Law Enforcement Will Not Enforce Rep. Kavanagh’s Unconstitutional Police Filming Law

How much more money does this state have to piss away on unconstitutional bills passed by culture war Republicans? Even legislative counsel warned these fools this bill was unconstitutional, and yet they went ahead and did it anyway, and our culture war governor signed it into law. It will not be enforced by law enforcement, and will be struck down by the courts.

Send the bill for attorneys fees and costs to be incurred to John Kavanagh. He should pay for his foolishness, not Arizona taxpayers.

Howard Fischer reports, Arizona AG will not defend any law restricting the filming of police officers:

Attorney General Mark Brnovich will not defend a new law that makes it a crime to video police activity within 8 feet.

In fact, he will not even resist an offer from the media and the American Civil Liberties Union to block their enforcement while the measure’s legality is examined. Instead, he said it is up to lawmakers to find someone to go to court on their behalf if they want the law to go into effect on September 24 as planned.

Brnovich’s request came as a surprise to Senate President Karen Fann.

“This is the first time I’m hearing about it,” she told Capitol Media Services. Fann said she now has to have the matter handled by Senate attorneys “to see if we should pursue it ourselves.”

But Brnovich’s decision to sit on the sidelines during the litigation didn’t sit well with Rep. John Kavanagh, R-Fountain Hills. The former police officer is the author of the bill.

“I am disappointed and at a loss as to why the prosecutor will not defend a pro-police bill passed by the legislature and signed by the governor,” he told Capitol Media Services. Kavanagh said he was pursuing “other avenues to defend this good law and the law that is needed.”

However, if no one shows up, no one on the other side of the issue will be in court later this month when US District Court Judge John Tuchi hears arguments from attorneys challenging the measure, who claim the law “violates the clearly defined First Amendment rights of plaintiffs and everyone else in Arizona to record the public activities of law enforcement officials.”

Take a default judgement.

The law, when enacted, will make it a crime to be within eight feet of police activity when recording video. Violators face up to 30 days in prison and a $500 fine.

Kavanagh said it was legally defensible. [He is well known to be a crackpot.]

The law is necessary to protect police officers from distraction, he told Capitol Media Services. And Kavanagh dismissed arguments from challengers that concerns can be addressed with existing laws that already make it a crime to interfere with the police.

In most cases, challenges to the constitutionality of state laws are defended by the state. And Brnovich himself is named in the lawsuit as a defendant because he is the state’s chief law enforcement official. While in office, Brnovich has the authority to enforce all state laws.

But in his legal filing, Brnovich does not say whether he believes the law, which is likely the only one of its kind in the country, to be constitutional. Instead, he tells the judge there is no reason for him to be named in the lawsuit — or to defend the law.

“The plaintiffs have come a long way from proving that there is any sort of foreclosure by the attorney general,” he said. He said it’s up to local prosecutors to decide whether to pursue charges against members of the media, activists or others who bring their video cameras into the 8-foot exclusion zone. [See below.]

So Brnovich told Tuchi he would inform Fann and House Speaker Rusty Bowers that if they want the law to be defended, they need to get help from county and local prosecutors.

What happens now remains unclear.

* * *

When the Republican-controlled Senate approved HB 2319 by a 16-to-12 party-line vote, it came despite legal advice from the chamber’s own legal counsel, who indicated the measure had problems.

The bill “raises questions regarding First Amendment and freedom of speech” because “recording of law enforcement activity has been recognized by federal courts as falling within this First Amendment right,” Chris Kleminich, a Senate prosecutor, told members of the rule Committee charged with examining laws on constitutional issues.

When the challengers filed suit last month, the challengers said the action “violates plaintiffs’ and everyone else’s clearly stated rights in Arizona to record the public activities of law enforcement officials.”

“By allowing law enforcement officers to arrest and punish people simply for capturing video of their actions, the law creates an unprecedented and patently unconstitutional restriction on the content of speech about a key government function,” wrote multiple media outlet David Bodney. He said that news organizations trying to avoid a possible 30-day jail sentence and $500 fines “must refrain from or limit their coverage of topics and events that they would otherwise deem worthy of reporting.”

