ACLU sues over Arizona law limiting filming of police

By Howard Fischer/Capitol Media Services, Associated Press
Published: Tuesday, August 23, 2022 - 5:32pm
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A new Arizona law restricting how the public can film police faced its first legal challenge Tuesday with a lawsuit filed by the American Civil Liberties Union.

The group's Arizona chapter was joined by several news organizations in filing a petition in federal court in Phoenix. They argue the law goes against First Amendment freedoms.

In announcing the suit, ACLU said the law “will severely thwart attempts to build police accountability.” And an attorney arguing on behalf of news organizations said they "will have to forego, or limit, their reporting” to avoid a possible 30-day jail time and $500 fine.

"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,'' wrote David Bodney representing multiple media outlets.

The law was signed by Gov. Doug Ducey in July and makes it illegal to knowingly film police officers within eight feet away without an officer’s permission.

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.

Rep. John Kavanagh, a Republican from Fountain Hills, is a former police officer and crafted the measure. He argued officers need to be able to do their job without interference. The law still allows people to record police activity from a safe distance, he said.

“I made concessions further than I personally would have done myself for the purposes of creating something which clearly survives constitutional challenge,” Kavanagh told Capitol Media Services.

The original legislation was amended so it applies to certain types of police actions, including questioning of suspects and encounters involving mental or behavioral health issues.

People who are the direct subject of police interaction are also exempted. They can film as long as they're not being arrested or searched. Someone in a car stopped by police or being questioned can also film the encounter. Kavanagh said these changes were made with input from the ACLU.

In similar cases, six of the nation's dozen U.S. appeals courts have ruled on the side of allowing people to record police without restriction. Less than a week after the Arizona law took effect, the 10th Circuit Court of Appeals in Denver ruled that a YouTube journalist and blogger's lawsuit against a suburban Denver police department could move forward. The blogger claimed an officer blocked him from recording a 2019 traffic stop.

The Phoenix Police Department, which oversees the nation’s fifth-largest city, has been criticized in recent years for its use of force, which disproportionately affects Black and Native American residents.

Reporters and photographers say this law will make it nearly impossible to do their job, especially at massive events like protests. The outlets that are also plaintiffs in the suit include Phoenix Newspapers Inc.; Gray Television; Scripps Media; KPNX-TV; Fox Television Stations; NBCUniversal Media; Arizona Broadcasters Association; States Newsroom; Arizona Newspapers Association; and the National Press Photographers Association.

“We fear that, rather than acting as a shield to ensure ‘officer safety,’ this law will serve as a sword to abridge the ‘clearly established’ First Amendment right to video record police officers performing their official duties in public,” Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said in a statement.

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