An upcoming
Louisiana law will draw a law suit. Whether that will succeed may depend upon
the U.S. Supreme Court and the state’s persistence.
This past regular legislative session, lawmakers passed and Republican Gov. Jeff Landry signed HB 173 by GOP state Rep. Bryan Fontenot. The bill creates a new crime, approaching a peace officer lawfully engaged in law enforcement duties, by prohibiting approaching peace officers – most notably, police – within 25 feet of them so long as they legitimately are performing their assigned duties, they warn those encroaching, and the warning is delivered in a manner understood by those encroaching.
The law takes effect at the start of next month. Special interests have declared the law is unconstitutional, which means as soon as they can find – or perhaps engineer – a situation where a person receives such a warning, they will sue on the basis of infringement of First Amendment rights. They argue that such a law prevents public oversight of police actions, stopping observation of potentially illegal behavior by law enforcement.
Jurisprudence vaguely takes up that argument. Opponents argue that a number of different appellate courts affirm that the First Amendment protects citizens recording police doing their jobs in public, and that other rulings establish that this right is not absolute. Such a law that sets a hard and fast boundary they contend is too inflexible to satisfy concerns.
This argument prevailed in an Arizona district court last year over a law with an eight-foot zone within which recording couldn’t happen after being warned, which was not appealed. There, the judge called the law too restrictive, especially when the state already had on the books a law prohibiting interference with law enforcement doing its legitimate duties.
Florida also passed a law like Louisiana’s including the 25-foot zone. It won’t take effect until next year, however, and that state also already has on the books a law against interfering with legitimate police work.
But Louisiana, until the new law goes into effect, doesn’t already have a law specifically addressing interference with officer duties. It does have a statute that addresses interfering with a law enforcement investigation, but that is limited only to “the scene of a crime or the scene of an accident,” which would not include necessarily, for example, an arrest. It was the presence of that law and First Amendment concerns that prompted Democrat former Gov. John Bel Edwards to veto a similar bill last year.
Yet an Indiana law similar to it passed constitutional muster in district court earlier this year, with the judge noting that the law only incidentally addresses the First Amendment as it mainly concerns law enforcement ability to conduct lawful activities. He explained that with today’s highly-affordable and highly-sophisticated recording equipment within the reach of large swaths of the citizenry, a 25-foot distance didn’t present an undue barrier to recording activity, making the law not overbroad enough to stray into First Amendment issues.
That decision is being appealed, and undoubtedly with a certain challenge coming to Louisiana’s whatever happens there will trigger an appeal as well. With at least two on the way in different federal circuits, maybe more, and a decent chance appellate courts will disagree, that tees it up for Supreme Court intervention.
The case for an absolute ban of such laws isn’t compelling, given the exemplary reasoning in the Indiana decision. Instead, constitutionality of the Louisiana law may hinge upon whether 25 feet is too far to give for those wanting to witness the incident the First Amendment its due while balancing the legitimate needs of law enforcement to conduct unhindered lawful business. It’s entirely possible that the jurisprudence will evolve to upholding a law like Louisiana’s but with a shorter distance.
We’ll find out. If challenged, Louisiana needs to back the law and likely in some form eventually will prevail on the merits.
No comments:
Post a Comment