PHOENIX (AP) — A federal judge on Friday blocked a new Arizona law that limits how the public and reporters can film police, agreeing with the American Civil Liberties Union and several media organizations that supported that it violated the First Amendment.
U.S. District Judge John J. Tuchi issued a preliminary injunction preventing enforcement of the law when it is set to take effect on September 24. The swift decision came after Republican Arizona Attorney General Mark Brnovich and the Maricopa County district attorney and sheriff’s office told the judge they did not plan to defend the law. They were named as defendants in the lawsuit filed last month.
The law was passed by the Republican-controlled Legislature over unified Democratic opposition and signed by GOP Gov. Doug Ducey on July 6.
It makes it illegal to knowingly film officers 8 feet (2.5 meters) or closer if the officer tells the person to stop. And on private property, an officer who decides someone is trespassing or the area is unsafe can order the person to stop filming even if the recording is being done with the owner’s permission.
The penalty is a misdemeanor that will likely carry a fine without jail time.
KM Bell, an ACLU attorney who lobbied against the bill in the Legislature and was in court Friday, said he was pleased the judge acted quickly.
“We are extremely pleased that Arizonans will not have their constitutional rights violated and their ability to record police criminalized by this law,” Bell said.
Cell phone videos from bystanders are largely credited with exposing police misconduct — such as the 2020 death of George Floyd at the hands of Minneapolis officers — and reshaping the debate around police transparency. But Arizona’s Republican lawmakers say the legislation was necessary to crack down on people with body cameras who intentionally obstruct officers.
Tuchi gave the legislature a week to decide whether to defend the law. The ACLU and media groups are seeking a permanent injunction.
Republican Rep. John Kavanagh, a retired police officer who supported the law, said he was “surprised” when Brnovich did not move to defend the law.
“I assumed the attorney general would do his job as the state’s attorney and defend a law that was passed by the state,” Kavanagh said. “We’re trying to get together with the (House) speaker and the (Senate) president and see if the legislature will stand up for it, but there’s also the possibility of some outside group stepping up.”
Brnovich’s office is responsible for defending the state’s laws. But in this case, his spokeswoman, Katie Conner, said that because the attorney general doesn’t have enforcement authority in these types of cases, it was the wrong place to sue.
Matt Kelley, an attorney representing the suing news organizations, argued in court papers that Brnovich is wrong. He noted that by law the attorney general can step in and enforce laws that county attorneys would normally do.
Kavanagh argued that allowing people to record police up close while doing enforcement, such as arresting or dealing with a disturbed person, could put officers at risk, and noted that he made several changes to address the ACLU’s concerns . These include changing the restriction from 16 feet (4.8 meters) to 8 feet.
“So I think that makes incredible sense,” he said. “And if what’s causing the problem is limiting it to just these law enforcement characters in all the meetings, how ironic that trying to limit the scope of government reach is unconstitutional. But I guess that’s the world we live in.”
Kelley said the law was very problematic. He praised Tuchi for quickly agreeing that the law did not meet the requirements needed to limit First Amendment protections for filming law enforcement activities.
“There was nothing in the law that said the person recording had to interfere with law enforcement or harass officers or do anything that would create a danger or a distraction,” Kelley said. “The only thing that was forbidden was just standing there, making a video recording. And since this is the activity protected by the First Amendment, this law was prima facie unconstitutional.”
The original legislation was amended to apply only to certain types of police action, including interrogations of suspects and encounters involving mental or behavioral health issues. Excludes people subject to police interaction or a stopped car.
In similar cases, six of the country’s dozen appeals courts have ruled in favor of allowing people to record police without restrictions. Shortly after the Arizona law was signed into law, the 10th Circuit Court of Appeals in Denver ruled that a YouTube journalist and blogger’s lawsuit against a suburban Denver police department could go forward. The blogger said a police officer stopped him from recording a traffic stop in 2019.
The Phoenix Police Department, which oversees the nation’s fifth-largest city, has come under fire in recent years for its use of force, which disproportionately affects black and Native American residents.
Journalists and photographers said this law would make it nearly impossible to do their jobs, especially at mass events like protests. The outlets suing include Phoenix Newspapers Inc., parent of The Arizona Republic; Gray TV? Scripps Media; KPNX-TV; Fox TV stations? NBCUniversal Media; the Arizona Association of Broadcasters; State Newsroom; Arizona Newspapers Association; and the National Association of Press Photographers.
The Associated Press filed a friend of the court filing asking Tuchi to block law enforcement. AP lawyers said photographers could be particularly caught when covering rallies, where it could limit their ability to record full interactions between police and protesters.