Arizona AG won't defend law making it harder to film police. That should tell you something

​Corrections & Clarifications: A previous version of this column misspelled the name of U.S. District Judge John J. Tuchi.

When it comes to taking away our rights, the Arizona Legislature has, once again, outdone itself.

This time, by passing a law so blatantly unconstitutional that not even the state’s attorney general will defend it.

Attorney General Mark Brnovich, it seems, has no interest in defending a state law that would make it more difficult for bystanders to record police activity.

Put another way, he’s taking a pass on going to court to explain why Gov. Doug Ducey and the Republican-run Legislature are within their rights to whittle away our rights.

Courts have recognized the right to record police

The new law was scheduled to take effect on Sept. 24. That is, until Friday, when U.S. District Court Judge John J. Tuchi temporarily blocked it. He’s given legislative leaders a week to decide whether they want to defend their law, which would make it a crime, under most circumstances, to video police activity at close range.

The Arizona Republic, along with other media organizations and the ACLU, sued the state, asking the judge to put a permanent kibosh on the law.

Of course, it’s a blatant violation of the Constitution, but don’t take my word for it.

Legislators were warned by their own staff attorneys that what they were doing was likely unconstitutional.

Seven federal appellate courts – including that 9th Circuit that covers Arizona – have recognized that we have a First Amendment right to record police officer encounters.

So naturally, our leaders decided to undermine that constitutional right.

House Bill 2319, should it take effect later this month, would make it a crime to photograph or video the police within 8 feet of a law enforcement activity.

Lawmaker says it's about protecting officers

It comes just a year after the Justice Department opened an investigation into the Phoenix Police Department following reports of excessive force.

Attorney General Merrick Garland, in his August 2021 announcement of the probe, said the goal of the investigation is "to promote transparency and accountability.”

“This increases public trust, which in turn increases public safety," he said. "We know that law enforcement shares these goals.”

So much so, in fact, that Rep. John Kavanagh, a former police officer, introduced HB 2319, making it a crime to film the police at close range.

Another view: Why Gov. Ducey should have vetoed police filming bill

The Fountain Hills Republican has said the law barring close-range filming of police is all about protecting officers from distractions.

“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,” he wrote, in an op-ed for The Republic. “Such an approach is unreasonable, unnecessary and unsafe, and should be made illegal.”

But it’s already a crime to interfere with a law enforcement activity.

Brnovich says he's not defending that

This law essentially gives the police license to forbid people from recording police encounters with the public. It is all about sending a strong message to bystanders and journalists as they reach for their cellphones: Don’t even think about it.

Now comes Brnovich, declining to defend the state against the media’s lawsuit. In a court filing, Brnovich wrote that it’s up to legislative leaders to find someone to defend them if they want their law to take effect.

It’s not every day that you see the state’s chief legal officer refuse to defend the state’s laws, especially when that official is named as a defendant.

Brnovich, in his legal filing, doesn’t say whether he believes the law is unconstitutional, only that he doesn’t see any reason why he should have to defend it.

Brnovich said that if legislative leaders want their law defended they should get help from county prosecutors and find somebody else to pay for it in the event they lose.

“The attorney general will oppose any award of attorneys’ fees or costs against him in any capacity given that he is not litigating the constitutionality of the statute,” his court filing said. “Plaintiffs have provided no basis to name him as a defendant, and plaintiffs did not provide any notice or ask him for his position before filing this suit and preliminary injunction.”

It's worth noting that the Maricopa County Attorney's Office, another named defendant in the case, says it isn't the appropriate agency to defend the law.

We'll be paying for lawmakers' defense

Legislative leaders will have to scramble to find someone to defend their new law.

“This is the first I’ve heard of it,” Senate President Karen Fann told Capitol Media Services’ Howard Fischer, who reported Monday on Brnovich’s filing. Fann said she plans to consult with Senate staff attorneys “to see whether we should pursue it on our own.”

Presumably, not the same Senate attorney who warned her and her fellow Republicans at that time that what they were doing was probably illegal.

Chris Kleminich, a Senate staff attorney, advised the Senate Rules Committee that the bill “does bring up questions relating to First Amendment and freedom of expression” and that “recording of law enforcement activity has been recognized by federal courts as following within that First Amendment right.”

The Senate’s response was to approve the bill on a 16-12 party-line vote.

So, now Republican legislators will presumably hire someone to defend them, hoping to put the case on the long and costly road to the U.S. Supreme Court, which, of late, has shown a tendency to rob us of certain constitutional rights.

Ironic, isn’t it? With Brnovich taking a pass, we’ll be paying for an attorney to defend our leaders’ right to take away one of our rights.

Reach Roberts at laurie.roberts@arizonarepublic.com. Follow her on Twitter at @LaurieRoberts.

Support local journalism: Subscribe to azcentral.com today.

This article originally appeared on Arizona Republic: Arizona attorney general won't defend police filming law in court