First Amendment attorney warns of unintended consequences in police shooting bill

Ben Giles//March 26, 2015

First Amendment attorney warns of unintended consequences in police shooting bill

Ben Giles//March 26, 2015

Police officer wathcingA police shooting bill approved by the Legislature and sent to Gov. Doug Ducey would strike the names of police officers from all public records – including everything from disciplinary records to police reports to traffic accident reports, an attorney who specializes in First Amendment issues has warned.

The Senate gave final approval to SB1445 on Tuesday afternoon, voting 20-8 for the measure that mandates law enforcement agencies withhold for 60 days the names of officers who kill or seriously injure someone.

David Bodney, an attorney for The Arizona Republic and KPNX-TV Channel 12, wrote a letter to Ducey on March 25 urging the governor to veto the “well-intentioned, if misguided, effort to address peace officer safety.”

Particularly troubling for media groups were provisions added in an amendment on the House floor that would prohibit law enforcement agencies from releasing officers’ names under any circumstance. The names of officers who are disciplined by their law enforcement agencies would also be barred from disclosed to the public, another measure included in the amendment.

“Simply put, this provision represents either a colossal drafting error or a surreptitious effort to gut the transparency of the law enforcement disciplinary process,” Bodney wrote.

Neither provision received a committee hearing in either chamber, Bodney noted.

The underlying purpose of the bill is unnecessary, Bodney wrote, because Arizona law already allows for the names of officers to be withheld on a case-by-case basis, if there’s a threat to the officer’s safety.

He wrote that the measure “removes discretion from those in the best position to make this decision – police departments and sheriff’s offices – and instead imposes a mandatory 60-day waiting period for the public to get basic facts about a use-of-force incident – even in cases where there is no risk to officer safety.”

Bodney is one of numerous critics who have called on Ducey to veto the bill that would keep the names of officers who use deadly force a secret for two months.

Sen. Steve Smith, the sponsor of SB1445, told reporters Thursday that Bodney’s analysis “couldn’t be more untrue,” and suggested Bodney either misread the bill or has other “insidious motives” for writing the letter to Ducey.

Smith, R-Maricopa, said language in the House floor amendment clarifies that any information about an officer’s priors can be released – be it records of anger management issues or previous shootings the officer may have been involved with – but that only the name and photo be withheld.

“That person is categorically wrong, either in his interpretation of that language, or he’s completely falsifying what that bill actually says,” Smith told reporters.

Smith told reporters Thursday afternoon he would sponsor a measure next session to fix any issues with SB1445 if there are in fact, as Bodney claims, unintended consequences.

“But that’s not going to happen because he’s not right,” Smith said.

African American community leaders and the ACLU of Arizona arrived outside the governor’s office shortly after the vote to deliver a petition urging Ducey to veto the bill, which they and some lawmakers say will only further fracture community relations with police departments in Arizona.

“This bill will only cause the community to be further distrustful of law enforcement,” said Sen. Martin Quezada, D-Phoenix, before voting against SB1445. “It’s taking a step backwards in terms of what we should be doing as a community and establishing a relationship with law enforcement.”

Lawmakers supporting the bill noted that it initially proposed a 90-day wait, and said a wait is necessary to protect law enforcement in a digital society where information – right or wrong – can spread like wildfire following a deadly shooting.

Sen. John Kavanagh said Tuesday that 60 days would provide a breather after emotionally-charged shootings, a benefit that will help cop a law enforcement officer and his or her family safe.

He blamed the “lightning-fast, instantaneous flow of information” the Internet provides for spreading false and malicious information about officers who use deadly force in the line of duty.

Kavanagh, R-Fountain Hills, cited federal authorities’ investigation into the shooting in Ferguson, Mo., last year. Reports found the officer did not act illegally, as some following the shooting claimed – a fabrication, Kavanagh said, which was the entire basis for the following “hands up, don’t shoot” movement.

“Until we can get the fact straight, we need to shield those cops and their families from being assassinated by lunatics or political zealots,” Kavanagh said.

Smith cited an incident in Pinal County, in which he claims Sheriff Paul Babeu was “essentially forced” to disclose the name of an officer involved in a controversial shooting, as well as a recent shooting in Phoenix as cases when officer’s lives were at risk because their names were released to the public.

Smith, R-Maricopa, has claimed that threats were made by a mob to march on the Phoenix officer’s home.

Bodney disputed Smith’s characterization of the release of the names in both the Phoenix and Pinal County incidents, where “the law enforcement agencies withheld the officers’ names for approximately one week and 30 days, respectfully.”

“Each agency could have continued to withhold the names indefinitely, provided that specific facts supported the conclusion that disclosure of the names posed risks to the officer’s safety,” Bodney wrote.

Rep. Reginald Bolding, who stood with community leaders and the ACLU outside the governor’s office shortly after the bill was approved, also criticized Smith’s take on the events following those fatal Arizona police shootings.

Smith’s testimony “totally mischaracterized” the actions of the law enforcement agencies and of protestors, said Bolding, D-Phoenix.

“In the case of Phoenix, there was no retaliation taken against that police officer,” Bolding said. “And broadly, there’s never an incident in which there’s a protest because a name has been released. There’s always been protests because the incidents surrounding a fatal officer-involved shooting was questionable, or the facts didn’t add up.”

Outside the governor’s office following the Senate vote, Julian Jones of San Tan Valley said lawmakers are ignoring the racial undertones of the legislation and its impact on African American communities.

“I don’t believe that they’re listening to the immense amount of constituents they have. They’re listening to a small segment of the constituents they have,” Jones said, later adding: “If it doesn’t affect them, it’s not a problem. That’s absolutely not true.”