Ind. ‘Buffer Law’ Gives Police ‘Unbridled Discretion,’ Says Appellant’s Opening Brief

Indiana’s statewide “buffer law” (HB-1186), making it a misdemeanor to approach within 25 feet of police officers on active duty, gives the police “unlimited and unbridled discretion to move all persons away,” said Donald Nicodemus’ opening brief Monday (docket 24-1099) in the 7th U.S. Circuit Court of Appeals.

Nicodemus periodically livestreams police encounters on his YouTube channel. He contends that South Bend police on July 20 moved him back farther from a shooting investigation in town, referencing HB-1186 as they did so. His appeal seeks to reverse the district court’s denial of his motion for an injunction to block HB-1186 on First Amendment grounds (see 2401160011). The court found that the statute isn’t unconstitutional by virtue of its being overbroad and because HB-1186 “has many legitimate applications.”

Seven media organizations in a separate case are also seeking an injunction to enjoin Indiana Attorney General Todd Rokita from enforcing HB-1186, also on First Amendment grounds. Rokita sought a stay in that case, pending the outcome of Nicodemus’ 7th Circuit appeal. But a magistrate judge denied the request for a stay Friday, holding that a stay would prejudice the media organizations (see 2403110052).

Nicodemus is a “citizen-journalist” who wants to continue “to closely observe and record police activity in South Bend” when doing so won’t interfere with police activities, said his opening brief. He’s “justifiably concerned” that the statute “will be enforced against him again,” as it was on July 20, it said.

The district court erred in “upholding the constitutionality” of HB-1186, as the statute “violates the First Amendment,” said the brief. It affords “unbridled discretion” to law enforcement to decide whether activity protected by the First Amendment “may take place and is therefore not content neutral,” it said. Even if HB-1186 were to be deemed content neutral and only incidentally burden First Amendment conduct, it’s not “narrowly tailored and fails to leave open ample alternative channels of communication,” it said.

Nicodemus’ recording activities take place on public sidewalks, streets and parks, said the brief. When he observes and records law enforcement activity, “he is careful not to interfere,” it said. Though he doesn’t hinder the police, “he will at times situate himself closer than 25 feet from the officers so he is able to both see and hear them,” it said.

Nicodemus also wants to be sure “to create video recordings that are discernable to those who will view them,” said the brief. Depending on the circumstances, if he’s farther than 25 feet away, it’s often “difficult if not impossible to hear and see what is happening, and to allow his recording devices to capture the specifics of what is occurring,” it said.

Nicodemus believes that he has a First Amendment right to monitor and record the police, “including the right to be closer than 25 feet, as long as he is not interfering with police activity,” said the brief. He intends to continue to film the South Bend police, but he worries “that he will be arrested for engaging in activity that he believes is protected by the First Amendment,” it said.