Frequent readers of the Free Thought Project know that filming the cops is not a crime. Despite this being a widely known provision — held up with multiple court precedents — cops continue to violate the First Amendment protected right of citizens to film the police. Last month, the Arizona House Appropriations Committee approved a bill that would criminalize filming cops on the job, dealing a massive blow to First Amendment rights. And this month, the Senate passed it.
It now moves to Governor Doug Ducey’s desk for signature, where it will become law.
Republican Representative John Kavanaugh, who is a former police officer, is the lead sponsor of the legislation. According to the bill, it is illegal “for a person to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person does not have the permission of the law enforcement officer” and is within 8 feet of the cop.
As Valera Voce, points out, the law also classifies unlawful video recording of law enforcement activity as a petty offense, unless a person fails to comply with a verbal warning of a violation or has been previously convicted of a violation in which case an offense is a class 3 misdemeanor. A class 3 misdemeanor comes with a minimum of 30 days in jail. Finally, the bill explicitly declares that it “does not establish a right, or authorize any person, to make a video recording of a law enforcement officer.”
“It’s crazy thinking about that for a second. The video that led to the criminal conviction of the police officer who killed George Floyd would itself be a criminal act. And that makes no sense whatsoever,” attorney Dan Barr told FOX 10.
“We believe that this bill stacks the deck against the public check on officer misconduct,” Timothy Sparling, a lawyer and legislative advocate for Arizona Attorneys for Criminal Justice, said during a Senate Judiciary Committee hearing last week. Sparling argued that the bill leaves too much up to the discretion of the officers. “When officers have such wide discretion to determine, say, what is lawful conduct or what is unlawful conduct on the ground and that is not properly defined … it’s ultimately up to whatever the officer wants it to be,” Sparling said.
Indeed, it is, and this is a dangerous notion.
“Can you be arrested for standing still while wearing a GoPro under this statute?” asks T. Greg Doucette, an attorney who specializes in criminal defense and free speech law, according to Reason. “It seems the answer here is yes, which would violate the First Amendment (since standing still isn’t interfering with an officer’s duties).”
The sorts of proposals are “to chill speech, absolutely,” Doucette added. “It will empower cops to say, ‘I’m going to arrest you if you don’t stop.’ And even though many of those arrests would get dismissed as First Amendment violations, you’ll have a bunch of people who plead to avoid trial or go broke trying to vindicate their rights.” Those who violate the Arizona bill—which passed the committee 7–5 along party lines—would be subject to a 30-day jail sentence if he or she refused to stop filming after an officer demanded it.
What’s more, Barr says there are already laws on the books to prevent these kinds of problems, like getting arrested for interfering with an officer, and he’s right.