An Indiana law makes it a crime for individuals to approach within 25 feet of a police officer if ordered by that officer to back away. However, on Tuesday, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the law, arguing that it infringes upon individuals' First Amendment right to record and observe police.
In March, the state legislature passed a law making it a misdemeanor to "knowingly or intentionally [approach] within twenty-five (25) feet of a law enforcement officer lawfully engaged in the execution of the law enforcement officer's duties after the law enforcement officer has ordered the person to stop."
"Our public safety officers have important work to do, and their jobs often involve dangerous and unpredictable situations," Rep. Wendy McNamara (R–Evansville) said in a February press release. "The goal of this bill is to give officers another tool to help control a scene to maintain their safety and the public's safety."
The problem, according to the ACLU, is that the law allows police to effectively prevent journalists and other bystanders from recording their activity—or even watching them in action. For example, Donald Nicodemus, the plaintiff, says that he was prevented from filming police during an investigation of a shooting. The suit also alleges police failed to properly enforce the law, and that they instructed Nicodemus to back up over 50 feet.
"There was no basis for forcing Mr. Nicodemus to move even further back from the area—fully across the street—where police [were] conducting their activities. However, Mr. Nicodemus complied as he had been threatened with arrest."
"The unbridled discretion given to law enforcement officers by [the law] allows for and invites content and viewpoint-based discrimination," the complaint continues, concluding that the law "violates the First Amendment as it gives police officers unbridled discretion 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."
Lawsuits challenging similar laws have succeeded before. For example, an Arizona law that would have banned filming within 8 feet of a police officer was blocked by a federal judge last year.
"Arizona already has other laws on its books to prevent interference with police officers," wrote Judge John J. Tuchi in a preliminary injunction, adding that if the goal "is to prevent interference with law enforcement activities, the Court fails to see how the presence of a person recording a video near an officer interferes with the officer's activities."