Rep. Kavanagh Bill To Make It A Crime To Record Police Misconduct On A Cell Phone Passes Senate Committee

Update to (Updated) Rep. Kavanagh Bill To Make It A Crime To Record Police Misconduct On A Cell Phone Passes House Committee (February 22, 2022).

The Arizona Mirror reports, Republican-backed measure to restrict filming of police officers passes Senate committee:

Legislation which would make it illegal to film police officers within eight feet of them is closer to becoming law, despite concerns that it could hinder efforts to document misconduct.

“We believe that this bill stacks the deck against the public check on officer misconduct,” Timothy Sparling, a lawyer and legislative advocate for Arizona Attorneys for Criminal Justice, said during a Senate Judiciary Committee hearing on Tuesday.

Sparling spoke against House Bill 2319, saying it leaves too much up to the discretion of the officers. The bill states that a person may not film an officer within eight feet without the officer’s permission, and allows both bystanders and those involved in the interaction to film only if such an action is not “interfering” in law enforcement activity.

“When officers have such wide discretion to determine, say, what is lawful conduct or what is unlawful conduct on the ground and that is not properly defined … it’s ultimately up to whatever the officer wants it to be,” Sparling said. 

Originally, the bill prohibited filming within 15 feet, but was adjusted to reflect eight-foot moving buffer zones upheld by the U.S. Supreme Court 14 years ago between protestors and abortion clinic patients.  K.M. Bell, an attorney for the Arizona chapter of the American Civil Liberties Union, said that ruling doesn’t apply because the situations aren’t equivalent.

The clinic buffer zones were implemented around one area, and only after an extensive record of issues between patients and protestors, Bell said. Officers aren’t constrained to one location, and a similar record of conflict with people filming doesn’t exist.

“In that case they were private citizens seeking medical care. Here we have officers who are out in public performing their taxpayer-funded public duties,” Bell said.

The eight-foot buffer zone also doesn’t account for movement from the officers towards the person filming, which may shorten the distance and lead to them being found in violation, Bell pointed out. Neither does the bill accommodate a lack of knowledge from the person filming — not everyone can accurately judge what eight feet looks like.

Filming an officer while less than eight feet away after being asked to stop could earn a person a class 3 misdemeanor, which comes with a minimum of 30 days in jail.

Rep. John Kavanagh, who previously served as a Port Authority officer in New York and New Jersey, sponsored the bill, and called it a measure in support of law enforcement safety.

“This is about preventing violence and misunderstandings, preventing the destruction of evidence and preventing police officers from harm,” he said.

It’s actually to impose a chilling effect on the public from filming cops committing crimes or violating a citizen’s civil rights. Without the video evidence, a jury is highly unlikely to convict a cop.

The Fountain Hills Republican responded to concerns about officers moving closer to people filming by saying that if they’re acting lawfully and standing still, there’s no reason for the officers to move towards them because they’re not considered suspicious.

Sen. Martin Quezada, D-Glendale, called that explanation “laughable.”

“I have participated in efforts to film police officers that are doing their jobs and you are absolutely a suspicious person to law enforcement at that point. And they aggressively come towards you to see why you were filming,” he said.

Quezada warned that the measure would restrict public oversight of police misconduct, and constitutes a restriction on actions that need transparency the most.

QAnon insurrectionist Sen. Sonny Borrelli, R-Lake Havasu City, said filming by members of the public puts officers in jeopardy. He noted that the space between his seat on the panel and the speakers at the podium was about 15 feet, and even that, in his opinion, was far too close. There was no formal measuring of the distance.

“There needs to be some distance, the officers need to secure the scene for their own safety, for the safety of the public,” Borrelli said.

Sen. Warren Petersen, a Gilbert Republican who chairs the committee, agreed with Borrelli that distance was the matter of safety. He said that his distance from Borrelli on the panel, separated only by Sen. Wendy Rogers, R-Flagstaff, mirrored the eight-foot requirement in the bill.

“I can’t think of any compelling reason why you would need to be closer than that. In fact, you definitely lose a lot by getting closer. You’re missing the big picture, especially with how clear cameras are,” he said.

The measure was approved by the five Republican members of the committee, with the three Democrat panelists voting against it. If the full Senate approves it, the bill will go to Gov. Doug Ducey’s desk.

Videotaping police activities? Senate panel OKs @JohnKavanagh_AZ measure requiring you to stay at least eight feet back – unless you're the one being questioned by officers. Some suggests the limit is unconstitutional. https://t.co/ljpFV8ABU3 pic.twitter.com/DSQGeeEmbx

— Capitol Media Services 📢 Telling it like it is (@azcapmedia) March 17, 2022

Howard Fischer adds, Bill would require people filming police officers to maintain distance of 8 feet:

In the age of the videotaped police killings of George Floyd and Eric Garner, when it comes to recording law enforcement activity, how close is too close?

Legislation approved Thursday by the Senate Judiciary Committee would keep those making these recordings at least 8 feet away.

Any closer would subject the person with the cellphone or the video camera to a fine of $300. But there’s also the possibility of 30 days in jail if there was a prior violation or the videographer failed to comply with an earlier verbal warning.

