They visit government buildings armed with a basic knowledge of the Constitution and cell phones to record their interactions with public servants.
First Amendment “auditors” is what they call themselves and the goal is to test government workers’ knowledge of personal rights, especially police.
Daniel Warmus, a self-described First Amendment auditor, is the founder of Auditing Erie County. His YouTube channel has more than 18,000 subscribers and his videos have been viewed more than 5.1 million times since March 2001. He also co-owns a mechanic shop in West Seneca.
While auditors rarely do interviews with reporters, Warmus agreed to meet with News 4 Investigates.
Warmus said he’s not trying to pick fights or embarrass anyone. Rather, he believes he serves those in authority a good dose of checks and balances and accountability.
“One bad cop can foil a whole department,” Warmus said.
Warmus is also one of more than 800 people charged for participating in the Jan. 6 riot at the Capitol. Court records state that Warmus entered the Capitol and allegedly smoked a marijuana joint while inside. Warmus declined to discuss his case because it is still pending, but he did tell a reporter that he regrets entering the building.
First Amendment Audits are growing in popularity after the first group launched almost a decade ago. Most of the auditors monetize their work by publishing the videos on YouTube. Clicks and views equal revenue, although Warmus declined to say how much he makes.
Some audits turn out to be great press for the locality when a public servant respects individual rights. Others have turned into arrests or scuffles. Even one auditor was shot.
In February 2019, a security guard fired a warning shot into the ground and a bullet fragment struck the auditor, “Furry Potato”, in the leg outside a Los Angeles synagogue. Prosecutors declined to file charges, stating that they did not have sufficient proof that the security guard used unreasonable force.
About five months ago, a private security guard in Buffalo City Hall swatted the phone out of the hands of a local auditor called News Now Buffalo. The auditor did not respond to emails requesting an interview.
And now some police officers are trying to prevent the audits from being published on YouTube by blaring loud music to trigger the website’s copyright infringement censorship.
For example, a Santa Ana police officer caused a disruption in one neighborhood after he blasted Disney music from his patrol vehicle to prevent an auditor from publishing a video.
With more than 50 audits under his belt, not all have gone smoothly for Warmus, either.
Police in Erie, Pennsylvania, detained him in a jail cell for almost an hour before releasing him without any charges.
And Warmus sued the Dunkirk Police Department to gain access to public records after an audit that caught the attention of two police officers who didn’t want him photographing police vehicles.
“They think I’m down there to antagonize them,” Warmus said.
He swears that is not the case. Rather, Warmus said he seeks to “bridge the gap” between the public and law enforcement through years of unrest after the murder of George Floyd.
Warmus doesn’t always get the cold shoulder.
In March, the Village of Lancaster’s Superintendent of Public Works, William Cansdale, gave Warmus a tour.
In April 2021, City of North Tonawanda Police Capt. Thomas Krantz sat down with Warmus for a 10-minute interview.
In May 2021, Amherst Supervisor Brian Kulpa returned Warmus’s call after he complained about how Amherst police treated him during an audit earlier that year.
Kulpa, who said he understood why officers were “taken aback” by Warmus, thought they could have handled it better rather than accusing him of trespassing and refusing to give him an officer complaint form.
“I don’t want to get into a hypothetical, but you’ve got to carry yourself with a certain decorum, and at the end of the day you can’t let yourself get provoked,” Kulpa said.
In August 2021, Warmus audited the Dunkirk Police Department.
According to Warmus, the Dunkirk visit is the only time he actually had some concern for his safety.
Warmus took photographs of a police vehicle, and sometimes he set his camera up against the car window to get a view of what was inside.
An officer asked Warmus what he was doing, to which he replied, “Just taking a couple of photos.”
“What did you say, for what?” the officer responded.
“Just working on a story,” Warmus said.
“A story? For who?” the officer said.
“Oh, I can’t tell you that right now,” Warmus said.
“OK, what’s your name?” the officer asked.
“It’s an investigation,” Warmus said.
“Ok, what’s your name?” the officer said.
“Just working on a story down here,” Warmus said.
“OK, what’s your name?” the officer asked again.
“Do I have to answer that question?“ Warmus said.
“Well, you’re taking pictures of our cars, so I’m feeling that’s a fair trade off,” the officer said.
The officer told Warmus that he could either give up his name or “move along.”
But Warmus asserted that he has a right to be in a public space to take photos of police vehicles.
The officer’s voice got sterner: “You can move along now off of police property, please.”
“I’ll move along when I am done with my business,” Warmus said, before the officer interrupts in an angrier tone, “No, you’re on police property. You can leave! If you don’t have a police problem, you can leave.”
The two argued over whether the municipal parking lot was public or private property, before the officer again asked Warmus to identify himself, and told him, “maybe this would go a little better but this is just a random guy taking pictures of police cars?”
“Is it illegal?” Warmus asked.
“I didn’t say it was illegal, but it’s strange,” the officer said.
The officer, clearly frustrated, called for backup. A second officer came outside, identified himself as a sergeant, and walked toward Warmus.
