Federal judge halts Arizona ban on filming police within 8 feet

A federal judge in Arizona has, for now, halted the enforcement of a new state law that would ban people filming police at short range, setting a one-week deadline for any agency wanting to defend the idea to come forward.

The judge sided on Friday with media organizations, including The Arizona Republic, which argued that the law violates First Amendment protections.

House Bill 2319 was to take effect later this month, but the ruling means "Arizona journalists do not have to worry about this law going into effect on the 24th," wrote Matthew Kelley, the Washington D.C.-based lawyer who argued the case for media plaintiffs.

U.S. District Court Judge John Tuchi determined that media groups "are likely to succeed on the merits," noting that the law represents a content-based restriction on speech that fails strict scrutiny, Kelley said.

Gov. Doug Ducey signed the bill into law on July 6, making it illegal for any Arizonan to video record police activity from within 8 feet. Violators could face a misdemeanor charge.

On the face of it, the legislation pitted the safety of police officers against freedom of the press. The bill was crafted in the wake of a string of high-profile recordings of police misconduct, often taken by protesters. Backers of the measure said it was needed to prevent disruptive behavior, while opponents said it would only interfere with holding police accountable.

State Rep. John Kavanaugh, a former police officer, drafted and sponsored the bill last session to create a buffer around police interactions so that officers can do their work.

“It's really distracting and getting dangerous because they come within a foot or two of officers making arrests or doing other enforcement, so I wanted to provide them with some relief,” he said.

But the law interferes with the First Amendment right to record government officials from a public place, and Kavanaugh's bill never provided a good reason to do so, said Jared Keenan, the legal director of the American Civil Liberties Union of Arizona and one of the lawyers involved with the case.

“The problem is that there's already a number of laws on the books that, in theory, could be used to prevent actual interference with law enforcement,” he added. “The law didn't criminalize interfering with the law officer. It only criminalized activity of recording a law enforcement officer within 8 feet.”

Friday's ruling is only preliminary. Tuchi was concerned about making sure that any officials who want to defend the law are provided the opportunity to do so, Kelley said. Tuchi set a deadline of Friday, Sept. 16, for anyone who wants to defend the law to intervene.

No one to defend the law

The injunction will remain until the judge decides whether to make it permanent or deems the law constitutional, Keenan said.

It is unclear if anyone will step up to defend the new law.

AZ Mirror reported that the Arizona Attorney General, Maricopa County Attorney and Maricopa County Sheriff’s Office, all named as defendants in the lawsuit, declined to mount a legal defense. They said they were not “the appropriate agencies” to do so.

“It was a little bit surprising, you know, that none of the defendants were willing to defend the law,” Keenan said.

The response from the Attorney General also surprised Kavanagh, a Fountain Hills Republican.

“Possibly the Maricopa County Attorney I could see not being appropriate,” he said, “but I don't understand how the attorney general, who is the lawyer for the state, is not the appropriate party to defend a law passed by the state.”

Katie Conner, a spokesperson for the Arizona Attorney General’s Office, said in an email, "our office does not have enforcement authority in these types of cases. We were, therefore, not the proper party to defend it."

It’s up to Tuchi to decide if a party can defend the law. Still, Kelley explained in an interview that it would most likely be a group that bears the responsibility of enforcing the law, “like law enforcement or prosecutors.”

Because the law established any violation of the filming ban as a misdemeanor, any municipal prosecutor could emerge to defend the legal challenge, according to Kelley.

Kavanagh is in talks with Rusty Bowers, the outgoing speaker of the Arizona House of Representatives, and Arizona Senate President Karen Fann to find someone to step forward before the court deadline.

“Perhaps we’ll try to get a conservative judicial group like Judicial Watch to see if they might be interested in it,” Kavanagh said, “But the one-week deadline by the judge is very burdensome.”

The next step would be to set a schedule for lawyers on both sides to make their written arguments to the court.

The case affects all members of the public but specifically, photojournalists who find it impossible in some situations, especially during protests, to get "newsworthy footage" without being 8 feet from an officer, Kelly said.

“There is no doubt this law damages the First Amendment and the freedom of the press to cover the news,” said Greg Burton, executive editor of The Arizona Republic. “While neither Arizona’s Attorney General nor the Maricopa County Attorney stood to defend the law, we’re thankful the court granted our injunction. There are politics aplenty on the road ahead, but the Constitution is a good traveling companion.”

Kelley also felt encouraged by how quickly the ruling came.

“But now that the law has been enjoined, there's, you know, there's not quite as much urgency to, to have a final ruling on it, he said.

Kavanagh remained determined to have some version of this bill made into law regardless of the outcome.

”If if the judge says, you know, this is bad because of ‘x’,  next year, though, the bill will come in bill minus ‘x’,” he said.