PHOENIX โ A new Arizona law making it a crime to videotape police activity is unconstitutional and should be blocked from taking effect, a coalition of news organizations is arguing.
The lawsuit filed Tuesday in federal court here says that HB 2319, approved earlier this year by the Republican-controlled legislature, "infringes the clearly established First Amendment rights of plaintiffs and everyone else in Arizona to record the public activities of law enforcement officers."
"By allowing police officers to arrest and punish people for simply recording video of their actions, the law creates an unprecedented and facially unconstitutional content-based restriction on speech about an important governmental function," wrote David Bodney, the attorney representing multiple media outlets. He said that news organizations, seeking to avoid possible 30-day jail time and $500 fines, "will have to forego, or limit, their reporting on their reporting on issues and events that they would otherwise deem worthy of coverage."
But the legal issues beyond news organizations.
The legal papers, also signed by K.M. Bell of the American Civil Liberties Union of Arizona, also say members of that organization "frequently exercise their First Amendment right to record video of the activities of law enforcement." And, like their media counterparts, Bell said it is "often necessary or unavoidable to record clear footage" to be within eight feet of police, including in crowds or public sidewalks.
Rep. John Kavanagh, R-Fountain Hills, who crafted the measure, said it is legally defensible.
More to the point, he told Capitol Media Services it is necessary to protect police officers from being distracted. And Kavanagh rejected arguments offered by challengers that concerns can be addressed with existing laws making it a crime to interfere with police.
"The law in Arizona requires the interference to be physical, like they step between the officer and the person being contacted, or hold the officer back, or pull somebody away, or escort the person being contacted away," he said. That, Kavanagh said, is not what's happening.
"These people stand a foot behind the officer, and they're a distraction which is dangerous because the officer may look away thinking they're an assailant," he explained. "And the person they're contacting can escape, assault them or dispose of evidence."
But Kavanagh conceded one key point made by those seeking to have the law voided.
The only time HB 2319 would impose criminal penalties is when someone within that eight-foot perimeter is when videotaping is taking place.
Anything else, from texting to even taking a series of still photos, would remain lawful. And that leads to questions of whether the measure is designed to protect police safety or simply shield their activities from public scrutiny and review.
Kavanagh, a retired police officer, said there's a "simple reason" for the distinction.
"The people doing the videotaping are the most problematic," he said.
"Many of them have a political agenda and they purposely get close to be in the face of the cop," Kavanagh continued. "Whereas, individuals who are just walking by, they aren't doing that."
The challengers say there are other problems with the law which, unless enjoined, will take effect Sept. 24.
It starts, they said, with the fact that all situations are not the same.
"For example, if a reporter is in a crowd taking a video of a protest, and a police officer walks towards the reporter and breaches the 8-foot distance while the reporter is unable to move further away in the crowd, that reporter might be arrested for violating HB 2319," the lawyers argue.
Kavanagh, for his part, said that situation would not trigger a violation of the new law.
He also noted that, unlike his original proposal which would have made the mere act of videotaping a crime, the final version says someone breaks the law only after receiving or having previously received a verbal warning from police that the activity is illegal and continues to record anyway.
But those challenging the law say it only makes it more ambiguous.
"If a journalist or member of the public is warned to stop recording the day before, it is unclear if they can be arrested for a violation 24 hours later,'' the lawsuit states. And what happens, the lawyers ask, if one officer has given the go-ahead to tape but another gives the order to stop?
The lawsuit to quash HB 2319 should come as no surprise, and not just because media groups and the ACLU lobbied against it.
Chris Kleminich, a Senate staff attorney, told members of the Rules Committee, which is supposed to review legislation for constitutional issues, that the bill "does bring up questions relating to First Amendment and freedom of expression'' because "recording of law enforcement activity has been recognized by federal courts as following within that First Amendment right.''
Kavanagh, however, said he believes the final version is legal.
"I made concessions further than I personally would have done myself for the purposes of creating something which clearly survives constitutional challenge so it can become a model for the entire country," he said.
For example, Kavanagh's original measure proposed a 15-foot buffer.
"With today's cameras, at 15 feet, I could zero in on every one of you and pretty much see every blemish on your face," he told members of the Senate Judiciary Committee in pushing the bill.
But even Kavanagh conceded there would be constitutional issues with such a perimeter. The 8-foot limit, he said, is based on federal court rulings seeing that as the distance at which protesters can be kept from entrances to abortion clinics.
And there's something else. A 15-foot no-video zone might preclude the kind of recording that captured the 2020 death of George Floyd after former Minneapolis police officer Derek Chauvin put his knee on his neck for nearly nine minutes.
The final version also has some exceptions to what the law criminalizes.
Those who are the ones being questioned could still take videos of the encounter at whatever distance as long as it does not interfere "with lawful police actions, including searching, handcuffing or administering a field sobriety test.''
Anyone in a vehicle that has been stopped also can record the encounter if it doesn't interfere.
And the distance requirement would not apply to indoor situations where the person with the camera or cell phone is in an adjacent room.
Strictly speaking, the lawsuit seeks to enjoin only Attorney General Mark Brnovich, Maricopa Sheriff Paul Penzone, and Maricopa County Attorney Rachel Mitchell. But ACLU attorney Jared Keenan said his organization believes an injunction against them will be enough to deter other police agencies and prosecutors from trying to enforce the law.