HB 2319 is the latest bid by Rep. John Kavanagh, R-Fountain Hills, to set what he contends are reasonable limits on the ability of people to get close to scenes where police are questioning or arresting someone.

“It was in response to news reports of groups, organized groups, some were critical of police, responding to police calls and, while the police were taking enforcement action, getting really close, within 1 or 2 feet,’’ he told committee members. And sometimes, Kavanagh said, they even would get right behind the police officer.

Reminder: Kavanagh said he initially got the idea to run the bill because he had seen stories of “groups” of people going around filming police. He said the legislation didn’t originate with any police union or advocacy group, though he later told ABC15 the idea came from a Tucson cop.

Kavanagh testified he would like a 15-foot buffer.

“With today’s cameras, at 15 feet, I could zero in on every one of you and pretty much see every blemish on your face,’’ he said. But Kavanagh conceded that there are constitutional issues with such a barrier.

So he agreed to set the limit at 8 feet. That is based on federal court rulings which set that as the distance at which protesters can be kept from entrances to abortion clinics. [See above for why he is wrong about this analogy.]

That distance requirement would not apply to indoor situations where the person with the camera or cellphone is in an adjacent room or area.

And those who are the ones being questioned could take videos of the encounter at whatever distance as long as it does not interfere “with lawful police actions, including searching, handcuffing or administering a field sobriety test.’’

Others, however, questioned both the need for and the legality of the restriction.

The issue of ordinary people making video recordings has been at the forefront of public reaction to several high profile interactions where the people being arrested ended up dead.

There was the 2014 incident where police in New York City were attempting to arrest Eric Garner for illegally selling loose cigarettes. That incident, captured on video, shows an officer grabbing the 350-pound man from behind, putting him in a choke hold, pulling him to the ground and rolling him onto his stomach.

He can be heard saying, “I can’t breathe! I can’t breathe!’’ repeatedly. The medical examiner ruled his death a homicide.

More recently was the 2020 death of George Floyd, arrested by Minneapolis police on suspicion of passing a counterfeit $20 bill. The four officers involved were fired the following day after videos taken by witnesses showed Derek Chauvin kneeling on Floyd’s neck for more than nine minutes.

K.M. Bell, an attorney with the American Civil Liberties Union of Arizona, said there are legal flaws in the wording. For example, she said nothing in the measure explains what happens if someone is videotaping and the one of the officers on the scene approaches.

“And, all of a sudden, you are in criminal violation of that law as a result of the officer moving,’’ Bell said.

Kavanagh said the way he sees it, that individual is not risking arrest.

“The person filming is not a suspicious person,’’ he said.

So if you find yourself in this circumstance, tell the officer “some Dude named John Kavanagh says I am not a risk to you,” and see how that works out for you. Yeah, right. You are going to be charged. What an idiot.

Sen. Martin Quezada, D-Glendale, called that “laughable.’’

“I’ve actually participated in efforts to film police officers that are doing their job,’’ he said.

“You are absolutely a suspicious person to the law enforcement at that point,’’ Quezada continued. “And they aggressively come toward you to see why you were filming.’’

And Quezada said the restrictions in the measure are curbing the exact kind of situations where it is most important to have a video record of the interactions between police and others.

“This is when we need for that recording of that activity to take place,’’ he said. “This is how and why we hold our law enforcement officers accountable.’’

This measure, Quezada said, goes in the opposite direction.

“I think we are in danger of putting a lot of people who are looking to peacefully and smartly observe law enforcement activity, put them in danger of being criminalized themselves,’’ he said.

Marana resident Dana Allmond urged lawmakers to reject the proposal.

“This comes down to trust and accountability and transparency that is lacking,’’ she testified. And Allmond, who is a Democratic candidate for the state House, said this needs to be about more than protecting police.

“We need to think moreover that Arizona citizens are protected,’’ she said.

Allmond said it’s one thing for police to ask for witnesses. But she said that testimony, by itself, may not be enough.

“I would want to be able to show everything I saw,’’ Allmond said.

Timothy Sparling had similar concerns.

“We believe that this bill stacks the deck against the public check on officer misconduct,’’ said Sparling a lawyer with Arizona Attorneys for Criminal Justice whose members generally represent defendants in criminal cases. And he contends the restriction is likely to be challenged as unconstitutional.

The measure, which already has cleared the House, now needs approval of the full Senate.

From the previous post:

Media groups including The Associated Press said the measure raises serious constitutional issues. They signed onto a letter from the National Press Photographers Association in opposition to the bill.

“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 said.

Letting an officer decide on the spot what First Amendment-protected activity should be allowed would be problematic in many situations, the letter said.

* * *

Constitutional experts and civil rights advocates say the proposed law would be blatantly unconstitutional.

“Courts have upheld that people have a constitutional right to videotape police activity, and now to say that it is illegal is just idiotic,” Dan Barr, an attorney who specializes in media and First Amendment cases, previously told the Arizona Mirror. “This would make the recording of the murder of George Floyd illegal.”

Republicans in the Arizona legislature don’t care about constitutionality. They keep lawyers in full employment with their lawless attempts to enact unconstitutional laws, costing taxpayers milions of dollars over the years.