By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — Legislation to restrict the ability of individuals to videotape police is all but officially dead.

Attorney General Kris Mayes this week filed paperwork in federal court here agreeing with challengers that the law is unconstitutional. And Republican legislative leaders who were involved in getting the statute passed in 2022 have refused to defend it.

All that remains is for U.S. District Court Judge John Tuchi to sign the order permanently enjoining the state from enforcing it.

That order will come as no surprise.

Sen. John Kavanagh, who sponsored the law, acknowledged that even Mark Brnovich, Mayes’ Republican predecessor, did not show up in court last year when media outlets and the American Civil Liberties Union successfully asked Tuchi to issue a preliminary injunction. And the Fountain Hills senator acknowledged to Capitol Media Services that his efforts to have someone — anyone — defend the law have come up short.

“They just shipped a half-rotting corpse to Mayes,” he said of what is left of his 2022 legislation.

Still, the former police officer said he believes there is some merit in what he wants enacted. And he had hoped a full-blown trial would provide some guidance into what limits a federal judge believes are acceptable in curtailing the activities of others around active police situations.

Now, that won’t happen.

More to the point, the settlement language agreed to by the Attorney General’s Office pretty much shuts the door on any future efforts to limit taking videos of police activity.

Kavanagh has been trying since at least 2016 to enact some restrictions.

His original measure would have barred shooting video within 20 feet of any “law enforcement activity” unless the officer first gave permission. That didn’t fly even though Kavanagh said none of that would have affected anyone outside that limit.

The 2022 version that was approved cut the restricted zone down to just 8 feet.

Kavanagh insisted he wasn’t trying to shield police activity from public scrutiny. But he said there have to be limits.

“I have a hard time believing that there’s a total right of people, when cops are in the middle of dealing with a suicidal person or a criminal who’s going to resist arrest, that people have a right to stand one foot behind the cop, videotaping or not,” he said. “That’s insane.”

And that, said Kavanagh, is just part of the problem.

“It’s not safe for the person standing there,” he said. “And it’s certainly not safe for the cop who doesn’t know who this person is.”

But challengers said there are several problems with all that.

One of the biggest is that the legislation affected only situations where someone were using a cellphone or video camera to record events. That bothered Tuchi when he enjoined enforcement in September.

“HB 2319 prohibits only video recording and does not address audio recordings or photographs taken from the same distance or device,” the judge pointed out. “Nor does it address persons who may be using their mobile phones for other purposes, such as texting.”

What that shows, Tuchi said, is that “the law’s purpose is not to prevent interference with law enforcement, but to prevent recording.”

The settlement filed in federal court this week — the one awaiting Tuchi’s signature — goes even farther in pointing up the legal problems with pretty much anything Kavanagh could now craft to limit the activities of those with cameras and cell phones.

It starts by acknowledging there is a “clearly established right to record law enforcement officer engaged in the exercise of their official duties. Then there’s the fact it is “content-based restriction,” governing only the taping of activities of police but no one else.

And Mayes, in agreeing to the permanent injunction, said the law also fails to meet constitutional requirements because it is neither narrowly tailored nor necessary to prevent interference with police officers given other existing Arizona laws.

Kavanagh took particular issue with that finding, saying that laws prohibiting obstruction of police officers generally have been interpreted to apply only when someone is physically precluding an officer from doing his or her duty.

But given the unwillingness of Republican legislative leaders to defend the law and Kavanagh’s inability to find someone else to intercede, his objections are legally irrelevant to settling the case.

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.

And the video played a key role in convicting officers of both state and federal charges.

The legal fight is going to cost taxpayers a bit of cash.

In agreeing to settle, Mayes has agreed her office will pay out $46,000 in legal fees to the law firm representing the media outlets and another $23,000 to the ACLU of Arizona.