Police accountability just got a bit harder.
Last week, Arizona Gov. Doug Ducey approved House Bill 2319, making it a misdemeanor offense to record police activity at close range after officers have issued a verbal warning. The new policy goes into effect in September.
According to the new law, “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.”
Rep. John Kavanagh, R-Fountain Hills, sponsored the bill. In an op-ed for the Arizona Republic, he sad that he could “think of no reason why any responsible person would need to come closer than 8 feet to a police officer engaged in a hostile or potentially hostile encounter. Such an approach is unreasonable, unnecessary and unsafe, and should be made illegal.”
Does this bill violate the First Amendment?
In Arizona, federal appeals courts have recognized a First Amendment right to record police officers performing their official duties in public, according to a citizen’s guide to recording police from NYU’s First Amendment Watch.
Important to note:
In the bill, “law enforcement activity” is defined as an officer questioning a suspicious person, an officer conducting an arrest or an officer handling a situation involving “an emotionally disturbed or disorderly person.”
The bill states that when a police encounter is occurring in an enclosed area on private property, a person who is authorized to be there may record closer than 8 feet — “unless a law enforcement officer determines that the person is interfering in the law enforcement activity” or it is unsafe.
In addition, a person who is being questioned may record within 8 feet of the law enforcement officer and, during a traffic stop, the occupants of the vehicle may also record the encounter — as long as no one is interfering with “lawful police actions,” such as searching, handcuffing or conducting a field sobriety test.
The American Civil Liberties Union of Arizona pointed to the following for guidance on how to respond to police abuse or brutality:
- Stand at a safe distance and, if possible, use your phone to record video of what is happening. As long as you do not interfere with what the officers are doing and do not stand close enough to obstruct their movements, you have the right to observe and record events that are plainly visible in public spaces.
- Do not try to hide the fact that you are recording. Police officers do not have a reasonable expectation of privacy when performing their jobs, but the people they are interacting with may have privacy rights that would require you to notify them of the recording. In many states (see here) you must affirmatively make people aware that you are recording them.
- Police officers may not confiscate or demand to view your photographs or video without a warrant, and they may not delete your photographs or video under any circumstances. If an officer orders you to stop recording or orders you to hand over your phone, you should politely but firmly tell the officer that you do not consent to doing so, and remind the officer that taking photographs or video is your right under the First Amendment. Be aware that some officers may arrest you for refusing to comply even though their orders are illegal. The arrest would be unlawful, but you will need to weigh the personal risks of arrest (including the risk that officer may search you upon arrest) against the value of continuing to record.
If you believe your rights were violated
- Write down everything you remember, including officers’ badges and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses.
- If you’re injured, seek medical attention immediately and take photographs of your injuries.
- File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.
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