hold a government official liable for a rule not yet established. So the key is, once that rule becomes established, we must take all necessary action to make sure they're aware of it and hold them accountable to it. We know that in the aspect of liability, being deliberately indifferent is the challenge under 42 USC section 1983, and also deliberately indifferent for the municipality. And the application of have we done our job in providing policy and oversight and training and hold our people accountable? As we'll talk about, I always demand of my clients and those in government operations, which we all agree, is that we have to focus on ethics, integrity and values. And the key part of that is recognizing what is actually the issue here in the analysis for First Amendment auditors, which is people are here challenging us, and they're going to try and use emotion to do that. And that is a challenging application.
But I want to, as I dive into this, I want you to think about this in probably a way a lot of you have not talked about. But having done this for almost 25 years, one of the things that I'm very focused on is that custom culture and pattern and practice is the application that we need to focus on custom.
What is the customs of your agency in here? Our focus is going to be have we had interaction with First Amendment auditors and how have we done with that?
And more importantly, in that custom, when, when it didn't go well, what was the outcome? And we all know one thing that customs, which I describe in government operation is the way we do things here.
That's customs are times the challenge. Those are the things that those of you on the plaintiff side are going to be highly focused on customs. But remember, we have a lot of customs, and not every one of them is a custom that's going to lead to a constitutional deprivation. So we really have to focus on the culture and the culture of the agency agencies that I work with across the country who are very highly focused on proper policy, proper training, and not just generalized stuff, but very focused issues as to what are the hot topics of today, are the ones that are going to be able to defend themselves the best.
And because that's what the plaintiffs counsels are going to go after, they're going to go after the customs and the culture of the agency in order to achieve what we're all trying to avoid. And that is pattern and practice abuse. Right? Pattern and practice abuse under Monell liability, Department of Social Services vs. Monell, 1978 Supreme Court case. You're all very well aware of that. And if you're not, we have other training programs to bring you up to speed with that. But that is the magnitude of really what we're doing. Because with 800,000, at least in the law enforcement world, 800 sworn law enforcement officers out there, 17,000 police departments, you know, customs and cultures can get challenged. But pattern and practice is something that we have to focus to prevent because we don't want this to become something that's going to lead to a continuous. That culture that could lead to a continuous deprivation of people's constitutional rights. Now, as I dive into here, I just want to throw this out here, because this I always shout out to my mentor here who I learned how to do my job from, and one of the gurus in the industry, Chief Charlie Reynolds, and I worked for Chief Reynolds under many settlement agreements in this country. And he used to always say something that I make very simple when I teach law enforcement executives across the country.
And that is if we're going to focus on constitutional policing, there are only three things that we should be focusing on, at least on the initial phase. Right? These are the three things that we have to take serious. These are the checks and balances to protect our application. And we're going to talk about them here today under the First Amendment. And that is policy. Do you have effective policy to govern the operation of the issue that we're talking about?
Training? Have you done effective training on the policy and the legal application that's there?
And then the third part, and one that often fails in government operation, is are your supervisors holding people accountable to their policy and training? And that's something that we know across the board. If we have this issue, these issues are, you know, this is setting the baseline. I call this the foundation. We have a lot more work to do than this.
But at the very minimum, as I work my way throughout this wonderful country, the issue on the table is to identify the foundation are the foundation set in your government operations, policy, training, supervision. But today we're going to focus on these in the analysis of First Amendment auditors. Now, for me, the reality is very simple. And this is where law enforcement and legal need to work hand in hand, which is one of the reasons why there's not many of me out there. But one of the things that I have focused on is that, you know, a lot of times, and I want you to think about this. If you're here as a government attorney, if you're here as a municipal attorney, if you're here as a legal advisor, one of the challenges that I will often say to you is that what I learned the hard way, going from law enforcement to litigation and focusing on litigation, was that litigation in law enforcement worked like railroad tracks. They were side by side, often in the same areas, often dealing with the same issues, but side by side, not never crossing over and getting each other focused on the issues together as a team. And one of the things that I made my mission when I started Dago Law Group was I continued building that, that crossover. There has to be a crossover between legal guidance and operationally soundness. It's not just about defending departments, it's about making sure that we're providing them the guidance that they need to be successful. And I got to tell you, for those of you that are in the legal advisor role, one of the things that I am very proud of as an org, as a, as a country, is that when I started this gig 25 years ago, there were very limited legal advisors and law enforcement just kind of did, you know, whatever the hell they wanted to do. And in the legal advisor role became very, very important over the last 25 years, to the point where, for those of you that are not involved, the International Chiefs of Police association has a legal, legal officer section, about 400 ish legal advisors across the country. And it's our opportunity to interact on a daily basis with police executives to meet, make operational soundness.
