Court set to hear oral arguments in 25-foot buffer law case
9th December 2024 · 0 Comments
By Drew Costley
Contributing Writer
(Veritenews.org) — A federal judge in Baton Rouge is set to hear oral arguments this week in a challenge to a new state law that makes it a criminal offense to knowingly or intentionally come within 25 feet of a working police officer after being ordered or asked to step back.
Attorneys representing six news organizations with a footprint across Louisiana are asking the judge to declare that the law violates both the First and Fourteenth Amendments of the U.S. Constitution and to issue a preliminary injunction that stops the state from enforcing the law.
Attorneys for the state want Federal Judge John deGravelles, of the U.S. District Court for the Middle District of Louisiana, to dismiss the case.
Gov. Jeff Landry signed the 25-foot buffer bill into law in May. On July 31, the day before the law was set to go into effect, a group of news organizations, including Verite News and Gannett, sued Attorney General Liz Murrill, Superintendent of the Louisiana State Police Robert P. Hodges and East Baton Rouge District Attorney Hillar C. Moore III to stop the law from being enforced.
The judge has yet to weigh in on the case.
The Louisiana law follows similar efforts in other states to limit how close someone can be to a law enforcement officer. Lawmakers in Arizona and Indiana passed such laws in 2022 and 2023, but federal judges have blocked both from being enforced. Florida legislators also passed a similar bill, set to go into effect in January.
“These buffer laws are a trend that’s cropping up across the country, and they seem to be an effort to get around the First Amendment right to document what police officers do in public,” Grayson Clary, staff attorney with Reporters Committee for the Freedom of the Press, told Verite News.
The Reporters Committee, along with Louisiana attorneys Scott Sternberg and Marcia Suzanne Montero, are representing the plaintiffs. The attorneys argue in addition to violating First Amendment rights, the law also violates the Fourteenth Amendment by failing to uphold people’s due process and equal protection rights because the language of the law is too vague.
They argue that the law fails to tell people what conduct is prohibited, fails to give adequate warning of the buffer being created and encourages “arbitrary and discriminatory enforcement.”
William Most, a New Orleans civil rights attorney who is not involved in the case, told Verite News “it was very concerning” to watch the bill become law.
“It did not seem to be solving a problem that exists in Louisiana,” he said. “Louisiana already has a law that makes it a crime to interfere with the law enforcement investigation, and so I didn’t see how…an additional law was needed to address any existing problem, which raised the concern for me that this was intended to restrict free speech rights.”
He said the law could have the effect of restricting all sorts of “perfectly legal and constitutional activity,” such as a photojournalist taking a photo of a newsworthy event, people at a second line who just happen to be near police officers or protestors demonstrating.
The state’s response
Landry’s office did not respond to multiple requests for comment on this story. Lester Duhe, Murrill’s press secretary, referred Verite to a post she made on the social platform X about the case in August.
“The law is a reasonable time, place, and manner restriction that ensures law enforcement can do their jobs without threat or obstruction by others,” the post reads. “We have had several incidents where police officers were injured while carrying out their lawful duties protecting the community and attempting to restore order. I look forward to defending this reasonable response to documented interference with law enforcement.
Verite asked Murrill’s office for more details on the incidents involving officer injuries, but did not immediately receive a response from her office.
Attorneys for the state said in an October court filing that deGravelles should dismiss the case because the plaintiffs can’t show actual harm has been or will be caused by the law, the law had not been enforced against the plaintiffs or their employees and that Murrill and Hodges are entitled to sovereign immunity.
Sovereign immunity is a legal doctrine that states that governments cannot cause legal harm and prevents governments from being sued for harms done by their employees, agencies or departments.
‘It can’t be this arbitrary distance’
Mickey H. Osterreicher, the general counsel for the National Press Photographers Association, has also been a photojournalist and uniformed reserve deputy sheriff with the Erie County Sheriff’s Office for over 40 years.
He told Verite News that he thinks law enforcement officers are entitled to enforce reasonable restrictions on the time, place or manner that First Amendment rights are practiced. But, he said, those restrictions can’t be arbitrary.
He said, for example, that an officer could reasonably ask someone to step back two or three feet because to keep them far enough away to prevent that person from taking a service weapon. Another scenario he gave is that officers could block off a five-block radius during an active shooter situation.
“But [the restrictions have] got to be based on the totality of the circumstances. It can’t be this arbitrary distance,” he said.
The law becomes even more complicated to enforce, he said, at an event like a demonstration or protest. To Osterreicher, the concept of the 25-foot buffer law, which was similar to the one passed and eventually blocked in Indiana, turns logic on its head.
“Let’s say you back up from one officer and then get closer to another officer,” he said. “Is everybody going to run around with tape measures? It just is totally unworkable.”
This article originally published in the December 9, 2024 print edition of The Louisiana Weekly newspaper.
