LEGISLATURE

Arizona House approves bill that bans

close range recordings of police
Chelsea Curtis
Arizona Republic
Published 4:50 p.m. MT Feb. 25, 2022

A bill passed by the Arizona House this week that would ban people from taking close-
range recordings of police without permission has raised concerns of violating people's First
Amendment rights. 

House Bill 2319 initially restricted people within 15 feet of law enforcement activity from
recording police without permission. It was later amended to 8 feet to address concerns it
would be unconstitutional, bill sponsor Rep. John Kavanagh (R-Fountain Hills) said at a
committee hearing on Monday. 

"Based on comments made by people testifying in committee and by my working with our

Rules attorneys and their intern, I received a lot of good input to make this bill conform with
the Constitution," he said.  

"The major changes are I went from 15 feet to 8 feet and that is based upon 8 feet being
established by the U.S. Supreme Court as being a reasonable distance as they applied it to
people entering and leaving abortion clinics when faced with protesters, they said that was a
good balance," Kavanagh continued. 

Other amendments to the bill before passage included allowing any person at the center of
police contact or any occupants of a vehicle stopped by police to record those interactions
from a close distance as long as they don't interfere with police actions, like searches or field
sobriety tests.  

The bill now also defines law enforcement activity as any instance in which police are
questioning a suspicious person, arresting someone or interacting with "an emotionally
disturbed or disorderly person who is exhibiting abnormal behavior." 
HB 2319 would make it a petty offense — punishable with a fine — for anyone found in
violation of the potential law. However, offenders risk facing a misdemeanor if they fail to
follow an officer's verbal warnings or had previously been convicted of violating the law.

Kavanagh, a former detective at the Port Authority in New York, proposed a similar bill  in
2016 while he served as a state senator. He killed that bill himself before it was assigned a
hearing because it was "mired in controversy," he said at the time. 

The measure proposed this legislative session was approved on Wednesday by the

House on a 31-28 party-line vote, with Republicans in favor, and will next go to the Senate
for consideration.

Bill raises constitutional issues

Democratic Minority Leader Reginald Bolding voted against the measure, stating it "would
make it less transparent for citizens."

"(It's) not the direction that we should be walking in as a state," he said. "I further believe
that right now what we have to do as a state is make sure that we are standing up directly for
our communities to ensure that they know that they are safe."

Some First Amendment experts say the bill poses a constitutional issue and grants police too
much discretion. Various news organizations including Gannett, the company that owns The
Arizona Republic, also signed a letter from the National Press Photographers Association
opposing the bill because it violated the free speech and press clauses of the First
Amendment as well as "the 'clearly established right' to photograph and record police officers
performing their official duties in a public place."

"As several federal courts have affirmed, people have the First Amendment right to record
police officers while they carry out their duties — and the ability to record police interactions
has become an important tool to ensure police accountability and transparency," said ACLU
of Arizona Communications Director Marcela Taracena. 

Bystander videos of law enforcement activity have become increasingly common, and at

times helpful at exposing instances of police misconduct. It was instrumental in the case
against former Minneapolis police Officer Derek Chauvin who was ultimately convicted in
the murder of George Floyd. 

Video captured by a bystander also recently showed 13-year-old Taylor Thomas being

punched by a Phoenix police officer. Phoenix's new Office of Accountability and
Transparency director Roger Smith told The Republic earlier this month the law "cuts
against transparency."

"The more quality information you can get about these incidents, the better," he said. "And
for officers who are doing their jobs right, it's better to have more information than less.
You'd be able to help those officers to present the fact that they did their jobs correctly."

Aside from the First Amendment issues the bill poses, Arizona First Amendment Coalition
Attorney Dan Barr pointed out that it'd be difficult for people to follow. Gregg Leslie, director
of Arizona State University's First Amendment Clinic, also separately noted that police
situations were too fluid to be able to apply limits like the 8-foot distance set by the bill. 

"Let's say you're observing the police and you're outside the 8-foot area but the police come
at you and they say 'hey turn that camera off' and they come within 8 feet of you, are you
now committing a crime?" Barr questioned. 

Barr later added if HB 2319 is signed into law, it'd only a matter of time before it's challenged
in court. 

"When you're in public, you just don't have the same kind of privacy that gives you control
over other people's actions," Leslie said. "So once you add police to the context, there's
always an interest in knowing how police are performing their function, even if you're pro-
police and you're recording them to show that you think they're doing the right thing ...
there's just a public interest in knowing how police are doing their job that is fundamentally
important to people."

Reach the reporter at chelsea.curtis@arizonarepublic.com or follow her on

Twitter @curtis_chels. 

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