Clearly established law is effective only when the law guides the policies, the policy guides the training, and the training guides the operations. That's the way it has to work. Because what we do know is that plaintiffs attorneys who are setting up their cases to sue government officials, they've done enough of this to know that, well, the law is set. So let's go see if the operations of the department has incorporated the clearly established law into their training and policy. And that's the thing that we're very much focused on in this analysis.
So where do we start well, the First Amendment. And again, this is a very simplistic aspect of this, but one of the points that I want to make to all of you that may not be, may not be very hyper focused on the First Amendment is that it is new to our operation. This is not something that we've been dealing with forever. And people will say, what governs the First Amendment? And I'll say, okay, First Amendment auditors, the right to record, police.
We're looking at social media and the use of social media by our government employees. We're looking at public order and protests. And if you look at all of these things, these things have a 10 year timeline on them.
You know, I spend a lot of time on, on protests and before 2012 it didn't exist until Occupy. That's when we really realized, man, we've kind of, we need to get our policies up to speed. So here, the First Amendment audit that I will. The First Amendment advice I will give you as a general application is that when the First Amendment was established, it was, you know, it went a long time before legal interpretation. And we're really seeing a lot of interpretation over the last couple years, which is pretty scary in the area that is not a lot of jurisprudence or legal history to give us the guidance that we need.
On a side note, I always look at the First Amendment and those of you that didn't know this, let me give you a little history. The First Amendment was the last Amendment to be written and the Constitution was built. And the real issue of that was because of Thomas Jefferson, who after writing the Declaration of Independence, returned back to Virginia and his good friend John Madison, who went back up to, for the Constitutional Convention. One of the things that we're very focused on is protecting citizens from government. Now unfortunately for us, the interpretation that I have of the First Amendment is that it's much different than the rest of the amendments of the Constitution, the Bill of Rights. And that is that the rest of the amendments not only give a give a rule, but they give some guidance on how to interpret the rule.
Fourth Amendment right to be free from illegal search and seizure should have probable cause and specifically identify what to look for. Those things are, those are giving some very direct articulation here. This is just what I like to refer to myself as the garbage pail Amendment, where they just threw a bunch of things in there to appease people, namely to appease Thomas Jefferson and James Madison. But the issue on the table was Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or of the right people peacefully to assemble and to petition government for a redress of grievances. Well, what does that tell us? It doesn't tell us anything. That's the problem. It just tells us that there's a lot of rights that citizens are protected from government, which is the purpose of the First Amendment in its application. Now, I always like to refer to you, we're not going to get into this, but what I want to show you is when you look at the First Amendment jurisprudence at the Supreme Court level, it's very limited, but it's, it's picking up a little bit. And I want you to be aware of that in government operations. If you see it started in 1969 and that that's the initial protest cases, the Brandenburg and the Tinker case.
2006 with Hartman was the first retaliatory arrest case. Very low key.
But if you're paying attention to the jurisprudence, 18 and 19 became very significant on the allegations of First Amendment retaliation as an additional claim in lawsuits against government officials. Specifically when we used to just get lawsuits that had a Fourth Amendment application, illegal search and seizure, false arrest, whatever it was, use of force. But now under Lozman and Neves, which again, every one of these cases, there is a, at least from Lozman up, there is a summary on my article page of the, of our DLG Learning Center. But Lozman and Neves are hyper focused on retaliatory application.
And in 2019, under Nieves, Justice Sotomayor forecasted a retaliation analysis that said treating individuals differently than you treat others could be the basis of a First Amendment retaliation claim. Now, on the government side, for Lozman and Nieves, we were waiting for the Supreme Court to come back and say, as a bright line rule, probable cause could be the basis to defeat a retaliation claim. Fortunately, while the officers in both of these cases were significant, they did not get that. The court came back and said, I want to call it on a, in a case by case basis. And that was again the issue in Gonzalez. Retaliatory arrest, counterman versus Colorado is the definition of a threat and the application of a threat, which in one sweep changed the rules for a majority of states across the country as they interpret what is a threat.
