First Amendment Auditors Push the Envelope
From the Bible
“By this you shall be tested: ...” (Genesis 42:15).
And Moses said to them, “Why do you quarrel with me? Why do you test the Lord?” (Exodus 17:2).
“What is man, that you ... visit him every morning and test him every moment?” (Job 7:17-18).
And Pharisees came up and in order to test him asked, “Is it lawful for a man to divorce his wife?” (Mark 10:2).
We must not put Christ to the test, as some of them did and were destroyed by serpents (1 Corinthians 10:9).
But Peter said to her, “How is it that you have agreed together to test the Spirit of the Lord?” (Acts 5:9).
But, knowing their hypocrisy, he said to them, “Why put me to the test? Bring me a denarius and let me look at it” (Mark 12:15).
We will be tested. Just as in Bible times, many tests are honest, done for good reasons. But there are also dishonest tests, meant to trip up or slander the targeted person(s). Sometimes the motive is financial gain. That appears to be the case with many of the self-described “Civil Rights” auditors who test whether government offices, police, businesses, and organizations (including churches) respect the auditors’ 1st Amendment and/or 2nd Amendment rights. Some auditors target churches with the intend of harassment.
In the News
Los Angeles, California, February 14, 2019 – A First Amendment Auditor on the public sidewalk was recording video footage of a synagogue and a girls’ Hebrew School in Los Angeles while the school was in session. She was dressed in black and wearing a backpack. Fearing it might be anti-Semitic radicals casing the place for an attack, school administrators called the synagogue’s security guards.
The auditor refused to cooperate with the guard who came out to the fence. He pulled out his handgun and fired what he called a “warning shot” down at the pavement. The ricocheting bullet (or shrapnel) hit the auditor in the leg. All the while, she was recording. Her audio was laced with profanity and crude jibes. The guard was arrested for assault, but released when the prosecutor refused to charge him.
Lebanon, Pennsylvania, January 23, 2019 – A “First Amendment Auditor” was convicted of summary disorderly conduct for his actions while “auditing” the county courthouse.
Oklahoma City, November 6, 2019 – A white Second Amendment auditor with a long rifle showed up on the sidewalk in front of an African American church. Of course, they called the cops. The responding officer tells the men of the church to not show any weapons, move back to the front of the building, and stay calm so no one is hurt. On the officer’s body cam video, the “auditor” is heard saying that he’s “on the public easement” (all the while recording with his cell phone camera). No action is taken and everyone remains calm. Comments on the video shown on a TV station’s webpage indicate the “auditor” was a well-known attention seeker in the city.
Later that month, the same auditor was arrested for carrying a firearm into a place where alcohol was served. Just over a year later, the charge was dismissed.
Warwick, Rhode Island, July 19, 2019 – A First Amendment auditor who was already somewhat notorious in Rhode Island was filming people paying their taxes in a tax office. Employees called the police. He was removed, but not arrested, after a woman became upset and tried to knock down his phone. Twice later, he returned to the office and argued with officers, When he was ready to finally leave, he thanked everyone for helping him make money.
August’s key resource is Equipped for Success: Recommended Essential Equipment (a free download). The recommended training course for this article is Complete Church Security Training Program.
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Complete Church Security Training Program
If a civil rights auditor shows up at (or even in) your church, would you know what to do or not do? Obviously, as is seen in the news stories, we’d need to have been prepared with information and training. The Complete Church Security Training Program has the classroom training materials for all seven Sheepdog Church Security training courses:
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- Deescalating Disruptive Persons v4
- Protecting Children from Abuse v4
- Basic Use of Force Laws v4
- Arson and Fire Safety v4
- Severe Weather and Natural Disasters v3
What Are Civil Rights Auditors?
. . . and how do they operate?