But the legal issues beyond news organizations.

The legal papers, also signed by KM Bell of the ACLU of Arizona, say members of that organization “frequently exercise their First Amendment right to record video of law enforcement activities.” And like her peers in the media, Bell said it was “often necessary or unavoidable to capture clear footage” to be within eight feet of police, even in crowds or on public sidewalks.

Brnovich not only wants to defend the right in the new lawsuit, but also wants to pay for it.

“The Attorney General will oppose any award of attorneys’ fees or costs against him in any capacity because he does not contest the constitutionality of the statute,” the papers read. “Plaintiffs have provided no basis for naming him as a defendant, and plaintiffs did not notify him or seek his position prior to filing this lawsuit and the injunction.”

OK, this is total B.S. The Attorney General is a statutory party who must be named in the lawsuit, because it is the AG’s office which defends the state. You can rest assured that a Notice of Claim was sent to the AG’s office prior to filing suit, because Plaintiffs’ lawyers are all way better lawyers than is “Nunchucks.”

The Arizona Mirror adds, No one wants to defend the new AZ law that makes filming police officers a crime:

All three of the defendants in a lawsuit filed last month by a coalition of news organizations and civil libertarians say they won’t defend a law set to go into effect later this month that would make it a crime to take video of police officers in some situations.

The plaintiffs in the lawsuit, including the Arizona Mirror, filed a federal lawsuit and a request asking a federal judge to stop the law from being enforced, known as a preliminary injunction.

The new law is scheduled to go into effect Sept. 24, and would outlaw video recording of police officers within eight feet of where “law enforcement activity” is taking place. If a person does not stop after being told to, they could face a class 3 misdemeanor and up to 30 days in jail.

The lawsuit named Attorney General Mark Brnovich, Maricopa County Attorney Rachel Mitchell and Maricopa County Sheriff Paul Penzone as defendants. The AG’s office is almost always a defendant in litigation challenging state laws, while the Maricopa County officials will be tasked with enforcing the new law.

But Brnovich’s office on Sept. 1 told the court that it will not oppose the preliminary injunction. Beau Roysden, the state’s solicitor general, wrote that the AG “is not the proper party to defend the merits of” the new law.

Roysden wrote that the AG’s Office would notify Rusty Bowers, the speaker of the Arizona House of Representatives, and Karen Fann, the president of the Senate, that local and county prosecutors “are the proper entities to defend this statute.”

However, the next day, the Maricopa County Attorney’s Office said that neither it nor the Sheriff’s Office would defend the law or oppose the motion to block the law from going into effect.

“Neither County Attorney Mitchell nor Sheriff Penzone were involved in the passage of the statute at issue, nor is there any allegation in the complaint indicating that these defendants have enforced or threatened to enforce the challenged statute,” Deputy County Attorney Joseph Vigil wrote.

This is an argument that the lawsuit is premature, there is no actual case or controversy before the court with a party who has or will suffer harm as a resut of the law. But why should a citizen exercising their constitutional rights first have to suffer the harm of being arrested? The plaintffs are seeking a prophylactic enjoinder of the aw to prevent any harm from occurring from this facially unconstitutional law.

Although Bowers and Fann were not named as defendants, they could seek to intervene in the case to defend the law. Fann said the Senate was mulling whether to act.

“The executive branch’s role is to enforce and defend the laws passed by the Legislature and signed by the governor. We are currently considering all options and will not comment further on pending lawsuits,” she said through a spokeswoman.

A requests for comment with a spokesman for Bowers was not returned.

[C]ourts have long ruled that the First Amendment protects not only the publication of videos, but also the act of recording them — particularly videos of public officers in public places.

The U.S. Supreme Court “has consistently recognized a right to gather news, and recording police and other government officials is newsgathering,” attorneys for the news organizations and the ACLU noted in their filings. In a 1972 case, the high court ruled that “freedom of the press could be eviscerated” without First Amendment protections for seeking out the news.

And legislative attorneys warned lawmakers that the restrictions flew in the face of previous court rulings. Still, it was supported by every Republican legislator and signed into law by Gov. Doug Ducey.