So let's get into why we're here, which is recording police.
So what is a First Amendment auditor and a First Amendment auditor?
It's a form of activism where an individual seeks to exercise their First Amendment rights and it's interpreted as citizen journalism that is there for the purpose of testing constitutional rights. And that is the very specific right of the right to record in public spaces.
And by the way, there's plenty of individuals out there that can, plenty of YouTube videos for you to watch, plenty of analysis, plenty of areas where we've done it terribly.
And by the way, and what I'm happy to say is I'm starting to see places where we're doing it better, which means that we're recognizing the issues on the table and recognizing the fact that this is an issue that comes to a head for all of you.
Audits can take place anywhere. A government application, a government location is where audits can take place. So a First Amendment audit can take place in public spaces such as libraries, post office, beaches, town halls, police and sheriff's departments and others. Mainly my experience has shown that they're going to hyperfocus on law enforcement and they're going to hyperfocus on courts because that's where high security issues I've seen a lot recently. I've seen videos recently that people have been sending me where they're being focused on military bases and military areas based on our, our current military issues.
And really it's where what I like to call is they, they go where they know they're going to get a clash with somebody who's going to have the interest of security.
I would like to say that I've met a lot of First Amendment auditors and it's interesting to talk to them and they believe in their cause and in the audit by design is intended to provoke a response with the hopes of escalating in the nature of a response. And so what we have to do is as advisors is work them through that.
What do we know? Well, government officials should be prepared to deal with two contemporary issues related to recordings and that is that you should be prepared to deal with what we call First Amendment auditors who may visit workspaces and that could be any form of government building, not only a police department or a correctional facility or a government or a security or a military base, but also, you know, the town hall, you know, records areas, whatever it needs. And the one that we have been hyper focused on is that police officers, your police officers, should be prepared to deal with citizens who record them while performing their duties in the field. And I have tremendous amount of terrible videos in that, which, which deal with that issue.
In both instances, the recording is not usually passive, meaning the recorder takes an active role in exchanging with the personnel Challenging them on applicable laws and in some cases attempting to escalate the situation, as we said, in order to garner support from their audience or followers. They're making a video and we know they're making a video.
And I say to my officers all the time, like, hey, when you, you got a guy with a, with a, with a video camera or not a phone, but you see them recording and usually they're hired from multiple areas and you go up to the guy and you say hi to him and his, his or her first response is, I have right to be here. Well, that's a clue.
That's a clue. And the clue is, is that these individuals, when they start dumping things like First Amendment right and application right away, I tell my officers pretty much they probably know more than you right now. So let's really, let's get focused on how we're going to deal with this and why are we dealing with this right. And, and, and it's still something of significant challenge when we talk about First Amendment auditors. You can search the Internet and what you will find is that government's duty to protect constitutional rights. And the auditors are all about the recording. They're all about the live streaming on YouTube, Facebook, Instagram, talk.
They're looking for national, worldwide views. A lot of them have GoFundMe pages.
One of the things, if you're in litigation, one of the things I want you to focus on is that my experience in these areas in internal affairs investigation is often that the auditors have a history of editing their videos. So make sure that, you know, the video that's up online is probably going to be, it's going to probably have some missing parts from the body worn camera video or from the video you have. And probably take a look at that before you really start to dive into the allegations that are there.
And really what it comes to is focusing on the importance of community police relations.
That's where we want to keep the community on our side. And with a young generation who's very focused on social media, very focused on freedoms and right to record, this is where law enforcement, I think, and government officials in general have a duty to really push this so that we're not, we're not challenging that community interaction.
So what do we know about the right to record? Well, I will show you. With a couple of court cases, recording police activity is a protected speech under the First Amendment. The police can record when they're conducting business in a public place where the individual has a legal right to be present. So that also brings up some judicial issues.
You know, I also want you to think of it this way. One of the things that I tell my officers, their right to use body worn cameras is exactly the same right that that First Amendment auditors have right. It's all about transparency. It's all about recording. It's all about the ability to be where you are and utilize a camera in that application. So it's no different.
