By Lamar Hankins | The Rag Blog | March 20, 2023
In 40 years as an attorney, I have encountered the police in many contexts. I have received three warnings and two tickets for speeding or car malfunctions; I have worked with police as a city attorney, including in municipal court; I have prosecuted disciplinary actions against individual officers on behalf of their Police Chief; I have advised officers who were under threat from a federal prosecutor; I have defended officers who were being fired; I have cross-examined officers who arrested my civilian clients; I have looked at a large number of driving under the influence videos recorded by police cameras; I have challenged individual officers who perjured themselves in testimony before courts; I have read reports from all over the country about police abuse.
But while I have been aware since I was young that police often deny us our constitutional rights, I never observed them as they did so (except for those cases that made national news) until I discovered recently a category of videos on YouTube, where police officers (and I am using this term to mean all members of law enforcement) can be seen doing their jobs in real time.
As most viewer’s know, YouTube is owned by Google; Google’s infamous algorithm(s) brought “police auditors” and “First Amendment auditors” to my attention. I discovered videos from them that focus on police officers denying constitutional rights, especially most of the First Amendment’s five protections, the Fourth Amendment’s protections against search and seizure, the Fifth Amendment’s assurances of rights to not answer police questions and to receive due process, the Sixth Amendment’s right to an attorney, and occasionally the Fourteenth Amendment’s right to due process and other protections. These “auditors” set up YouTube channels to broadcast their videos and build an audience, which can lead to revenue from YouTube if they have enough channel followers.
The auditors
The people who call themselves auditors do what the name implies: they perform video investigations and examinations of the police, other public officials, sometimes big businesses, and they insist on having their First Amendment rights honored by videotaping from public vantage points. They usually refer to their actions as police audits or First Amendment audits (the First Amendment affirms the right to video in public), and they use videos from witnesses, from security cameras, and from the police who wear cameras themselves or whose vehicles are equipped with cameras. Government-maintained recordings can be obtained through open records or public information requests, as well as through litigation.
There are, so far as I can tell, three approaches to auditing: videoing government offices or installations and big businesses from public property (which usually results in the police being called because employees or customers “feel uncomfortable”); showing up at police stops to video (such scenes can be videoed so long as the auditor is not interfering with the police investigation, which usually means staying back at least 8 to 10 feet); and driving around in “bait” vehicles until they are stopped by the police for some alleged traffic violation while they video their own driving and the encounter.
A favorite approach of many auditors is to video government offices, installations, and functionaries from public places. Invariably, the police get involved when someone calls 911– either a government official or a civilian caught on camera who objects to being videoed. When police parking lots and vehicles are videoed, police officers respond directly, often in less than a minute or so. For some reason, many police officers don’t know that videoing from public places does not ordinarily give anyone a legitimate reason to prevent the practice. If a person with a camera is in public, whatever can be seen can be videoed.
One auditor, who calls himself “Long Island Audit,” says that he videos at public government offices to “peacefully exercise our right to film in public and publicly accessible areas to promote transparency and accountability within our government, and to ensure that our public servants recognize our rights and treat us with respect.”
It turns out that many, perhaps most, police parking lots are not secure facilities. Many of them are open, unrestricted areas where members of the public can wander around taking pictures. The content of police cruisers that can be seen through vehicle windows is likewise subject to being videoed. So far as I can tell, the main purpose of videoing police cruisers is to determine whether police officers know anything about constitutional law. A lot of them either don’t know much about a citizen’s rights or they want to exercise their presumed authority to order citizens around.
Invariably, such confrontations lead to a demand by the police for the citizen to give their ID; that is, name, address, and date of birth. Of course, without a reasonable, articulable suspicion that a crime has been committed, is being committed, or may be committed, the citizen does not have to provide ID in most states. Texas is one of those states.
The Texas Penal Code, Section 38.02, requires a person to identify themselves to a peace officer if identity is requested and the person (1) is lawfully arrested or (2) is driving a motor vehicle and is lawfully detained for a violation of law, or (3) a witness to a criminal offense.
Generally, mere passengers in a motor vehicle are under no obligation to identify themselves. The same is true of a pedestrian absent reasonable articulable facts that suggest the person has committed, is committing, or may commit a violation of law. But be aware that giving false information to the police after an arrest or lawful detention is unlawful and a separate offense. To be lawful, a command or directive must be based on reasonable, articulable facts of wrongdoing (in the case of a detention) or upon probable cause (in the case of arrest).
The YouTube videos show that many law officers do not like to be videoed, nor do other public officials and civilians who are caught on camera while in a public place, and there is a widespread, though erroneous, idea that a private person in public can forbid someone from videoing them. If you are in public, your image can be captured legally by anyone with a camera. Just think about all of the security cameras that record images of people all the time without their consent.
