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
Videos like those that captured police killing George Floyd and Eric Garner would be illegal in Arizona under a new law proposed by a retired police officer.
A bill proposed by Fountain Hills Republican Rep. John Kavanagh, who spent decades as an officer for the Port Authority of New York and New Jersey, would make it unlawful for someone to film police from up to 15 feet away while officers are engaged in “law enforcement activity” Constitutional experts and civil rights advocates say the proposed law would be blatantly unconstitutional.
“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, told the Arizona Mirror. “This would make the recording of the murder of George Floyd illegal.”
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House Bill 2319 is similar to a bill Kavanah proposed in 2016. This year’s version considers a violation a “petty offense.” But if a person “fails to comply with a verbal warning” or has been previously convicted for filming police officers, they would face a class 3 misdemeanor and up to 30 days in jail.
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.
Kavanagh disagrees with his critics, saying that the bill is not unconstitutional and that people are still able to record police interactions at what he says is a safer distance for both police and bystanders.
“It distracts the cop against the person they are making enforcement against,” Kavanagh said of people videotaping law enforcement. “If I ban videotaping, then it would be unconstitutional.”
The Arizona Chapter of the American Civil Liberties Union disagrees.
“Simply filming them is not interference,” said K.M. Bell, ACLU Arizona’s Smart Justice campaign strategist. “In terms of protecting the officers, if someone is standing there holding a cell phone it does not endanger the officer in any way.”
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.
Changing the law as Kavanagh wants would serve to protect corrupt police officers, Barr said.
“The people who would benefit from this would be the police doing illegal things,” he said. “It is attempting to solve a problem that doesn’t exist”
Kavanagh contends that the bill is about officer and public safety, making sure that those who do want to film do so from a safe distance and don’t distract law enforcement from their own duties.
Kavanagh recalled a story of when he was an officer arresting a suspect and another person was interfering with the scene, which distracted him so he didn’t see the suspect dump a large quantity of drugs. He said another officer did notice and pointed it out to him.
“Evidence can be lost, the cop can be assaulted,” Kavanagh said.
He also tried to spin the 15-foot limit as a good thing for those filming cops: “I think you get a better picture from 15 feet away. You get the full scene.”
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