Civil liberties attorneys, media organizations remain cautious after injunction placed on police filming law

Jeremy Beren

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By Jeremy Beren / NewsBreak Pinal County, AZ

(Phoenix) — Despite a federal judge’s ruling on Friday blocking the enforcement of a controversial law enforcement recording bill, advocates and attorneys at the American Civil Liberties Union (ACLU) of Arizona remain worried about future measures that penalize accountability of police.

“We are very concerned that the legislature will continue to pass not only bills like HB 2319, but other bills that are aimed at making it much more difficult to hold police accountable," ACLU Arizona legal director Jared Keenan told NewsBreak.

Last week, the Arizona ACLU, alongside multiple media organizations, successfully sued to prevent House Bill 2319 from taking effect statewide on Sept. 24. State Rep. John Kavanagh (R) had championed the legislation as "(promoting) everybody's safety."

But legal experts — including those working with state lawmakers like Kavanagh — had warned for months the law was unconstitutional and would not hold up in court. U.S. District Judge John Tuchi agreed with these experts, as well as the ACLU's attorneys.

Kavanagh said efforts to revive HB 2319 will be dropped after Senate President Karen Fann and Speaker of the House Rusty Bowers would not defend it. Police unions opted not to get involved, either.

A case top prosecutors did not want

HB 2319, which Gov. Doug Ducey (R) signed into law on July 6, would have levied a class three misdemeanor against anyone filming "law enforcement activity" in public from a distance of eight feet or fewer. The law made no distinction between an officer encroaching on a civilian's space or a civilian interfering with police.

Controversially, the law did not seek to criminalize anything beyond video recording. Still photography and audio recording would not have been punishable if the law had taken effect as anticipated.

"We felt really good about the (ruling)," Keenan said via phone. "In some ways it's not surprising, but it is very gratifying that Arizonans' right to record police officers in public will not be hampered or hindered or criminalized by HB 2319."

The Arizona ACLU argued HB 2319 was a narrowly tailored "content-based restriction" on First Amendment-protected activity. None of Maricopa County Sheriff Paul Penzone, Maricopa County Attorney Rachel Mitchell, or Arizona Attorney General Mark Brnovich elected to argue in favor of the legislation in court.

Keenan believed this spoke volumes about the law's constitutional viability.

"Every day, the Attorney General's Office and the Maricopa County Attorney's Office prosecutes people under laws that they didn't draft or pass themselves," he said. "They could have gone even farther and conceded that they believe the law is unconstitutional, (but) they didn't do that ... It is a unique situation, but (the lack of prosecutorial interest) is not entirely surprising given how clearly unconstitutional we believe this law was."

Still, any prosecutor who wishes to intervene in the case and halt its course for a permanent injunction can do so until 5 p.m. on Friday, Sept. 16.

"There likely will be more of this coming"

The greater, longer-term concern for Keenan and the Arizona ACLU is whether lawmakers will push forward with similarly-restrictive proposals designed to shield police officers from public scrutiny.

One example beyond HB 2319 is House Bill 2721, which also passed during the last legislative session. It requires police oversight committees to have two-thirds police membership — generating concerns over police policing themselves.

"This (lawsuit came) after the public knew, and the legislature knew, that Phoenix Police and the Maricopa County Attorney's Office were willing to collude to bring false charges against protesters," Keenan said. "This wasn't done in a vacuum. This was done in a state where police and prosecutors were willing to lie to silence critics. We think that this trend is very troubling."

Though the Arizona legislature may not try to pass this particular law again, Keenan thinks more legal battles will follow if state lawmakers green-light similar measures in future sessions.

"(House Bill) 2319 is just one more bill where the aim is to make it harder for the public to hold police accountable," he said. "We foresee that there likely will be more of this coming, (but) I think this victory should give the legislature more pause."

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Jeremy is a freelance journalist covering health, energy, labor, and local politics. Reach him at jeremy.beren@newsbreak.com.

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