from the limiting-contempt-of-cop-arrests dept
Although the Supreme Court has yet to say so itself (and probably won’t any time soon, given its current composition), it’s generally accepted that citizens have the right to film public officials performing their public duties. Law enforcement officers, however, seem to feel this should never be a right and that their actions in full view of the public shouldn’t be memorialized by anything other than police reports written by police officers.
If they can’t change the Constitution, they try to change the law. The problem with this tactic is that the law still has to be constitutional. Many localities have tried to enact laws that are specifically created to make it (1) more difficult to film police activity, and (2) make it easier for officers to arrest people for filming them. These efforts have universally failed.
We can now add another failure to this list. In 2023, the Indiana legislature passed a law that created a 25-foot halo around cops, making it illegal for people to “approach” any officer “lawfully engaged” in police work “after the law enforcement officer has ordered the person to stop.”
Of course, cops weren’t given 25-foot protractors to help ensure only actual violators were arrested for getting too close to cops. Instead, the law played right into the worst aspects of the worst cops, giving them all the reason they needed to arrest someone (especially someone engaged in recording them) for being a bit too close.
And this stupid, cop-serving law did what all of these laws do: generate lawsuits. The ACLU took the state to court first, representing independent journalist Donald Nicodemus. The RCFP (Reporters Committee for Freedom of the Press), along with several other First Amendment activists and journalistic entities, filed their own lawsuit shortly thereafter.
The district court ruled in favor of RCFP. Of course, this was immediately appealed by the state, which felt cops should be given yet another special privilege and citizens should just be expected to bear the burden by giving up a bit of their enshrined rights.
The Seventh Circuit court doesn’t like anything about the law, or the belated second effort made by the state to try to snatch victory from the jaws of defeat. (This court also upheld a ruling in favor of the ACLU and the journalist it represented in court.)
While there’s an obvious First Amendment aspect to this case, it’s actually the Fourteenth Amendment getting the job done. “Void for vagueness” is the operative phrase, and this law is about as vague and arbitrary as it gets — something even the state’s lawyers stated on the record while trying to keep this law from being hit with a restraining order. (h/t Short Circuit)
First, here’s the parallel attempt the state deployed in hopes of keeping its cop halo intact even if the 2023 law was ruled unconstitutional, as relayed by the Appeals Court in its decision [PDF]:
While this appeal was pending, the Indiana legislature passed a second buffer law, which is identical to the buffer law at issue in this case except it specifies that a law enforcement officer may only order an individual to stop approaching if he “reasonably believes that a person’s presence” within 25 feet “will interfere with the performance” of his “duties.” This second buffer law was signed by Governor Braun on March 5, 2025, and took effect on July 1, 2025. It is codified adjacent to the original buffer law.
While this not-really-all-that-new law placed some of the burden of proof back on cops with the phrase “reasonably believes” (something absent from the 2023 law), that delineation doesn’t really mean much when it’s a cop’s word against a citizen’s in an arrest described only in the officer’s words because a citizen (or journalist) has been successfully prevented from recording the interaction.
Here’s only part of what’s wrong with the 2023 law — something the 2025 law doesn’t even attempt to fix — as described by a direct beneficiary of both laws:
Officer Veal threatened that those on the corner, including Mr. Nicodemus, would go to jail if they did not move back another 25 feet, stating that there was a “new law,” apparently referring to Indiana Code § 35-44.1-2-14.
Officer Veal apparently interpreted Indiana Code § 35-44.1-2-14 as allowing police to repeatedly push persons back 25 feet at a time based solely on a police officer ordering this.
But Officer Veal’s application of the 2023 law isn’t even the worst depiction of either law. That came courtesy of the state’s legal reps, who didn’t have any good answers when the appeals court started asking questions about how the wording of either law prevented officers from abusing a law that gives them every opportunity to abuse it:
The buffer law is similarly susceptible to arbitrary enforcement and is therefore unconstitutionally vague. The State attempts to distinguish cases like Bell and Morales by arguing that the buffer law’s “specific, objective terms ensure that it does not invite officers to enforce it in an arbitrary manner”—but that argument only gets the State so far. It is true that a law criminalizing approaching within 25 feet of an officer is more objective than one criminalizing annoying behavior. We also acknowledge that the buffer law requires a do-not-approach warning before subjecting an individual to arrest. But that does not immunize the buffer law from arbitrary or discriminatory enforcement.
As the plaintiffs point out, the problem is more upstream: the buffer law offers no “guidance to the officer deciding whether [a do-not-approach] order should issue” in the first place. Without such guidance, any on-duty officer can use the buffer law to subject any pedestrian to potential criminal liability by simply ordering them not to approach, even if the pedestrian is doing nothing more than taking a morning stroll or merely walking up to an officer to ask for directions.
What was already a pretty vague law in 2023 is now perhaps irreparably vague — especially the 2025 version which pretended to introduce some sort of control but actually just gives officers a blueprint for abuse by telling them they just need to yell “stop” at people in order to justify any subsequent arrest.
It’s so blatantly obvious, the state’s legal reps were unable to come up with a defense of the law or its wording. In fact, they pretty much admitted to the court that the law was bad and would be abused by bad officers.
The State offers no real rebuttal to this notion. Indeed, the State doubled down on the vast discretion afforded by the buffer law at oral argument. We asked counsel to explain when an officer could invoke the buffer law to tell someone to stop approaching. The answer? “If an officer is conducting their official duties, an officer may tell someone to stop approaching.” For any reason? A good reason, a bad reason, a reason the officer just makes up? “Yes.” Could an officer invoke the buffer law just because he had a bad breakfast? Again, counsel answered in the affirmative.
You can’t enact laws that say the government can do whatever it wants whenever it wants for no reason at all and expect courts to just sign off on it. Two consecutive courts rejected this law. The Seventh Circuit isn’t any more receptive of the two laws than the lower court. There’s no way anything described this way could remotely be considered constitutional:
The Fourteenth Amendment will not tolerate a law subjecting pedestrians to arrest merely because a police officer had a bad breakfast—no matter how bitter the coffee or how soggy the scrambled eggs.
Back it goes to the lower court with the injunction still intact. And the only reason the lower court has to take a look at it again is because the Supreme Court recently decided all injunctions that cover more than a single jurisdiction are unequivocally bad solely because the Trump administration is now being subjected to them.
What that means here is that the court will have to determine whether or not its injunction can continue to cover the two (2) counties it applied it to — that being the only two counties in the state where enforcement of the law had actually taken place. So, there’s a good chance these laws will remain intact on a case-by-case basis until every tiny jurisdiction has handled a lawsuit related to enacted laws that affect the entire state. Thanks, SCOTUS.
Filed Under: 14th amendment, 1st amendment, 7th circuit, filming police, indiana, police accountability
Companies: reporters committee for freedom of the press
