The American Civil Liberties Union of Indiana filed a lawsuit last Tuesday challenging Indiana House Enrolled Act 1186, which prohibits a person from knowingly coming within 25 feet of a law enforcement officer after being told to keep away. A violation of the law – which went into effect July 1 – is punishable by up to 60 days in jail and a fine of up to $500.
The lawsuit is filed on behalf of citizen journalist Donald Nicodemus, who runs a YouTube channel “Freedom 2 Film” which regularly monitors public safety personnel in the South Bend area.
According to the lawsuit, South Bend police enforced the new law against Nicodemus by preventing him from getting close enough to a crime scene to record their activities. The complaint states that on July 20, Nicodemus responded to reports on a police scanner that shots had been fired near an intersection in South Bend. When Nicodemus arrived at the scene, there were already South Bend police officers present and examining bullet casings. Nicodemus walked 25 feet away from the area and started to live stream the police activity on “Freedom 2 Film.”
[Related: Indiana bill could require observers to stay 25 feet away from police interactions]
The lawsuit states that at the time of the livestream, there was no active shooting or other unlawful activity taking place and Nicodemus was not interfering with the police investigation.
About nine minutes into the livestream, a South Bend Police Department officer indicated he was 25 feet away from the scene and told Nicodemus – as well as other observers – they needed to move even further away from the police activity. The lawsuit states that Nicodemus was unable to observe the police activity after being told to move further than 25 feet away from the scene.
While standing at the 25-foot point established by the first officer, a recording of the livestream shows another officer ordering the bystanders to move even further away from the police activity, telling them they would go to jail if they did not move back another 25 feet. The lawsuit claims this second officer misinterpreted HEA 1186 as allowing police to “repeatedly push persons back 25 feet at a time based solely on a police officer ordering this.”
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The ACLU of Indiana claims the law could be used against Nicodemus in the future and could lead to content and viewpoint-based discrimination.
“The right of citizens to observe and record the police is a critical check and balance,” ACLU of Indiana Advocacy and Public Policy Director Katie Blair said in a press release. “Whether it’s a traffic stop, a police response to a mental health crisis, or other police community interactions, community members cannot hold police officers accountable if they cannot observe what is going on.”
The U.S. Court of Appeals for the Seventh Circuit, which includes Indiana, ruled that it is an individual’s First Amendment right to record government officials performing their responsibilities in public, including police activities. Under the new law, observers can still videotape police activity if they stay 25 feet away from the crime scene.
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