New Louisiana law serves as a warning to bystanders who film police
5th August 2024 · 0 Comments
By Richard A. Webster
Contributing Writer
Editor’s Note: This article was produced for ProPublica’s Local Reporting Network in partnership with Verite News.
(VeriteNews.org) — Four years before a Minneapolis police officer murdered George Floyd, prompting nationwide demonstrations, hundreds of people marched in Baton Rouge to protest officers’ killing of Alton Sterling in front of a convenience store. Law enforcement responded in force: Officers armed with rifles, body armor and gas masks pushed protesters back and forcibly arrested about 200 people. Some were injured.
A group of 13 protesters and two journalists filed suit, alleging their constitutional rights were violated when they were arrested. Eventually, the city agreed to pay them $1.17 million. Photographs and videos taken by protesters, witnesses and journalists were critical in contradicting officers’ claims that protesters were the aggressors, said William Most, an attorney for the plaintiffs.
On August 1, a Louisiana law went into effect that make it a misdemeanor for anyone, including journalists, to be within 25 feet of a law enforcement officer if the officer orders them back. The two independent journalists who sued, whose photos were used to support allegations against the police, said they wouldn’t have been able to capture those images if the law had been on the books during the protests.
Karen Savage was working for a news site focused on juvenile justice issues on the second day of the demonstrations in July 2016 when she photographed officers putting a Black man in a chokehold as they detained him. Cherri Foytlin, who was working for a small newspaper and a community media project, said she was within 4 feet when she photographed officers violently dragging a Black man off private property and arresting him.
Foytlin and Savage said they are hesitant to cover protests in Louisiana now that they could face criminal charges if they’re too close to an officer. “I was thinking about how far exactly 25 feet is, and, at the end of the day, it doesn’t matter. It’s going to be whatever the officer wants it to be,” Savage said. “And if it doesn’t get to court, it won’t matter because they will have accomplished what they wanted, which was to get the cameras away.”
Last Wednesday, a coalition of media companies representing a couple dozen Louisiana news outlets, including Verite News, filed suit against Louisiana Attorney General Liz Murrill, State Police Superintendent Robert Hodges and East Baton Rouge District Attorney Hillar Moore III, alleging the law violates the First Amendment.
State Police spokesman Capt. Nick Manale declined to comment on the suit. Representatives for Moore and Murrill did not respond to requests for comment.
Police buffer laws, as they are commonly known, are relatively new; Louisiana is the fourth state to enact one. Although those states already prohibit interfering with police officers, supporters say buffer laws are necessary to protect police from distrustful, aggressive bystanders. And with advances in cellphone cameras, including zoom lenses, supporters say there’s no need to get close to officers in order to record their activities.
“There’s really nothing within a 25-feet span that someone couldn’t pick up on video,” Rep. Bryan Fontenot, R-Thibodaux, the sponsor of Louisiana’s bill and a former law enforcement officer, said during a legislative hearing this year. At the same time, he said, “that person can’t spit in my face when I’m making an arrest.” (He did not respond to a request for comment.)
Foytlin disagreed. “You can’t even get an officer’s badge number at 25 feet. So there’s no way to hold anyone accountable.”
She and Savage said police targeted them during the Baton Rouge protests because they were taking photos of protesters being slammed to the ground, dragged across the pavement, choked and zip-tied by law enforcement officers. Both journalists were charged with obstructing public rights of way and resisting arrest. Prosecutors did not pursue those charges.
The journalists and protesters sued the city of Baton Rouge, the East Baton Rouge Parish Sheriff’s Office and the Louisiana State Police, claiming law enforcement officers had used excessive force when arresting them. The Sheriff’s Office was dismissed as a defendant because a judge concluded its deputies weren’t involved with those arrests. The State Police settled for an undisclosed amount in 2021. The suit against Baton Rouge went to trial in 2023; the city agreed to the million-dollar settlement the day before closing arguments.
Neither the Sheriff’s Office nor the Baton Rouge Police Department responded to requests for comment. The Louisiana State Police declined to comment on the lawsuit or protests.
Foytlin said she didn’t think the settlement would cause law enforcement agencies to change their tactics; now, she believes they’ll be emboldened by the buffer law to crack down more harshly on anyone trying to document officers’ actions.
