An unidentified Tempe police officer discharges pepper spray at protesters who were following his orders to back up. The incident took place at a “Chalk Walk” protest outside Tempe Marketplace on June 27, 2020.( Screenshot via Lisa Vu | Instagram)
PHOENIX – Arizonans who are within eight feet of a police officer while filming them can be thrown in jail for up to 30 days under a new law that Gov. Doug Ducey signed this week.
Whether it stays on the books will be up to the courts, said a Phoenix attorney.
“It’s blatantly unconstitutional,” First Amendment attorney Dan Barr told the Arizona Mirror. “There are already laws that prevent police from hindering police or interfering with police in their duties.”
Barr said he expects the bill to be struck down when it is challenged in court, either by someone outright challenging the law itself or by someone who has been prosecuted under the law who challenges it.
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The bill originally restricted filming within 15 feet of police officers. But its sponsor, Fountain Hills Republican Rep. John Kavanagh, who spent decades as a police officer for the Port Authority of New York and New Jersey, amended it to eight feet to mirror a Supreme Court ruling regarding the distance protesters could be from abortion clinics.
The new law allows officers to determine if a person is “interfering” with “law enforcement activity” when a person is recording inside an enclosed space, even if they are within the eight- foot limit and the law expressly states that the law does “not establish a right or authorize any person to make a video recording of law enforcement activity.”
The law defines “law enforcement activity” as questioning a suspicious person, conducting an arrest, issuing a summons or enforcing the law or “handling an emotionally disturbed or disorderly person who is exhibiting abnormal behavior.”
The law does allow for occupants of a vehicle to record interactions with police and the subject of a law enforcement action to film their encounter, including being searched, having a field sobriety test taken or being handcuffed.
Kavanagh said he initially got the idea to run the bill because he had seen stories of “groups” of people going around filming police. He said the legislation didn’t originate with any police union or advocacy group, though he later told ABC15 the idea came from a Tucson cop.
“This has a chill on First Amendment rights on journalists to do their jobs,” Barr said. “It gives a weapon to the cops to tell journalists, ‘Turn off your cameras.’”
Filming of police has played an integral role in helping journalists and researchers learn the breadth of how law enforcement use “cover charges” to justify the use of excessive force.
The term is often used by defense attorneys to describe the charges used by police to cover up bad behavior or explain away the use of excessive force. In Chicago, it was found that two out of every three times the Chicago Police Department used force since 2004, they arrested the person on one of these types of charges. And a 2021 ProPublica investigation found in Jefferson Parish, Louisiana, 73% of the time someone was arrested on a “cover charge” alone, they were Black.
“When the legislature and the governor pass such laws, I wish they were liable for the attorney fees that were spent to strike down such laws,” Barr lamented.
Barr suggested that those who plan to protest or film police should continue to do so, but make sure to heed the warning of officers. The new law states officers have to give a verbal warning to people in violation of the eight-foot rule.
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This article was first published by the Arizona Mirror, part of the States Newsroom network of news bureaus that includes the Louisiana Illuminator.
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