Recording cops up close is not a crime

Last year, Phoenix police detained Wall Street Journal reporter Dion Rabouin for interviewing passersby on a sidewalk outside a bank. They ignored his repeated explanations that he did not know the sidewalk was bank property and was willing to leave if officers would only let him.

A concerned citizen recorded the ordeal on a cell phone. She never once came close to interfering with the officers, but footage shows police threatening to arrest her pursuant to an Arizona law requiring people to stand at least eight feet back when recording police. She was still able to capture a reasonably clear recording in the empty parking lot, and that may have been the reason police eventually let Rabouin go. But what if the incident had occurred on a busy sidewalk, or in the middle of a chaotic protest? Or what if, like some other states, Arizona required her to stand 25 feet away rather than eight?

Rabouin’s detainment, of course, is far from the worst offense by police that has been caught on camera. Murderous cops are sitting in prison right now because citizens recorded their crimes so their departments couldn’t credibly lie about what happened. Courts around the country have recognized the importance of recording police and have unanimously upheld the First Amendment rights of citizens and journalists alike to do so.

That means police departments wishing to avoid scrutiny have had to resort to workarounds, including lobbying for legislation like the Arizona law so that recorders exercising their constitutional rights are less likely to capture incriminating details. Fortunately, there’s been some pushback. A court recently struck down that Arizona law as unconstitutional following a lawsuit by the ACLU and others. And last month, Louisiana Gov. John Bel Edwards vetoed a bill that would’ve made it a crime to come within 25 feet of officers on the job.

He wrote in his veto letter that, “Observations of law enforcement, whether by witnesses to an incident with officers, individuals interacting with officers, or members of the press, are invaluable in promoting transparency.” Edwards is right, and that’s likely the reason Indiana’s legislature passed a law similar to the one he vetoed, and why lawmakers in Florida and New York have tried and probably will try again (in the meantime, New York police baselessly arrest people who record inside police stations). Other states are sure to join the trend.

The official justification for these dubious bills is that recording up close interferes with police work or threatens police safety. That’s nonsense. We’ve seen no evidence that it’s ever happened and certainly none that the problem is pervasive enough to overcome the First Amendment. Anyway, there are already plenty of laws on the books against obstructing police. If anything, police are likely distracted when they’re needlessly quibbling with observers over how close they can get when they should be focused on their jobs.

Proponents of anti-recording laws may also point to the availability of body camera footage as a substitute for citizen recordings, but that’s another red herring. Police body cameras have a suspicious tendency to conveniently fail just when they’re most needed, and several state legislatures have made body camera footage as difficult as possible to obtain. Even when it’s eventually made public, the footage is often redacted or released late and/or piecemeal. The footage from Rabouin's arrest, for example, was released only after the observer's recording brought national attention to the incident. The mayor of Phoenix eventually apologized for the officers' conduct.

The bottom line is that the only way to hold police accountable for misconduct — or better yet, prevent it from happening in the first place — is for citizens and journalists to be able to record police without needing a yardstick to figure out how close they can get (ironically, if someone actually did take out a yardstick in order to comply with the law, they’d probably get tased).

It’s encouraging that Arizona and Louisiana have backed away from these misguided proposals. Hopefully, the remaining states will soon follow.