And as, as someone who's a big fan of body worn cameras, I don't want that challenge to be reduced because going to record.
So they're going to record. And, and that's the, that's the way that that's going to apply.
The public has the same right to record as journalists. And that's where the history and something that we talk about in our First Amendment Summit, which is a three day, very intense First Amendment training program that's offered both in person and online. You can check it out. Little dig for us here@first amendmentsummit.com I would ask you to check it out. A lot of legal and operations go are hand in hand here.
And that is one of the things that we've had challenges on over the years is you know, what is a journalist today? And one of the things that we're clear is that the journalist, the application of a journalist is anyone with a camera, as I will show you in the Glit case in the first circuit in 20 2010. And so that starts to have additional challenges, especially in the area of protests and separation of journalism from those that may be actively resisting law enforcement response. And it's making things very, very confusing. But today my advice to everybody is anybody with a camera is a journalist. And whether a journalist for a blog or their own YouTube channel or whether they're a, whether they're a Fox News or CNN application, it's no different.
I like to, I like to put these areas into a couple different categories, especially for public order and protest response.
The application of that is there's definitely a difference between a network journalist, a local journalist, and then our bloggers and everybody else. One of the things that we want to be clear about though is that the right to record is not an absolute right.
It's governed by what we know under the First Amendment as reasonable time, place and manner restrictions. Now the law says that when we're dealing with First Amendment application and the questions that our operational people should be focusing on is that our response to First Amendment conduct has to be content neutral and we must only be enforcing time, place, manner Restrictions. Now this is more applicable in a public order or protest issue. But, but just because the guy is wearing a shirt that says F the police or just because they may be involved in some type of demonstration that might cause an emotional response, that is not the basis for interaction with these individuals.
The only way that is First Amendment protected under this Constitution. Rather, what we have to focus on is time, place and manner restrictions, which is when is the building open, when is the building, what parts of the building are open, what parts of the building are closed, what parts of the building are secure, what parts of this building are not secure? Right. The onus is on us in government to, to make sure those things are clear.
So one of the things to give you all an oversight and this is the one thing that where I know a lot of times in the legal, legal analysis you like to be, you like to spit out cases because that's what we do. But the key part is that if you look at the Circuit overview in this country, when I say that this, the right to record journal, the right to record public officials in the performance of their duty is clearly, is clearly established. I say that because the First Amendment protections have been clarified in the first, third, fourth, fifth, seventh, eighth, ninth, Tenth and eleventh Circuits. Currently we don't have a fully decided case in the 2nd, 6th or D.C. and I hope that hasn't changed since the last time I've done that. But the key part to this is that it's never going to go to the Supreme Court because we don't have any confliction.
So it is clearly established law. Now the concern for us is that now that it is clearly established law, it definitely needs to be brought to policy and training. And I'm going to start with a Little Glick. In 2011, a First Circuit Court of Appeals case out of Boston Police Department was really what started this all off. And there was probably before that. I wrote my first article on this in about 2009 or 10. It was called Just say Cheese. And really it was because a lot of you that are in states that have two person wiretapping laws are arresting individuals who were recording law enforcement and criminal courts across the country in 2010 initially started throwing out these cases on the evaluation transparency that came to a head in 2011. I'm going to give you a little bit of guidance here for those of you that are involved in law enforcement. In 2014 I was appointed to the IACP recording police committee which was a cops office application where we produced some training bulletins, video PowerPoint policy to bring back the agencies. And if you search IACP recording police, that is an open application I think for everybody. So let's start with Glick and the application of Glick.
Now Glick, obviously I'm crunching on time here, so I want to keep it very focused. But Glick, Mr. Glick is in the Boston Commons. He's walking through the Boston Commons and he sees a Boston police officer arresting an individual. And he doesn't like what he sees, so he pulls out his camera and he begins to record.
