INDIANAPOLIS (Legal Newsline) - A federal judge has blocked an Indiana law that requires onlookers, including members of the press, to stand at least 25 feet away from cops when they are told to do so.
Judge James Sweeney II on Sept. 27 granted a preliminary injunction requested by media groups like the Reporters Committee for Freedom of the Press and the Indiana Broadcasters Association. His 26-page ruling also denies Attorney General Todd Rokita's motion to dismiss.
They say the law, which is known as the Buffer Law and keeps the public on-scene at police activity from getting closer than 25 feet, is unconstitutional. They claim the discretion given to cops to order people back is vague, and Sweeney feels they are likely to prevail on that claim.
"The Buffer Law is clear about what conduct may lead to an arrest: refusing to obey an officer after being told to move when one is within 25 feet," Sweeney wrote.
"However, the constitutional vagueness analysis requires more when a law criminalizes failing to obey such an order, as due process requires a 'warning about the behavior' that will prompt that order.
"The Buffer Law includes no such warning. Instead, it 'authorizes officers to order an individual to withdraw for any reason (or no reason).'"
The plaintiffs claim in their suit that Indiana's HB 1186, enacted in April, "unconstitutionally abridges the press' ability" by making it a misdemeanor to approach police activity after they have been ordered to stop.
They allege the law criminalizes peaceful and nonobstructive news-gathering as well as violates the First Amendment. The plaintiffs further allege Indiana's law grants law enforcement officers limitless direction to prevent journalists from getting close enough to document the way officers perform their duties in public places.
Rokita, in defense of the law, said the suit should be tossed because the plaintiffs had not ben subjected to enforcement of the law and because another federal suit already challenged the Buffer Law's constitutionality.
His office provided an expert report from Dr. Richard Celeste, a retired law enforcement officer who said the Buffer Law was important for public safety and privacy rights. But Sweeney said existing criminal statutes are adequate.
"The Buffer Law does not include any parameters such as 'likely to cause substantial harm' to warn what kind of behavior might cause an officer to issue a stay back order," Sweeney wrote.
"Simply being within 25 feet of a police officer is not a crime, and indeed, important First Amendment rights are regularly exercised within 25 feet of law enforcement every single day.
"This is not specific enough to allow the general public or'reporters to know how to conduct themselves to avoid receiving an order to move.'"
All of this vagueness would lead to arbitrary and discriminatory enforcement of the Buffer Law, Sweeney says. The law lacks standards for officers to guide them in deciding who needs to move back from police activity, and when, he added.