Judge Denies Injunction to Block Ind. ‘Buffer Law’ on First Amendment Grounds

U.S. District Judge Damon Leichty for Northern Indiana in South Bend denied plaintiff Donald Nicodemus’ motion for a permanent injunction that would have blocked Indiana Attorney General Todd Rokita (R) from enforcing HB-1186, the state’s “buffer law,” said the judge’s signed opinion and order Friday (docket 3:23-cv-00744).

HB-1186, which took effect July 1, makes it a misdemeanor to approach within 25 feet of police officers on active duty. Nicodemus' case is one of at least two challenges to the law on First Amendment grounds (see 2312180005).

Nicodemus periodically livestreams police encounters on his YouTube channel, and “he has the right to do so,” said the opinion and order. On July 20, South Bend police moved him back from a shooting investigation in town, referencing HB-1186 while he continued to film.

Nicodemus’ lawsuit argues that HB-1186 violates the First Amendment because it is “facially overbroad,” said the opinion and order. But the buffer law “is not unconstitutional by virtue of being facially overbroad,” it said.

HB-1186 “has many legitimate applications,” said the opinion and order. But the law’s effect on speech “is minimal and incidental only, particularly in this day and age of sophisticated technology in the hands of most any citizen and at a modest distance of 25 feet," it said. “Whether the wisest iteration of a law that promotes the safety of officers and citizens and that serves other legitimate interests, the statute is not constitutionally overbroad,” it said. For that reason, the permanent injunction is denied, it said.

Police officers have jobs to do, “and often difficult jobs that require decisionmaking in tense, uncertain, fluid, and unsafe circumstances,” said the opinion and order. But the public has a right to record the police, and that right “fits within the First Amendment’s guarantee,” it said.

The right to record the police “isn’t unlimited, but robustly it exists to serve important purposes,” said the opinion and order. It facilitates transparency, training, scrutiny of police misconduct, and the exoneration of officers from unfair charges, it said: “Candid critique of our government and its officials matters in a free society. By shining a light on newsworthy police conduct, the public’s recordings benefit our citizens and law-abiding officers alike.”

The state has demonstrated the buffer law’s “plainly legitimate sweep,” said the opinion and order. Viewing HB-1186 “as only preventing interference with police activities is myopic,” it said. The law “isn’t directed toward speech, but encroachment,” it said.

The law promotes officer and public safety by ensuring that someone at a close distance can’t “harm or hinder those charged with and engaged in their lawful duties,” said the opinion and order. That’s particularly so when 25 feet “affords an officer mere seconds of reaction time to respond to someone approaching at a walk, much less with ill-intent at a short sprint,” it said.

Nicodemus hasn’t “articulated a substantial number of applications that would prove unconstitutional in light of the law’s plainly legitimate sweep,” said the opinion and order. In conducting this analysis, the law “must be careful not to exceed the statute’s facial requirements” or to invite the court to speculate about hypothetical or imaginary cases, it said.

Outside of a "conceived impact" on citizen recording, Nicodemus “offers no realistic unconstitutional applications of this law,” said the opinion and order. The court offered for consideration alternative hypotheticals in oral argument, “but the court is convinced that none of these hypotheticals presents a realistic danger to First Amendment liberties,” it said. Should one such “rare situation” materialize, “an as-applied challenge would serve the arrow in the aggrieved party’s arsenal to address it,” it said.