Arizona Attorney General Mark Brnovich (R) recently submitted a legal filing, stating that he will not be defending the legality of House Bill (HB) 2319, which is set to go into effect on September 24.
“The Attorney General is not the proper party to defend the merits of A.R.S. § 13-3732. The Attorney General will provide notice to the President of the Arizona State Senate and the Speaker of the Arizona House of Representatives that local and county prosecutors are the proper entities to defend this statute,” wrote Brnovich.
The Arizona Sun Times reached out to the Arizona Senate GOP for their response to this situation but did not receive comment before publishing time.
Brnovich further wrote that the plaintiffs who filed the complaint “provided no basis to name him [Brnovich] as a defendant” and did not provide any notice before filing. He said he would oppose any fees against him because he is not defending the state in this case but would not oppose an entry of a preliminary injunction in this matter.
The law in question, HB 2319, would make it unlawful for anyone to knowingly record a video of police within eight feet of law enforcement activity or after having received a verbal warning from the officer to stop the recording. Violating this law would result in a class 3 misdemeanor.
Following Governor Doug Ducey’s signing of the bill in July, a complaint was filed to prevent it from becoming law. Plaintiffs included the Arizona Broadcast Association, Fox Television Stations, KOLD, and NBCUniversal. The companies argued that this law violated the First Amendment rights of Arizonan citizens and news organization employees to record police activity.
“As part of their reporting, journalists working for the News Organization Plaintiffs often record videos of what they are observing, including videos of law enforcement officers acting within the scope of their official duties,” according to the complaint. “The News Organization Plaintiffs also often broadcast and publish video recordings of newsworthy law enforcement activities recorded by third parties such as bystanders. Such videos can supplement news reports and contribute to a more fulsome explanation of the underlying activity.”
They also argue that it is “necessary or unavoidable” to record within the eight-foot distance to get clear footage. The plaintiffs are concerned that journalists will have to risk arrest to do their job. Attorney Rachel Mitchell and Sheriff Paul Penzone were also cited as defendants by the plaintiffs.
The Maricopa County Attorney’s Office stated Mitchell and Penzone would only be nominal defendants in this case.
In an op-ed, Arizona State Representative John Kavanaugh (R-Maricopa), the bill’s sponsor, said the bill is intended to protect the police from hostile groups that follow them and get dangerously close during “potentially violent encounters.” In a tense situation, officers can become distracted by an encroaching crowd of bystanders, which could lead to the subject escaping or assaulting the office. Kavanaugh also stated that he listened to critics, making several amendments to the bill to make it reasonable. Furthermore, he asserted that modern cameras and smartphones could capture a usable video from more than eight feet away.
“I can think of no reason why any responsible person would need to come closer than 8 feet to a police officer engaged in a hostile or potentially hostile encounter. Such an approach is unreasonable, unnecessary and unsafe, and should be made illegal,” Kavanaugh wrote.
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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Protester Filming” by Pax Ahimsa Gethen. CC BY-SA 4.0.
