Judge rules against ACLU, South Bend 'citizen journalist'

SOUTH BEND, Ind. -- The verdict has been handed down in the case that challenged the constitutionality of Indiana's HEA 1186, which states a person who "knowingly or intentionally approaches within 25 feet of a law enforcement officer after the law enforcement officer has ordered the person to stop" can be charged with a Class C misdemeanor.

On Friday, U.S. District Court Judge Damon Leichty ruled against the ACLU of Indiana in its case arguing that the state’s new 25-foot “buffer” law violates citizen-journalists’ constitutional right to observe and record the police.

"Law enforcement officers have jobs to do, and often difficult jobs that require decision making in tense, uncertain, fluid, and unsafe circumstances. At the same time, the public has a right to record the police. Audiovisually recording police activity fits within the First Amendment’s guarantee," Judge Leichty said in his ruling. "The right isn’t unlimited, but robustly it exists to serve important purposes. It facilitates transparency, training, scrutiny of police misconduct, and the exoneration of officers from unfair charges. Candid critique of our government and its officials matters in a free society. By shining a light on newsworthy police conduct, the public’s recordings benefit our citizens and law-abiding officers alike."

This new law went into effect on July 1, 2023 and the Indiana ACLU filed a lawsuit that August on behalf of self-proclaimed citizen journalist Donald Nicodemus of South Bend.

Nicodemus' YouTube channel, Freedom2Film, holds dozens of videos, some with hundreds of thousands of views.

"Indiana’s buffer law has many constitutional applications within its plainly legitimate sweep. It never once permits an officer to tell a reporter or citizen-journalist to leave altogether or to cease recording police activity. The law is directed toward encroachment on an officer’s lawful duties within 25 feet. It doesn’t target speech," Judge Leichty stated. "It penalizes approaching a lawfully-engaged officer (after an order), not recording one. And at 25 feet, in measure small steps from an officer’s work, this law has only an incidental effect on the public’s First Amendment right to capture audio and video and otherwise to scrutinize police conduct.

"The court denies a permanent injunction because Indiana’s buffer law is not unconstitutional by virtue of being facially overbroad. A case might be different if an officer enforces this law unconstitutionally in a particular scenario, but the court is not deciding such a case today."

The lawsuit was filed after South Bend police enforced the new law against Nicodemus, preventing him from getting within 25 feet of them and the scene.

“We’re obviously disappointed in this decision, as we believe this new law gives unbridled discretion to law enforcement officers and invites content and viewpoint-based discrimination,” said Legal director at the ACLU of Indiana Ken Falk. “With this ruling, police officers will continue to have unchecked authority to prohibit citizens from approaching within 25 feet of the officers to observe their actions, even if the actions of the citizens are not and will not interfere with the police.”

The ACLU says they plan to appeal the decision.