Laws restricting right to film police prove to be a waste of time

Police officers stand guard inside the Maricopa County Tabulation and Election Center (MCTEC) in Phoenix, Arizona November 5, 2020. REUTERS/Cheney Orr

(Reuters) - Arizona Republicans have abandoned an ill-conceived effort to enact a law that would have insulated police from accountability, deciding on Sept. 16 that they wouldn’t defend a new statute banning video recordings of law enforcement within eight feet.

A federal district court had blocked the law from taking effect on Sept. 9 in a terse, six-page order, ruling that it was unnecessary, unreasonable and simultaneously over-inclusive and under-inclusive.

Those findings came in the first four pages, even before the judge in the case went on to consider the fundamental role of public access — especially to information about armed law enforcement — in a well-functioning democracy.

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The order from Judge John Tuchi granted a request for a preliminary injunction backed by the ACLU of Arizona and a slew of news organizations, including the Arizona Broadcasters Association, Fox Television Stations LLC, NBCUniversal Media LLC and the National Press Photographers Association.

Arizona Senate and House leaders announced a week later that they won’t intervene in the case, all but assuring a permanent injunction, the Associated Press reported on Sept. 16.

Even before Friday’s capitulation, Arizona Attorney General Mark Brnovich — a staunch ultra-conservative — had refused to defend the law, as did the sheriff and Phoenix prosecutor’s offices. Now, the Republican-dominated legislature too appears to have acknowledged that their recently enacted statute is likely unconstitutional.

The short-lived effort speaks to the lack of justification for any such policy, and demonstrates the strength of the well-established principle that greater access to information about the government’s activities improves democratic governance.

The statute was a virtual one-man-effort by Representative John Kavanagh, a right-wing House member and former cop who introduced the measure.

Kavanagh told me that the bill was prompted by a complaint from a Tucson police officer about a local “copwatching” group (activists who film police activity).

"I'm disappointed the AG and legislature didn't defend it, although I didn't really expect the legislature to pick up that much of a financial burden," Kavanagh said, referring to the legal costs of defending the bill. He added that he plans to review the judge's reasoning and opposing briefs and would "be back in January to draft a new bill."

The judge’s short order is clear on the reasons for the injunction. They’re the same basic reasons why every appeals court considering the question has held that citizens have a clearly established right to record police activity.

Those legal arguments, though, only begin to tell the story of how senseless these laws are.

As an initial matter, there is no solid policy rationale for serious restrictions on recording the police – and plenty of good reason for allowing it.

As a practical matter, how would police enforce such a law if 20 people whip out their cellphones and insist on recording an unjustifiably violent police encounter?

In addition, many law enforcement agencies have contracts that permit television crews to follow and film officers on duty.

Also, there is no real need for the law because there are already statutes that prevent interference in policing, like laws barring "obstruction."

That law enforcement has resisted being recorded also demonstrates the need for the public's right to do so.

The spread of cellphone camera technology “has been accompanied by a rich set of cases in which police have sought to prosecute critics or potential critics who capture their images,” Seth Kreimer, law professor at the University of Pennsylvania Carey Law School, wrote in a 2011 law review article.

Law enforcement rely on both existing statutes and creative prosecutorial discretion to conceal their activities — often misconduct — by arresting and prosecuting citizens who capture video, Kreimer wrote. Those charges include failure to obey an officer, disorderly conduct, resisting arrest, harassment and even wiretapping.

At times, offended officers simply seize phones and delete the footage, or brutalize citizens in retaliation, Greg Frohman, an attorney at Benesch in Cleveland, wrote in a 2014 law review article.

Frohman’s article alone includes three examples in which police who had killed someone then confiscated witnesses’ phones and destroyed video evidence.

On the other hand, images of police interactions have prevented violations of constitutional rights or enabled their vindication innumerable times throughout our history, from the 1960s civil rights movement to the present, and have contributed greatly to the national understanding of proper policing and public safety.

Indeed, there is “near-nationwide agreement that citizen recording merits constitutional protection,” Tyler Finn, an attorney at Susman Godfrey in New York, wrote in a 2019 law review article. And, the weight of existing legal authority “has settled the constitutional question, arguably beyond debate.”

By now, seven of the nation’s 12 appellate circuit courts have upheld the right to film police while they work (The others haven’t ruled on the matter), according to Finn's article and a ruling by the 10th U.S. Circuit Court of Appeals in July.

The U.S. Supreme Court hasn't answered that specific question, but its First Amendment jurisprudence supports the argument that restrictions on recording police are generally unconstitutional.

Moreover, the question hasn't gotten to the court largely because there simply isn't much serious dispute here. In fact, the first circuit court that ruled on the issue — in 2011 — wrote that it's "particularly notable" how short previous lower court opinions on this question are (much like Tuchi's order): "This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area," the 1st Circuit said in Glik v. Cuniffe.

Previous efforts to enact laws like Arizona's failed for much the same reasons.

Texas representative Jason Villalba, a Republican, faced major public resistance when he introduced a measure restricting recording and photographing police within 25 feet in 2015, the Dallas Morning News reported in April that year.

He dropped the effort several days after a bystander's recording contradicted the account put forth by an officer in North Charleston, South Carolina, revealing that he had actually murdered Walter Scott, a 50-year-old Black man, during a chase.

Afterward, the Combined Law Enforcement Associations of Texas commented that the bill was “just not needed,” according to the Morning News report. Villalba reflected presciently that such a measure was unlikely to pass in the future, saying, “I think the public has spoken very loudly.”

It should be clear by now to lawmakers that similar measures in the future are unlikely to fare any better. The public has a clear and tremendously important interest in recording law enforcement, while the government has hardly any legitimate interest in banning it.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com