Whether the bill has any actual justification or serves only as a performative statement is something of a mystery. After all, it’s already a crime to interfere with police in the lawful performance of their duty, whether it’s for a good reason or bad. Yet, the Arizona House Appropriations Committee approved House Bill 2311, so now it’s on the table.
If passed into law, House Bill 2311 would make it illegal “for a person to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person does not have the permission of the law enforcement officer” and is within 8 feet of the cop. The original text stipulated that it would be a crime to do so within 15 feet, but Rep. John Kavanagh (R–D23), the bill’s sponsor, altered the radius in an amendment meant to assuage constitutional objections.
It doesn’t preclude the person involved in the “law enforcement activity” from filming, provided that doesn’t otherwise interfere with the activity, and as the locus of the eight foot perimeter is that activity, it doesn’t prevent filming because a police officer walked within eight feet of a person filming, which will change the cops location but not the location of the activity.
But what the law does is provide a statutory restriction on what should otherwise be the constitutional right to record public police activity, as numerous circuits have held.
While the original bill set the distance at 15 feet, the amendment reduced it to 8 feet, a distance which may be designed to overcome constitutional objections as being set as the buffer zone by the Supreme Court in abortion clinic protests. Then again, requiring that anyone recording a police encounter stand more than eight feet away from the activity doesn’t seem to be a great burden and, from the perspective of law enforcement, serves as minimal buffer so that the police can focus on what they’re doing rather than people who are close enough to present a threat or distraction.
Is this enough to pass constitutional muster?
Can you be arrested for standing still while wearing a GoPro under this statute?” asks T. Greg Doucette, an attorney who specializes in criminal defense and free speech law. “It seems the answer here is yes, which would violate the First Amendment (since standing still isn’t interfering with an officer’s duties).
While standing isn’t interfering, per se, it’s not quite a sound argument against the law. If the police were engaged in an otherwise lawful stop, can a random person choose to stand, just stand, between the police officer and the person stopped, and credibly contend that he isn’t “interfering”? Where a person stands matters in relation to the activity such that standing can be interfering. And indeed, if police have people “standing” within the zone of their activity, thus drawing their attention away from their activity out of concern, if not fear, of what might be happening to their side or behind them, it would be interference even if the person merely stood there. Unless and until the person did something beyond merely standing.
The sorts of proposals are “to chill speech, absolutely,” adds Doucette. “It will empower cops to say, ‘I’m going to arrest you if you don’t stop.’ And even though many of those arrests would get dismissed as First Amendment violations, you’ll have a bunch of people who plead to avoid trial or go broke trying to vindicate their rights.” Those who violate the Arizona bill—which passed the committee 7–5 along party lines—would be subject to a 30-day jail sentence if he or she refused to stop filming after an officer demanded it.
While it’s certainly likely that the purpose of this bill is to inhibit the recording of police activity, and that serves to chill the exercise of First Amendment rights, it’s hardly very effective in doing so. Recording from ten feet, even 15, won’t have a significant impact on the exercise of those rights. If the worst that comes of this bill is that the police command onlookers and recordings to move back a few feet, it’s hard to fathom that this will have any serious chilling affect, particularly given how inclined people are to record police these days. People are not easily dissuaded.
But what about the threat of arrest? What about the possibility that people arrested for exercising their constitutional right too close to police, as likely established by police testimony since there would be no other means of proving that a recorder was within eight feet, would take a quick plea and suffer the consequences rather than go through the expense and burden of fighting the charge to vindicate their First Amendment rights?
That’s always a possibility, as it is with any amorphous charge, like resisting arrest. But the fact that people will choose to acquiesce rather than fight might be a general objection to the enactment of petty offenses designed to protect the authority of police at the expense of constitutional rights, it’s no different than many other laws and doesn’t directly implicate the constitutionality of this law.
Perhaps the strongest argument against the constitutionality of this law is that it’s arbitrary. Why eight feet, rather than seven or nine? The abortion clinic buffer is a poor analogue, as its purpose was to allow ingress and egress, which bears no relationship to police activity, a very different situation.
