1st Amendment & Freedom of Expression

What does the 1st Amendment guarantee?

• Congress shall not make laws restricting:

  • The establishment of religion or its free exercise.

  • Freedom of speech or of the press.

  • The right to peaceably assemble and petition the government.

• Guarantees freedom of expression by prohibiting restrictions on the press or individual speech.

• Prohibits retaliatory actions against those engaging in protected speech.

• Freedom of the press is a fundamental liberty guaranteed by the First Amendment, and courts and legislative bodies are hesitant to infringe upon it.

What is “The Press”?

• Media describes any channel of communication.

• This can include anything from printed paper to digital data.

• In general, media refers to television, radio, newspaper, internet, and other forms of communication.

What is “Social Media”?

• Social media is a collective term for websites and applications that focus on:

  • Communication

  • Community-based input

  • Interaction

  • Content-sharing

• People use social media to stay in touch and interact with:

  • Friends

  • Family

  • Businesses

  • Organizations

  • Various communities

What are the limitations of the 1st Amendment regarding recording?

• Public space includes areas that are open and legally accessible to the public, such as parks, streets, public buildings, and common areas of government buildings.

• Rights to record may be limited by “time, place, or manner” restrictions.

• Restrictions must be:

  • Content-neutral

  • Narrowly tailored to serve government interests

  • Leave reasonable avenues for communication

• Example: Requesting someone move from the street to the sidewalk for their safety.

• Prohibited actions:

  • Trespassing on private property

  • Placing oneself or others in physical danger

  • Entering a marked crime scene

  • Entering areas not open to the general public

  • Interfering with police activities

• Recording itself is not interference, but actions separate from just recording must be articulated.

What are the goals and actions of 1st Amendment Auditors and Citizen Journalists?

• Goals:

  • Uphold the general rights of the public.

  • Seek to agitate law enforcement and post unflattering responses on social media or live streaming sites.

  • Fish for constitutional violations to pursue civil action under 42 U.S.C. 1983.

• Their behavior is often designed to provoke reactions that could be viewed as violations of first amendment rights.

• They are on social media, in your face, and increasing in numbers.

What is 42 U.S.C. 1983 and how does it apply in law enforcement?

• 42 U.S.C. 1983: Civil action for deprivation of rights.

• Questions to consider:

  • Was the action reasonable?

  • Was there reasonable suspicion or probable cause for detention or arrest?

  • Based on the totality of the circumstances?

  • Was there pre-existing case law?

• Qualified Immunity: Protects government agents if:

  • Arguable probable cause exists.

  • A mistake was made in good faith (reasonable belief).

• Key to overcoming claims:

  • Having probable cause to detain or arrest based on facts.

  • Belief that a crime was committed or about to be committed, and the person contacted committed the crime.

• Contempt of cop is not a crime!

• Seizure of property must follow warrant requirements:

  • Property must contain contraband or evidence of a crime.

How do 1st Amendment Auditors and Citizen Journalists control the narrative?

They create the videos, posts, messaging, and comments, allowing them to control the narrative of the interaction.

What are some frequently used tactics by 1st Amendment Auditors and Citizen Journalists?

• Show up to calls for service or traffic stops.

• Shout and attempt to provoke a response.

• Ask legal or constitutional questions.

• Call dispatch anonymously with bait calls (e.g., party with a gun) to provoke a significant police response.

• Engage with responding deputies while filming.

• Film on public property and police stations to "test" citizens' rights.

• Aim to get staff members to interfere with the recording (which they view as a "fail").

• May intentionally provoke an alarming response.

• Wear tactical vests or clothing.

• Open carry weapons.

• Hope for payouts/settlements for wrongful detention, disrupting filming, or confiscating property (e.g., phone/camera).

What does the policy 201.2.10 "Courtesy" state?

• Sheriff's employees must be courteous and tactful when performing their duties.

• Employees should control their tempers, exercise patience, and discretion.

• Do not engage in argumentative discussions, even when provoked.

• Employees must avoid using:

  • Coarse, violent, profane, or insolent language or gestures.

  • Expressing prejudice concerning race, religion, sex, national origin, lifestyle, or similar personal characteristics.

What do the policies 201.2.27 "Identification" and 401.4 "Responsibilities" state?

• 201.2.27 IDENTIFICATION:

  • Sheriff's employees must carry badges and ID cards on their person while on duty or armed, unless impractical or dangerous.

  • Employees must provide their names and/or badge numbers to anyone who requests this information when on duty or holding official capacity, unless withholding is necessary for law enforcement duties or authorized by a supervisor.

• 401.4 RESPONSIBILITIES:

  • Deputies must provide a business card to anyone detained in a traffic stop who was not cited or arrested.

  • The business card must include:

    • Deputy's name

    • Division

    • Seniority number

    • Telephone number for feedback (positive or negative) regarding the stop (CRS § 24-31-309(4)(a))

• 201.2.31 IDENTIFICATION AS PEACE OFFICER:

  • Employees must identify themselves by displaying their official badge or ID card before taking law enforcement action, unless impractical, unfeasible, or when the identity is obvious.

What do the policies 401.4.1 "Reason for Detention" and 414.2.1 "Initiating a Field Interview" state?

