By: Zachary Lopez (ZachNews)
Source: Arizona House of Representative John Kavanagh (Information)
Arizona: A new state law making filming of law enforcement encounters and situations within 8 feet unlawful was signed into law by Arizona Governor Doug Ducey on Wednesday, July 6th, 2022.
The new state law, House Bill 2319 which is scheduled to take effect in September 2022, makes any person knowingly make a recording within eight feet of a law enforcement activity unlawful such as law enforcement questioning suspicious person; conducting an arrest, issuing a summons or enforcing the law; and handling an emotionally disturbed or disorderly person who is exhibiting abnormal behavior; and placing an 8 feet distance buffer for the public when recording law enforcement encounters and situations.
*** House Bill 2319 (PDF File): ***
Prior to and after the signing of House Bill 2319, the public as well as National Press Photographers Association on behalf of several news organizations including The Associated Press, Committee to Protect Journalists, National Newspaper Association, News Leaders Association, Student Press Law Center, Online News Association, Gray Television, Inc. (KPHO-TV/KTVK-TV and KOLD-TV), The E.W. Scripps Company (KNXV-TV and KGUN-TV), and TEGNA Inc. (KPNX-TV/12News); and the American Civil Liberties Union of Arizona all expressing and raising their concerns about the new state law, saying House Bill 2319 would violate free speech and press clauses granted under the First Amendment, and violates constitutional rights to photograph and record police officers performing their official duties in a public place, critics argued.
In a letter to Arizona House of Representatives Regina E. Cobb and John Kavanaugh who sponsored House Bill 2319, the National Press Photographers Association said, “Dear Chairwoman Cobb and Vice-Chairman Kavanaugh: On behalf of the National Press Photographers Association (NPPA) along with the Radio and Television Digital News Association (RTDNA), the Reporters Committee for Freedom of the Press (RCFP), the Press Freedom Defense Fund (PFDF) and the twenty-three (23) organizations listed below, we write to you in opposition to HB 2319, An Act Amending Title 13, Chapter 37, Arizona Revised Statutes, By Adding Section 13-3732; “Unlawful video recording of law enforcement activity.” The proposed bill would make 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 fifteen feet of where the law enforcement activity is occurring” (emphasis added). Additional language regarding law enforcement activity occurring in an enclosed structure on private property permits a person who is authorized to be on the private property to “make a video recording of the activity from an adjacent room or area that is less than fifteen feet away from where the activity is occurring, unless a law enforcement officer determines that the person is interfering in the law enforcement activity or that it is not safe to be in the area and orders the person to stop recording or to leave the area” (emphasis added). 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, cited by all the odd-numbered U.S. Circuit Courts of Appeal1 including the Ninth Circuit. While such rights are not absolute and subject to reasonable time, place and manner restrictions, we believe that requiring the ”permission of a law enforcement officer” and setting a minimum distance of fifteen feet in between the law enforcement officer and the person recording, would not survive a constitutional challenge and is completely unworkable in situations (such a demonstrations and protests) where there are multiple officers and people recording. It is also constitutionally infirm to grant an officer the right to order a person who is filming “to stop recording or to leave the area” under an officer’s sole determination that such First Amendment protected activity constitutes interference (which is undefined under the proposed statute). Because the proposed law only applies to a law enforcement officer being recorded, we believe it would fail constitutional muster as not being “content neutral,” where the U.S. Supreme Court has held that a statute which “restricts visual and auditory depictions, such as photographs, videos, or sound recordings, [because of its content] … is presumptively invalid.” As HB 2319’s sponsor, Rep. Kavanaugh, noted in another bill he recently proposed regarding the redaction of police bodycam footage a critical element regarding filming is whether someone has a reasonable expectation of privacy in a public place. It is clear from well-established jurisprudence regarding this matter that officers performing their official duties in a public place do not have any reasonable expectation of privacy when it comes to being recorded and therefore taking enforcement action against someone who “fails to comply with a verbal warning of a violation of this section” is both impermissible and unconstitutional. As the U.S. Court of Appeals for the First Circuit noted, “[a] police officer is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it.”Given our concerns and legal citations in opposition to HB 2319, we respectfully request that the bill not be voted out of committee and that the legislature consider withdrawing it entirely from consideration. Please feel free to contact us should you have any questions or issues you would like to discuss. Thank you.”
