LOCKPORT, N.Y. — 12/14/2023 UPDATE: The case against Daniel Warmus was dismissed by Judge Thomas DiMillo
A Western New York man with ties to the U.S. Capitol riot in 2021 was in Lockport City Court on Wednesday where he faces charges of Harassment.
EDITOR'S NOTE: the text below clarifies and adds context to the timeline of events outlined in the attached video story, specifically how the defendant was charged after he took legal action against the City of Lockport in August.
The charges faced by Daniel Warmus, a mechanic from Alden, have nothing to do with what happened at the U.S. Capitol.
They are instead related to an incident at Lockport City Hall last month when he went to serve papers on the city for legal action related to his activity as a First Amendment Auditor.
Warmus, however, believes the charges, which are violations legally akin to a traffic ticket, are retaliatory in nature and were filed in an attempt to have him charged with violating his federal probation.
First Amendment auditor
First Amendment auditors are activists who exercise their First Amendment right to take pictures and video from public places, and in publicly accessible areas of public buildings, sometimes to the consternation of those working in them.
Warmus' YouTube Channel, which highlights his activities, Auditing Erie County, has nearly 80,000 subscribers.
The focus of his audits are primarily government institutions.
Warmus insists the purpose is not for clicks or kicks, but to exercise his constitutional rights and to encourage and inform others to do so, while holding government officials accountable.
"Rights are like muscles. If you don't exercise them, you'll lose them," he said. "And it's a constitutionally protected activity to video record your public servants in the course of their duties."
First Amendment audits don't always go smoothly.
Auditors are sometime cited for violating building policies, many of which courts have determined themselves are unconstitutional, and are sometimes trespassed or charged with crimes.
Audit leads to FOIL request
In February, after an audit at the New York State Department of Labor office in Lockport resulted in a police encounter, Warmus filed a Freedom of Information Law request for footage from the body worn cameras of the responding officers.
When his request was denied in the spring, he filed an appeal, which was also denied.
In August he went to Lockport City Hall to serve papers for a lawsuit against the city, and also recorded himself doing so.
Ten days later, a police report was generated, and Warmus was charged with harassment involving four members of the clerk's staff. It's something his lawyer says never should have happened.
"He was courteous, he was polite , he did everything right and when he was done he left," said attorney Nick Texido, who represents Warmus in the matter.
And while a reference was made in court that the clerk's office had received hundreds of "harassing" emails and phone calls after Warmus published a video about his efforts, his lawyer noted that his client did not send any of the emails or place any of those calls.
Much more at stake
For many, facing a charge that's not even a misdemeanor may not mean much.
But for Warmus, it could be different.
A year ago, he entered a guilty plea to a federal misdemeanor for entering the Capitol without authorization on Jan. 6, 2021.
Expressing remorse during his sentencing hearing, he said he found himself on the wrong side of history and apologized for his actions.
A judge sentenced Warmus to 45 days in jail, followed by 24 months of probation.
Prosecutors later sought to amend the conditions of his probation to include a ban on his auditing activities, which a judge rejected. However, the judge did order that Warmus not enter police stations to conduct audits. The judge also made clear that Warmus was not to violate any laws.
Because he's still on probation, any kind of charge against him can be risky.
When 2 On Your Side asked if he ever thought to curtail his auditing activities until his probationary period is over, Warmus replied, "some people might think it would be as time to yield to the government and to what wants, but our Founding Fathers didn't yield. We deserve better government. ... I'm not afraid to go up against the government to expose corruption, and I don't think we should wait 15 more months to do that."
"What I advised Mr. Warmus is to not violate any laws," his attorney said. "What he does within those laws I have no problem with."
Because he had been to Lockport City Hall both in February and in April while pursuing his requested materials under FOIL without incident, Warmus questions the timing of harassment charges after his latest visit to serve legal papers against the city in August.
"After the (federal) judge put the conditions in effect...to say that they are using that judge's order to chill my 1st Amendment rights is 100% guaranteed because the first two times I was here they got no different interaction with me, but are now claiming harassment. These people are taking advantage of that and trying to go to town with it."
What's next?
On Wednesday a Lockport city court judge denied a motion by Warmus' attorney to dismiss the harassment charges, but also denied a motion by prosecutors to issue an order of protection involving four staffers of the clerks office, who he is charged with harassing.
Even if the city court judge in the harassment case eventually determines Warmus was guilty, Texido noted it will be a federal court judge who will determine if Warmus violated his probation.
"At the end of the day we trust the federal judge to know what is harassment and what is not, and ultimately it will be that judge that would be making that decision."
Warmus is scheduled to be back in Lockport City Court next month.