PHOENIX — State lawmakers have approved legislation that foes say will make it harder for individuals to police the police.
HB 2319, waiting for action by Republican Gov. Doug Ducey, would make it a crime to make a video recording within eight feet of any “law enforcement activity.’’
A first-time offense would get someone off with a warning; repeat violations could result in the would-be videographer being put behind bars for 30 days.
It’s a bid by Rep. John Kavanagh, R-Fountain Hills, a former police officer, to provide what he believes is a necessary buffer between officers and observers.
“Having been a cop for 20 years, I can tell you that when somebody gets real close, that you don’t know, when you’re taking enforcement actions or dealing with any potentially dangerous situation, you worry,’’ he said.
Kavanagh said concerns include whether the person taking the video and being that close is a friend or accomplice of the person being questioned and might attack.
“Even if it isn’t, you’re still distracted,’’ he said.
But the proposal raised practical issues.
One is whether someone knows they are within eight feet of something that would qualify as law enforcement activity. In fact, the original version of the bill never defined what that is.
Kavanagh agreed to add language saying it includes questioning a suspicious person, conducting an arrest, issuing a summons, enforcing a law, or handling an emotionally disturbed or disorderly person.
The bill was further altered to say it applies only when the person making the recording “knows or reasonably should know’’ where the police activity is occurring.
House Minority Leader Reginald Bolding, D-Laveen, said that still makes it a bad idea.
“Every single (legislative) session we talk about opportunities to bridge trust between the community and police,’’ he said. “And every single session we see a bill that further and further deepens that wedge.’’
Bolding said video recording devices have provided people around the country the opportunity to see “what happens every single day in many communities.’’
“To criminalize any type of recording when many members of the public simply want to ensure that there is fair, balanced enforcement is a step in the wrong direction,’’ he said. “This bill will be interpreted as a bill that is trying to make it more difficult for members of the public to have accountability.’’
Sen. Martin Quezada, D-Glendale, said that is a crucial issue.
“I don’t think anybody can deny right now that there is a lack of trust between law enforcement and the communities that they serve,” he said.
Rep. Andres Cano, D-Tucson, said HB 2319 sends the wrong message.
“I thought we were about being transparent,’’ he said. “And I thought we were about being able to give Arizonans access to the kind of information that they want to see. And if there is something happening, why are we scared of daylight?’’
Kavanagh argued that, given the current technology of video cameras and cell phones, there is still plenty of opportunity for people to record police activity outside the eight-foot limit.
In fact, he originally wanted a 15-foot exclusion zone. But Kavanagh conceded that would have raised constitutional issues. He settled on eight feet based on federal court rulings that protesters can be kept eight feet away from entrances to abortion clinics.
Rep. Domingo DeGrazia, D-Tucson, who is an attorney, said even an eight-foot restriction could be considered problematic as there is no clear definition of the boundary of the law enforcement activity.
“You get on the ground, you get out into the community, and you’re going to see situations that go all over the place,’’ DeGrazia said.
That, he said, gets into the First Amendment right of “the freedom to be where you know you can lawfully be.’’
Sen. Raquel Teran, D-Phoenix, said the American Civil Liberties Union has cited what it says are constitutional defects in the measure.
One, she said, is that an officer who is part of a group of officers can simply move towards someone with a camera, essentially making that person in violation of the law.
The issue of ordinary people making video recordings has been at the forefront of public reaction to several high-profile interactions where the people being arrested ended up dead.
There was the 2014 incident in which police in New York City were attempting to arrest Eric Garner for illegally selling loose cigarettes. Video of that incident shows an officer grabbing the 350-pound man from behind, putting him in a chokehold, pulling him to the ground and rolling him onto his stomach.
Garner could be heard saying, “I can’t breathe! I can’t breathe!’’ repeatedly. The medical examiner ruled his death a homicide.
More recently was the 2020 death of George Floyd, arrested by Minneapolis police on suspicion of passing a counterfeit $20 bill. The four officers involved were fired the following day after videos taken by witnesses showed officer Derek Chauvin kneeling on Floyd’s neck for more than nine minutes.