In a posted on their Facebook page, the American Civil Liberties Union of Arizona expressed their opposition to the new state law saying “By signing #HB2319 into law, Governor Ducey has made it a crime for someone to film law enforcement if an officer is less than eight feet from them — chilling the use of the public’s most effective tool against police wrongdoing in violation of our First Amendment rights. By limiting our ability to record police interactions, this law will undoubtedly make it more even more difficult to hold police officers accountable for misconduct.”
The American Civil Liberties Union has a list of information and guidelines to help the public know their rights when stopped by law enforcement which can be found at their website.
- American Civil Liberties Union: Know Your Rights:
- ZachNews asked Arizona House of Representative John Kavanagh to talk a bit about the new law and reason behind the new law.
“I was a cop for 25 years, I made a lot of arrests in the street… you know in public places even in private places with people around, and when you’re making an arrest or questioning a suspicious person, dealing with an emotionally destrube person, every situation is a potential for violence. If somebody suddenly walks up right next to you or right behind you, and you don’t know who that person is; you don’t know if it’s an accomplice or if it’s a friend who’s going to attack you, it’s a distraction even if they aren’t – you are distracted, and the moment that you turn away to see what’s going on with this person, the individual you’re in contact could escape, could hit you, could ditch evidence. So for those reasons and generally considered by most rational people that you don’t walk into the middle of a police encounter… it’s dangerous for the cop, for you, even to other people in the area if it creates a violence situation. So by the same token, I clearly recognize the constitutional right of people to videotape police officers performing their duties. So the question how you balance it because First Amendment rights can be restricted as long as there’s reasonable time, place and manner restrictions. So what this bill does is basically says you got to keep back a reasonable distance. Originally I made it 15 feet – personally I believe that’s reasonable but there was concerns about the constitutionality and as of result I brought it down to 8 feet which conforms with the distance with the U.S. Supreme Court said is an appropriate buffer between demonstrators and abortion clinic entrances so I think I got the 8 feet down pretty good. People said to me “why can’t somebody film their own encounter?”; I didn’t have a good answer for that so they can as long as they’re not being handcuffed or searched or being given a sobriety test. Somebody said “I’m in the car and the car gets stopped, why can’t I as a passenger film the encounter?” and it occurred to me from my time as a cop, I much rather have people in the backseat with their hands visible holding the camera then behind the seat where there could be a gun so I see an exception to that; because inside buildings the rooms are small and 8 feet may not be practical, I took away the 8 foot indoors and just said you know reasonably safe. So I made a lot of concessions and I think I have a reasonable balance that still allows people to get decent footage but also safeguard the officer, the evidence and what have. My critics say that footage like in the George Floyd case would not be possible, well that’s not true; if you look at a lot of the video tapes of police misconduct recently they’re taken from 8, 10, even further away. The George Floyd one looked like was taken from about 8 feet but you know what it could have been 20 feet if the person is using the zoom camera – the zoom aspect of their camera. Let’s not forget that the first well known incident of somebody of a private citizen with a video tape camera recording police misconduct was the Rodney King incident, and that was taken from an apartment terrace about 100 feet away but it had a zoom feature. So I think I crafted a reasonable bill that can be a model nationwide to protect people rights – First Amendment rights to film but also to avoid hazardous situations, dangerous situations. Let me make one final comment, I think… video taken from 8 feet gives you a better view than one taken from 1 or 2 feet away, because the video from 1 or 2 feet away is not capturing the whole scene whereas an 8 to 10 foot one… assuming there’s no zoom… is picking up everybody in the scene which gives the scene context; because in the Derek Chauvin case what the other officers standing nearby was doing was all critical to the case, and nobody was standing a foot away videotaping wouldn’t have picked that up,” said Arizona House of Representative John Kavanagh.