Ironically, this law likely provides a greater limit than police would impose on their own in creating a comfort zone surrounding their activity based on their on-site discretion. I suspect most cops would much rather have 20 or more feet between them when they’re engaged in activity than a mere eight. While the law expressly states that it does not confer a right to record police, it does establish a baseline distance of eight feet that’s likely too close for comfort for cops who are already authorized to prevent interference with their lawful activities, and to arrest people who refuse to comply.
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Looking at the text of the bill, I don’t see anything that would make an exception for recording your own interaction with law enforcement. Unless I’m missing something, the videos that we have seen of a cop walking up to someone, the person saying that they haven’t done anything wrong, and the cop backs off would now be criminalized. The recording itself is the crime now rather than proof of innocence.
Similarly, when you get pulled over for a traffic stop. Your passenger can’t record the interaction? So we never really know what happened to the next Philando Castile.
The amendment:
Maybe they could throw “failure to turn off a passive recording device” on the list of charges now if someone gets arrested with a civilian bodycam or in front of their doorbell cam.
The order of the first two songs by The Police that get posted here may be up for debate, but obviously the third one should be King Of Pain.
This is not going to enhance you reading comprehension score.
I’d think the strongest argument against the constitutionality of the bill is that it criminalizes *recording,* which is already held to be constitutionally protected. No doubt the intent is that it be considered a reasonable restriction on time, place, and/or manner, but it’s only reasonable if there’s some impact on police activity, and the presence of a video camera (i.e., a phone or a GoPro, the former of which is going to be present anyway) shouldn’t itself cause any such interference.
Sure, the distance is arbitrary, but it’s common in the law to sacrifice accuracy for the sake of clarity. See also every age-based restriction, blood alcohol content limitations, distances for campaign activity from polling places, etc.
As the bill stands, it’s likely unconstitutional. But if they change the obstruction statute to say that presence within 8′ of a “law enforcement activity” is presumed to be interference…
If it wasn’t a constitutionally protected right, it wouldn’t need a TPM justification. The only reason for TPM limits is because a right is affected.
Does it criminalize recording? That’s the sense the raises the concern, as any limits on recordings give rise to some visceral sense that it must be unconstitutional. But as you note, it’s a time, place and manner restriction, If there’s a rational basis, is anything else needed?
It’s not just the mere presence of a video camera that counts, though. The camera has to be recording. So, you could have a camera, be pointing it at the incident, and as long as you don’t push “record,” it’s kosher. Depending on their definition of “video,” you could conceivably be taking pictures and it would be ok. But somehow switching to video is problematic. It’s an uphill battle to explain how the mere state of a recording device (which is otherwise unknowable to a law enforcement officer) somehow affects an officer in the performance of his or her duties. The absurdity becomes even more apparent if you cover the camera lens or put the camera into a bag while it’s running (at which point you presumably are no longer making a video recording of the incident).
That the law is limited to recording v. still photography seems a flaw in the law, but that’s likely due to the pervasive use of recording that the drafters inadvertently left still photograph out. That said, if there was no recording occurring, there would no plausible First Amendment objection to onlookers being subject to the lawful orders of police to back away. If the point of this law is to clarify any confusion as to the authority of police and the right to record within 8 feet, it would now be clarified.
Let me combine two threads…
TPM has to pass the 3-prong test from Ward, which is more than rational basis. The 2nd prong is the likeliest to cause issue here. And I’m not even sure this passes rational basis.
While it’s true that, absent actual recording, there is no 1A issue present, the question is what is the substantive difference for police between a person holding a running camera with the lens cap off versus with the cap on. For the onlooker, it’s a 1A issue, but for the police there is no difference. If the police gain nothing but the onlooker suffers a 1A deprivation, the statute falls. A similar analysis holds for the inexplicable decision to exempt still photography. All of this suggests that the chief motivation behind the statute is to chill and/or ban filming of police.
To your last point, if the purpose of this law is to clarify rights to record at given distances, certainly they could do so without criminalizing recording *specifically*. Simply saying “stay 8 feet away” would be enough to point out that you can’t film within 8 feet while simultaneously bolstering police authority to maintain a safe perimeter around an ongoing incident. It still leaves open whether filming outside of 8 feet is legal, existing precedent notwithstanding, but so does the law at issue.