“You don’t need to be taking photographs of the inside of our cars,” the sergeant said.
This went on for about 10 minutes before Warmus entered city hall to request a complaint form. A police official told him they do not give out officer complaint forms; they require the forms to be filled out in front of a supervisor, a process Warmus protested as unfair and intimidating.
Warmus filed a FOIL request seeking the officer complaint form and body camera footage from the two officers he encountered outside, among other records.
Warmus published the video on YouTube and urged his followers to call and email the police chief and the mayor with any criticism.
In a Sept. 20, 2021, response to Warmus’s Freedom of Information law request, Dunkirk Police Chief David C. Ortolana wrote that after Warmus posted the first video, “there have been several threats made toward our facilities, our Officers and statements made that they will wait in the parking lot and follow our Officers home.”
Therefore, Ortolano declined the FOIL request, citing the exemption for active investigations.
“Due to this threat to the safety of our Officers, facilities and families there is an ongoing open investigation and there will be no information released,” he wrote.
Ortolano declined News 4 Investigates requests for an interview and, when asked, the city did not produce any of these threats.
City Attorney Richard Morrisroe confirmed that there was an “avalanche” of emails, calls and Facebook messages. But he said they were largely spurred by a YouTube video from one of the most popular auditors in the country, James Freeman of Texas, who alerted his 375,000 subscribers to what happened in Dunkirk.
“Auditing Erie County visited Dunkirk New York last summer to check up on the public servants,” Freeman wrote. “He found that they were rude, aggressive, and that there was absolutely no such thing as a complaint form for a complaints [sic] on police officers.”
Freeman also urged his followers to call Dunkirk leaders and the city attorney.
Morrisroe said that while the Dunkirk police officers could have handled the situation better, they did not overreact, and the police chief had a valid reason to deny the FOIL request.
“It wasn’t like a threat or challenge,” Morrisroe said about the FOIL denial. “It was the chief has grounds to deny you the information.”
Dunkirk officials eventually released the documents, and a judge declined to award Warmus his attorneys fees.
Erie Police detain Warmus
Warmus sometimes takes requests for audits and he said fans urged him to visit the Erie Police Department in Pennsylvania, about 90 minutes southwest of Buffalo.
The Erie Police Department is the subject of several civil lawsuits over the past few years, which have spurred calls for a civilian review board to investigate complaints of police misconduct.
In May 2020, during civil protests, an Erie police officer was caught on video kicking a protester while she was sitting on the ground.
In November 2019, someone caught on video a police officer brutally punching a Black man outside of a tavern, rendering him unconscious. The video, however, was not made public until it was shown in court.
Warmus accepted the challenge and in April he drove to Erie, where his audit started off as they normally do, with him taking photographs of police cars.
“Hey, what are you doing, man?” one officer can be heard saying.
“Just taking some photographs out here in public,” Warmus said.
The officer tells Warmus that the parking lot is not for public access.
“What are you taking photos for, like inside of our cruisers and stuff, like what’s the purpose for that?” the officer asked Warmus.
“Just taking some photographs, anything I can see from public,” Warmus said.
“That’s just weird,” the officer responds.
Warmus tried to ignore the officers, but more showed up and followed him around the parking lot.
“Do I come take photos of your cars when I’m off duty?” said an officer, who later identifies Warmus as “one of those guys” who “baits” cops.
Another officer accused Warmus of trying to open her car door and leaving dirt on the handle. Warmus often has grease on his hands from being a mechanic, but he never touched a civilian vehicle, he said.
Warmus continued taking video, until the encounter escalated into him being handcuffed and thrown in the city jail for over 50 minutes. He left his phone recording on a ledge of the police building. The officer who handcuffed him said Warmus was being detained, but never said for what when they were outside.
Warmus said the officer twisted his arm and wrist, and tightly clamped the handcuffs, which broke some skin on his right wrist.
Erie police officials did not respond to News 4 Investigates inquiries.
Warmus said he was released without being charged and is considering filing a civil lawsuit for violations of his First and Fourth amendment rights.
‘Don’t engage with these folks’
Patrick Phelan, the executive director of the New York State Association of Chiefs of Police, said the organization has issued warnings to law enforcement agencies about the growing number of audits targeting police.
“It’s clear that the motivation for the people that are making the videos are to attempt to bait police into some type of confrontation,” Phelan said. “And I think for the most part, for police, it’s really a training issue to make sure that you don’t engage with these folks. If they’re legally recording, just let them do it.”
Kulpa, the Amherst supervisor, said he personally does not have any problem with being audited. But he said auditors need to understand that recording public employees while working runs contrary to their normal day.
“The normal day in a life of a public servant, whether they’re working at a police desk or working in a court or working in an assessor’s office or a clerk’s office, isn’t to have somebody put a camera in your face and ask a bunch of questions and tell you that they’re allowed to be in an area,” Kulpa said.
Luke Moretti is an award-winning investigative reporter who has been part of the News 4 team since 2002. See more of his work here.