LOCKPORT, N.Y. (WIVB) — Constitutional advocate Dan Warmus said all he did was have the City of Lockport served with a lawsuit to challenge the police chief’s refusal to release body-cam footage.
But four city clerks had Warmus, the operator of the YouTube channel “Auditing Erie County,” charged with second-degree harassment, alleging he caused them alarm in August by recording a process server handing over the Article 78 lawsuit in the public government building. Warmus roams public spaces clad with cameras and Cowboys boots, and publishes the videos on his YouTube channel, where he rates how well the locality scored on the audit.
Due to the harassment allegations, Warmus’ freedom could be at stake if a federal judge deems his behavior violated the terms of his probation tied to his participation in the Jan. 6 insurrection of the U.S. Capitol.
Normally, a non-criminal violation like second-degree harassment would not trigger a probation violation.
In July, complaints about Warmus’ audits from the Hamburg Police Department and other government entities led a federal judge to impose a new condition to his probation: if his audits resulted in him being charged with harassment and/or disorderly conduct, then Warmus could be held in violation.
Criticisms of the Youtuber include that he never asks any employees for permission to record them, and that he roams public government buildings without official business to spark controversy for clicks on his monetized social media channel, which has amassed more than 82,000 followers.
In addition, critics accuse Warmus of instigating his followers to “redress their grievances” with public servants who scored poorly in audits. Government officials in Lockport, Hamburg, and other localities said the call to action often results in a barrage of angry phone messages and emails, some of which have been characterized as vulgar and threatening.
Warmus, on the other hand, said he does not need permission to record in public, and deems the controversial First Amendment audits of government facilities official business that reinforce his right to be there. In addition, Warmus said he has a disclaimer that warns followers against making threats or harassing public servants.
As for the Lockport incident, Warmus denied he harassed anyone.
Rather, he views the charges as retaliation for his FOIL request and subsequent lawsuit challenging the city’s denial.
“It does take a toll on me as a person,” Warmus said. “Because I don’t want this country to be a place where you have to worry about if I file a lawsuit, is the government going to retaliate against me now? And that’s literally what happened in Lockport.”
Joseph Finnerty, a media attorney in Buffalo, warned earlier this year that the federal probation conditions placed on Warmus in July could chill his First Amendment audits, which he views as journalism.
Finnerty said he did not see any harassment in the video Warmus published of the Lockport incident, but acknowledged a long history of government officials having both traditional and citizen journalists charged with violations to curb their watchdog reporting.
“I also said at that time that any municipality who’s going to try to use these tactics to interfere with those rights ought to be very, very circumspect and very, very careful, because this can result in a civil rights lawsuit,” Finnerty said.
From audit to lawsuit
On Feb. 14, Warmus recorded an audit at the state Department of Labor office in the City of Lockport that he published on his YouTube channel.
During the audit, a Lockport police officer entered an office area to speak with one of the DOL employees. The next day, on Feb. 15, Warmus filed a FOIL request for the body-cam footage of that specific officer, hoping to learn what he and the DOL employee discussed behind closed doors.
The city denied the request on March 20, stating that the records “are compiled for law enforcement purposes and may be relative to a pending law enforcement investigation.”
Warmus appealed, but the city denied that, too, for the same reason.
His final step was to file an Article 78 lawsuit, which is why he was in the city clerk’s office on Aug. 17 with a process server.
Warmus was in court last week for the Article 78 lawsuit challenging his FOIL denial, where both his attorney and the city discussed a possible resolution. The two sides have until Nov. 13 to negotiate a resolution.
Warmus also appeared in court last week for the harassment violations, where his attorney requested discovery documents from the city, including copies of any communications that the city deemed harassment.
According to their complaints, the four clerks said Warmus entered the building with a camera to film them without their consent, which caused them each alarm.
An affidavit from Senior Account Clerk Carol Edwards states Warmus “looked at me with a blank stare” and videotaped while she helped a couple with a marriage license, “while they were telling me their private information.”
Emily Stoddard, a clerk, said Warmus “caused me so much alarm I left and went into Clerk Lanzo’s office and then eventually over to the police department.”
Sarah Lanzo, the city clerk, stated Warmus did not have a legitimate purpose for being there, and he held up other residents who were there to conduct official business.
Warmus said the roughly 10-minute video of the city being served with the lawsuit does not show much interaction with the clerks, let alone any harassing or annoying behavior.
Lockport Police Chief Steven Abbott’s affidavit states Warmus ignored calls by clerks to leave the Department of Labor on Feb. 14, which resulted in a complaint.
“Warmus, although peaceful in the video, was clearly interrupting employees’ workdays,” Abbott said in his affidavit.
Abbott said Warmus published a video showing a computer screen inside a police vehicle of a report for an unrelated harassment matter, which led to one of his YouTube followers requesting details in a Freedom of Information law request.
In addition, Abbott said shortly after Warmus published the videos of the Lockpurt audits with the work contact information for some employees, the city was “inundated” with emails, phone calls, and voice mails with “demeaning and harassing content.”
Therefore, Abbott said he was concerned Warmus would again publish the names of more employees, which would cause “an extreme level of threats and intimidation to them” that several other government officials and police officials have complained about with Warmus in the past.
“It is clear that Warmus regularly incites these types of abuse of governmental and law enforcement employees with numerous Western New York municipalities by his many followers,” Abbott said.
As a result, Abbott recommended denying Warmus’s body-cam FOIL request because “the records were compiled for law enforcement purposes and may be relative to a pending law enforcement investigation.”
Warmus and attorney rebut city
Warmus rebutted the allegations in a 45-minute video posted to his YouTube channel. He said the clerks inaccurately described their interactions with him and called Abbott a “Chief of lies.”
Warmus, who is a mechanic by trade and lives in Alden, told News 4 Investigates that he is not trying to incite controversy.
He said he has no control over how public servants might respond to him, and he publishes non-controversial videos in which government officials get passing grades. Some government leaders thanked Warmus for bringing to their attention his concerns, including a letter from a former City of Elmira police chief who changed policy to include hand-written officer complaint forms that residents can fill out at home.
“Now, if I wanted to have 200,000 subscribers, or if I was there for clicks and views, the best way for me to do that would be to become an entertainment auditor, to cut down the videos, to not show pass videos,” Warmus said.
Finnerty, who closely follows the Warmus cases, said Warmus has a right to be in a public government building.
“He’s there to oversee the conduct of government, and that’s what journalists do,” Finnerty said. “That’s what citizen journalists do and we all have a right to see how government operates.”
In court documents, Brittanylee Penberthy, Warmus’s attorney for the Article 78 case, argued neither the city nor the police chief cited an actual exemption in the law to lawfully deny Warmus the body-cam video.
For example, police records can be exempt from FOIL requests if they have the potential to jeopardize an active investigation. But Penberthy said there must be an active investigation, not “a pending investigation”, as the chief stated in his affidavit.
“However, it is evident there is no actual investigation ongoing,” Penberthy said in the motion. “There is not a single portion of any of Respondent’s motion papers to indicate an active investigation.”
Penberthy said if law enforcement agencies were able to deny FOIL requests like the City of Lockport did with Warmus, then “all police jurisdictions could then simply issue a blanket denial to all body camera FOIL requests on this baseless suggestion the video could be utilized in a case at some point in the future.”
“This runs afoul of the intent at governmental transparency,” she said.