Judge rules against challenge of police ‘buffer law’

SOUTH BEND – A federal judge on Friday upheld the constitutionality of an Indiana law that South Bend police invoked to prevent a man from moving closer to a crime scene to record officers’ activities.

The American Civil Liberties Union of Indiana sued the city of South Bend in August over police’s enforcement of a law prohibiting a person from knowingly or intentionally approaching within 25 feet of an officer after the officer orders the person to stop. The ACLU argued the socalled buffer law, which took effect July 1 of last year, violates the First Amendment.

U.S. District Court Judge Damon Leichty, of the Northern District of Indiana, ruled Friday that the law doesn’t infringe on the public’s right to record police activity.

The law “never once permits an officer to tell a reporter or citizen-journalist to leave altogether or to cease recording police activity,” Leichty wrote in his ruling. “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.”

Noting that the 25-foot buffer is “the length of a typical garden hose, or just small steps beyond an NBA three-point line,” the judge rejected the ACLU’s argument that it presents a substantial burden on the right to record police conduct. Leichty writes that modern zoom lenses and microphones allow people to record material well in excess of 25 feet.

The law’s stated purpose is to allow law enforcement officers to investigate crime scenes and secure evidence unimpeded by bystanders.

The state of Indiana’s defense argued that the law protects the integrity of government processes as well as the privacy of suspects, victims and witnesses.

“Viewing this statute as only preventing interference with police activities is myopic,” the judge wrote. “It criminalizes encroachment. It criminalizes a person’s knowing encroachment into a zone of integrity that facilitates the performance of an officer’s duties, and only then the officer’s lawful duties, and only after the officer has advised the person to cease approaching, and only then within 25 feet.”

The ACLU brought its lawsuit on behalf of Donald Nicodemus, who often posts videos of police to a YouTube channel called “Freedom 2 Film” that has more than 26,000 followers. Nicodemus was livestreaming a July 20 incident when South Bend Police Department

officers forced him to retreat farther from a crime scene.

The judge concedes that the ruling could differ in a scenario where an officer enforces the buffer law unconstitutionally. But he said that didn’t happen in Nicodemus’ case.

The ACLU plans to appeal the decision, the organization said in a statement.

“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,” Ken Falk, legal director at the ACLU of Indiana, said in a statement. “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.”

Email South Bend Tribune city reporter Jordan Smith at JTsmith@gannett.com. Follow him on X: @jordantsmith09