“From what I saw in Baton Rouge, and what they were able to get away with, I have no doubt that in the future, the consequences of trying to use your free speech or to protest are going to be much harsher,” she said.
‘You Can’t Tase a Child.’ ‘Watch me.’
Given the inconsistent use of police body-worn cameras, said Nora Ahmed, legal director of the American Civil Liberties Union of Louisiana, often the only way people can guard against false charges and prove that officers used excessive force is to film them in close proximity. “In the absence of video or audio evidence,” she said, “it’s very difficult to convince anyone that the story occurred in any way different other than what the police report.”
Such video was critical in a lawsuit Ahmed handled in which a woman sued two sheriff’s deputies over her arrest in St. Tammany Parish, across Lake Pontchartrain from New Orleans.
The May 2020 incident started with an anonymous complaint about someone riding a motorcycle without a helmet in a Slidell neighborhood, according to the lawsuit. Deputies Ryan Moring and Kyle Hart showed up at Teliah Perkins’ home, writing in an incident report that they saw Perkins ride a motorcycle without a helmet. In Perkins’ lawsuit, she denied doing so.
The conversation quickly became heated. Perkins accused the deputies of harassing her because she is Black; the deputies wrote in the incident report that she was “irate” and verbally attacked them.
Perkins called for her son De’Shaun Johnson, then 14, and her nephew, then 15, to come outside and record what was happening, according to the deputies’ incident report and the videos. When they did, at least one of the deputies ordered them to go back on the porch, which was more than 25 feet away.
As De’Shaun Johnson filmed deputies who were arresting his mother in St. Tammany Parish, Louisiana, in 2020, Deputy Ryan Moring told him to ‘get back’ several times and pointed a Taser at him. Johnson, then 14 years old, refused. A new state law allows officers to arrest people if they remain within 25 feet after an officer orders them back. Credit: Courtesy of Teliah Perkins
The boys ignored the deputies and continued to film from about 6 feet away. As Hart forced Perkins to the ground, Moring approached Johnson, shoving him and telling him to move back, according to Perkins’ lawsuit and her son’s video. When Perkins screamed that she was being choked, Moring stood in front of Johnson to block his view, he later admitted in his deposition. Moring then pointed his Taser at the boy.
“You can’t tase a child,” Johnson said, according to the lawsuit and the son’s video.
“Watch me,” Moring responded.
Perkins was arrested for resisting a police officer with force or violence, battery of a police officer, having no proof of insurance and failing to wear a helmet. She was found guilty only on the resisting charge; the others were dropped. She sued the deputies in federal court, claiming they had violated her and her son’s rights. An appeals court dismissed Perkins’ claims against the deputies, but her son’s claim against Moring went to trial. In May, a jury found that Moring had intentionally inflicted emotional distress on Johnson and awarded him $185,000, to be paid by the St. Tammany Parish Sheriff’s Office.
Ahmed said she believes the jury was swayed by videos of the incident, which showed “with clear granularity exactly what was transpiring.”
Moring denied in court that he intentionally harmed Johnson and has filed a notice of appeal. The deputies’ lawyer didn’t comment for this story.
In an interview with Verite News and ProPublica, Perkins said she fears what could have happened had the new law been in effect. The boys could have been arrested when they refused to move back to the porch. And from there, she said, neither would have been able to see or hear what was happening to her.
Johnson, who is about to start his first year at Alabama State University, said the videos he and his cousin took that day are the only evidence of what actually happened. Without them, he said, no one would have believed a 14-year-old boy’s claim that a deputy had threatened to shock him with a Taser simply because he was recording with a cellphone.
After George Floyd’s murder, a new tool to keep the public at bay
There were no police buffer laws when Floyd was murdered on a Minneapolis street in 2020. Seventeen-year-old Darnella Frazier stood several feet away and recorded a video that showed Minneapolis police officer Derek Chauvin pressing his knee into Floyd’s neck and back for more than nine minutes, causing Floyd to lose consciousness and die. The video was critical in securing Chauvin’s conviction for second-degree unintentional murder, third-degree murder and second-degree manslaughter. He was sentenced to more than 22 years in prison.
