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Two years ago, Indiana legislators approved a law that made it a crime for the public or the press to come within 25 feet of a law enforcement officer after being ordered not to approach.
Last year, the law was blocked by a preliminary injunction issued by U.S. District Judge James R. Sweeney and sought by several media organizations. Sweeney found the law to be unconstitutionally vague because it failed to define the behavior that would allow a police officer to issue a stay-back order.
The Indiana General Assembly is attempting to fix the law so it can pass legal muster. But the new version still seems too vague to prevent police officers from arbitrarily imposing the 25-foot buffer without good cause.
Of course, police should be able to push people back from a crime or an arrest scene if those people are truly interfering with an officer’s work. And people who ignore these police directives probably should be charged with a crime.
But the need to protect an officer’s safety should be balanced against the rights of citizens and the media to document police work and bring attention to police abuses when they occur.
As a journalist and a citizen who believes in transparency, I don’t think the new proposal authored by Rep. Wendy McNamara, R-Evansville, gets the balance quite right. It gives the police too much discretion and fails to give the media a reasonable chance to challenge a criminal charge if they are unjustifiably accused.
Under McNamara’s House Bill 1122, 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 will interfere with police duties.
As Rep. Matt Pierce, D-Bloomington, noted during a committee hearing on the bill, that new standard seems too subjective. It focuses on a perceived threat of interference rather than actually defining specific behaviors that would trigger the 25-foot barrier.
Dave Arland, executive director of the Indiana Broadcasters Association, said a better approach would be to have more specificity, like what is contained in Florida’s new buffer law. It says you can be charged with a misdemeanor if you fail to stay outside the buffer zone and impede, threaten or harass first responders.
Harassment is explicitly defined as willfully engaging “in a course of conduct directed at a first responder which intentionally causes substantial emotional distress in that first responder and serves no legitimate purpose.”
Despite the specificity of the Florida law, Arland said he still has issues with the 25-foot restriction, which he says is “arbitrary and actually could impinge on First Amendment rights.”
It was a lawsuit by Arland’s organization and other media groups that led to the injunction that blocked Indiana’s law. While Arland remains outspoken on the issue, the Indiana Professional Chapter of the Society of Professional Journalists has not publicly taken a position on the revised proposal.
The revised measure already has cleared the House on a 70-19 vote. But there’s still time for lawmakers to improve the bill when it lands in the Indiana Senate for consideration.
At a minimum, lawmakers need to make it clear exactly what behavior would trigger a stay-back order or constitute a violation.
That’s the least they can do if they want to threaten police observers with a Class C misdemeanor punishable by up to 60 days in jail and a maximum fine of $500.•
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Greg Weaver is the editor of Indiana Lawyer. Reach him at [email protected].
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