Arizona Capitol

Arizona Legislature Was Warned Ban on Filming Cops Was ‘Unconstitutional’ Before Passing Law

Arizona Governor Doug Ducey signed a bill into law on July 6 that makes it a crime to film police officers from within eight feet of them.
Arizona Governor Doug Ducey signed a bill into law on July 6 that makes it a crime to film police officers from within eight feet of them. Vasil Dimitrov / E+ / Getty Images

Arizona Governor Doug Ducey signed a bill into law on July 6 that makes it a crime to get within eight feet of police officers and film them.

Earlier this year, attorneys for the Arizona Legislature warned lawmakers that the bill could be unconstitutional, previously unreleased audio uncovered by Phoenix New Times reveals.


The measure passed anyway — not because lawmakers were oblivious to the fact that it could likely get shot down in the courts, but because they’re emboldened to let it escalate to the Supreme Court “because they can,” state senate staffers with inside knowledge told New Times.

On February 22, the Arizona House Rules Committee convened to discuss House Bill 2319, which would make it a crime to film police officers within 15 feet. It was sponsored by Representative John Kavanagh, a Fountain Hills Republican and outspoken “back the blue” supporter.


But the bill “presents some First Amendment issues,” House Rules Attorney Jennifer Holder advised the seven-member committee.


State Representative Domingo DeGrazia, a Tucson Democrat who is also an attorney, echoed that “there are some issues with the First Amendment” when casting one of two dissenting votes.


The bill was amended to include an exception if a driver is filming a traffic stop, and the “bubble” was whittled down to eight feet before it reached the senate. Additionally, there’s an exception for those filming on their own property, but an officer can still order the person recording to leave the area if the "law enforcement officer determines that the person is interfering in the law enforcement activity."


Despite these amendments, inside counsel aspersed the bill as unconstitutional.

Arizona_Senate_Rules_Committee_Audio_March_21_2022.mp3

“This does bring up questions relating to First Amendment and freedom of expression,” Senate Rules Attorney Chris Kleminich is heard saying on a March 21 recording obtained by New Times. “Recording of law enforcement activity has been recognized by federal courts as following within that First Amendment right.”


Kleminich told lawmakers that there are “reasons to be concerned about how a court will ultimately rule on this measure.”


On a slim, 31-27 party-line vote, House Republicans sent the bill to Ducey's desk.

The new law states, "It is unlawful for a person to knowingly make a video recording of law enforcement activity if the person making the video recording is within eight feet of where the person knows or reasonably should know that law enforcement activity is occurring."


“Law enforcement activity” refers to questioning a suspicious person, handling an “emotionally disturbed or disorderly person,” conducting an arrest, or simply, “enforcing the law.”


Film too close to the cops and a person could get tossed in jail for 30 days, plus face $500 in fines and a year of probation.


Critics of the new law call it threadbare and ambiguous. They claim it doesn’t take into account what happens if a person who’s already filming is approached by a police officer.


Others are concerned that protesters or citizen journalists using a camera phone to capture audio within 8 feet of cops, or carrying a camera that isn’t turned on or shooting video, may still be arrested.

Kavanagh, a 20-year cop himself, countered that only people making video recordings cause agitation not because of the action of filming, but because of who they are. He said they're usually part of organized "cop chaser" groups with a "rub it in your face" attitude.

"If the people doing audio were doing this, I would have expanded the bill," Kavanagh told New Times on Tuesday. "But I don't want to impose restrictions on people who are not a problem."

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State Representative John Kavanagh speaks at the 2014 Western Conservative Conference at the Phoenix Convention Center.
Gage Skidmore

Critics also doubt that any cop can accurately and consistently tell the difference between eight or nine feet — the difference between a crime and lawfulness.

"They don't know how far away you were until they have you in handcuffs," Robbie Sherwood, a spokesperson for the House Democrats, told New Times on Monday.


Kleminich makes an analogy: He and his buddy are walking down the street, focusing on their cellphones, when they pass a cop questioning a suspicious person. One of the friends is recording video as they walk past while the other is checking basketball scores.


“That creates a constitutional tension that is difficult to overcome,” Kleminich said.


It does not follow that one is obstructing police and the other is not, all other things being equal, Kleminich said.