According to Wikipedia, “First Amendment audits are a largely American social movement that usually involves photographing or filming a public space.” Second Amendment auditors are like this, but openly carry firearms (especially AR-15s) while recording their videos. Together the persons conducting these audits are called “Civil Rights auditors.” The reason this is “largely American” is how significant constitutional rights are in the United States and the current attacks on these rights. This is coupled with concern about the government itself violating these rights (allegedly in some cases, actually in others). The auditors claim that they are keeping the police honest.
The public spaces where they do their auditing are places where filming and carrying weapons will arouse suspicion and concern, such as government offices, schools, businesses, and churches. The usual response of persons in these places is to send a guard and/or call the police. The guards and the police are the real targets of audits. It is their responses that matter: Will they respect the Constitutional rights to photograph and report, or to carry a weapon?
The 2A auditors provoke reaction just by where they carry a rifle or machete. The 1A auditors usually provoke the responders further by how and what they say, claiming freedom of speech as well as freedom of the press (they claim to be publishers, since they post their videos online). They argue with whoever responds, especially if it a guard or a police officer. If that doesn’t get a violation of their rights – such as being told to get out, issued a ticket, or arrested – they will escalate their outrageous speech and/or actions. All of this will be recorded. 2A auditors must be more careful in how they provoke a response, lest someone acts in defense with deadly force.
Sometimes auditors work in pairs, with one acting as a witness standing back and recording the whole scene. This produces two videos which can be used to make the YouTube version.
Fame and Fortune
Several critics hold that while civil rights auditors claim to be holding police and security guards honest, their own motives are not entirely honest, that they are concerned more about fame and fortune than fairness. Many of them have garnered large followings on the Internet with sizeable earnings from advertising. They thrive on outrage, and very few commend the “good” cops who respect civil rights, preferring to show those who “fail the test.”
Responding to Civil Rights Auditors
In two Sheepdog Church Security training courses, we learn how to respond to protestors. However, these auditors are different.
How Protestors Act
Some protestors just carry signs and express themselves verbally (talking to those coming in or leaving, shouting, chanting, singing). Of course they want the media there to see what they are concerned about. In Lynchburg, Virginia, a prominent church was picketed by persons who objected to the church’s stand on a certain social issue. These protesters did not disrupt the service, but they announced their actions and received news coverage.
Several years before, on the other side of the country, protesters with the same social concerns actually physically accosted people going into a church, they did whatever they could to disrupt the service and damaged the building.
How Auditors Act
Auditors do not usually claim to have a cause to protest their targets other than those (usually law enforcement) whom they consider as already disrespecting and violating certain civil rights, namely
- free speech
- free press
- due process
- peaceable assembly
- no warrantless searches
- not testifying against oneself (by having to give their names)
- bearing arms
However, it is evident from their videos that the intent of some is harassment of certain organizations, such as churches for their stands on social issues.
Auditors draw attention to themselves by walking along the sidewalk or street taking photos, recording videos, or carrying a very conspicuous firearm (or other deadly weapon). In some cases, the publicly-available walkway is technically on church property, but with a public easement. With government offices, they go in and roam around areas open to the public. They deliberately go to the edge of legality to see what the response will be.
Our problem is how do we deal with someone whose actions arouse suspicion, but technically are constitutionally protected? Really, there are two locations they can be, just outside the perimeter and inside the facility. Your response is adjusted to where the auditor is.
Governmental Guidance for Responding to Civil Rights Auditors
In several states, the associations of municipalities, counties, and other local jurisdictions have published guidance for their members on dealing with constitutional rights auditors. These consist of a discussion of what the auditors are doing and how they act followed by points of action. Although these are not for churches, we can learn from them. For example, from the Municipal Association of South Carolina:
- Educate employees. All public-facing employees should have some familiarity with First Amendment audits and how to respond. Although the auditors often exceed their rights under the First Amendment, they do have the right to film public employees in public places. California Joint Powers Insurance Authority
- Don't overreact. Auditors are trying to provoke a negative reaction that they can post on social media. A video of a public employee responding calmly is not going to result in much traction. The best defense is simple patience.
