An unidentified Tempe police officer discharges pepper spray at protesters who were following his orders to back up. The incident took place at a “Chalk Walk” protest outside Tempe Marketplace on June 27, 2020. Screenshot via Lisa Vu | Instagram
The people who took video of police killing George Floyd and Eric Garner would have faced criminal charges in Arizona under legislation that won approval in the state House of Representatives with only Republican support.
A bill proposed by Fountain Hills Republican Rep. John Kavanagh, who spent decades as a police officer for the Port Authority of New York and New Jersey, would make it unlawful for someone to film police from up to 8 feet away while officers are engaged in “law enforcement activity.”
The bill originally made it unlawful to film someone from 15 feet away, however, the bill was amended to 8 feet away to mirror a Supreme Court ruling regarding the distance protesters could be from abortion clinics, according to Kavanagh.
Constitutional experts and civil rights advocates say the proposed law would be blatantly unconstitutional.
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“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.”
The bill passed out of the Arizona House of Representatives Wednesday on a 31-28 vote, with Republicans supporting it and Democratic lawmakers in opposition.
An amendment added by the House Appropriations Committee allows people to film their own interactions with police, as long as they are “not interfering with lawful police actions, including searching handcuffing or administering a field sobriety test.”
The amendment also allows passengers in a vehicle to film as long as they don’t interfere with “lawful police actions.”
The amendment also limits what couldn’t be filmed from closer than 15 feet: questioning a suspicious person, conducting an arrest, issuing a summons or “enforcing the law,” and “handling an emotionally disbturbed or disorderly person who is exhibiting abnormal behavior.”
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
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.
He has said the bill is not unconstitutional because it only limits when police can be filmed instead of banning it entirely.
“It distracts the cop against the person they are making enforcement against,” Kavanagh has said of people videotaping law enforcement. “If I ban videotaping, then it would be unconstitutional.”
Filming of police has played an integral role in helping journalists and researchers learn the breadth of how law enforcement use “cover charges” to justify the use of excessive force.
The term is often used by defense attorneys to describe the charges used by police to cover up bad behavior or explain away the use of excessive force. In Chicago, it was found that two out of every three times the Chicago Police Department used force since 2004, they arrested the person on one of these types of charges. And a 2021 ProPublica investigation found in Jefferson Parish, La., 73% of the time someone was arrested on a “cover charge” alone, they were Black.
The bill now heads to the Senate.
***CORRECTION: This story incorrectly said the legislation approved by the state House of Representatives would bar filming within 15 feet. While the legislation was originally crafted to do so, it was amended to instead prohibit filming within 8 feet of a police officer. The story has been updated to reflect that correct distance.
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