Arizona House Committee Approves Bill To Criminalize Filming Cops on the Job

Monday’s Arizona House Appropriations Committee approved a bill to criminalize some police officers filming on the job. This raises questions about the constitutionality and legality of such provisions.

House Bill 2311 if it is passed would make illegal the “knowingly making a video of law enforcement activity including the handling and treatment of emotionally disturbed persons” if the person doesn’t have the consent of the police officer. It also makes it illegal to be within eight feet of the cop. The original text stipulated that it would be a crime to do so within 15 feet, but Rep. John Kavanagh (R–D23), the bill’s sponsor, altered the radius in an amendment meant to assuage constitutional objections.

It is not clear if it achieves this.

Can you be charged with trespassing while holding a GoPro? T. Greg Doucette (an attorney who is a specialist in criminal defense and free expression law) asks the question. “It appears that yes is the correct answer, which would be in violation of the First Amendment. Since standing still doesn’t interfere with officer’s duties, it’s not possible to say.

Many legal cases have been filed against the rights to record government officials publicly over the years. And several federal appeals courts—including the 1st, 3rd, 5th, 7th, and 11th Circuits—have ruled that it is indeed an activity protected by the First Amendment.

It was also established in the 9th Circuit—where Arizona is located—almost 30 years ago, in a 1995 decision where the court ruled that a cop violated the Constitution when he physically sought to stop a man from videotaping a public protest in 1990.

But Kavanagh seems unaffected by this precedent. He isn’t the only lawmaker in a state that has prioritised this type of legislation. Arizona and Florida are also in this race. The Sunshine State currently has legislation that would make it illegal to harass anyone “directly or indirect”.[ing]Officers should never be allowed to come within 30 yards of police officers. Because of the legislation’s vague language, it would be virtually impossible to legal film law enforcement officers on the job.

Doucette adds that these proposals would be “to chill speech absolutely.” It will allow cops to tell you, “I’m going after you” if they don’t stop.” Even though most of these arrests will be dismissed for First Amendment violations you’ll still have people trying to defend their rights who are willing to plead guilty or avoid going to trial. Those who violate the Arizona bill—which passed the committee 7–5 along party lines—would be subject to a 30-day jail sentence if he or she refused to stop filming after an officer demanded it.

Some officers view such activity as protected by the Constitution. For example, several Denver police officers were under investigation after searching a tablet belonging to a man without a warrant. They wanted to remove a video of him beating an suspect in a drug raid. They violated Denver Police Department training which instructs officers that the public can record them during their duties.

Denver, however is subject to 10th Circuit where there are no precedents on the issue. The officers violated department regulations, but they were granted qualified immunity. This legal doctrine allows local and state government actors to violate your civil rights, without the fear of federal civil lawsuits, if their actions are not “clearly established” by a previous court decision from the same circuit or Supreme Court. Late last year, the Supreme Court declined to accept the case.

The topic of accountability in law enforcement has grown to be a very popular one recently. It was started by George Floyd’s death, which occurred in Minnesota, where he was murdered by Derek Chauvin (ex-police officer). It was recorded on video and sparked a national conversation about ways to combat police abuse.

However, there have been some legislative responses that could seek to limit accountability. This includes bills regarding the filming of police officers on duty. A similar vague law was passed by Nassau County New York lawmakers to enable police officers to sue individuals who “harass or menace, assault, or injure an person due to such individual’s status as a second responder”. The amount can be up to $50,000.

This is nothing but base-pleasing gestures by legislators,” Ken White (partner at Brown White and Osborn LLP and man behind the Popehat Twitter account, told me last summer. They say they have to because they are being attacked. You know what? I’ve never seen actual cop assaults not being vigorously prosecuted. In fact, they are prosecuted far too lightly and doubtably. This is an attempt to prevent speech against cops from hurting the feelings of anyone.