Please Note: "The complaint cuts to the crux of the issue o"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. . ."
✓ Bystander cellphone videos are largely credited with revealing police misconduct -- such as with the 2020 death of George Floyd at the hands of Minneapolis officers -- and reshaping the conversation around police transparency. But some Arizona lawmakers say legislation is needed to limit people with cameras who deliberately impede officers.
✓ From lawandcrime.com
". . .Public recording of law enforcement has become a hot-button issue for political conservatives, in this case in Arizona. After George Floyd’s recorded murder by a Minneapolis police officer galvanized the Black Lives Matter movement during the summer of 2020, calls for clamping down on speech near law enforcement activity gained steam.
“At a time when the public is demanding police accountability, Arizona wants to criminalize the public’s most effective tool for shining a light on police violence,” ACLU of Arizona Legal Director Jared Keenan said in a statement. “This law is not only unconstitutional, it is bad public policy.”
Arizona’s New ‘No Recording Cops Within 8 Feet’ Law Challenged In Court
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.
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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
✓ MORE DETAILS
ACLU First Amendment Lawsuit Says Arizona Law Banning People from Recording Within 8 Feet of Police Activity Is ‘Unconstitutional’
The American Civil Liberties Union and media outlets on Tuesday sued Arizona over a controversial new law that bans citizens from filming law enforcement within eight feet of a government agent.
Passed earlier this year and signed into law by Gov. Doug Ducey (R), HB 2319 makes it a crime to record law enforcement encounters within that spatial limit after receiving one warning. People who violate the statute are subject to misdemeanor charges.
The law reads, in relevant part:
It is 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 eight feet of where the law enforcement activity is occurring. iIf the law enforcement activity is occurring in an enclosed structure that is on private property, a person who is authorized to be on the private property may make a video recording of the activity from an adjacent room or area that is less than eight 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.
Stylized as Arizona Broadcasters v. Brnovich, the 16-page lawsuit seeks to stop HB 2319 from taking effect and challenges the new prohibition as an unconstitutional violation of the First Amendment.
“On its face, this statute infringes the clearly established First Amendment rights of Plaintiffs and everyone else in Arizona to record the public activities of law enforcement officers,” the lawsuit filed in federal court argues. “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.”
Seeking a preliminary and permanent injunction, the filing says it aims “to prevent Arizona from trampling” on the First Amendment rights of the media and others to “report news, document the activities of public servants, and hold police accountable for their actions toward the people they are sworn to protect and serve.”
The lawsuit notes that HB 2319 was passed despite public warnings from Arizona Senate Rules attorney Chris Kleminich that the law “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” and that there were “reasons to be concerned about how a court will ultimately rule on this measure.”
In no uncertain terms, the lawsuit says HB 2319 “infringes” on “core newsgathering activities protected by the First Amendment” and also infringes “the First Amendment rights of all people in Arizona to record the activities of police.” The upshot of the law taking effect, the ACLU attorneys warn in the filing, is that “anyone” in Arizona risks “arrest and prosecution if they video record law enforcement activity.”
The filing goes on to argue that compliance will be close to impossible and that the law itself is irredeemably vague:
[A]mbiguity arises with respect to what constitutes a “verbal warning,” and the length of time that satisfies the requirement of “previously.” 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 twenty-four hours later. If one officer allows a journalist or member of the public to record from where they are standing, it is unclear if another officer can come up to the journalist or member of the public, tell them to stop recording, and then arrest them if they don’t comply fast enough.
Public recording of law enforcement has become a hot-button issue for political conservatives, in this case in Arizona. After George Floyd’s recorded murder by a Minneapolis police officer galvanized the Black Lives Matter movement during the summer of 2020, calls for clamping down on speech near law enforcement activity gained steam.
“At a time when the public is demanding police accountability, Arizona wants to criminalize the public’s most effective tool for shining a light on police violence,” ACLU of Arizona Legal Director Jared Keenan said in a statement. “This law is not only unconstitutional, it is bad public policy.”
Law&Crime reached out to Arizona AG Brnovich’s office for comment in response to the lawsuit.
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