Federal judge blocks Arizona law banning close-proximity filming of police

---

A federal judge issued a preliminary injunction, blocking an Arizona law that would have made it illegal to record the activities of law enforcement officers from any closer than eight feet, with some exceptions. 

Key Players

Rep. John Kavanagh (R) was the sponsor of House Bill 2319. He has represented District 23, situated in eastern Maricopa County, in the Arizona House of Representatives since 2019. He previously served in the Arizona State Senate.

Gov. Doug Ducey (R), elected in 2014, is the 23rd governor of Arizona.

Further Details

Bystander videos of police encounters have gained attention in recent years, becoming instrumental in exposing police misconduct, such as in the killings of Eric Garner in New York in 2014 and George Floyd in Minneapolis in 2020. 

The Arizona bill at issue prohibited filming law enforcement activity within eight feet of officers. However, exceptions were made for cases in which the person recording is the one being questioned by police, subjected to a traffic stop while occupying a vehicle, or is in a structure on private property where law enforcement activity is occurring, as long as the person does not interfere with officers’ actions. There were no exceptions for the press. The law described interference as preventing an officer from searching, handcuffing, or administering a field sobriety test. 

According to the law’s text, law enforcement activity could entail “questioning a suspicious person, conducting an arrest, issuing a summons, or handling an emotionally disturbed or disorderly person.” Violators could face a misdemeanor charge and up to 30 days in jail if they ignored a verbal warning. The law was scheduled to take effect on Sept. 24, 2022. 

On March 24, Kavanagh, a former police officer, wrote in an op-ed in USA Today that the purpose of the new law was to protect law enforcement officers from harm and distraction while on duty. He recalled police officers telling him that “hostile” groups followed them around and filmed their activity from only one or two feet away. “I can think of no reason why any responsible person would need to come closer than eight feet to a police officer engaged in a hostile or potentially hostile encounter,” Kavanagh wrote. “Such an approach is unreasonable, unnecessary, and unsafe, and should be made illegal.” 

Kavanagh introduced the bill initially in February with a 15-foot restriction but received opposition from multiple news, photography, and First Amendment advocacy organizations. The National Press Photographers Association later filed an official objection, accompanied by an open letter signed by news organizations such as The Associated Press, The New York Times, the Atlantic, and BuzzFeed arguing that the bill not only violated the First Amendment but also countered the “clearly established right” to photograph and record police officers performing their official duty, The Guardian reported. Kavanagh later amended his bill to an eight-foot restriction in response.

The bill passed the Arizona Senate on June 23 by a vote of 16-12, with two senators not voting. It passed the House a day later by a vote of 31-27, and Ducey signed it into law on July 6. 

According to NPR, the law came nearly a year after the U.S. Department of Justice launched an investigation into the Phoenix Police Department in response to public criticism of its alleged abuse of homeless people and use of excessive force. 

Outcome

Critics oppose new law, citing First Amendment concerns

According to USA Today, many First Amendment advocates argued the new law was unconstitutional, vague, and granted police too much discretion. Various news organizations also signed letters published by the National Press Photographers Association in opposition to the law. 

Stephen D. Solomon, director of the Arthur L. Carter Journalism Institute at New York University, also pointed out the difficulty of determining the required distance of eight feet, The Washington Post reported. He questioned the practicality of enforcing the law in instances such as protests, which typically involve crowds of people using cell phone cameras. Solomon warned that the law might force people recording a police encounter to back up further than eight feet or discourage people from recording altogether.  

Alan Chen, a law professor at the University of Denver, cited similar concerns to The New York Times, questioning how someone recording an officer should respond if the officer began to move closer, even if the individual had begun the recording from more than eight feet away. 

ACLU sues state attorney general over ‘unconstitutional’ law

On Aug. 23, the American Civil Liberties Union of Arizona, with several Arizona media associations, filed a federal lawsuit to block the law. 

“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,” the lawsuit stated. 

The suit also asserted that the law violated the First Amendment. For reporters, filming the police can be an integral part of their job, and doing so within an eight-foot radius “is often necessary or unavoidable to record clear footage,” the lawsuit said.  

Plaintiffs in the suit included Phoenix Newspapers, Inc., Fox Television Stations, NBCUniversal Media, the Arizona Broadcasters Association, Arizona Newspapers Association, and the National Press Photographers Association.

Kavanagh responded to the lawsuit, asserting that he had already made changes to the law in response to ACLU complaints, such as reducing the distance that would be banned from 15 to eight feet.

Federal Judge issues preliminary injunction preventing law from taking effect

On Sept. 9, about two weeks before the law was set to take effect, U.S. District Court Judge John J. Tuchi, who had been nominated by former President Barack Obama, ordered that it not be enforced. He did so a week after Arizona Attorney General Mark Brnovich, the primary defendant, filed a notice of nonopposition to the motion, noting that “local and county prosecutors are the proper entities to defend” the merits of the law, not himself. 

In response to the injunction, Kavanagh said that he had been “assuming that the attorney general would do his job as the state’s attorney and defend a law passed by the state.”

“We are trying to get together with the [House] speaker and the [Senate] president and see if the Legislature will defend it, but there’s also the possibility of some outside group possibly stepping up,” Kavanagh said.

On Sept. 16, the deadline Tuchi set for any objections, Arizona House Speaker Rusty Bowers (R) and Senate President Karen Fann (R) both announced they would not defend the law, meaning the injunction will stand and the law will not take effect.

The injunction is preliminary, meaning the law is technically only temporarily suspended and the court is expected to make a permanent ruling later. Matthew Kelley, the head attorney representing the media plaintiffs, said he planned to push for a permanent injunction against enforcing the law.

As of Oct. 11, 2022, there were no further developments.