Arizona Gov. Ducey signs bill banning close recording of law enforcement; ACLU calls it unconstitutional

On July 6, Arizona Governor Doug Ducey signed into law a bill that makes it illegal to record law enforcement within 8 feet (about 2.4 meters).

Under the new law, it is a misdemeanor if someone keeps recording, after getting a verbal warning to stop. There are, however, some exceptions to the law, including if the person recording is the one being questioned by police.

While supporters say the law is meant to protect law enforcement from harm or distraction, critics say the law is unconstitutional and does nothing to enhance transparency.

"I think this is common sense legislation," says Former Phoenix Police Assistant Chief Andy Anderson on July 10. "The officer needs to stay focused on that individual and when people are trying to interfere and heckle, and get close in terms of recordings, that takes the officers' focus away from what they need to be focused on and that’s dangerous."

K. M. Bell with the American Civil Liberties Union of Arizona says this bill is not constitutional.

"At the end of the day, is this constitutional? Yes or no? No," Bell said.

She says it violates First Amendment rights and points out that the public health response to COVID-19 proves many struggle to judge distances.

"A lot of stores line out stickers every six feet and the TSA put stickers every six feet because people don’t know how far six feet is," Bell says.

There are carve-outs in the bill that say misdemeanor charges can only come after a warning and recording continues. There are exceptions for the people at the center of a police interaction or those in a vehicle stopped by police.

The original proposal from Rep. John Kavanagh made it illegal to record within 15 feet of an officer interacting with someone unless the officer gave permission. The revised bill was approved on a 31-28 party-line vote Feb. 23 and lowered the distance to 8 feet.

It also now allows someone who is in a car stopped by police or is being questioned to tape the encounter and limits the scope of the types of police actions that trigger the law to only those that are possibly dangerous.

Kavanagh said he made the changes to address constitutional issues. He said the new 8-foot limit was based on a U.S. Supreme Court decision in a case involving abortion protesters.

Democratic Minority Leader Reginald Bolding said that the measure is the wrong way to boost transparency and ease the perception in minority communities that they are not safe from police misconduct.

"One way to not do that is telling them that they cannot use their cellphones or do any type of recording unless it’s within a specific set of guidelines," Bolding said during a vote back in February.

Media groups including The Associated Press said the measure raises serious constitutional issues. They signed onto a letter from the National Press Photographers Association in opposition to the bill. Letting an officer decide on the spot what First Amendment-protected activity should be allowed would be problematic in many situations, the letter said.

Kavanagh’s bill makes a violation a petty offense, the lowest-level Arizona crime that can bring a fine but no jail time. Refusing to stop recording when an officer orders it would be a low-level misdemeanor subject to a 30-day jail sentence.

‘… the camera is the problem here’

If you search YouTube, you’ll find channels of people recording at night, going around their neighborhoods looking at police interactions, and posting them.

That’s not illegal – no one says it is. But, if they get closer than 8 feet, now it is unlawful.

A man who goes by the "Gilbert Bystander" sets up every night in the Heritage District.

"1 and 2 is when it gets crazy and if nothing holds me here downtown, I’ll go for a motorcycle ride," he said.

He posts videos and live streams interesting moments, and sometimes that includes police scenes.

"In one case, an officer shined a flashlight in my face when I asked a question," he said.

Now, this new law might affect him more than most, and he agrees with the ACLU, calling this an unconstitutional law for many reasons.

"It’s not illegal to be within 8 feet of police. It’s illegal to film within 8 feet of police. That tells us the camera is the problem here and the camera is making it interfere with the police job and I do not buy that," he said.

The Associated Press contributed to this report.


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