- Identify and mark nonpublic forums. In many cases, auditors will try to enter private areas, hallways or offices. The municipality has a right to mark these areas as nonpublic and to impose reasonable regulations on the right to film in them. Nonpublic forums can include any areas into which, under ordinary circumstances, visitors must be invited before entering. Examples include hallways, cubicles, offices and workspaces.
- Consider rules about harassment. Some auditors may engage in conduct that rises to the level of harassment. They may claim they can demand answers or invade the privacy of private residents. In at least one instance in South Carolina, an individual claiming to be an auditor harassed a female employee by filming her repeatedly and at length. Municipalities can adopt appropriate regulations about such harassment and abusive behaviors.
- Before adopting any specific regulations, a municipality should CONSULT WITH ITS ATTORNEY [All caps mine]. The rules are complex and violations of the First Amendment can result not only in an embarrassing YouTube video but also monetary liability. Again, the most important thing to remember is to keep calm.
- Communicate to employees and elected officials of an individual’s right to speak during public comment periods at public meetings, regardless of who they are. The speaker’s subject matter and comments should not be restricted, leading to potential First Amendment challenges.
Of special note are “Don’t overreact” and “remain calm.” The Colorado Intergovernmental Risk Sharing Agency quoted Sergeant Ryan Brett of the Corona, California Police Department:
“They are well within their rights to do so, and from my experience, the best response to an audit roaming around your police station public areas is to ignore them. They eventually lose interest and move on to somewhere they can make headlines.”
Guidance for Churches in Responding to Civil Rights Auditors
The guidelines are similar for churches. Here is a brief outline:
- Knowing that First Amendment auditors are a possibility for churches in your area (more likely for larger congregations and for those who dare to take a stand on social issues), set policies for how to respond to (1) auditors outside the perimeter of the church campus, and (2) those who actually come onto church property. Consult your attorney about policies which will be legally defensible.
- Educate all church staff and volunteers, especially the Church Safety Team, on how to respond to auditors. In this regard, Carl Chinn does not recommend using contract security guards from a professional agency, but volunteers from the church itself. You cannot be sure that a contract guard will know how to properly respond. Even though that guard does not directly represent the church, that will be the public impression.
- Identify and mark non-video/non-photo areas in the church. A “no photography” icon should be sufficient. These areas would be restrooms, baby-changing areas, and other places where personal privacy is expected. Childcare rooms and offices could be marked, “Photos by permission only” or “Photos by parents only” in a childcare room.
- Find out what rights auditors actually have. Also, know how to identify harassment of individuals and how to address it.
- Be kind and polite when dealing with an auditor. It really helps to show care for them as persons. For an example of one church that did it right, watch this video. Be genuinely concerned for their souls.
- If there is illegal activity, such as violent shoving, hitting, deliberately blocking someone (and refusing to let them pass after being requested to), vandalism, etc., then you may call the police.
What if There Is a Problem?
What if your church was audited and a Safety Team member did something the auditor claimed was a violation of his or her constitutional rights?
Unless force was used, the risk of prosecution is low, but the chance of a lawsuit is very real (remember, most auditors are in it for the money). In the case of a criminal charge, a lawsuit, or both, that member will need a lawyer. If that team member was a member of U.S. LawShield, one call will get him/her a lawyer. You can join U.S. LawShield through Sheepdog Church Security’s affiliation.
If and when your church is audited, responding with kindness and respect would be a good testimony. “Do not repay evil for evil or reviling for reviling, but on the contrary, bless, for to this you were called, that you may obtain a blessing” (1 Peter 3:8).
- Gary Cummings, “Civil Rights Auditors: Defining Reasonable Time, Place, and Manner Restrictions on First Amendment Activities,” a research paper submitted in partial fulfillment of the requirements for the degree of Master of Arts in Security Studies (Homeland Security and Defense), Naval Postgraduate School, December 2019 [https://calhoun.nps.edu/handle/10945/64128].