The Boston officers finish their arrest and they see Mr. Glick recorded. And so the officer says to Mr. Glick, did you record this? He says yes. Did you audio record this? He says yes. And the reason why that's focused is because Massachusetts is a two party wiretap state. So they're going to arrest him for a wiretap violation, which they do, along with interfering and aiding in the release of a prisoner, which I, I don't really understand. But the key part here is that when this goes to the first Circuit, Boston Police Department and the representatives of Boston, they think it's a home run here. And the First Circuit comes back and says this. A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic fight and well established liberty safeguarded by the First Amendment. Such recordings of an arrest in a public space that does not interfere with the police officers performance of their duties is not reasonably subject to limitation. As a result, the court concluded that we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was secret merely because the officer did not have actual knowledge or whether the audio was being recorded. The Court determined the state of the law at that point 2011 was well established at the time of arrest and therefore denied the claim for qualified immunity.
So the importance of this is that the language inside the court case is not what I want you to hear. And this became the foundational language to all First Amendment auditing cases that I've seen. The First Amendment goes beyond protection of the press and self expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. It is well established that the Constitution protects the right to receive information and ideas. There is undoubtedly right to gather news from any source by means within the law.
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. The public's right of access to information is co extensive with that of the press. Almost everyone has a cell phone. Just as we treat everybody, every gun as it's loaded, we need to treat every camera as if it was being recorded. And that's the key part of our analysis.
The court finished by saying, in our society, police officers are expected to endure significant burdens caused by citizens exercise of their first amendment rights. The first Amendment protects a significant amount of criticism and challenge directed at police officers. The same restraint demanded of law enforcement officers in the face of provocative and challenging speech must be expected when they are merely the subject of videotaping and memorializes without impairing their work in public spaces. So they pretty much set the background here. Such peaceful recording of an arrest in a public space that does not interfere with police officers performance of their duties is not reasonably subject to limitation. Now, like I said, it can't be 100%. There has to be reasonable restrictions. And the case that set the basis of a reasonable restriction was a case also out of the first circuit in 2014 called Garrick versus Bing. This is a case in which an officer pulls a vehicle over. Mrs. Garrick was following her boyfriend. Both vehicles pull over. Ms. Garrick pulls behind. The actual target of the traffic stop was the boyfriend, Ms. Garrick behind that application. And as they are having applications, as they are interacting with the boyfriend, the challenge on the table was that Ms. Garrick wasn't necessary. So the officer said, hey, you can move on. We don't need you here, and move on. And as a result of that, they went into a parking lot adjacent to the case, adjacent to the traffic stop, and started to have some interaction as, as Mr. Ms. Garrick pulls off into a parking lot, she begins to record. Allegedly she doesn't actually record, but she has her camera out, which the officers then ask for. And, and they deal with her boyfriend who admits that he has a gun on him and he has all the proper paperwork. So there was a security issue.
And so they arrested Mr. Ms. Garrick for the recording. And the court came back and said, all right, there are restrictions that outweigh a citizen's right to film, such as public safety. And when statutes and other laws outweigh first amendment rights, such as in care, the court explained that such a restriction could take the form of a reasonable contemporaneous order from a police officer or a preexisting statute, ordinance, regulation, or published restriction with legitimate governmental purposes. So again, we're talking about time, place and manner restrictions in that application.
Now I want to put on your radar, too, one more baseline foundational case that we talk about all the time, which is Sharp versus City of Baltimore. And this was a 2014 case where DOJ intervened in a lawsuit against the Baltimore Police Department for not only the recording, but also for the destruction of the recording equipment. And I think all of you would recognize that a video and a cell phone are, have an expectation of privacy and need to be protected in that area. So the court looked at the Sharp versus City of Baltimore, and DOJ intervened to focus on the fact that we're going to add one more thing to this level, which is not only do private citizens have a First Amendment right to record in the public discharge police officers in the public discharge of their duties, but whether or not there is a fourth and fourteenth Amendment right when they seize.
Excuse me. And destroy such recordings without a warrant or due process. And so that really pushed us to need to develop a video recording police activity. So I would, I would recommend to you, and I'd be happy to share them with any of you if you want to a draft. You can find video recording recording of police activities policy just about anywhere. The IACP has one. I would be happy to share one with you if you reach out to me@eric Daigleawgroup.com but in today's day and age, every department needs every agency. I would even think other government agencies, like even fire departments and government operations, need this recording policy to clarify a couple of things. Mainly, the most important thing is that under the Garo case, one of the issues is that we can prevent interference. And so in a normal traffic stop, where I would tell my officers, hey, yeah, the guy's behind you, he's recording. Yes, you have the right to say, hey, sir, can you do me a favor? Can you move over here, please, so I can see you in my field of vision, you're standing back there, you're causing me concern as to my safety. But the one thing that, that we need to be very cautious of is the word interference and making sure that we clarify interference. So what we expect out of our government employees needs to be clearly articulated in a policy for that application.
