By Shreya Tewari
It is disturbingly easy to find examples of law enforcement wielding brutal violence against people while claiming to protect or safeguard. Black and Brown communities in particular have long-experienced disproportionate targeting and violence at the hands of law enforcement, and this violence is too frequently lethal. Whether people are exercising their constitutional rights to protest, driving, experiencing a mental health crisis, or even sleeping — there are far too many instances of law enforcement encounters causing 
harm.
One of the best tools available to hold law enforcement accountable is a video camera —in other words, the right to record. The First Amendment protects our right to record police engaged in official duties. Every federal circuit to consider the right to record — seven out of 13 circuits — has held that this right clearly exists, and most have specified that it applies to law enforcement. In recent years, there have been numerous, tragic deaths at the hands of police that were recorded by civilian bystanders, and that footage has been critical to pushing back on unchecked police brutality. But now, this essential right is under attack.
Arizona recently passed a law that makes it a crime, punishable by up to a month in jail, for people to record videos within eight feet of police activity. Specifically, it prohibits people from recording police if they are within eight feet of an area where the person “knows or should reasonably know” law enforcement activity is happening. This law is a blatant attempt to gut First Amendment protections for recording police. That is why we are suing Arizona to challenge this unconstitutional law, and urging the court to immediately prevent it from going into effect.
Unsurprisingly, members of law enforcement commonly attempt to interfere with recordings of their conduct or harass those who have recorded them in violation of the constitutional right to record. The Arizona law, too, has been framed as “preventing violence and misunderstandings, preventing the destruction of evidence and preventing police officers from harm,” but it makes shockingly little effort to hide its true purpose — preventing people from exercising their constitutional right to record. Under this law:
- Standing within eight feet of “law enforcement activity” and holding up a cell phone without making a video recording would be perfectly legal.
- Only “video recordings” are targeted — not writing on a notepad, texting, or setting up a painting easel within eight feet of an officer.
- “Law enforcement activity” is defined extremely broadly — including simply “enforcing the law.” In essence, this boils the restriction down to recording “within eight feet of a police officer.”
- An officer can “create the crime”: Legally recording an officer outside of the eight-foot distance would turn into a crime if the officer moved closer to the person recording and got within eight feet of them.
The law also contains toothless exceptions to the eight-foot distance requirement for recording within a private and indoor place, a vehicle, or when you are the subject of the police interaction. However, each of these “exceptions” falls away as soon as a “law enforcement officer determines that the person is interfering in the law enforcement activity” or, in the case of individuals indoors, that it is “not safe to be in the area.” In other words, each exception problematically maintains the power of any officer to shut down the recording based on a subjective determination in the moment of what “interferes” with their “law enforcement activity.” To make matters worse, “interference” is not defined at all.
This law is a violation of a vital constitutional right and will severely thwart attempts to build police accountability. It must be struck down before it creates irreparable community harm.
Shreya Tewari, Brennan Fellow, ACLU Speech, Privacy, and Technology Project
