Federal Judge Upholds Indiana’s 25-Foot Police ‘Encroachment’ Law Against ACLU Challenge; South Bend Police Arrested Journalist Filming

U.S. District Court Judge Damon Leichty, from the Northern District of Indiana, has ruled against the ACLU of Indiana in a case challenging Indiana’s new 25-foot “encroachment” law. The law, effective since July 1, 2023, prohibits individuals from knowingly approaching within 25 feet of a law enforcement officer after being ordered to stop.

The ACLU Indiana issued the following press release:

January 12, 2024

U.S. District Court Judge Damon Leichty, of the Northern District of Indiana, today ruled against the ACLU of Indiana in its case arguing that Indiana’s new 25-foot “encroachment” law violates citizen-journalists’ constitutional right to observe and record the police.

This new law, which went into effect on July 1, 2023, prohibits a person from knowingly and intentionally approaching within 25 feet of a law enforcement officer after the officer has ordered the person to stop.

The ACLU of Indiana filed a lawsuit in August 2023 on behalf of Donald Nicodemus, a citizen journalist who lives in South Bend, Indiana, and monitors the activity of public-safety personnel, primarily the South Bend Police. South Bend police enforced the new law against Nicodemus to prevent him from getting close enough to observe and record their activities.

“We’re obviously disappointed in this decision, as we believe this new law gives unbridled discretion to law enforcement officers and invites content and viewpoint-based discrimination,” said Ken Falk, legal director at the ACLU of Indiana. “With this ruling, police officers will continue to have unchecked authority to prohibit citizens from approaching within 25 feet of the officers to observe their actions, even if the actions of the citizens are not and will not interfere with the police.”

An appeal of the decision is planned.

https://www.aclu-in.org/sites/default/files/field_documents/nicodemus_order.pdf

“The public has a First Amendment right to record police activity—a critically important right.
Law enforcement officers have a right to perform their lawful duties unimpeded. Indiana’s buffer law has
many constitutional applications within its plainly legitimate sweep. It never once permits an officer to
tell a reporter or citizen-journalist to leave altogether or to cease recording police activity. The law is
directed toward encroachment on an officer’s lawful duties within 25 feet. It doesn’t target speech. It
penalizes approaching a lawfully-engaged officer (after an order), not recording one. And at 25 feet, in
measure small steps from an officer’s work, this law has only an incidental effect on the public’s First
Amendment right to capture audio and video and otherwise to scrutinize police conduct. The court denies a permanent injunction because Indiana’s buffer law is not unconstitutional by virtue of being facially overbroad. A case might be different if an officer enforces this law unconstitutionally in a particular scenario, but the court is not deciding such a case today.”

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