PHOENIX — A controversial Arizona law restricting how the public can film police faced its first legal challenge Tuesday with a lawsuit filed by the American Civil Liberties Union.
"We all have a First Amendment right to record officers in public," said ACLU lawyer Jared Keenan.
The group's Arizona chapter, joined by several Arizona news organizations including ABC15, filed a complaint in U.S. District Court. They argue the law goes against First Amendment freedoms.
“This law is a violation of a vital constitutional right and will severely thwart attempts to build police accountability. It must be struck down before it creates irreparable community harm,” the ACLU wrote in a statement on its blog.
Bystander cellphone videos are largely credited with revealing police misconduct — such as with the 2020 death of George Floyd at the hands of Minneapolis officers — and reshaping the conversation around police transparency. But some Arizona lawmakers say the legislation is needed to limit people with cameras who deliberately impede officers.
The law, signed by Republican Gov. Doug Ducey in July, makes it illegal to knowingly film police officers 8 feet (2.5 meters) or closer without an officer's permission. An officer can order someone to stop filming even if they are on private property recording with the owner’s consent if an officer finds they’re interfering or deems the area unsafe.
The penalty is a misdemeanor that would likely incur a fine without jail time.
It was crafted by Republican state Rep. John Kavanagh, a former police officer, who argued officers need to be able to do their job without interference.
"This bill was about balancing the constitutional right to videotape police officers in public places, which I respect, with the safety of the officer," Kavanagh told ABC15.
The original legislation was amended so it applies to certain types of police actions, including the questioning of suspects and encounters involving mental or behavioral health issues.
People who are the direct subject of police interaction are also exempted. They can film as long as they're not being arrested or searched. Someone in a car stopped by police or being questioned can also film the encounter. Kavanagh said these changes were made with input from the ACLU.
"It’s not a problem except in cases of people with cameras who are either intentionally in the face with cops for political reasons or inadvertently got lost in their camera and now they too are in a potentially dangerous situation," Kavanagh told ABC15.
In similar cases, six of the nation's dozen U.S. appeals courts have ruled on the side of allowing people to record police without restriction. Less than a week after the Arizona law took effect, the 10th Circuit Court of Appeals in Denver ruled that a YouTube journalist and blogger's lawsuit against a suburban Denver police department could move forward. The blogger claimed an officer blocked him from recording a 2019 traffic stop.
The Phoenix Police Department, which oversees the nation’s fifth-largest city, has been criticized in recent years for its use of force, which disproportionately affects Black and Native American residents.
Reporters and photographers say this law will make it nearly impossible to do their job, especially at massive events like protests.
"The law is super vague," said Chris Kline, president of the Arizona Broadcasters Association. "What happens if you’re a local media member or just a member of the public and a police officer comes to within a few feet of you while you’re filming, have you broken the law?"
The outlets that are also plaintiffs in the suit include Phoenix Newspapers Inc.; Gray Television; Scripps Media; KPNX-TV; Fox Television Stations; NBCUniversal Media; Arizona Broadcasters Association; States Newsroom; Arizona Newspapers Association; and the National Press Photographers Association.
“We fear that, rather than acting as a shield to ensure ‘officer safety,’ this law will serve as a sword to abridge the ‘clearly established’ First Amendment right to video record police officers performing their official duties in public,” Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said in a statement.
The named defendants in the lawsuit are Arizona Attorney General Mark Brnovich, Maricopa County Sheriff Paul Penzone, and Maricopa County attorney Rachel Mitchell. ABC15 reached out to all three agencies. Sheriff Penzone issued the following statement:
"To include me in a lawsuit for which I had no involvement in crafting, vetting or passing is an example of targeting a law enforcement leader for the sake of sensationalization. There are 15 Sheriff’s [sic] and 50-100 police chiefs in Arizona. The ACLU listed my name only as a tactic to harass and target me. I find it disingenuous and irresponsible."
