PHOENIX — In the age of the videotaped police killings of George Floyd and Eric Garner, when it comes to recording law enforcement activity, how close is too close?
Legislation approved Thursday by the Senate Judiciary Committee would keep those making these recordings at least 8 feet away.
Any closer would subject the person with the cell phone or the video camera to a fine of $300. But there’s also the possibility of 30 days in jail if there was a prior violation or the videographer failed to comply with an earlier verbal warning.
House Bill 2319 is the latest bid by Rep. John Kavanagh, R-Fountain Hills, to set what he contends are reasonable limits on the ability of people to get close to scenes where police are questioning or arresting someone.
“It was in response to news reports of groups, organized groups, some were critical of police, responding to police calls and, while the police were taking enforcement action, getting really close, within one or two feet,” he told committee members. And sometimes, Kavanagh said, they even would get right behind the police officer.
“Having been a cop for 20 years, I can tell you that when somebody gets real close that you don’t know when you’re taking enforcement actions or dealing with any potentially dangerous situation, you worry,” he explained.
Kavanagh said concerns include whether the person taking the video and being that close is a friend or accomplice of the person being questioned and might attack.
“Even if it isn’t, you’re still distracted,” he said.
Kavanagh testified he would like a 15-foot buffer.
“With today’s cameras, at 15 feet, I could zero in on every one of you and pretty much see every blemish on your face,” he said. But Kavanagh conceded there are constitutional issues with such a barrier.
So he agreed to set the limit at 8 feet. That is based on federal court rulings setting that as the distance at which protesters can be kept from entrances to abortion clinics.
That distance requirement would not apply to indoor situations where the person with the camera or cell phone is in an adjacent room or area.
And those who are the ones being questioned could take videos of the encounter at whatever distance as long as it does not interfere “with lawful police actions, including searching, handcuffing or administering a field sobriety test.”
Others, however, questioned both the need for and the legality of the restriction.
The issue of ordinary people making video recordings has been at the forefront of public reaction to several high-profile interactions where the people being arrested ended up dead.
There was the 2014 incident where police in New York City were attempting to arrest Eric Garner for illegally selling loose cigarettes. That incident, captured on video, shows an officer grabbing the 350-pound man from behind, putting him in a choke hold, pull him to the ground and roll him onto his stomach.
He can be heard saying, “I can’t breathe! I can’t breathe!” repeatedly. The medical examiner ruled his death a homicide.
More recently was the 2020 death of George Floyd, arrested by Minneapolis police on suspicion of passing a counterfeit $20 bill. The four officers involved were fired the following day after videos taken by witnesses showed Derek Chauvin kneeling on Floyd’s neck for more than nine minutes.
K.M. Bell, an attorney with the American Civil Liberties Union of Arizona, said there are legal flaws in the wording. For example, she said nothing in the measure explains what happens if someone is videotaping and then one of the officers on the scene approaches.
“And, all of a sudden, you are in criminal violation of that law as a result of the officer moving,” Bell said.
Kavanagh said the way he sees it, that individual is not risking arrest.
“The person filming is not a suspicious person,” he said.
Sen. Martin Quezada, D-Glendale, called that “laughable.”
“I’ve actually participated in efforts to film police officers that are doing their job,” he said.
“You are absolutely a suspicious person to the law enforcement at that point,” Quezada continued. “And they aggressively come towards you to see why you were filming.”
Quezada said the restrictions in the measure are curbing the exact kind of situations where it is most important to have a video record of the interactions between police and others.
“This is when we need for that recording of that activity to take place,” he said. “This is how and why we hold our law enforcement officers accountable.”
This measure, Quezada said, goes in the opposite direction.
“I think we are in danger of putting a lot of people who are looking to peacefully and smartly observe law enforcement activity, put them in danger of being criminalized themselves,” he said.
Marana resident Dana Allmond urged lawmakers to reject the proposal.
“This comes down to trust and accountability and transparency that is lacking,” she testified. And Allmond, who is a Democratic candidate for the state House, said this needs to be about more than protecting police.
“We need to think moreover that Arizona citizens are protected,” she said.
Allmond said it’s one thing for police to ask for witnesses. But she said that testimony, by itself, may not be enough.
“I would want to be able to show everything I saw,” Allmond said.
Timothy Sparling had similar concerns.
“We believe that this bill stacks the deck against the public check on officer misconduct,” said Sparling, a lawyer with Arizona Attorneys for Criminal Justice whose members generally represent defendants in criminal cases. And he contends the restriction is likely to be challenged as unconstitutional.
Sen. Sonny Borrelli, R-Lake Havasu City, said he believes in cameras that photograph police action.
He said the experience in his home town is that when police began wearing body cameras complaints against officers declined by 80%.
But Borrelli said he has no problem with the restriction.
“When an officer is in the middle of his job, his first priority is securing the scene and even protecting the suspect,” he said. “They need to figure out who’s friend or foe.”
Borrelli said, though, he thinks the limit should be 15 feet, something that would capture the entire scene.
Nor was he dissuaded by a possible legal challenge.
“Of course, if the ACLU wants to sue they’re going to sue, no matter what anyway,” Borrelli said.
The measure, which already has cleared the House, now needs approval of the full Senate.
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