OFF THE WIRE
PHOENIX -- A state lawmaker wants to make criminals out of some people who take videos of cops questioning or arresting someone.
The proposal by
Sen. John Kavanagh, R-Fountain Hills, would bar shooting video within 20
feet of any "law enforcement activity'' unless the officer first gave
permission. A first offense would carry a $300 fine, with subsequent
violations potentially sending someone to jail for up to six months.
Daniel Pochoda with the American Civil Liberties
Union, says SB 1054 is a violation of First Amendment rights. And
attorney Daniel Barr who handles media issues questioned the need for
such a restriction.
But Kavanagh, a retired police officer, insisted he's not trying to cloak law enforcement activity from public view.
He said people are free to stand 21 feet away.
And he rejected contentions that someone standing that far back might
not be able to record important details, like whether someone was
reaching for a gun or a cell phone.
"Most cameras have great resolution where you
don't really lose anything when you're 20 feet away,'' Kavanagh argued.
"At 20 feet you can pretty much pick up small objects.''
What's behind the measure, he said, is the safety
of police officers who may be doing anything from questioning a
suspicious person to making an arrest.
"Having one or more persons suddenly walking up behind and around them with cameras is a distraction,'' Kavanagh said.
"The officer doesn't know if this is somebody
who's a friend of the individual he's doing law enforcement action
against or what,'' he continued. "But it distracts the officer which
creates a safety problem for the officer.''
"So we're going to make it a crime?'' Barr responded.
"If you're actually interfering with them in some
way, interfering with his movement or something like that, I can see
that you can be sanction for that,'' he continued, saying there already
are laws on the books to cover that situation. "Whether you're filming
him or not has nothing to do with it.
Kavanagh disagreed, insisting that those trying to get videos are a special problem.
"They aren't just standing or walking by,'' he said.
"With video, you stand near and you point and you
change your perspective to get a better shot,'' Kavanagh continued.
"It's a much more intimate interaction than an ordinary citizen watching
the cops do something.''
Pochoda said the whole question of what might distract a police officer ignores the underlying issue.
"There is a clearly established First Amendment
right for citizens -- or anyone, you don't have to be a citizen -- to
record public activities of law enforcement,'' he said. "You don't have
to be a professional journalist to possess this First Amendment right.''
He acknowledged that courts have allowed infringements on that right, but only if there is a "demonstrable need.''
"You can't just have this automatic arbitrary
number,'' Pochoda said, referring to that 20-foot video-free zone. He
said those who interfere with police can always be detained.
"There's nothing magic about 20 feet, that you'll
always be interfering if you're less than 20 feet and never if you're
past 20 feet,'' Pochoda said.
He also said that, as crafted, the measure could
totally obliterate the right of individuals to videotape police activity
if the only way to record it is to be within 20 feet, such as an arrest
in an alley.
Barr said there's another particular flaw in the proposal.
As written, it would make a criminal out of those
who take out a cell phone to videotape their own questioning by police
as, by definition, they would be within 20 feet of what's happening.
Kavanagh, however, doesn't see that as a problem,
saying there's no inherent right to videotape your own interaction,
particularly if that's an arrest.
"If you're the subject of a law enforcement
activity, you've got to submit to the authority of the police officer,
put your hands on the car, keep your hands out of your pocket,'' he
said. "You don't pretend that the cop's not there so you can do whatever
you want.''
But Kavanagh conceded that an absolute ban on
taping one's own interaction with police might not be justified if an
officer is simply asking questions. He said it might be necessary to
amend his legislation when it comes up for a hearing.
