Arizona Senator John Kavanagh's New Police Bill Unconstitutional, ACLU States

Arizona Senator John Kavanagh, a former officer with the New York Police Department and ardent law enforcement advocate, filed a bill this week that critics say is patently unconstitutional and just another example of Kavanagh's pandering to cops.

Senate Bill 1054 would restrict the public’s ability to record law enforcement activities by making it “unlawful for a person to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person making the video recording does not have the permission of a law enforcement officer and is within 20 feet of where the law enforcement activity is occurring.”

Dan Pochoda, legal director of the Arizona chapter of the American Civil Liberties Union, says the bill is a clear a violation of the First Amendment and would absolutely be challenged in court.

“It’s an important right in a democracy to see what law enforcement is doing, and this would infringe on that right by definition,” he says. “We know they don’t like being taped, but videotapes have been instrumental in trying to hold law enforcement accountable.”

In case after case, courts across the country have upheld the “right to photograph and videotape law enforcement practices in public…as long as you’re not interfering with activity,” he says. “There is no need for a law like this [because] the remedy already exists.”

If a person is felt to be interfering with operations, an officer can ask them to step back – “and if you don’t, you can be arrested,” Pochoda says.

What’s more, “there is absolutely no reason to believe that the great majority of people standing within 20 feet of the police are interfering.”

Kavanagh disagrees: It’s not that the recording always is malicious, he says, it’s that “I know it’s a distraction.” A video camera could cause an officer to look away, which could endanger both the officer and the bystander, particularly if an arrest turns violent.

“And with the proliferation of cell phones, many more people are videotaping things that they see, which increasingly includes police officers doing law enforcement activities on street.”

He feels the current law is insufficient because it only allows an officer to request a person move back if he or she is obstructing law enforcement, when distraction ends up often being the bigger problem.

What’s more, he adds “today’s high-resolution recorders on phones can pick up even small things at 20 feet,” meaning as an added benefit, “this law may provide better video tape because at 20 feet, you can take in the whole scene.” 
According to Pochoda, almost every law that attempts to define a distance people must stand from a given activity has failed.

Representative Jason Villalba filed a similar law in Texas last year but was forced to withdraw it after he was inundated with criticism, and in 2014, the U.S. Supreme Court struck down a Massachusetts law that stated abortion protesters must be 35 feet from clinics.

In these types of decisions, Pochoda explains, courts look at whether a law is “narrowly tailored,” meaning is it more restrictive than it needs to be? 

With the Massachusetts law, it couldn't be proved that all abortion protesters within 35 feet of a clinic hinder a woman’s right to an abortion.

“It’s not that there’s insufficient justification for [Kavanagh's] bill,” he explains. “It’s that there’s no justification.”

Video recordings, especially on cell phones, “have been instrumental in trying to hold law enforcement accountable all the way back from Rodney King to this point in time.

“And given that law enforcement has a history of lack of transparency,” Pochoda adds, this right becomes even more important.

Kavanagh maintains that because a person can capture the same details at 20 feet, the bill is entirely reasonable.

“I’m frankly surprised that the ACLU isn’t pleased because the bill recognizes that some videotaping of law enforcement is permissible,” he adds, noting that there’s historically been tension between the civil liberties advocates and law enforcement when it comes to recording the activities of the latter.

“This bill establishes the fact that you can do it, as long as you’re 20 feet away.”