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Ducey signs Arizona law making it illegal to video police within 8 feet
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Ducey signs Arizona law making it illegal to video police within 8 feet

Measure will likely face constitutional challenges

  • A woman records Tucson police officers following a vigil for Jose Ingram-Lopez, a 27-year-old man who died in custody in April 2020.
    Paul Ingram/TucsonSentinel.comA woman records Tucson police officers following a vigil for Jose Ingram-Lopez, a 27-year-old man who died in custody in April 2020.

Despite serious questions about its constitutionality raised by legal experts, Arizona Gov. Doug Ducey signed a bill into law making it illegal to video police within 8 feet of them at work.

Introduced by state Rep. John Kavanaugh in February, House Bill 2319 makes it "unlawful for a person to knowingly make a video recording of law enforcement activity if the person making the video recording does not have the permission of a law enforcement officer and is within eight feet of where the law enforcement activity is occurring."

People who violate the new law may face a misdemeanor charge and up to 30 days in jail, though only after ignoring a verbal warning.

Exceptions include people at the center of an interaction, and the law shifts slightly when it comes to enclosed structures like homes or businesses, allowing a person who is "authorized" to be on private property to record from an adjacent room or area less than eight feet away. However, a police officer can still determine the person is "interfering in the law enforcement activity or that it is not safe to be in the area" and order someone to "stop recording or to leave the area." This also applies to the occupants of a vehicle stopped by police.

The measure was one of 47 bills Ducey signed into law Wednesday.

When the bill was introduced, it created immediate controversy as civil rights groups argued the law was unconstitutional because it violates the 1st Amendment and "runs counter" to the "clearly established right" to photograph and record police officers.

Video shot by bystanders have captured police killings, including the death of George Floyd in Minneapolis more than two years ago. Floyd's death prompted a national outcry after video showed him pinned to the ground by four police officers, including one later identified as Derek Chauvin. In the recording, Chauvin forces his knee into the man's neck for more than eight minutes, as the 46-year-old man pleads for his life, telling the officers "I can't breathe."

Chauvin was sentenced to 20 years for violating Floyd's rights on Thursday. A year earlier, a jury convicted the former police officer of second and third-degree murder, and he was sentenced to 23 years in prison.

Kavanaugh, a former detective with the Port Authority in New York, has pushed for this kind of legislation for years, including a similar bill in 2016. He also introduced a bill requiring the redaction of people into police body-cam footage earlier this year. The bill also included language that made it illegal to record a police officer within 8 feet "without their permission," and made first-time offenses punishable with a fine, but that language was stripped from the bill.

HB 2319 moved through the state House and Senate along party lines, and landed on Ducey's desk last Friday.

In the original draft of the bill, Kavanaugh sought a 15-foot limit, but that was soon limited to 8 feet. However, that doesn't change much about the law, said Mickey Osterricher, general counsel for the National Press Photographers Association, who called the distance "arbitrary."

As Osterricher wrote in a June 30 letter to Ducey, while the right to record the police is not absolute and "subject to reasonable time, place and manner restrictions" the NPPA believes requiring the "permission of a law enforcement officer" and "setting a minimum and arbitrary distance of eight feet in between a law enforcement officer and the person recording, would not survive a constitutional challenge and is completely unworkable"  in situations like demonstrations and protests "where there are multiple officers and people recording."

"We are extremely concerned that this language violates not only the free speech and press clauses of the First Amendment, but also runs counter to the 'clearly-established right' to photograph and record police officers performing their official duties in a public place," wrote Osterricher, and deputy general counsel Alicia Wagner Calzada. 

They added that because the law "only applies to a law enforcement officer being recorded" it fails "constitutional muster." The U.S. Supreme Court has previously ruled that laws swhich “restricts visual and auditory depictions, such as photographs, videos, or sound recordings" because of their content are "presumptively invalid," wrote Osterricher and Calzada.

"Under this law, a police officer could approach someone with a body-camera and stand nose-to-nose with them, but they can't record the police officer within eight feet of them, or be subject to the law," said Osterricher during an interview with the Tucson Sentinel.

"This is particularly problematic during a demonstration with multiple people and multiple police officers," he said, arguing that during a protest there could be a "pinball effect" when someone regularly violates the law as police shift around them. "Is everyone supposed to run around with a tape measure? It's just not workable," Osterricher said.

Similarly, earlier this year the ACLU of Arizona called the bill "unspecific, unrealistic, and unconstitutional."

"Our ability to record police encounters in public is protected by the 1st Amendment, but Arizona lawmakers want to pass a bill that would criminalize the exercise of that right. HB2319 would make recording cops closer than eight feet away a crime," said the ACLU of Arizona said in February. "Proponents of this bill claim that eight feet is more than close enough to capture the scene, but this bill does not account for real-world scenarios like protests or along busy roads where people can’t keep their distance. Furthermore, HB 2319 lacks specificity and gives officers too much discretion — making it the bill more apt to protect bad cops who want to hide misconduct than those who are doing their job properly with a bystander recording nearby."

Along with the NPPA, the Radio and Television Digital News Association and the Reporters Committee for Freedom of the Press, sent the letter, and nearly two dozen news organization signed on urging Ducey to veto Kavanaugh's bill, and hinted at future legal action challenging HB2319's constitutionality. That included the Associated Press, the National Newspaper Association, and the New York Times.

"Given our concerns and legal citations in opposition to HB 2319, we respectfully request that you veto this bill to avoid the cost to taxpayers of a very possible constitutional court challenge should it become law in Arizona."

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