In a significant legal maneuver, the American Civil Liberties Union (ACLU) of Indiana has lodged a federal lawsuit on Tuesday that takes aim at a newly enacted state statute barring individuals from approaching within 25 feet of law enforcement officers. The legislation, which became effective on July 1, has spurred the ACLU into action, with the organization branding it a direct infringement upon constitutional rights. At the heart of the matter lies the ACLU’s assertion that citizens maintain a legitimate entitlement to “observe and record the police.”
The lawsuit, presented as a forceful assertion of civil liberties, is acting on behalf of an individual from South Bend, Donald Nicodemus, who takes it upon himself to vigilantly monitor the activities of local law enforcement. The contested law, characterized by Nicodemus as an “encroachment,” is viewed as transgressing his fundamental right to observe and document police operations without undue restraint.
Nicodemus, a self-proclaimed citizen journalist, operates under the mantle of “Freedom 2 Film,” a YouTube channel where he frequently uploads videos. As of the latest update, the channel boasts a robust subscriber base exceeding 24,000.
Central to the lawsuit is the claim that South Bend police have already invoked the newly enacted regulation against Nicodemus, ostensibly preventing him from getting sufficiently close to bear witness to and document their conduct. The ACLU’s legal director, Ken Falk, has asserted that the expansive authority granted to law enforcement officers by the 25-foot rule is rife with potential for “content and viewpoint-based discrimination.” Falk further emphasized that the rule bestows unchecked power upon police personnel to prohibit citizens from approaching officers within the designated 25-foot perimeter, even when there is no discernible or foreseeable interference with police operations.
The statute in question, codified as HEA 1186, was passed into law earlier this year in response to urging from law enforcement quarters. It creates a “buffer zone” spanning 25 feet around officers actively engaged in official duties. Any encroachment into this prescribed boundary constitutes a Class C misdemeanor, punishable by imprisonment of up to 60 days and a maximum fine of $500.
Supporters of the legislation, echoing the concerns of law enforcement, have argued that vociferous interactions and physical proximity from onlookers can compound the challenges and potential hazards officers face while executing their duties. Conversely, critics of the law contend that it risks undermining the accountability mechanisms intended to govern law enforcement conduct.
Remarkably, the legislation affords no exceptions for individuals, including members of the media, who seek to document police engagements.
In the crosshairs of this legal debate stands Nicodemus’s Freedom 2 Film endeavor, an enterprise with the explicit aim of exposing any instances of questionable or problematic behavior within law enforcement. However, Nicodemus alleges that his efforts have been stymied, unfoundedly, by law enforcement. This assertion stems from an incident detailed in the lawsuit wherein Nicodemus, on July 20, employed a livestream on his channel to document police activities. Notably, he maintains that he was positioned at a significant distance from the events, well exceeding the 25-foot range.
According to the lawsuit’s narrative, Nicodemus responded to police scanner reports of gunfire in northwest South Bend. Upon arriving at the scene, he attests that no active shooting or unlawful activities were in progress. In the video captured by Nicodemus, a police officer is depicted as marking off a point that ostensibly demarcates a 25-foot distance from himself to the observers, issuing an instruction for them to relocate farther from the ongoing police activities. The video is punctuated with instances of profanity.
Subsequently, the lawsuit documents another episode wherein a different officer approaches Nicodemus and his companions who had congregated at the initially designated 25-foot perimeter. This second officer asserts that the group is situated within a designated crime scene and demands a further 25-foot retreat. Allegedly, the officer issued a stern warning, threatening arrest if the group failed to comply, citing the “new law” as justification.
Asserting that the statute is at odds with the First Amendment and thus unconstitutional, Nicodemus, in collaboration with the ACLU of Indiana, seeks an injunction and reimbursement of legal expenses from the United States District Court in the Northern District of Indiana. The ultimate aspiration of this legal pursuit is to render the contested law null and void.
Katie Blair, the advocacy and public policy director at the ACLU of Indiana, has underscored the pivotal role that citizen observation and recording play in maintaining a balanced check on police activities. Blair stresses that whether during routine traffic stops, responses to mental health crises, or other interactions between law enforcement and the community, the capacity for community members to oversee proceedings is paramount for ensuring accountability.
The lawsuit, however, neglects to mention a prior altercation involving members of the Freedom 2 Film group and the South Bend Fire Department. In August of 2021, the city’s Board of Public Safety took disciplinary action against a firefighter, Lance Gunderson, for his behavior during an incident involving individuals filming first responders and police two months earlier. The encounter culminated in Gunderson receiving a five-day suspension without pay, an order to undergo anger management training, and a 30-day prohibition from participating in overtime. The incident involved a verbal exchange and physical contact between Gunderson and the individuals filming the scene, which subsequently prompted a formal complaint.
The ACLU’s legal challenge stands as a notable barometer of the ongoing tension between individuals’ rights to document law enforcement activities and the concerns of law enforcement entities regarding safety and interference. The impending legal proceedings will undoubtedly bear significant implications for both citizens’ freedom of expression and the boundaries within which police operations can be scrutinized.