Some auditors identify themselves on their YouTube channels with colorful or obscure names or phrases (listed in no particular order): TheBlightMonkey; WAX WORLD Cole Jr.; Q Jerk; News Now San Diego; Watching Wyco; Bay Area Transparency; Reba Audits 51-50 5-0; The Angry Vet; Texas Transparency; Pepperoni Audits; Police Encounter; Auditing America; G town Press; The J Town Press; Direct D; Rowdy Podcast; Aye Yung City; News Now California; NC Tyrant Hunter; Valley Community Watch; Emerson ICU Audits; The Resistance; Americans Against Police Oppression; Cali Tito; Public Citizens; Mr. Everything; Cop Watchers; Dr. Manhattan; John Smith; The Random Patriot; Corners News; The Armed Fisherman; Mr. Constitutional, Long Island Auditor, NORCALCOPWATCH, Amagansett Press, James Freeman, Big Nick South Florida Accountability, Watching the Watchman, Lackluster, Jeff Gray (HonorYourOath Civil Rights Investigations), The Battousai, ANTHONY X 1st Amendment Audits, San Joaquin Valley Transparency, Justin Pulliam–The Corruption Report, Georgia Guardian, This is a Public Service, and many more. One of the most absorbing auditors is Press NH Now. I say absorbing because, like a sponge that will hold only so much water, one can get one’s fill of this auditor eventually from the repetitiveness of his videos, but he does know his rights and asserts them vigorously.
Press NH Now
It took me a couple of episodes to get used to Press NH Now’s New Hampshire accent and appreciate what he does. Even so, I am not uncritical of his performances on some of his episodes, and of his approach to government officials and employees. The name of the person behind the channel is Marc Manchon. I know his name because he was arrested in Charlestown, NH, about three years ago and charged with disorderly conduct and resisting arrest. He had a trial before the court and was justifiably acquitted. His arrest was pure law enforcement revenge, just the sort of offensive and unlawful action that auditors try to expose to public view. He has had, so far as I can tell, at least three other arrests connected to his auditing work, but has never been convicted.
Manchon says that he does his auditing to educate the public about their constitutional rights, mostly in New England, and to determine how transparent government operations are. It appears that a large part of the public is not aware of their rights or at least they don’t have a thorough understanding of them. If they pay attention to the Press NH Now videos, they will learn about using public information requests and how to interact effectively with the police. But Manchon’s style will be off-putting to many people, including his calling the police tyrants, thugs, or other epithets, though he is seldom incorrect about this.
He has been described as irksome, confrontational, unnerving (even to cops), disrespectful, taunting, mocking, hostile, sarcastic, rude, misogynistic; and he sometimes uses off-color phrases, though mostly after the police insist on harassing him. He appears fearless even when surrounded by six or seven officers. He engages in rapid-fire speech and is quick to argue, usually successfully, with the police.
I don’t see it as helpful to his purpose (which I support) to be as mocking or dismissive of officers as Manchon is because I appreciate how difficult their jobs can be, though I understand his frustration with having to explain our rights to people whose business should be to know them better than anyone else.
Some other auditors, however, are far more belligerent, rude, and crude toward the police than Manchon is; we all have different styles. Nevertheless, there are many times when he could deescalate situations and accomplish his purposes, but he seems to like the conflict that results from his way of asserting his rights. If police officers approached the public as Manchon approaches public employees and officials, I would object. But Manchon, unlike the police, has a right to his style, and I realize that conflict builds viewership on YouTube, which is the goal if one is trying to make a living being an auditor.
One final note about Manchon’s audits: Often, witnesses to his videoing report what has happened incorrectly. That is, they get their facts wrong, the result of which is that they make a false report to the police, demonstrating why it is important to have a video record of what happened. Eyewitnesses can be unreliable reporters of the facts, especially when they are biased, emotional, or are reporting about the behavior of friends or co-workers.
Auditing aggregators and attorneys on YouTube
Another group of people with YouTube channels focuses on explaining our constitutional and legal rights by discussing videos they aggregate or collect. A few aggregators also produce police and First Amendment audits. The auditing videos used on these channels are presented usually in an abbreviated form, with links to the full videos.
Aggregators generally fall into two groups–lawyers and non-lawyers. One attorney who broadcasts videos on YouTube and who has impressed me is John H. Bryan, The Civil Rights Lawyer (TCRL). Bryan regularly discusses videos he obtains from auditors, clients, other attorneys, and the general public. He focuses on discussing what civil rights violations occur that can be litigated successfully. He litigates from his West Virginia office, collaborates with other civil liberties attorneys, and explains police violations of rights very well. There are other attorneys on YouTube, but Bryan is the most frequent police misconduct contributor I have found.
