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Arizonans Decry Move To
Limit Videotaping Of Cops

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A man is arrested in Washington, D.C. in 2010 after taking part in a rally against Arizona SB 1070.
Photo by Arasmus Photo and used under the terms of a Creative Commons license.
Sen. John Kavanagh Has Introduced A Bill That Will Make It A Crime For Anyone To Record Police Within 20 Feet, But A Professor Says SB 1054 Is Likely Unconstitutional And At Best, Redundant

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By Wayne Schutsky
Modern Times Magazine

Jan. 22, 2016 — The 2016 legislative session is in full swing in Arizona and state lawmakers have wasted no time in introducing controversial bills on topics ranging from municipal ID cards to nunchucks. One such piece of legislation is SB 1054, which would limit citizen’s ability to film law enforcement.

SB 1054, if passed, would make it illegal to record law enforcement activity from within 20 feet of an officer without the officer’s permission. The bill, sponsored by Sen. John Kavanagh, R-District 23, would allow authorized occupants of private structures to make recordings of law enforcement activity from less than 20 feet away from an adjacent room unless an officer decides the person is interfering with law enforcement activity.

According to Kavanagh, the bill was created in the interest of both law enforcement and public safety. Having worked as a police officer with the Port Authority of New York and New Jersey Police Department, Kavanagh said he sympathizes with officers who must deal with people videotaping who “get right on top of the officer” during the course of making an arrest or questioning suspects.

“I recognize the right to videotape police, but I think you need to keep a safe distance, so the person videotaping isn’t mistaken for an accomplice of the individual who’s being arrested or questioned and that distracts the police officer,” said Kavanagh.

Kavanagh said that he has received generally positive feedback from the law enforcement community thus far.

The public response has been less positive, with some pointing to the bill as a way to infringe upon the public’s right to record police activity.

“Given the mass amount of brutality that Arizona law enforcement has engaged in, the last thing that should be done right now is have limits placed on the public's ability to gather and access documentation of these interactions,” said activist Jackie Swift. “In Arizona, 43 people were killed by police last year, 62 were killed the year before, and our state ranks 4th in the country for number of people killed by police. Given the current state of things, SB 1054 not only just doesn't make sense, it's outright irresponsible.”

Swift also points out that filming law enforcement is not rooted in activism, but is a way for the community to keep law enforcement accountable.

“Activists aren't the ones filming incidents of police brutality. Community members who see these altercations are the ones filming them because they felt something was taking place that needed to be documented,” said Swift. “Filming these altercations has been the public's way of demanding accountability for what's taking place; it's a spontaneous act that isn't rooted in activism and organizing, but instead born out of an instantaneous feeling of ‘this isn't right’.”

Critics of the bill also claim that SB 1054 is unconstitutional, something Kavanagh disagrees with.

“Courts have ruled that some constitutional rights can be limited if the limitation is reasonable,” said Kavanagh. “Twenty feet is one and a half car lengths. That is not going to make the videotaping impossible. In fact, because you’re back a little bit, you may take in the entire scene, which may give the overall encounter greater value because it will be in context and won’t miss anything.”

However, Paul Bender, professor of constitutional law and dean emeritus at Arizona State University’s Sandra Day O’Connor School of Law, does not believe the bill is constitutional and also finds it redundant and unnecessary as there are already laws on the books that allow officers to stop people from unduly interfering with police activity.

For instance, Phoenix Municipal Code 23-18 Police—Obstructing, resisting or opposing makes it illegal to “knowingly or willfully obstruct, resist or oppose any policeman or other officer of the City authorized to make arrests, in serving or attempting to serve any lawful process or order of the City magistrate or of any court of the City, or in the performance of any official duty…” according to the text of the code.

“I think [SB 1054] is probably unconstitutional,” said Bender. “It’s a blanket prohibition on taking pictures of a public event, law enforcement activity, within 20 feet of the activity, and I don’t think you can blanketly, constitutionally, prohibit something like that, irrespective of it is causing any problems.”

Additionally, the bill is likely too broad to survive constitutional challenges.

“Normally you cannot ban free speech unless you have a really good reason and unless the ban is narrowly tailored to conform to that reason,” said Bender. “This is not at all. Is it really plausible that everybody who takes a picture of police activity within 20 feet of the activity is doing something that’s harmful to the police or law enforcement? I don’t think so. And since it’s not, this is over broad.”

Recordings of police officers have made many headlines in recent years as citizen recordings have been used to expose police misconduct. Recordings such as those of the fatal shooting of Walter Scott in South Carolina or the fatal shooting of Laquan McDonald in Chicago resulted in charges being brought against the officers involved.

“You’re not just talking about First Amendment activity, but you’re talking about First Amendment activity that is really important,” Bender said. “As we’ve seen recently in the news, it can reveal serious criminal behavior.”

Kavanagh asserts that the 20-foot rule will protect officers while also allowing those that wish to tape altercations to do so from a reasonable distance.

“My bill simply calls for the person videotaping to stay about one and a half car lengths away and most of the videos that we have seen that have exposed questionable police action did their job and were taken far further than one and a half car lengths away,” said Kavanagh.

If the bill passes as it stands now, the eventual law is likely going to face legal challenges.

“If someone were prosecuted under this for being under 20 feet period and that was the only evidence, I would think that he would have the conviction overturned or have the charge or indictment dismissed, because it is unconstitutional on its face,” said Bender.

While Bender believes the 20-foot rule is unconstitutional, he stated that the section of the bill dealing with people in private structures may be constitutional because it is more narrowly tailored to a specific situation.

Based on feedback he has received, Kavanagh is considering making some changes to the language of the bill.

“Number one, I am not going to apply this to someone who is the subject of the enforcement,” said Kavanagh. “So they will be able to videotape as long as they’re not being cuffed.”

Kavanagh is also considering dropping the 20-foot rule entirely in favor of simply allowing officers to tell bystanders, including those videotaping, to back away if the officer deems they are causing a safety issue.

Those changes, however, are unlikely to assuage opponents who view the bill as a legislative maneuver to limit people’s right to film law enforcement interactions.

Law enforcement and politicians are recognizing the power of these instantaneous and spontaneous actions, which is why bills like SB 1054 are being created,” said Swift. “The public is demanding accountability for what's taking place and SB 1054 is a tactic for shutting that demand down.”
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