Technical Update vol. 28 no. 36 - Reducing County Liability in Auditor Responses

A First Amendment audit is a movement where self-proclaimed "citizen journalists" or "social activists" video record their encounters with government officials, claiming to promote transparency and open government. These auditors often seek to provoke reactions from public employees, with the interaction being judged as a "pass" or "fail" based on the employee's response. Typically conducted by one or two individuals, these audits ensure that government officials respect citizens' rights. However, their underlying motivation can be to incite conflicts that may lead to potential income, attention, or even legal action alleging a violation of First Amendment rights.

WHAT TO EXPECT DURING A FIRST AMENDMENT AUDIT

Auditors aim to catch employees off guard, often making them uncomfortable by recording or taking photos in public areas where such behavior is unusual. They may use tactics like staying silent to escalate concerns or verbally overwhelming employees with aggressive questioning. Auditors might refuse to identify themselves or explain their actions, further heightening tension. If law enforcement is called, the situation can escalate as the auditor asserts their right to be there, claiming they’ve done nothing wrong.

Targets of First Amendment Audits

• Law Enforcement & First Responders
• Elected Officials
• Public Employees (administrators, public utility workers, parks services, etc.)
• Anyone who will react (public included)

Auditors can record in any public area where the general public is allowed, including parking lots and unfenced spaces not marked as "employees only." This can include filming into police vehicles, officers' private vehicles, and any visible computer screens or desk areas not shielded from public view. Auditors do not have the right to interfere with work or people receiving services, enter restricted areas, or create a hazard.

RESPONDING TO AUDITORS

When responding to First Amendment auditors, do not challenge their right to record in areas open to the public. If approached, ask if you can assist them, but if they decline, continue with your tasks as usual. Answer questions related to public information, and if you're unsure or uncomfortable, seek help from a manager. It's important to stay calm, professional, and non-confrontational, keeping other customers in mind. After the encounter, report it to your department head. Never attempt to confiscate or block recording devices; if safety concerns arise, contact law enforcement.

Counties should take proactive steps to prepare for First Amendment audits by educating employees on how to respond effectively. They should implement clear policies and procedures that guide interactions with auditors, emphasizing the importance of staying calm and managing one's response. Employees should be trained to handle simple questions confidently and recognize their limits. When faced with challenging or aggressive questions, they should know when to seek help or remove themselves from the situation to prevent escalation.

Another precaution is to ensure areas are secure by clearly demarcating public spaces from "Employee Only" and distinctly marking nonpublic zones with signs such as "Official Business," "Employee Only," or "By Appointment Only." Avoiding confrontation or reacting minimally reduces the auditor's incentive to continue. Be mindful that wrongful detainment can lead to significant liability, as seen in a Colorado case where an auditor was awarded $41,000 for being wrongfully detained while filming outside a police station.

WHAT THIS MEANS FOR COUNTIES

First Amendment audits are becoming increasingly common, requiring counties to be well-prepared to respect rights while maintaining security, order, and minimizing liability. The Casualty and Property Pool (CAPP) is a critical resource in this effort, offering counties comprehensive risk management strategies that help mitigate potential exposure. By leveraging the CAPP program, counties can confidently navigate these audits through security assessments of county facilities, adopting clear policies, educating employees, and implementing corrective actions when necessary. For more information, contact CTSI at (303) 861-0507.