Arizona’s New ‘No Recording Cops Within 8 Feet’ Law Challenged In Court

Legal Issues

from the time-and-place-but-mostly-place dept

Police accountability has been a hot topic for years now. Recent events have increased demands for accountability. And, as demands have increased, so have legislative efforts to shield cops from accountability.

Arizona lawmakers have been doing what they can for cops for a few years now. With plenty of court precedent upholding a First Amendment right to record cops while they perform their duties, the only way to keep cops from being recorded is to erect legislative barriers.

In 2016, legislators tried to create a photography-free zone for cops — something that covered a 20-foot radius around traffic stops, arrests, and other law enforcement activity. This initial expansion of police protections failed to become law. The second effort — after trimming the photography-free zone to eight feet — somehow managed to become law despite its immediately obvious constitutional concerns.

We’ll see how long this Arizona law lasts. While it does provide exceptions for people in their own homes, as well as those documenting their own stops/arrests, the law still leaves it up to cops to decide what is or isn’t eight feet. Cops seem to have problems activating their own cameras during controversial deployments of force. And cops who don’t want to be recorded will declare whatever distance to be eight feet, shutting down recordings and arresting citizens for violating the new law. With no existing recordings, it will come down to “our words versus yours” — a testimonial confrontation that almost always seems to come down on the side of cops.

The law needs to go and the ACLU is hoping a court will declare it unconstitutional. The National Press Photographers Association, which, obviously, has a vested interest in overturning photography restrictions, has joined the ACLU in a federal lawsuit [PDF] challenging the new Arizona law. (via Courthouse News Service)

More than 20 press agencies signed off on a letter warning Arizona legislators and Governor Doug Ducey that enacting this law would violate rights. That warning was ignored in favor of protecting cops from outside accountability. Now, the state is facing this lawsuit and will have to defend its bad law — an effort that will involve the state spending people’s tax dollars to directly argue against the best interest of state residents.

The complaint cuts to the crux of the issue on the tenth page, following its description of the defendants, the plaintiffs, and the law itself. Here’s why the law is unconstitutional:

By criminalizing the recording of police officers from a certain distance, HB2319 creates a new risk of arrest and prosecution for activity that is protected by the First Amendment to the U.S. Constitution. HB2319 is a content-based speech restriction because it prohibits video recording of only one topic: law enforcement activity.

The law does not create an eight-foot buffer around all government employees. It only erects one around cops. For that reason alone, the law cannot be considered constitutional. The selectivity of the law indicates the state government only wishes to curtail the recording of certain public officials. That’s a problem the state is going to have a very difficult time addressing in its response.

As the lawsuit points out, the new law doesn’t just affect citizens recording officers performing their duties in public. It especially harms the press, which must get much closer to incidents to provide coverage of newsworthy events. It’s not just about arrests. Protests are covered by journalists and their proximity to the events (as well as law enforcement’s response) tends to result in events that unfold quickly — ones journalists cannot ensure their coverage will always occur outside of this arbitrary eight-foot radius created by the law. As cops advance to police protests, the distance will close. And some cops might see their own movements as justification for the arrest of journalists, legal observers, and others whose only criminal act is activity assumed to be protected by the First Amendment.

If there’s any justice in the justice system, this law will quickly be kicked to the curb. Cops like to claim rights are malleable when dealing with fast moving, swiftly changing circumstances. Citizens should be granted the same judicial deference. Maintaining a distance of eight feet — but only when recording law enforcement officers — is an obvious violation of rights.

Filed Under: 1st amendment, arizona, recording police
Companies: aclu, nppa