Arizona Gov. Doug Ducey is a staunch fiscal conservative who just passed a fantastic school choice reform. Generally, the governor promotes free markets and individual liberty. So, I was both surprised and concerned to see the news that Ducey had just signed into law a bill restricting citizens’ ability to record the police.
After all, the police work for us, the people. Recording the police is not only a First Amendment right, but it is essential for transparency over the government employees granted the power to use force. It’s also good for “good cops” — video evidence serves just as well to vindicate officers from false accusations as it does to confirm allegations of police brutality. It also enables the efficient collection of persuasive evidence.
Hence why civil-liberties-minded commentators quickly raised concerns about this new legislation.
I share their concern — but when I looked into the details of the legislation, which prohibits recording the police from within 8 feet, it wasn’t nearly as bad as I had first thought. The bill’s author, state Rep. John Kavanagh, says it’s not actually a prohibition on recording the police, but simply requires people to stand back from potentially dangerous situations.
“I’m not saying you can’t video police,” he wrote. “Just stay back a few feet in some situations.”
Kavanagh also notes that the bill includes exceptions allowing the actual person who is interacting with the police to record the interaction, allowing people to film from within a vehicle, and only applies the restriction in situations involving potential violence, such as executing an arrest. With this context, it’s not as bad as it seems at first glance.
“Getting very close to police officers in tense situations is a dangerous practice that can end in tragedy,” he writes. “Police officers have no way of knowing whether the person approaching is an innocent bystander or an accomplice of the person they’re arresting who might assault them. Consequently, officers become distracted and while turning away from the subject of the encounter, the officers could be assaulted by that subject or that subject could discard evidence or even escape.”
I don’t think these concerns are unreasonable. That said, there is a great potential for abuse in this law, which remains quite vague. Why 8 feet? Why not 6 feet? Or 10 feet? And how is the exact distance going to be enforced? Are police really going to break out the tape measure during an arrest?
It seems to me that police could abuse use this discretion to stop people recording from anywhere close to them. What’s more, the legislation will certainly face constitutional challenges and might be struck down as a violation of the First Amendment.
“Members of the public have a First Amendment right to video police in public places, and what this tries to do is discourage people from doing that,” constitutional lawyer Dan Barr said. “You are punishing people for exercising their First Amendment right, when they are not actually interfering with police.”
But Kavanagh says that he modified his bill to comply with existing Supreme Court precedents, so he does believe it is constitutional. We’ll have to see how it plays out in the courts.
Yes, the ability to record police is essential for transparency, and yes, the new Arizona law could be abused. But, thankfully, it’s not nearly as bad as it initially seemed.
Brad Polumbo (@Brad_Polumbo) is a co-founder of Based-Politics.com, a co-host of the BasedPolitics podcast, and a Washington Examiner contributor.
