The cheese stands alone. No one wants to defend his unconstitutional law limiting the recording of police officers violating the civil liberties of individuals, not even John Kavanagh. He suffers a well-deserved humiliating defeat in court.

Howard Fischer reports, Arizona lawmaker drops bid to limit police recording Attendees:


A controversial Arizona law that would limit the recording of police video will not go into effect, at least not this year.

Rep. John Kavanagh told Capitol Media Services on Wednesday that he had not been able to find an organization willing to go to federal court to defend his legislation. It would be a crime to record video of police activity within 8ft without permission.

Put your own money where your big mouth is, big boy.

Violators would face 30 days in prison and a $500 fine.

Attorney General Mark Brnovich, who is named as a defendant in the lawsuit, did not appear for a hearing last week.

So US District Court Judge John Tuchi issued an injunction to prevent the law from going into effect on September 24 as planned. And he set a deadline of Friday to see if legislative leaders are ready to take up the fight, which Brnovich would not.

“The Senate will not appeal,” Senate President Karen Fann said on Wednesday.

And House Speaker Rusty Bowers said he sees no reason to intervene.

“There’s a general feeling that the idea needs to be refined,” he said. “And I don’t think I’m going to push a defense from a House perspective.”

That leaves only Kavanagh, who developed the measure and is a former police officer. And he said he has reached out to various organizations representing police officers because he believes they have an interest in the law going into effect.

“No takers,” Kavanagh said Wednesday of his efforts.

“They looked to see if they could get other groups,” he said, as did those involved in legal affairs. “But no one bought.”

Without any effort to defend the law, the Tuchi paves the way to permanently ordering enforcement and effectively ending the measure.

What Kavanagh is left with as an option is to reshape the measure when lawmakers meet in January. [Hopefully he will not be returning to the legislature, 16 years of his nonsense is long enough!] But he said the form of that new version will depend on Tuchi’s final order – and what the judge says is legally unacceptable in HB 2319.

However, it remains unclear how much discretion Kavanagh will have to find something that meets the legal requirements.

When the injunction was issued last week, Tuchi said he believes individuals have a First Amendment right to record police activity.

And he dismissed Kavanagh’s claim, made during the legislative debate, that HB 2319 was necessary to prevent law enforcement from being disrupted or distracted.

Arizona already has other laws on its books to prevent interference with law enforcement officers,” the judge wrote. “The court does not see how the presence of a person recording video near an officer interferes with the officer’s activities.”

One option for Kavanagh could be to change the distance to allow people with cameras to get closer.

He originally suggested a 15-foot buffer.

“But I went 8 feet because the US Supreme Court said that in terms of First Amendment rights, it was constitutional to keep abortion protesters 8 feet from clinic entrances,” Kavanagh said. “So I figured the same distance would apply here easily.”

However, he said there was no point in reducing the ban to a smaller distance.

“You can’t even get the whole scene from 2 feet,” Kavanagh said.

“What do you want, a shot of the person’s shoulder?” he continued. “What’s the use?”

But distance isn’t the only concern Tuchi addresses.

“HB 2319 only prohibits video recording and does not address audio recording or photos taken from the same distance or with the same device,” the judge said. “It also doesn’t appeal to people who might be using their cellphones for other purposes, such as sending text messages.”

This shows, said Tuchi, that “the purpose of the law is not to prevent interference with law enforcement, but to prevent recordings”. [True dat!]

Kavanagh said that was an easy fix.

“If it’s just about videotaping people, I might expand it,” he said of the law’s scope, banning anyone from being in that 8-foot bubble.

However, that may not solve the legal issues Tuchi has with the concept of keeping people away from police activity.

He said that limitations on First Amendment rights can exist only if they serve “a compelling state interest, and only if they are narrowly designed to achieve that end.”

Kavanagh said he doubts the judge will conclude that the law gives police too much discretion over when and how to enforce it.

“There’s just as much, if not more, discretion in ‘Stop, Question and Frisk,’” he said. This allows a police officer to stop and question an individual if the officer has reasonable grounds to suspect that someone has committed, is committing, or has committed a crime. It also allows an officer who believes someone has a gun to pat down a person.

The legality of this process was upheld by the US Supreme Court in 1968.

The challenge to HB 2319 was filed by a coalition of media organizations and the American Civil Liberties Union of Arizona.