By: Fallon Cochlin
Over the past few years, citizens all across America have united against the epidemic of police brutality. One major reason for this uprising has been instances of police brutality caught on camera and widely shared across social media. Perhaps the most infamous example of this is the 10-minute-long cell phone footage depicting the shocking and violent murder of George Floyd at the hands – or knee – of Minneapolis police officer Derek Chauvin. While there are valid criticisms of disseminating such graphic imagery that disproportionately affects black and brown individuals, the act of filming police officers has undoubtedly contributed to the awareness of police brutality and the growth of the Black Lives Matter movement. Such videos are so impactful that some politicians have attempted to use the law to prevent the public from recording police.
In July 2022, Arizona Governor Doug Ducey signed a law severely limiting the ability of citizens to film police officers. The law, opposed by civil rights groups, prohibited the recording of an officer within 8 feet without the officer’s consent. The penalty for knowingly violating the Arizona law was a misdemeanor charge. Republican Rep. John Kavanagh, a former police officer himself, was the bill’s sponsor and justified the law as one that would protect police from those who “either have very poor judgment or sinister motives”. The American Civil Liberties Union (ACLU) strongly opposed the law as it passed through the legislature, arguing that the right to film police officers was clearly protected under the First Amendment. Kavanagh claimed to have taken some advice from the ACLU in drafting an amended version of the legislation, including changes such as exemptions for direct subjects of police interaction who are not being searched or arrested. Despite these changes, the ACLU filed a petition in U.S. District Court claiming a Constitutional violation.
The defendants named in the suit – Arizona Attorney General Mark Brnovich, Maricopa County Attorney General Rachel Mitchell, and Maricopa County Sheriff Paul Penzone – faced an uphill battle attempting to enforce the law. Half of the U.S. appeals courts have issued rulings allowing citizens to record police officers in cases with similar facts. It was because of this hefty precedent and the inability to find an outside advocacy group that defendants chose not to defend the law. In September 2022, U.S. District Judge John J. Tuchi issued a preliminary injunction blocking the law from being enforced. In response, Kavanagh has stated that he will attempt to draft a new law that will stay within Constitutional bounds but will still protect police officers from public interference. The current status of this new legislation is unclear.
Judge Tuchi’s decision strikes another blow against politicians who attempt to use the law to curtail the freedom of expression protected under the First Amendment. Hopefully, this decision will act as a deterrent against future legislation aimed at hiding, rather than fixing, the epidemic of American police brutality.
Fallon Cochlin (she/her) is currently a 2L at Sandra Day O’Connor College of Law. Her areas of interest include economic inequality, racial justice, and the intersection of spirituality and science. In her personal life, Fallon is passionate about poetry, nature, and performing arts.