Sharp versus Baltimore came back and said the right to record police officers while performing duties, public place, as well as the right to protection from the warrantless seizure and destruction of those recordings are not only required by the Constitution, they are consistent with our fundamental notion of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily. So the language you See in these cases has been very distinct in its application.
So let me give you just a quick things that you can bring back to your government officials and things that we put in training specifically related. If you look at our first amendment training, you will see this that are there. But we have to start with law enforcement strategies.
Agencies must be prepared to deal with auditors in a constitutionally manner and such. And I think the most important part of that is knowledge and that is training and guidance.
You should review your applicable policies to ensure that they pass constitutional guidelines and focus on providing training to any government officials with those policies. And so there's a couple of recommendations that I'll wrap up with. And then so number one, maintain courtesy, respect and be tactful. I mean our officers are doing a much better job of this just in the fact that they are always being recorded nowadays.
But one of the things that we want to remind is that every agency should have a code of conduct policy and should have the policy that clearly articulates that officers shall not be discourteous or inconsiderate to the public to their supervisor. Now it doesn't mean that, you know, by the way, I will tell you exactly what I tell everybody in the from the academy on.
I expect people, I my officers to give people respect until they don't deserve it anymore. Which means it's a two way street. Respect those two ways. And a lot of times with first amendment auditors, if you're treating them accurately and you're treating them clearly, just like your second amendment auditors, they'll be open and honest unless they really just want to get arrested, which sometimes is the case. But I think in the most time you can have a good interaction.
Tactful officers shall be tactful in the performance of their duties and are expected to exercise their constitutional discretion even under the most trying circumstances. And I think our officers do a much better job of that now with what they've been going through over the years.
You know, we know that officers can be recorded.
This auditors can be particularly challenging when officers are faced with personal insults and derogatory comments.
And the one thing I would say to all of you is that we have to be realistic of one thing.
Our officers, our government officials are still human beings.
They are people and they're not perfect and they never will be perfect until we start patrolling with, with robots.
We have to recognize the fact that, you know, all of them bring their life experiences, their bad days to work. Sometimes there's nothing we can do. Every one of us does it? So why do we expect law enforcement to be better at that?
Supervision, oversight and working hand in hand is going to prevent these interactions from getting worse.
And I think that's the thing we all have to pay attention to.
So recommended practices that I would put in. There's a couple of articles on my website where you can get this from two number one, once there is a clear indication of an audit and evaluation or evaluate, de escalate and remove yourself from the situation. If you. There is no, no reason to be there. Right? They want the recording. And one of the things that I teach even in public order response is sometimes you're the video, you're what they want. And if they're doing everything that they're supposed to do, they're where they're supposed to be and there's nothing you can do about it and have a great day and, and carry on. And sometimes that could be challenging, but, but we're seeing a lot more of that in video. Nowadays, officers are not required to ignore legal activity. And that's where the threshold begins.
The Supreme Court has ruled that the presence of probable cause for an arrest defeats a First Amendment retaliatory arrest claim. As a matter of law, they have not made it a great a bright line rule. But in those two cases I represented before, which is Navez case and the Loman case, and even a little bit in the Gonzalez case from the Supreme Court that is there, the mere fact that someone is recording does not excuse them from all criminal transgressions.
When we look at focusing, what I, you know, when we talk about content neutral, what I tell the officers and what I, what I would recommend you is focus on, pay attention to the behavior and the conduct, not necessarily the recording itself. Officers should remember that the mere fact that someone is recording them does not immunize, immunize them from being charged with their criminal acts. If someone is committing a crime or a violation, time, place and manner restrictions, we would go through the normal process that we would do, maybe if it's a trespass, give them a, and give them an opportunity and then take the action that is necessary in this area. We know that it's going to lead to liability. So we want to limit that to the best of our application.
