Judge Blocks ‘No Recording Cops Within 8 Feet’ Law Even Arizona Cops Don’t Want To Defend

From [HERE] In 2016, Arizona state senator John Kavanaugh tried to make it much more difficult to record police officers. He authored a bill that would create a 20-foot “no recording” zonearound cops, supposedly in the interest of officer safety.

That bill went nowhere. It contained obvious First Amendment problems and reeked of protectionism that armed officers of the law do not need, much less deserve. The idea should have died forever, especially when public sentiment turned definitively against law enforcement, following the murder of unarmed black man, George Floyd, by white Minnesota police officer Derek Chauvin — a conviction that probably wouldn’t have been obtained without the assistance of a recording taken by Minnesota resident.

With that in mind — along with the apparent First Amendment issues — Kavanaugh went back to the “no recording” well again in 2021. This time, he trimmed down the diameter to eight feet, under the obviously mistaken assumption the First Amendment wouldn’t be troubled by this shorter length. 

Here’s the excuse Kavanugh offered for his First Amendment Violation 2.0 bill:

Kavanagh, of course, argues that he’s just trying to prevent “violence and misunderstandings.”

He also told the Arizona Mirror that this is to prevent “the destruction of evidence and preventing police officers from harm.”

Despite there being no public demand for this legislation and despite its clear constitutional problems, the bill was signed into law by Governor Greg Ducey, who is apparently every bit as idiotic as those forwarding him this legislation.

In defense of his second assault on established rights, Sen. Kavanaugh offered up this defense in his op-ed published by AZ Central.

I agreed to run this bill because there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters. The Tucson police officers who asked me to run this bill said that in their area some of these people videotape from 1 to 2 feet behind them, even when they’re arresting people.

This statement makes it appear Arizona law enforcement supports this broadside attack on the First Amendment. Maybe some of them do. But the law was immediately challenged by a bunch of Arizona news agencies, along with the ACLU. The lawsuit seeking an injunction pointed out the obvious constitutional deficiencies.

That challenge has (at least temporarily) succeeded. A federal court has blocked the law until all the legal issues can be sorted out. 

An Arizona law that would make it illegal to create video recordings of police in certain circumstances will not go into effect Sept. 24 as planned, after a federal judge temporarily blocked its enforcement.

The judge on Friday morning granted a temporary injunction of the law, essentially putting the law on hold while a court case challenging it plays out.

If you want precedent (specific to this district), you’ve got it, says the Arizona federal court in its decision[PDF]:

Under the first Winter factor, the moving party must show that it is likely to succeed on the merits. Here, Plaintiffs have done so. As Plaintiffs observe in their Motion, the Ninth Circuit has recognized that there is a “clearly established” right to “record law enforcement officers engaged in the exercise of their official duties in public places” under the First Amendment. Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018) (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing that an individual videorecording policing of protest was “exercising his First Amendment right to film matters of public interest.”)). The United States Supreme Court has also recognized a right to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Recording video of police officers performing their duties and distributing the video to the public is a news-gathering activity—it serves the Public’s First Amendment right to “receive information and ideas.” Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (citation omitted); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) (“the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”).

When a clearly established right meets a piece of boot-licking legislation, it’s the Constitution that almost always wins. That’s what the court foresees, hence the injunction. 

Now, the injunction can be lifted if the Arizona government (in any and all of its forms) can convince the court this restriction is minimal, narrowly crafted to serve a legitimate government interest, and cannot be achieved without this law. Good luck with that. Despite state senator John Kavanaugh’s claims that law enforcement back his law, it appears no form of law enforcement in the state is willing to go to court to fight for the 8-foot law’s survival.