Bryan often warns that drivers of vehicles should never give consent to a search of themselves or the vehicle, no matter how inconsequential you may think the search will be. You should be polite in doing so. Something like, “Officer, I do not give my consent because I don’t want to relinquish my Fourth Amendment rights.” Often, police officers will respond with, “If you don’t have anything to hide, why would you not allow me to search your car?” This is a good time to say respectfully that you don’t wish to answer any more questions and reiterate that you do not consent to a search. Even if a search reveals no contraband or anything incriminating, police can read through all records they find, take up sometimes hours of your time while they search, and they often tear up the inside of the vehicle. Such destruction is rarely compensable by the government.
Bryan has also warned viewers to be aware that police officers often lie or exaggerate what has happened. They do this with the blessing and approval of the courts. You know this is probably going on when two or three or more officers turn off their body-worn video speakers in order to have a discussion among themselves, presumably to coordinate their stories about an arrest or other actions they have taken, or to figure out what crime they can charge a person with.
Among non-lawyers, one of the best aggregators is Abiyah Israel, a former paramedic, deputy sheriff, and policeman.
Israel created “We The People University” to educate civilians about their constitutional rights, critique the way many law enforcement officers undermine those rights, and hold police accountable for their violations of rights.
One frequent violation that Israel highlights occurs at traffic stops when the police delay issuing a ticket or a warning within a reasonable time, usually 15 or 20 minutes, though circumstances will determine what is reasonable. (See Rodriguez v. United States.
When routine traffic stops last longer, it is usually because the officer is looking for other, more serious violations of law, such as evidence of driving under the influence of alcohol or drugs, an illegal weapon, stolen property, or illegal contraband. They “fish” for more information from the driver, usually politely, even if disingenuously. They engage in what may appear to be inconsequential conversation. (Examples: “Where you going? Where you coming from? Do you live around here? Where do you work? What are you doing out so late?) In such a situation, no conversation is inconsequential. Answering questions is seldom beneficial to a citizen who is stopped because one question answered leads to another one, and on and on until the officer believes there is reason to get the driver out of the car to be checked for sobriety or weapons, or there is probable cause to search the driver and/or the vehicle.
When a person is pulled over while driving, the officer may have a suspicion that something else is going on — something illegal. Auditors often correctly say, “Suspicion is not a crime.” What the officer needs to legally detain a driver beyond the time it takes to issue a ticket or warning is reasonable, articulable facts that a crime has been committed, is being committed, or is likely to be committed. To be actionable by the police, suspicion must be based on such “specific and articulable facts, . . . taken together with rational inferences from those facts.” (See Terry v. Ohio.)
When questioned by an officer, most informed commentators suggest that it is best to say politely that you would rather not answer questions and inquire whether you are being detained (“Respectfully officer, I would rather not answer questions. Am I being detained?”). That response and question should be repeated as needed and may prod the officer to get on with writing the ticket or warning, even if refusing to answer questions irritates the officer, which is often the case.
A recent article in the Austin American-Statesman included credible allegations that some officers spend their shifts “hunting” for what they consider suspicious vehicles. The officers follow a targeted vehicle until they see a traffic violation they can use to legally pull it over. Such officers seldom respond to 911 calls, preferring to “hunt” for vehicles that look to them as if they could have drugs or guns, according to a former police officer now suing the Austin Police Department for sex discrimination.
If you are a passenger in a vehicle stopped for a traffic violation, or you encounter an officer while walking or sitting in public, an officer may request or demand your identification, but you are not required by law to provide it absent reasonable, articulable facts that a crime has been committed, is being committed, or is likely to be committed by you. The best advice according to many attorneys, along with most police auditors, is to say that you choose not to provide identification unless the officer can give you the reasonable, articulable facts that a crime has been committed, is being committed, or is likely to be committed by you.
Getting an officer to state the reasonable, articulable facts, or showing that the officer fails to do so, can be helpful if you end up being arrested for some crime or are detained. To learn how this can work in actual situations, look at some of the videos discussed, especially those by aggregators, who usually provide two or three videos in a tweet to forty-minute episode, along with their commentary.
At his website and YouTube channel, Israel offers a free ebook, “Surviving The Police.” He has an online course on the same subject and a book that can be purchased through his sites or from Amazon and other booksellers, Living In The World Of Tyranny: What I Saw and Why I Left. His YouTube contributions have pointed me to one reason for the too-frequent denial of rights by the police. The training police officers receive is focused more on the mechanics of how to do the job, rather than on the rights of citizens under the Constitution. The focus should be on how to police while honoring the rights of the people.
It has also been my observation that many people are attracted to police work because they want power over others. Screening for such authoritarian characteristics should be an integral part of the application process for all law enforcement positions. However, I know that finding applicants with the right balance of personality attributes is not an easy task, even for those trained in such work. Israel’s experience points also to corruption in police culture, organization, and operations.
