Listen to JazzPHX
News of the day, behind the scenes and more!
Listen live weekdays at 9 a.m.
New Arizona law restricting video recording police sparks legal battle
Download mp3 (6.39 MB)
Getty Images
In July, Arizona Gov. Doug Ducey signed a bill into law that would make it a misdemeanor for bystanders to video record police if they’re within 8 feet. That law is now the subject of a legal battle and has been temporarily blocked by a federal judge.
Republican state Rep. John Kavanagh, a former officer with the Port Authority of New York and New Jersey, sponsored the bill.
“The inspiration was my own 20-year police career, where I made a lot of street arrests,” he said.
Howard Fischer/Capitol Media Services
Rep. John Kavanagh
Critics of the measure have pointed out that cellphone videos have been key in holding police accountable in cases like the 2020 murder of George Floyd.
The American Civil Liberties Union and a coalition of news organizations filed a federal lawsuit to stop the Arizona law. David Bodney, an attorney with Ballard Spahr representing the news organizations, said he found the law unusual and unworkable.
“We’ve seen, really, nothing quite like this in Arizona, and the statute was remarkable as an outlier nationally,” Bodney said.
The law is unnecessary, Bodney said, because other laws already prohibit interfering with law enforcement activities. He said there are also potential issues with enforcing the 8-foot rule.
“Does that mean the police can seize a person’s cellphone?” Bodney asked. “Might they be seizing a cellphone of a person who is not recording but merely looking at text messages or taking a photograph, which was not prohibited by the statute?”
Even if someone were filming, Bodney said, different situations and evolving circumstances may present a challenge.
“It’s really unworkable when you think about it,” he said. “Typical law enforcement activities involve multiple police officers, and one officer could say, ‘Fine, go ahead and record,’ and then another officer moves within 8 feet of the person recording, and suddenly there’s a potential crime on our hands.”
Kavanagh said this kind of rule is not uncommon, and it should be easy to estimate the 8-foot boundary.
“The U.S. Supreme Court said that it’s constitutional to keep protesters back 8 feet from the entrances to abortion clinics,” he said. “There has been no problem with estimating 8 feet. You can’t park your car closer than 10 feet to a fire hydrant. I’ve never heard of any issue about, ‘I can’t tell what 10 feet is.’ So, that’s really a bogus argument against the bill.”
Ballard Spahr LLP
David Bodney
Even if the distance becomes difficult to gauge, it should be easy to tell when the rule is violated, according to Kavanagh.
“If there’s a disagreement, the cop’s going to make it clear when the cop gives the warning, ‘You must get back 8 feet,’ that the person’s not complying,” Kavanagh said. “So it’d be pretty tough for the 8-foot distance rule to cause problems.”
Some say this law catches free speech in the crossfire.
“It violated the First Amendment rights, not only of the press, news organizations, but of any member of the public who might pull out a cellphone to record,” Bodney said.
Joseph Russomanno, a mass communication law professor at Arizona State University, said this issue concerns journalists and the public alike. There is a standard of law that there is no privacy in public, he said, which opens up government officials to being recorded.
“If something is happening in public, especially government officers [doing something], then citizens, arguably, should have every right to see what they do,” Russomanno said, “and, as a tangent of seeing what they do, to be able to record what they do.”
Kavanagh said the main issue the law aims to address is officer safety. People can still record officers, he said, but must back up.
Arizona State University
Joseph Russomanno
“People you don’t know sneaking up, especially from behind, can distract you,” Kavanagh said. “Even if they don’t have an evil intent, during that distraction you can be assaulted by the person you’re contacting in an enforcement situation, or they can escape, or they can hide evidence.”
Kavanagh said that after a previous attempt to pass this bill, safety concerns were brought to him regarding people getting close to officers.
“I got a call from an officer in Tucson saying there’s a group doing that in Tucson and it was very dangerous,” he said.
The group Bodney represents has asked the federal judge in this case to permanently block the law.
Kavanagh said if the law is permanently blocked, he will go right back to the drawing board: “I will rework this from now until doomsday until I get it right.”
Bodney said he hopes Kavanagh will approach a new draft of the law with the press and public in mind: “If he does go back to the drawing board, may he do it with our constitution, and our constitutional rights, in mind.”