- ZachNews then asked Arizona House of Representative John Kavanagh has there been issues in his area with law enforcement and people filming that led to this bill needing to become law?
- ZachNews then asked Arizona House of Representative John Kavanagh if there’s a difference in this new law between credited press and journalists recording law enforcement and the people recording law enforcement up close; and should members of the press be worried about new law and their rights?
- ZachNews asked Arizona House of Representative John Kavanagh to explain the distance, and what happens if the sitnuation moves back and forth.
“If the officer is at Point A and the person filming is at Point B, and the officer or the person being contacted moves 2 feet towards Point B, then the person at Point B has to move 2 feet further; keep to the 8 feet distance,” said Arizona House of Representative John Kavanagh.
Arizona House of Representative John Kavanagh added, “The person has to maintain 8 feet, and if the cop and the person being questioned don’t move then they stay 8 feet away stationary. If the cop and the person moves away from them they can advance 2 feet towards them and maintain the 8 feet, or vice versa.”
- ZachNews asked Arizona House of Representative John Kavanagh if the new law affect dashboard cameras filming law enforcement encounters and situations.
“The law says the driver and occupants of the vehicle can film; the 8 foot perimeter doesn’t apply,” said Arizona House of Representative John Kavanagh.
- ZachNews asked Arizona House of Representative John Kavanagh if there’s anything else to add that hasn’t been mention regarding the new law or anything else you want to make sure gets cleared up?
“Yes 2 things. First of all, the suggestion that staying 8 feet away from potentially violent situations is unreasonable is the most ridiculous suggestion I have ever heard. Normal people don’t get on top of dangerous situations they aren’t involved in, and the suggestion that today’s sophisticated cell phones can take a good picture from 8 feet away is equally absurd;. Today’s cell phones with zoom at 8 feet can zero in on a blemish on my face and make it look like Mount Rushmore. So most of the arguments against my bill are fabricated and bogus, and common sense people will know that,” said Arizona House of Representative John Kavanagh.
- Arizona House of Representative John Kavanagh tells ZachNews that he was a police officer with the Port Authority of New York and New Jersey for 20 years before retiring as a detective sergeant, after 20 years of service. ZachNews asked well in law enforcement for 20 years, had he ever experience people who were being aggressive or up on top of your work?
“No, not with cameras. When I was a cop, cameras were the size of shoe boxes. Everyone wasn’t carrying a camera around when I was a cop, it wasn’t… When I was a cop, a cell phone was the size of a geiger counter. I retired in 1993 before people had all these things to take pictures. I’ll tell you something else, when I was a cop, I rarely ever had people come close when I was doing… frisking somebody or asking somebody; people just didn’t do that because all people know that’s crazy,” said Arizona House of Representative John Kavanagh.
- ZachNews asked Arizona House of Representative John Kavanagh has anybody gone up to you with their big camera on top of you during your work?
“No. Nobody carried them around,” said Arizona House of Representative John Kavanagh.
- ZachNews asked Arizona House of Representative John Kavanagh does he have a lot of law enforcement supporting the new law?
“Yes. All the major police organizations in Arizona support this bill and endorse me for my reelection. One other thing, Adams of New York City (Eric Adams, Mayor of New York City) recently tweeted or otherwise communicated, and said people stop getting close to my cops when they’re taking police action. Even the Mayor of New York City who’s a Democrat agrees because he’s an ex-cop, he knows that it’s dangerous and foolish,” said Arizona House of Representative John Kavanagh.
- ZachNews asked Arizona House of Representative John Kavanagh anything else to add or say?
“Yes. This is a reasonable compromise that respects First Amendment rights to film police officers but also recognizes that if you get too close, it can become a dangerous situation. So it’s just a compromise bill that attempts to protect people’s rights but also respect the cops and those people in the area,” said Arizona House of Representative John Kavanagh.
Thanks Arizona’s House of Representative John Kavanagh for speaking to ZachNews about the new House Bill 2319 law.