Floyd’s murder fueled protests across the country and efforts to rein in the police. New York City ended qualified immunity, a legal defense used to shield officers from civil liability. Many states restricted the types of force officers can use, according to the Brennan Center for Justice.
The video of Chauvin “really drew people’s attention to how powerful these recordings can be in inspiring protests and legislative action,” said Grayson Clary, a staff attorney at the Reporters Committee for Freedom of the Press. “I think some legislators are now trying to claw back ground that they feel they lost.”
Arizona state Sen. John Kavanagh, a Republican from outside Phoenix who authored the first of these bills in 2022, wrote in an op-ed that police officers asked him to introduce it because “there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters.”
Kavanagh’s bill, which was signed into law by then-Gov. Doug Ducey, prohibited people from filming police within 8 feet. But federal courts across the country have affirmed the right to film the police, and a federal judge struck down the law after a coalition of media outlets and associations sued the state.
Indiana was the next state to pass a similar law. It, like the two others enacted since, doesn’t mention filming and requires people to stay at least 25 feet from police. That’s based on a controversial theory, often cited to justify police shootings, that someone armed with a knife can cover 21 feet running toward an officer before the officer can fire their weapon.
Shortly after the law was enacted in April 2023, an independent journalist sued the city of South Bend after an officer pushed him 25 feet from a crime scene and another officer ordered him to move back another 25 feet. The journalist claimed in the lawsuit that it was impossible to observe the crime scene from that distance. The state denied in court that the journalist’s rights were violated.
In January, a federal judge dismissed the journalist’s suit, stating that officers have a right to perform their jobs “unimpeded.” The judge said 25 feet is a “modest distance … particularly in this day and age of sophisticated technology” and that “any effect on speech is minimal and incidental.” That case is under appeal.
A second lawsuit in Indiana, filed in December by a group of news organizations and the Reporters Committee for Freedom of the Press, is pending. They are suing the state attorney general and the prosecutor and sheriff of Marion County, where Indianapolis is located, arguing that it is “essential for reporters to be within 25 feet of law enforcement in order to record them.” In a court filing, the defendants have argued that the law doesn’t infringe on reporters’ ability to record police activities.
Florida’s law went into effect in April. An early version of that bill specified that it did not apply to the act of peacefully recording, photographing or witnessing a first responder, which it called a “legitimate purpose.” That language was taken out of the bill before it was passed.
Rep. Angela Nixon, D-Jacksonville, proposed changing the bill’s name to “The I Don’t Want the World to See the Police Kill an Unarmed Innocent Man Like George Floyd Again, So I Want To Protect Bad Cops and Violate Free Speech Act.” Her amendment failed.
If these laws stand up to constitutional challenges, “we’re going to see more states go down this road,” said Clary of the Reporters Committee.
The effect of Louisiana’s law may be limited in New Orleans, where the police department has been under federal oversight since 2013 due to widespread abuses, including excessive use of force and racial discrimination. New Orleans Independent Police Monitor Stella Cziment said the law may violate a court-approved list of reforms, which states that police must allow people to “witness, observe, record, and/or comment” on officers’ actions, including arrests and uses of force. Another provision says officers cannot arrest anyone for being nearby or recording them except under certain conditions, including risks to the safety of officers or others.
In response to questions from Verite News and ProPublica, the New Orleans Police Department said it is revising its policies to account for the new law, and those policies could “restrict officers’ actions” more than the law does. The NOPD said the Department of Justice and a team of court-appointed monitors will review any changes; neither responded to requests for comment.
However, the Louisiana State Police, which recently sent a contingent of troopers to New Orleans under a directive from Gov. Jeff Landry, does not have to abide by the terms of the consent decree, according to a federal judge. As such, troopers are free to invoke the new law.
The State Police is being investigated by the Department of Justice following a 2021 Associated Press investigation that uncovered more than a dozen incidents over the past 10 years in which troopers beat Black men and sought to cover up their actions. The State Police didn’t respond to a request for comment on those incidents.
When asked how troopers are being trained to use the new law, State Police spokesperson Capt. Nick Manale said only that they undergo regular training on how to engage with the public. The State Police, Manale said, “strives to ensure a safe environment for the public and our public safety professionals during all interactions.”
Drew Costley contributed to this report.
This article originally published in the August 5, 2024 print edition of The Louisiana Weekly newspaper.
