Greg Weaver: Police buffer law survives one court challenge, faces a stronger one

Indiana’s police “buffer zone” law survived one legal threat last month when the 7th Circuit Court of Appeals ruled that it does not violate the First Amendment rights of people seeking to record police officers in public.

But the law still faces a stronger challenge over whether it runs afoul of the 14th Amendment by being too vague about what behavior sets the stage for a violation—a challenge this journalist believes should prevail.

The law, enacted in 2023, makes it a misdemeanor to knowingly or intentionally approach within 25 feet of a law enforcement officer after being told to stop approaching.

The 7th Circuit appeals court on May 15 rejected arguments by “citizen journalist” Donald Nicodemus and the American Civil Liberties Union of Indiana that the law violated the First Amendment by giving unchecked discretion to police to control the public’s ability to film them in public settings.

Nicodemus is a YouTuber who routinely post videos of South Bend police activities and has more than 27,000 subscribers.

The appellate court concluded that Indiana’s buffer law does not regulate content and reasonably balances public safety with free expression. Crucially, the court emphasized, the law does not authorize officers to move away people who are already stationary or bar the act of recording itself.

The 7th Circuit ruling distinguished Indiana’s statute from First Amendment violations that amount to content-based restrictions or prior restraints.

Writing for the three-judge panel, Judge Doris Pryor noted that while the buffer law may indirectly affect recording activity, it targets physical conduct — approaching an officer — rather than the content or intent of a message.

The court left open the door for future challenges if the law is applied in ways that suppress recording rights outright.

The ruling also noted in a footnote that for the Nicodemus case the court did not consider 14th Amendment protections against vague laws that define a criminal offense in a way that encourages arbitrary and discriminatory enforcement.

That would seem to also leave the door open to a separate legal challenge posed by the Reporters Committee for Freedom of the Press and several media organizations.

They won a preliminary injunction against the law in September. U.S. District Court Judge James Sweeney concluded that the plaintiffs are likely to prove that Indiana’s buffer law violates the 14th Amendment because it fails to specify what kinds of behavior by a journalist or other member of the public might prompt an officer to issue an order to stay back.

Indiana Attorney General Todd Rokita appealed the ruling to the 7th Circuit, where during oral arguments last month judges aggressively questioned the state about the vagueness of the law. The appeals court has yet to issue a ruling.

In response to Sweeney’s ruling, the Indiana General Assembly stepped back into the fray earlier this year to clarify the law and try to make sure it passes constitutional muster. The law now says an officer would be able to order someone to stop approaching if there is a “reasonable belief” that the person’s presence within the 25 feet would interfere with police duties.

To this journalist, that language still sounds too vague and subjective. How exactly will reporters and photographers know, in the heat of the moment, when their actions create a “reasonable belief” of interference?

Why not spell out what kind of behavior would amount to interference, so journalists and police can be on the same page rather than second-guessing each other?

Lawmakers certainly have a duty to provide protections for law enforcement from harassment and interference. They have an equal duty to protect journalists and citizen observers from arbitrary enforcement of a vague law that would subject them to a misdemeanor punishable by up to 60 days in jail and a maximum fine of $500.•

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Greg Weaver is editor of The Indiana Lawyer. Reach him at [email protected].