Fault Lines
20 October 2017

Arizona Legislator Tries To Sweep Back The Ocean With A Bill Limiting Citizens’ Right To Record Cops

Jan. 13, 2016 (Mimesis Law) — Before he became a state legislator, Arizona State Senator John Kavanagh was a cop. Cops, state legislators, Arizonans: none of these people are known for constitutional acumen. So it’s no surprise that Senator Kavanagh has offered a fairly lawless proposal: a bill to make it illegal for people to stand close to cops to record them engaged in acts of coppery.

The proposed legislation makes it illegal to record cops in action.

IF THE PERSON MAKING THE VIDEO RECORDING DOES NOT HAVE THE PERMISSION OF A LAW ENFORCEMENT OFFICER AND IS WITHIN TWENTY FEET OF WHERE THE LAW

ENFORCEMENT ACTIVITY IS OCCURRING.

If it’s on private property where you have a right to be — say, your house — you can record the cop from the next room, unless of course the cop says you can’t.

IF THE LAW ENFORCEMENT ACTIVITY IS OCCURRING IN AN ENCLOSED STRUCTURE THAT IS ON PRIVATE PROPERTY, A PERSON WHO IS AUTHORIZED TO BE ON THE PRIVATE PROPERTY MAY MAKE A VIDEO RECORDING OF THE ACTIVITY FROM AN ADJACENT ROOM OR AREA THAT IS LESS THAN TWENTY FEET AWAY FROM WHERE THE ACTIVITY IS OCCURRING, UNLESS A LAW ENFORCEMENT OFFICER DETERMINES THAT THE PERSON IS INTERFERING IN THE LAW ENFORCEMENT ACTIVITY OR THAT IT IS NOT SAFE TO BE IN THE AREA AND ORDERS THE PERSON TO STOP RECORDING OR TO LEAVE THE AREA.

Taking video from 19 feet away is a petty offense, unless the cop tells you to piss off, at which point it becomes a misdemeanor if you don’t.

Senator Kavanaugh explained to U.S. News and World Report that this is all Wilson Pickett’s fault.

In the early 1970s, Kavanagh says, he arrested a bandmate of the popular “Mustang Sally” singer at John F. Kennedy International Airport. He had the man against a wall after finding syringes in a clam-shell jewelry case when Pickett approached and politely asked, “Is this gonna take long?” he recalls.

The next day, the ex-Port Authority cop says, he was told the arrestee tossed a package of heroin behind a television as he looked away.

As I recall Yosemite Sam used to fall for that “hey look over there” routine a fair amount as well.

Yet Senator Kavanagh didn’t offer a bill prohibiting musicians, or any other class of people, from approaching an officer in the course of a detention or arrest. He aimed at folks recording cops. Kavanagh thus joins a long list of cops and cop-supporting legislators trying to restrict the public from filming public servants in public. Many have tried, most have failed.

Courts in Boston and New Hampshire and Chicago and New York have recognized a First Amendment right to film police officers in public and have even noted that the right is “well established” — meaning that violating it could trigger liability. Kavanagh may think that he’s solved the problem by saying that you can’t record an officer from within 20 feet, perhaps viewing that as a reasonable time, place, and manner restriction. His optimism isn’t warranted, especially when the recording goes on in public places. Eugene Volokh noted the First Circuit’s prescient comments about such restrictions:

Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are “sharply circumscribed.” Moreover, … the complaint indicates that Glik “filmed [the officers] from a comfortable remove” and “neither spoke to nor molested them in any way” (except in directly responding to the officers when they addressed him). Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.

So: given the strength of the right involved, courts should not accept Senator Kavanagh’s presumption that filming from within 20 feet is inherent interference with police business. If a specific act of recording actually interferes with police business (and not merely with an officer’s ego), then the photographer can be prosecuted under a common interference statute, and there’s no need for a special prohibition on filming.

Why do legislators like Kavanagh keep trying this nonsense? They do so because their constituency is cops, and people who think that cops should be obeyed without question. And cops are nervous. Disturbing videotapes of police misconduct are no longer a rare exception, as in the Rodney King era. With a smartphone-obsessed populace, they’re an almost daily occurrence. The cops are chafing at it. Their unions make grandiose claims that recording them puts them at risk or even (heaven forbid) makes them fear legal consequences and make potentially fatal hesitations.

But how much do they have to worry about, really? Even when cops get caught on film, criminal consequences are the exception, not the rule. Videotapes seem more likely to generate perjury charges than murder, assault, or civil rights violation prosecutions. Even if a video shows a cop shooting a man in the back or beating the shit out of a prone woman, the smart bet is that they’ll skate. And if they are charged? American juries give cops every benefit of the doubt and defer to their tactical judgments, no matter what the video shows.

But maybe times are changing. Yesterday Greg Prickett suggested that we’ve reached a tipping point in cultural attitudes towards police abuse. Perhaps cops — and dutiful legislators like Senator Kavanagh — sense that potential cultural change, and want to head it off by attacking the technological innovations that have made it possible.

But they’ll fail. You can’t stop the signal — certainly not with cynical and unconstitutional restrictions on citizens’ First Amendment rights.

Ken White is a civil and criminal litigator at Brown White & Osborn LLP in Los Angeles. He blogs about law at Popehat.com.

4 Comments on this post.

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  • David
    13 January 2016 at 9:58 am - Reply

    Using the Wilson Pickett misdirection incident to illustrate why his proposed law is needed seems particularly obtuse. If the incident had been filmed, then that footage would likely show (and therefore be evidence of) the suspect’s ditching the heroin– not undermining the officer’s activity but rather confirming his suspicion!

  • Keith
    13 January 2016 at 2:20 pm - Reply

    Their unions make grandiose claims that recording them puts them at risk

    Worse than the union, this is the police commissioner himself saying it.

  • Peter
    13 January 2016 at 7:54 pm - Reply

    I think a lot of our seemingly libertarian protections–such as free speech laws–are granted because they can’t effectively be used. Free speech operates in proportion to one’s access to the media.* Filming in public is tolerated because cameras used to be expensive and videos didn’t used to go viral. Now that the public is starting to take advantage of these protections in a meaningful way we can expect an attempted clampdown.

    *The fact you can’t be arrested or otherwise punished by the state for something you said (unless you were “radicalized”) is as good as far as it goes. But the imperium is hardly threatened by a raving Truther on the corner.

  • A Moment of Silence for the NRA
    12 July 2016 at 11:32 am - Reply

    […] speak on behalf of people who record the police, individuals like Fault Lines contributor Ken White write eloquently about their right to do so and in more and more states, the tide is turning in the cop-watchers’ […]