Arizona law bans people from recording police within 8 feet

The governor of Arizona has signed a measure into law that makes it illegal for people to record videos within 8 feet of police activity, limiting efforts to increase transparency around law enforcement operations.

The law, signed by Gov. Doug Ducey on Wednesday, goes into effect in September. Many civil rights groups and news media organizations have criticized the measure, which comes after the predominance of cellphone cameras increased public documentation of police activity, including in the high-profile police killings of George Floyd in Minneapolis and Eric Garner on Staten Island, New York.

State Rep. John Kavanagh, the bill’s sponsor, said that there was little reason for bystanders to be within 8 feet of an on-duty police officer and that the law would protect people from getting close to dangerous situations and prevent them from interfering with police work.

Under the law, it is illegal for someone to record law enforcement officers if the person is within 8 feet of an area where the person knows, or should “reasonably” know, that law enforcement activity is occurring, or if they receive a verbal warning from an officer about the rule.

Law enforcement activity could include questioning a “suspicious” person, conducting an arrest or handling a disorderly person, according to the text of the bill. A violation is a misdemeanor offense, with a potential penalty of up to 30 days in jail and fines of up to $500.

​​There are exceptions for people on private property, in a vehicle stopped by police or those who are the subjects of police contact, as long as they do not interfere with officers’ actions. There are no exceptions for journalists.

Alan Chen, a law professor at the University of Denver, said there were several outstanding questions about the law’s enforcement, including how people should respond if an officer moves toward them even though they were recording from more than 8 feet away.

“It might deter them from actually recording or might make them back up even further than the 8 feet that the law requires,” Chen said. “There’s certainly some First Amendment concerns here.”

The U.S. Supreme Court has not yet ruled on whether recording a video of a police officer in public while they are on duty is protected under the First Amendment. The action is recognized as a constitutional right in most federal appeals courts, including the 9th Circuit, which covers Arizona.

Chen said that he expected the Supreme Court would hear a case on the right to record police in the next several terms. “It is certainly going in the trend of courts recognizing it as an important tool for holding police accountable for misconduct,” he said.

Cellphone videos of deadly police encounters recorded by civilians have gained widespread attention and been featured prominently in courtrooms, although they do not always result in charges against officers.

Darnella Frazier was 17 when she used her cellphone to record a video of a white police officer, Derek Chauvin, as he knelt on Floyd’s neck, murdering him. Her video contradicted the Minneapolis Police Department’s initial, inaccurate description of his death.

The video of Garner dying in a police chokehold in 2014, recorded by his friend Ramsey Orta, was also shared widely, but a Staten Island grand jury declined to indict the officer who used the chokehold, Daniel Pantaleo.

Kavanagh, a Republican, said in an op-ed in The Arizona Republic in March that he proposed the bill because police officers had contacted him to express concerns about “groups hostile to the police.”

Kavanagh said he responded to criticisms of an earlier version of the bill by shrinking the restricted zone to 8 feet from 15 feet and by allowing subjects of police action to record video.

“I can 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,” Kavanagh wrote. “Such an approach is unreasonable, unnecessary and unsafe, and should be made illegal.”

The National Press Photographers Association sent a letter to Kavanagh in February that said the bill violated constitutional free speech and press protections. The New York Times Co. was one of more than 20 media organizations that signed the letter, which said that the law would be “unworkable” at protests and demonstrations.

The American Civil Liberties Union of Arizona wrote on Twitter that the law would make it more difficult to hold police officers accountable for misconduct and chilled “the use of the public’s most effective tool against police wrongdoing.”

This article originally appeared in The New York Times.