- Carl Chinn, “Agitation Auditors – An Evolving Threat (2),” Faith Based Security Network, April 4, 2021 [https://fbsnamerica.com/2021/04/04/agitation-auditors-an-evolving-threat-2/].
- Judy L. Thomas, “First Amendment ‘auditor’ injured during argument with security guard at LA synagogue,” THE Kansas City Star, February 15, 2019 [https://www.kansascity.com/news/local/crime/article226317205.html].
- Alex Cooke, “YouTuber Shot While Live-Streaming ‘First Amendment Audit’,” FStoppers, February 16, 2019 [https://fstoppers.com/news/youtuber-shot-while-live-streaming-first-amendment-audit-340952].
- Daniel Walmer, “Judge convicts ‘First Amendment auditor’ arrested while filming at courthouse,” Lebanon Daily News, January 23, 2019 [https://www.ldnews.com/story/news/local/2019/01/23/judge-convicts-man-arrested-while-filming-lebanon-county-courthouse/2649876002/].
- “Police Body Cam - 2nd amendment audit,” KOKH Fox 25 News, November 7, 2019 [https://fb.watch/v/9UIksW0J6/].
- KFOR-TV and K. Querry, “Case against ‘Second Amendment Auditor’ dismissed,” Oklahoma News 4, December 4, 2020 [https://kfor.com/news/case-against-second-amendment-auditor-dismissed/].
- Ethan Hartley, “Amendment 'auditors' look to cash in on Warwick visit,” Johnston Sunrise, July 25, 2019 [https://johnstonsunrise.net/stories/1st-amendment-auditors-look-to-cash-in-on-warwick-visit,144211].
- Kris Moloney, “Equipped for Success: Recommended Essential Equipment,” Sheepdog Church Security, © 2018 [https://sheepdog-church-security.ck.page/8ad20a0b70].
- Kris Moloney, “Complete Church Security Training Program,” Sheepdog Church Security Training Courses, Training Materials (Classroom) [https://sheepdog-church-security.thinkific.com/bundles/complete-church-security-training-system].
- Wikipedia, “First Amendment audits” [https://en.wikipedia.org/wiki/First_Amendment_audits].
- Kris Moloney, “Security Team Fundamentals v4 (Slide 59),” Sheepdog Church Security Training Courses, © 2019 [https://sheepdog-church-security.thinkific.com/courses/church-safety-and-security-volunteer-academy-training-bundle], and “De-Escalating Disruptive Persons v4 (Slide 45),” Sheepdog Church Security Training Courses, © 2019 [https://sheepdog-church-security.thinkific.com/courses/dealing-with-disruptive-persons-using-verbal-deescalation-training-bundle].
- Maria Galvan (Risk Manager), “Responding to First Amendment Audits,” The Authority (Publication of California Joint Powers Insurance Authority), Issue 88 - June 2019 [https://cjpia.org/newsletters/issue-88/article-2].
- MASC Staff, “Keeping Calm With First Amendment Audits,” Uptown (Publication of Municipal Association of South Carolina), January 2020 [https://www.masc.sc/Pages/newsroom/uptown/January-2020/Keeping-Calm-With-First-Amendment-Audits.aspx].
- Sergeant Ryan Brett, “First Amendment Audits and How to Respond,” California Association of Labor Relations Officers, before October 10, 2017 [https://calro.org/first-amendment-audits/].
- NastyNathanial, “1st Amendment Audit, Grace Baptist Church,” Feb 7, 2021, shown on YouTube [https://www.youtube.com/watch?app=desktop&v=c0750A7vKKI&fbclid=IwAR1z-RZciO7Sb3fYphIbybzZH9YLUGlXChkukMeTMlOP2uuZzSZ8DL6TN44].
- U.S. LawShield, Sheepdog Church Security affiliate link [https://www.uslawshield.com/?affid=f83659a7-c044-11e9-a753-02fcb63ac2fe].