Proposal to give police 25-foot buffer raises constitutional concerns
20th March 2023 · 0 Comments
By Nick Chrastil
The Lens
Getting within 25 feet of a police officer after being told to stop would be a crime under a measure being pushed by a Louisiana lawmaker, but the idea is raising constitutional concerns among advocacy organizations, who say it could deter people from witnessing and recording police abuse when they see it taking place.
State Rep. Mike Johnson, Republican of Pineville, filed the measure and said the intent is to allow officers to focus on matters that they are investigating and to decrease tension.
The legislation would make it a misdemeanor to “knowingly or intentionally approach within twenty-five feet of a law enforcement officer who is lawfully engaged in the execution of his official duties after the law enforcement officer has ordered the person to stop approaching” and carries a penalty of a fine up to $500 or up to 60 days in jail.
Johnson said that the Louisiana Fraternal Order of Police, a police union who last year named him legislator of the year, asked him to bring it. A nearly identical bill is currently moving through the Indiana state legislature.
“I’ve been told that it escalates the tension when somebody approaches them, that they don’t know who they are, or why they’re doing it, when they’re investigating someone else,” Johnson told The Lens in an interview this week, noting that officers unaffiliated with FOP have also expressed those concerns.
Chris Kaiser, advocacy director with the ACLU of Louisiana, said the bill is “constitutionally suspect,” unnecessary, and could have a chilling effect on people who observe police misconduct.
“Clearly, over the last few years, eyewitness accounts, including video footage, have been probably the most powerful tool we’ve had to shed light on and expose unlawful violence and abuse by police,” Kaiser said. “And so this bill, whatever the intent was, certainly has the potential to make it more dangerous and harder for bystanders to bear witness to that kind of misconduct when they see it happening.”
Meg Garvey, a public defender in New Orleans and the president of the Louisiana Association of Criminal Defense Lawyers echoed his concerns.
“If you think about the George Floyd case, there was a 17-year-old girl who took that video, and it resulted in a conviction for murder of a police officer,” Garvey said. “So I guess I’m just trying to understand, do we want to live in a world where Derek Chauvin is still on the Minneapolis Police force, because all of the neighbors are too scared to act as citizen watchdogs because they’re scared of going to jail?”
Kaiser also said that there were other laws on the books already that prevent interference with police officers during an investigation. One makes it illegal to refuse to “move or leave the immediate scene of the crime or the accident when ordered to do so by the law enforcement.” Another makes it illegal to congregate on a public street when ordered to move by an officer. In addition, people are required to comply with “any lawful order or direction of any police officer.”
“If the purpose of this is to prevent interference with police officers performing their duties, it’s hard to understand why the current statute isn’t sufficient,” Kaiser said, calling it a “solution in search of a problem.”
“I don’t know that they’re that clear,” Johnson said of the current laws. “I mean, if you think about it, when does it cross from me exercising my constitutional rights, to you know, invading your space investigating an incident?”
He said the 25-foot buffer would provide a clear delineation that would be beneficial for both the officers and also bystanders.
“When the officer says, ‘Hey, please stay back’… you kind of have a definition on what’s permissible,” Johnson said.
But both Garvey and Kaiser said that in reality 25-feet is not something that most people will be able to estimate with any accuracy during an interaction with police.
“Does he expect that people are going to be carrying like measuring tapes around with him to clearly define 25 feet?” Garvey said. “I just don’t think it’s that clear. And I think that it will definitely create an impediment, or at least it would discourage people from bearing witness.”
Courts throughout the country have for the most part found that people have a constitutional right to film the police.
In a 2015 case, the federal Fifth Circuit Court of Appeals, which has jurisdiction in Louisiana, held that “a First Amendment right to record the police does exist,” but was subject to “reasonable time, place, and manner restrictions.”
The ruling did not delineate what restrictions would be reasonable, but noted that they must be “narrowly tailored to serve a significant governmental interest.”
“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Judge Jacques Wiener wrote for the court. “Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.”
“I don’t think that you can just control what people walking down the street are doing,” Garvey said. “I don’t think that’s constitutional generally. And I don’t and I don’t think we want that.”
The sponsor of the Indiana bill, Rep. Wendy McNamara, a Republican from Evansville in southern Indiana, told WFYI radio in Indianapolis that the proposal creates a “live-saving space.”
“This bill will give that person the opportunity to go back, give the officer the opportunity to say, ‘Go stand by that post,’ and de-escalate the situation,” McNamara said.
This article originally published in the March 20, 2023 print edition of The Louisiana Weekly newspaper.
