• Videotaping Law Enforcement Officers in Public
• The First Amendment and Videotaping Law Enforcement Officers

A private person videotaping law enforcement officers in public, while the officers are in the performance of their duties, is a First Amendment right.  As such, a state statute attempting to criminalize the act of videotaping an officer while acting in the performance of his or her duties is unconstitutional.

The Arizona Legislature enacted a new statute via HB (“House Bill ”) 2319, codified at Arizona Revised Statutes (i.e., “A.R.S.”) § 13-3732, which made it a class 3 misdemeanor for “a person to knowingly make a video recording of law enforcement activity if the person making the video recording is within eight feet” of the activity and has been directed to stop recording by law enforcement.  Scheduled to take effect on September 22, 2022, plaintiffs sued (under 42 U.S.C. § 1983) defendant Mark Brnovich in federal court in his capacity as the Arizona Attorney General, seeking a preliminary injunction preventing the enforcement of this new criminal statute.  The plaintiffs argued that the new statute infringed on their First (freedom of speech) and Fourteenth (due process) Amendment rights   AG Brnovich made it easy by rolling over in this lawsuit, filing a “Notice of Non-Opposition” in response.

The federal District Court of Arizona granted the plaintiffs’ motion for a preliminary injunction, “enjoin(ing) the enforcement of A.R.S. § 13-3732 pending further order.”  Recognizing that this lawsuit is only in its preliminary stages, the District Court first noted the rules on preliminary injunctions.  “To obtain a preliminary injunction, a plaintiff must show that ‘(1) [it] is likely to succeed on the merits, (2) [it] is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in [its] favor, and (4) an injunction is in the public interest.’” These four requirements to a preliminary injunction lawsuit are referred to as the “Winter factors,” as set out by the U.S. Supreme Court in Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7. 

Winter factor #1:  Using these standards, the District Court had no problem finding that the plaintiffs were likely to succeed on the merits.  This is so because it is clearly established under the First Amendment that any private citizen has the right to “record law enforcement officers engaged in the exercise of their official duties in public places,” citing a pile of cases (see Note, below) to that effect.  Also, because the right under the First Amendment to record law enforcement activity is “clearly delineated,” involving a “content-based restriction,” a court’s analysis of the constitutionality of the statute is subject to “strict scrutiny;” meaning that the new statute must be “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”  Per the Court: “Strict scrutiny is ‘an exacting test’ requiring ‘some pressing public necessity, some essential value that has to be preserved; and even then the law must restrict as little speech as possible to serve the goal.’”  (Turner Broadcasting Systems, et al. v. Federal Communications Commission, et al. (1994) 512 U.S. 622, 680.)  The obvious purpose of A.R.S. § 13-3732 is to prevent bystanders with their cameras (typically a cellphone camera) from interfering with, or distracting, law enforcement officers as they attempt to perform their duties.  However, the Court noted that Arizona already has other laws on the books making it illegal to interfere with police officers; e.g., A.R.S. §§ 13-2402, 13-2404. (But see Note, below.)  Also, A.R.S. § 13-3732 is not “narrowly tailored,” it being a lot broader than needed to prevent someone from interfering with a police officer.  It was also noted that the new section prohibits only “video recording” and does not address audio recordings or photographs taken from the same distance or even the same device, nor does it address persons who may be using their mobile phones for other purposes, such as texting.  Finding that the new statute cannot withstand the “strict scrutiny” test, the Court found it unnecessary to consider the plaintiffs’ alternate arguments that A.R.S. § 13-3732 also fails to withstand scrutiny under a “time, place and manner” analysis, or that the section is void for vagueness, although the Court gratuitously commented that the plaintiffs would have likely prevailed on these arguments as well. 

Winter factor #2: The Court also found that the plaintiffs would “suffer irreparable harm” under this new statute. That’s because one’s right to videotape law enforcment officers in action is protected by the First Amendment.  As for the importance of the First Amendment, the U.S. Supreme Court has held that “(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  (Elrod v. Burns (1976) 427 U.S. 347, 373.)

Winter factors #3 and #4: Lastly, the Court concluded that upon balancing the equities, it tips in the plaintiff’s favor and that injunctive relief is in the public interest.  With the “irreparable” harm plaintiffs would suffer (see above), there would be “little to no risk of irreparable harm to Defendants’ interests, primarily due to the fact that law enforcement officers already have many tools at their disposal to prevent interference with their activities.”  At the same time, the “video recording of police activities allow the public access to information concerning law enforcment activities.” This serves the public interest in that “public access (to such activities) plays a significant positive role in the functioning of our democracy.”  (Index Newspapers LLC v. United States Marshals Serv. (9th Cir. 2020) 977 F.3rd 817, 830-831.)  The federal Third Circuit has recognized that “videos of police interactions with the public have ‘contributed greatly to our national discussion of proper policing.’” (Fields v. City of Philadelphia (3rd Cir. 2017) 862 F.3rd 353, 357-358.) Also, “it is always in the public interest to prevent the violation of a party’s constitutional rights.”  (Melendres v. Arpaio (9th Cir. 2012) 695 F.3rd 990, 1002.) 

Conclusion:  Having satisfied all four of the Winter factors, the District Court here held that the preliminary injunction should issue, blocking implantation of A.R.S. § 13-3732.

With the Arizona A.G. declining to oppose this lawsuit, there certainly won’t be any appeal to the Ninth Circuit Court of Appeals, which normally would have been the next step.  So with this preliminary injunction going unchallenged, I have to assume (not knowing squat about appellate procedure) it will at some point be made permanent. Looking at Arizona’s proposed new statute as discussed above, and with all the case law saying that private citizens have a First Amendment right to videotape the police in action, one has to wonder what Arizona’s legislators were thinking when they enacted A.R.S. § 13-3732.  It’s possible they figured that by limiting it to within 8 feet of the officers, and only after being told to back off, that it was okay to enact an exception to the general rule.  These limiting provisions (i.e., eight feet and being directed to stop) were not even discussed by the Court.  So I guess we can assume that the Court’s silence on this issue means that including the 8-foot and back-off requirements, alone, are not enough to justify an exception to the general rule that videotaping cops is lawful.  As noted above, the Court also cites a couple of provisions available to Arizona officers to use when someone interferes with them.  (A.R.S. §§ 13-2402, 13-2404.)  But reading them, the former specifically does not include hindering an officer while making an arrest, and the latter involves a person’s refusal to assist in the control of a fire.  In California, we have Pen. Code § 148(a)(1) (interfering with an officer in the performance of his or her duties).  There’s no case law, however, telling us how close a would-be video-taper has to get before they are actually interfering with an officer, or whether it’s constitutional to ever use section 148 when the issue is a private person videotaping cops in the field.  Given the consistent importance courts attach to the First Amendment, I would assume the use of section 148(a)(1) would not be allowed under the circumstances we’re discussing here.  And by the way, I have an 8-page memo describing what I term above as “a pile of cases” on this issue, as well as the legal problems inherent in an officer’s attempt to seize the video and photographic evidence that results.  You need merely ask.