And sometimes that's what they want. Right. Reasonable contemporaneous orders may incidentally restrict recordings. And what the Garrett case says is important because it suggests that police can restrict individuals from filming law enforcement while performing law enforcement duties if a reasonable officer believes safety is at risk. Now, unfortunately, I have to say realistically to my officer that everything's not a safety issue. We have to clearly articulate a safety issue. So in Garrick, when the guy has a gun and the officer has to focus his attention on the guy in the gun, that's a safety issue. Right.
Clear where we are. What we're doing is focusing on the safety issue. The court issued its ruling in glic. Most citizens assume that they could film police while performing duties without any limitation.
They can.
Garrick highlights that the citizens can film police officers carrying out their duties even during a traffic stop. Unless the police officer is focusing on the fact that there is can reasonably conclude that the film is interfering with his police duties. Again, which is an important reason why you need clarity in your policy.
What is in what is?
What is interference?
Finally, again, provide identification. One of the things that I believe is that government officials in the performance of the duties, when asked, should always provide their. And badge number.
This is part of our application, is part of a lot of litigation, a lot of consent decrees. But providing someone with their name and badge number is a very basic application. There may be times where it's not practical. And if you're dealing with a situation or in the middle of a tense, uncertain, rapidly evolving situation. I get that. But name and badge number, just give it up.
Consider speaking with witnesses, complaints, and victims privately. Everybody always says to me, well, what about the fact that they could record in our lobby and they can record us interviewing witnesses, complaints, and victims? Well, don't do that. Don't interview witnesses, complaints, and victims in your lobby, and you won't have this problem.
Everybody's got rooms to go. Take care of that in.
Reminder that the victims, complaints, and witnesses, you know, they have. They have privacy, and we need to be protecting that privacy in the application. Defuse the situation. Our de escalation efforts and one of the best ways to diffuse the situation in my world is to say very clearly, hey. And I recommend to officers to say, hey, listen, I understand you have the right to record, and I support the constitution and the first amendment right. But here's our issue. Here's what we're here to talk about. Just take it off the table. Recognize that that is a right and the rights established, and we all agree with it.
If you get to a point with your officers where the policy will cover that you are seizing and searching cell phones, be very, very cautious. Obviously, you may not know this, but the supreme court's interpretation of cell phones in Riley versus California, in the United States versus Worry puts very High expectation of privacy on a cell phone in today's world, which requires a search warrant and very limited, very, very limited application of exigency to get into a phone. And so we want to make sure that we don't add any fuel to this fire by adding any challenges. Identify and maintain transparent guidelines. Write your policy.
Mark your public spaces versus your secure spaces. Lock the doors.
You know, if you have secure areas, make them secure. Close secure area. Use key cards. If it's a public area, it's a public area. If it's a secure area, it's a secure area.
Limit private and secure information from publicly accessible areas. Now, I get calls all the time from police executives who say, well, they can look the window at the front, at the front desk and say, okay, well put some shades up, you know, or, or you know, put some tint on the windows. Do something like you can prevent that. And are you going to let Joe Citizen into your lobby? Yes. Well, then you're going to let the First Amendment auditor into the lobby. And if they want to sit there for as long as the lobby is open, then that's their right to do so. And if they want to film, that's their right to do so.
And then the number one takeaway that I can say in my experience and what I'm a huge fan of is train, train, train, train, train. Not the locomotive type, but the actual application. Something that knowledge is power. And the concept of knowledge of power is very important. And then I'm going to look at a couple of the of the questions and I will put you here our First Amendment Summit, which is virtual and in person.
Check us out@first amendmentsummit.com okay everybody.
[00:47:22] Speaker A: This brings this episode of the Guardian mindset podcast to an end. I'd like to obviously thank our sponsor, the DLG Learning center and its application
[00:47:34] Speaker B: of supporting the training.
[00:47:36] Speaker A: As we see and a lot of you who are DLG Learning center clients, we appreciate you.
And also I also want to do a shout out again at the end here for the May 27th through 29th, 2026 First Amendment Summit, really focusing on all aspects of the First Amendment, not just auditors, which we just went through, but also dealing with retaliatory arrests and social media and public order response and recording police, and then again touching on the hot issues of First Amendment auditors. So check us out at 1, the number 11 asummit.com that's 1 a s u m I t.com help those who need your help protect those who need your protection. And most importantly, keep yourself and others safe.
[00:48:30] Speaker B: Thank you.