Other attorneys agree.


“This law is blatantly unconstitutional,” First Amendment attorney Dan Barr told New Times. “I’m tired of this legislature passing bills that they know are unconstitutional. The legislative council surely said it was unconstitutional. They went ahead and they passed it anyway.”

Kavanagh, however, has no qualms about the constitutionality of his newly codified law.

"The problem that the rules people had … I think we got that taken care of," he said.


A dozen community members officially supported the bill. More than 600 people and groups opposed it.


Officially, not a single police group supported the bill.


True police supporters would be gung-ho on accountability to weed out the bad cops, Barr and others argued.


“We believe that this bill stacks the deck against the public check on officer misconduct,” Timothy Sparling, of Arizona Attorneys for Criminal Justice, told the Senate Judiciary Committee in March.


The National Press Photographers Association also sent Kavanagh a letter in February opposing the measure.


“We are extremely concerned that this language violates not only the free speech and press clauses of the First Amendment, but also runs counter to the ‘clearly established right’ to photograph and record police officers performing their official duties in a public place,” the letter reads.


The new law is reminiscent of questionable legislation introduced by Arizona Republicans in the past.


In 2017, Scottsdale Republican Jay Lawrence floated a ban on wearing masks at public events, but it failed to account for events where disguises may be expected, such as a Halloween festival.

The bill was introduced soon after the Phoenix Police Department tear-gassed a crowd of thousands protesting former President Donald Trump's rally downtown. Some of the provocateurs wore masks to disguise their identities and protect against the noxious fumes.


That bill, also deemed unconstitutional by its skeptics, was gutted and later died in the Senate.


“Kavanagh dreams up these bills that are not based on any real-world activity,” Barr said.


Kavanagh, the fourth-term senator, argued that filming close to a police encounter creates safety concerns for all involved, but did not bring up a specific incident. He also believes there’s no justifiable reason to record video at a distance of eight feet, a stance opposed by the National Press Photographers Association.


"Nobody walks up to a cop when he is questioning a suspicious person or arresting somebody and stands one or two feet away,” Kavanagh said on Arizona PBS. "Common sense says you’re asking for trouble.”

In fact, Kavanagh told New Times that "footage taken from 8 feet is actually better than footage from three feet."

Nobody is buying Kavanagh's claims about trouble-making videographers, Barr says. And there’s already a law on the books in Arizona stating it’s illegal to interfere with police work.


Kavanagh claims that the old law isn't sufficient to stall the camera-wielding agitators who routinely antagonize the Phoenix Police Department.

"'Interfere’ means to physically obstruct," he said. "Standing nearby isn't interfering, so the law is necessary."

The preexisting law defines obstruction as "using or threatening to use violence or physical force" to hinder police activity.

But redefining interference wasn't the true motivation behind HB 2319, Barr speculated.


“Internally, it doesn’t make any sense,” Barr said. “You don’t have to be an expert in constitutional law to see that they’re criminalizing protected First Amendment activity to discourage people from taking videos. The motivation behind the bill, frankly, is for these videos to not exist.”


It’s an accountability concern that comes as law enforcement agencies in Arizona face mounting scrutiny and lawsuits.


Last year, the U.S. Department of Justice launched a sweeping investigation into the Phoenix Police Department and the city of Phoenix for a series of alleged police misconduct issues, including excessive force and retaliation against protesters.


More than 100 demonstrators in Phoenix were corralled and arrested with a copy-and-paste probable cause statement during protests in the wake of the killing of George Floyd in 2020, sparking an active lawsuit.


Cops in Arizona also have killed more people this year than any other state except California and Texas, according to Mapping Police Violence, a research collaborative that keeps tabs on police-involved deaths around the country.

The new law is bound for the courts, where the outcome is anyone's guess.

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Elias Weiss is a staff writer at the Phoenix New Times. A native of Charlotte, North Carolina, he reported first for the Northwest Arkansas Democrat-Gazette and was editor of the Chatham Star-Tribune in Southern Virginia, where he covered politics and law. In 2020, the Virginia Press Association awarded him first place in the categories of Government Writing and Breaking News Writing for non-daily newspapers statewide.
Contact: Elias Weiss