PHOENIX — Arizona legislation putting limits on the videotaping of police actions is all but officially dead.
Attorney General Kris Mayes, a Democrat, has filed paperwork in federal court agreeing with challengers that the law is unconstitutional. And Republican legislative leaders involved in getting the law passed in 2022 have declined to defend it in court.
All that remains is for U.S. District Court Judge John Tuchi to sign an order permanently enjoining the state from enforcing the law.
Sen. John Kavanagh, who sponsored the law, acknowledged that even Mark Brnovich, Mayes’ Republican predecessor, did not show up in court last year when media outlets and the American Civil Liberties Union successfully asked Tuchi to issue a preliminary injunction against it. He told Capitol Media Services that his efforts to have someone — anyone — defend the law have come up short.
“They just shipped a half-rotting corpse to Mayes,’’ he said of what is left of his 2022 legislation, which makes it a crime to take video within 8 feet of any “law enforcement activity’’ unless the officer first gives permission.
Still, Kavanagh, a Fountain Hills Republican and a former police officer, said he believes the law holds merit. He had hoped a full-blown trial would provide guidance into what limits a federal judge thinks are acceptable in curtailing witnesses’ activities around active police situations.
Instead, the settlement language agreed to by the Attorney General’s Office pretty much shuts the door on any future efforts to limit taking videos of police activity.
Kavanagh has been trying since at least 2016 to enact some restrictions.
His original measure would have barred taking video within 20 feet of any “law enforcement activity’’ unless the officer first gave permission. That didn’t fly, and the 2022 version that was approved cut the restricted zone to 8 feet.
Kavanagh insisted he isn’t trying to shield police activity from public scrutiny but said there must be limits.
“I have a hard time believing that there’s a total right of people, when cops are in the middle of dealing with a suicidal person or a criminal who’s going to resist arrest, that people have a right to stand one foot behind the cop, videotaping or not,’’ he said. “That’s insane.’’
“It’s not safe for the person standing there,’’ he said. “And it’s certainly not safe for the cop who doesn’t know who this person is.’’
But challengers said there are several problems.
One of the biggest is that the legislation affected only situations where someone was using a cell phone or video camera to record events. That bothered Tuchi when he enjoined enforcement of the law in September.
The law “prohibits only video recording and does not address audio recordings or photographs taken from the same distance or device,’’ the judge pointed out. “Nor does it address persons who may be using their mobile phones for other purposes, such as texting.’’
He said that shows “the law’s purpose is not to prevent interference with law enforcement, but to prevent recording.’’
The settlement filed in federal court last week, which awaits Tuchi’s signature, starts by acknowledging there is a “clearly established right to record law enforcement officers engaged in the exercise of their official duties.”
It also finds the “content-based restriction,’’ governing only the taping of activities of police but no one else, to be unconstitutional.
Mayes, in agreeing to the permanent injunction, said the law also fails to meet constitutional requirements because it is neither narrowly tailored nor necessary to prevent interference with police officers given other existing Arizona laws.
Kavanagh took particular issue with that finding, saying that laws prohibiting obstruction of police officers have generally been interpreted to apply only when someone is physically precluding an officer from doing his or her duty.
But given the unwillingness of Republican legislative leaders to defend the law and Kavanagh’s inability to find someone else to intercede, his objections are legally irrelevant to settling the case.
The issue of ordinary people making video recordings has been at the forefront of public reaction to several high-profile interactions in which people died during arrests.
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 can be heard saying, “I can’t breathe! I can’t breathe!’’ repeatedly. The medical examiner ruled his death a homicide.
More recent 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 Derek Chauvin kneeling on Floyd’s neck for more than nine minutes.
The video played a key role in convicting officers of state and federal charges.
Arizona’s legal dispute will cost taxpayers a bit of money. In agreeing to settle, Mayes said her office will pay $46,000 in legal fees to the law firm representing the media outlets and another $23,000 to the ACLU of Arizona.
A state investigation launched after George Floyd was killed by a Minneapolis police officer has determined that the department engaged in a pattern of race discrimination. Minnesota's Department of Human Rights announced the finding of the nearly two-year probe on Wednesday. The department has the power to enforce the state's Human Rights Act, which makes it illegal for police departments to discriminate against someone due to their race. The department says it will work with the city to negotiate a consent decree, and will include input from community members, police officers, city staff and other stakeholders.