• 401.4.1 REASON FOR DETENTION:

  • Deputies must be able to articulate reasonable suspicion to justify a detention, independent of the individual's membership in a protected class.

  • Written documentation (e.g., arrest report, Field Interview (FI) card) should include facts that give rise to reasonable suspicion or probable cause.

  • No requirement to document a contact that would not otherwise require reporting.

• 414.2.1 INITIATING A FIELD INTERVIEW:

  • The deputy should be able to point to specific facts that warrant the stop based on the totality of the circumstances.

  • Examples of facts that may justify a stop include:

    • Appearance or demeanor suggesting involvement in criminal activity.

    • Actions indicating engagement in a criminal act.

    • Presence in a suspicious area or at an inappropriate hour.

    • Carrying suspicious objects or excessive clothing indicating a weapon.

    • Being in the vicinity of a recent crime.

    • Matching the description of a suspect in a recent crime.

    • Prior criminal record or involvement known to the deputy.

What does the policy 414.3 "Consensual Searches" state?

• A deputy may conduct a consensual search of a person or their property if:

  • The person has apparent or actual authority to provide permission for the search (e.g., vehicle or effects).

  • The person is informed that they are being asked to voluntarily consent to a search.

  • The person is informed that they have the right to refuse the request to search.

  • The person voluntarily provides consent.

• Deputies should explain the scope of the search when asking for consent.

• If the person withdraws consent, deputies must stop the search.

• Deputies should obtain written consent when possible; if not, they should record verbal consent.

What does policy 1021.5(d) state regarding uniform nameplates?

• Employees must wear a regulation nameplate or authorized embroidered/stitched nameplate while in uniform.

• The nameplate must display the employee's first and middle initial, and last name.

• Employees serving 5 continuous years or longer will receive an additional backing plate with their year of hire.

• If an employee desires something other than legal initials, approval from the Sheriff or designee is required.

• The nameplate must be centered on the right pocket flap, below the stitching, and bisected by the pressed shirt seam.

• The nameplate should be equidistant from both sides of the pocket.

What does SB 20-217 require regarding peace officers' conduct and reporting?

• It makes it unlawful for governmental authorities to engage in a pattern of conduct by peace officers that deprives individuals of their constitutional rights.

• Peace officers must have a legal basis for making any contact, whether consensual or non-consensual, for law enforcement purposes or investigations.

• After contact, demographic information of the person contacted must be reported to the agency.

• Peace officers must provide their business card to any individual detained in a traffic stop but not cited or arrested, without the individual needing to ask.

How should officers handle interactions with 1st Amendment Auditors and Citizen Journalists?

• Have a plan for interactions.

• Be polite, courteous, and friendly ("kill 'em with kindness").

• DO NOT TAKE ANYTHING PERSONALLY — they are trying to provoke a reaction.

• Aim for a friendly exchange.

• Polite responses maintain community trust and are less likely to be posted online.

• Always assume your interactions are being recorded.

• If possible, have a plainclothes (shirt & tie, business) or soft uniform (agency polo) deputy approach kindly (with body-worn camera).

• Mind your verbal language, body language, and temper.

• Smile and stay calm.

• Do not touch the auditors.

• Be aware of visible or hidden cameras.

• Offer a tour, ride-along, or a job application to engage positively.

• If possible, watch from a distance or even monitor the auditor’s live stream to observe their actions and ensure that everything is handled appropriately.

What is a best practice when dealing with 1st Amendment Auditors or Citizen Journalists regarding legal debates?

• Don’t challenge or debate the auditor on the law.

• They are likely knowledgeable about the specific laws they reference, and debating them could escalate the situation, possibly resulting in financial and legal consequences.

• If inaccurate statements are made, they will be highlighted in their final footage.

• You can always walk away if necessary.

What is a best practice for dealing with 1st Amendment Auditors or Citizen Journalists at ACSO buildings?

• Have easily visible signage that indicates or separates public from private or restricted areas at ACSO buildings.

• This helps clarify boundaries and ensure compliance with restricted access areas.

What is a best practice for handling 1st Amendment Auditors or Citizen Journalists at a crime scene?

• Use crime scene tape to section off large areas to prevent local media, independent media, and 1st Amendment Auditors from getting too close or interrupting the investigation.

• Establish:

  • Inner perimeter for investigation purposes.

  • Outer perimeter for media, auditors, and passerby.

What are the best practices for engaging with 1st Amendment Auditors or Citizen Journalists on public property?

• Do not engage unless necessary.

• Engage only if they are in restricted areas where access is justified (e.g., crime scenes).

• On unrestricted public property, they are legally allowed to videotape, unless extraordinary circumstances exist.

What are the best practices for handling instances of suspicious photography and media requests by 1st Amendment Auditors or Citizen Journalists?

• Update Policy/Post Orders regularly with procedures for handling media requests and suspicious photography.

• Recognize the difference between surveillance and First Amendment audits; both require different responses.

• Inquire about the nature of the visit and the reason for filming, but auditors do not have to answer or stop filming if on public property.

• Know the proper procedure for handling these situations after the inquiry.

What is a best practice when dealing with 1st Amendment Auditors and Citizen Journalists?

Remain Calm: Stay composed during the interaction, regardless of provocation, to ensure a professional response and avoid escalating the situation.