Auditors and litigation
Many auditors are arrested, some frequently. Two of those who have engaged in consequential litigation–that is, litigation that has drawn the attention of government officials and caused them to change their approach to First Amendment rights–are John Gray (HonorYourOath Civil Rights Investigations) and Phillip Turner (The Battousai). They are both unfailingly polite to the police. Gray’s work is discussed here. Since about 2011, he has stood in front of government offices with a hand-lettered sign that reads “God Bless the Homeless Vets.” He frequently greets passersby with those same words. He doesn’t panhandle (which is legal) or block passageways, but many government officials seem offended or nonplussed by his calm, earnest presence.
Phillip Turner, based in Texas, has been doing his work for about ten years, beginning when he was in college. His site is named The Battousai, based on an anime character established during an early interest in gaming, before he began auditing. I haven’t reviewed all of his activities, but he can be seen on YouTube asserting his right to video government facilities and other public venues in San Antonio, Austin, Round Rock, Galveston, Fort Worth, Corrigan, and elsewhere. The case of Turner v. Driver, 848 F.3d 678, 696 (5th Cir. 2017), a decision of the US Court of Appeals for the Fifth Circuit, established the clear right to video a police station and “record police activity” in the three states in the Fifth Circuit’s jurisdiction — Texas, Louisiana, and Mississippi. Now, police officers in these states who arrest someone for merely exercising their First Amendment right of free speech with regard to police activity do not have immunity from lawsuits. In spite of some legal questions about the reach of Turner v. Driver, it has been followed in numerous other cases since 2017. Turner has been the beneficiary of several settlements resulting from his illegal arrests for merely exercising his First Amendment rights.
In a November, 2016 Austin incident, Turner was filming a traffic stop from about 50 feet away in a largely vacant parking lot when two officers shined their flashlights directly into the lenses of Turner’s two cameras, preventing Turner from capturing the scene. Both officers were suspended for ten days. One officer even threatened him if he touched the officer’s flashlight, in spite of physical contact initiated by the officer. Then Police Chief Art Acevedo referred to the officers’ “self-inflicted stupidity” in violating Austin PD’s policies. For his First Amendment activities that were interfered with by the police, Turner has received monetary settlements from the cities of San Antonio, Austin, Round Rock, Fort Worth, Corrigan, Galveston, and Arlington.
Another Texas-based auditor, Justin Pulliam–The Corruption Report, presents his videos and commentary in a more traditional news reporting mode, focusing on the Fort Bend County (Rosenberg, Richmond, Sugar Land) area. He has been arrested on several bogus charges and is in litigation with Fort Bend officials. His formal on-camera style reminds me slightly of the late Houston KTRK television muckraker Marvin Zindler.
YouTube’s feckless ‘Guidelines‘
While I have been critical of some auditors for their extreme name-calling directed at the police, my strongest criticism of the auditing community is reserved for its host – YouTube. The “Guidelines” imposed by YouTube for showing videos are based, so the platform says, “on the protection of the entire YouTube community from harmful content.” Following these “Guidelines,” YouTube prohibits showing scenes of police beatings and brutality. YouTube even has rules making it difficult to link to such scenes on other platforms in spite of the fact that television stations regularly show police brutality videos prohibited by YouTube.
Prohibiting police brutality videos arguably harms the broader community by protecting the police from needed scrutiny. Videos that might cause public opinion to demand more accountability of the police are crucial to protect that broader community. The truth should be more important than the sensibilities YouTube claims to protect. YouTube is irresponsible in this matter and, further, hypocritical — it permits some of the bloodiest, most devastating brutality imaginable by allowing mixed martial arts videos.
In spite of YouTube’s feckless rules, if you are interested in the scope of First and Fourth Amendment rights, you can begin your education about securing such rights by watching auditor videos on YouTube for free (with commercials). To avoid the commercials, you can subscribe to YouTube. Spending a little time checking out some of the sites or people suggested or discussed can not only make you a more informed citizen, it could save your life by letting the officer know you have a basic understanding of your rights and are not someone to be trifled with. Even some police officers, according to their own statements, are finding the YouTube videos of auditors and aggregators, and they are learning from them. The rest need to hurry up so that taxpayers are not out hundreds of thousands of more dollars in unnecessary litigation due to unconstitutional police practices.
[Rag Blog columnist Lamar W. Hankins, a former San Marcos, Texas, City Attorney, has a Doctor of Jurisprudence degree from the University of Houston. Hankins is retired and volunteers with the Final Exit Network as an Associate Exit Guide and contributor to the Good Death Society Blog.]
Read more articles by Lamar W. Hankins on The Rag Blog and listen to Thorne Dreyer’s Rag Radio interviews with Lamar.