The question was whether this law is unconstitutional, not whether a broader law would be more effective. The problem with your “chief motivation” is that filming from 9 feet away is both legal and equally effective. Nothing is chilled.
Fifty years ago, I was a news photographer and photographed police incidents. How close I could get, never within eight feet, was at the discretion of the officers and it always seemed to be 50 or 100 feet. In a lot of ways, this law would be progress in that it recognizes statutorily how close citizens can come. If the police push citizens back further they can argue the officers are breaking the law and can go then file complaints or go to court to hold the officers responsible. Smart lawyering and a few favorable court rulings may turn what is at first glance a pro police law into a pro citizen law.
The bill says that a video recording cannot be made within eight feet. If I get out my old Canon film camera with motor drive that shoots at 6 fps, am I making a video recording?
“Perhaps the strongest argument against the constitutionality of this law is that it’s arbitrary. Why eight feet, rather than seven or nine?”
I wondered about that as well. I understand the concern of an officer who is trying to deal with one suspect while having to worry about someone coming up behind him, or inserting themselves into the action, as some “1st Amendment Advocates” do because I’m a cop and I’ve have been there. But I also understand those who have a deep distrust of cops wanting to record the actions of law enforcement. Even the video on cell phones have pretty good zoom features these days. So it seems like they could video away without getting close enough to cause issues.
I just don’t think this is an issue crying out for a law. We have too many already.
Seems as though bringing in the recording aspect crosses a Constitutional threshold. Theoretically, you could be 7.9 feet away and be fine, but the moment you pull out a camera and start filming, something numerous courts have said is Constitutionally-protected, then you’re in violation of the law. Had it just been “don’t come within 8 feet,” it could probably pass muster. But “don’t come within 8 feet while exercising a Constitutionally-protected right”? That’s a much harder sell, as it’s the right which is being targeted by the statute, not a “safety bubble” violation.
Also, good to see TGD is still doing his thing.
Interesting that non-lawyers think well of Doucette, as lawyers tend to find him a bit dumb. He has far greater appeal to people whose knowledge of law isn’t very deep.
It can be hard to come up with a good example on demand, so it may be that Greg punted a bit to provide Billy with a quote. But it was not a good example.
I can’t speak for other non-lawyers, but there was sarcasm in my mention of Doucette. He definitely has an appeal to a certain crowd, and he eats up the attention that he receives for it. I had respect for him 10ish years ago when he was actually doing something meaningful for folks getting screwed by cops, but now he’s just a blowhard getting likes on Twitter. A bit off topic…
Sarcasm can be hard discern sometimes.
I’d guess the argument is that, when people (especially lay people rather than professionals) start recording, they don’t usually just stand there and record: they start weaving around, bobbing, coming closer, crowding over each other, trying to get the best angle. They’re also usually not paying attention to the world around them, including where they are in relation to others, because their attention is entirely focused on what they see dynamically through the video camera lens. So if you’re within the 8 foot radius and you start recording, there’s a strong chance you’re going to creep closer, not back off when the police move closer to you, etc. That may not be enough to pass constitutional muster, but it is rational.
There was nothing to “bite.” If you somehow got the impression that I want to debate law with you, you’ve suffered severe brain injury and should go the emergency room immediately.
Arizona has a “problem” with 1st amendment “Frauditors”.
Law pushed by Police unions so a Cop can walk within 8 feet of anyone recording, say you don’t permission to film and arrest them.
But “Reasonable” cop would never do that and a “Reasonable” prosecutor would never try that case.
Some people raised this as an argument against the law. Since the 8 feet applies to the place of the police activity, not within 8 feet of a cop, it’s a bad argument.
Seems to me it would be simpler to have a law that it’s illegal to remain within 8 feet of an officer actively engaged in his or her duties and omit the matter of recording entirely. As long as they’re a safe distance away (and 8 feet is most certainly not safe, especially from outside peripheral vision), why does it matter what they do, so long as it isn’t interfering (e.g. making loud noise or harrassing a witness)?