Citizen journalist challenges Indiana police recording law at Seventh Circuit

CHICAGO (CN) — A controversial pro-police law in Indiana faced another round of scrutiny on Friday, as a South Bend-area man took his legal case against it before the Seventh Circuit.

Donald Nicodemus, a self-described citizen journalist, argues the law gives police power to willingly violate press freedoms, as well as Hoosiers’ First Amendment rights more generally.

“This statute has no standards whatsoever, given how important citizen journalists have become in getting close to George Floyd, in getting close to Eric Garner, in reporting in ways that traditional media no longer reports,” Nicodemus’ attorney Kenneth Falk with the ACLU of Indiana told a panel of appellate judges on Friday.

“All of us now are potentially citizen-journalists because we all carry cameras in our pockets,” Falk added.

The law in question allows on-duty police to order anyone to move 25 feet back from them. It criminalizes the refusal to do so as a Class C misdemeanor punishable by up to 60 days imprisonment.

Indiana Governor Eric Holcomb, a Republican, signed the bill in April 2023 after it easily passed through both houses of the GOP-dominated state legislature. In court filings, Nicodemus said South Bend police used the law against him in July 2023 as he filmed them responding to local reports of gunfire.

At the time of that incident, a police officer approached him and ordered him back, Nicodemus wrote. The citizen journalist said he was more than 25 away from police to begin with.

Nicodemus said he complied with the order. Then, another officer ordered him to move back another 25 feet. This ability to create an expanding bubble of press exclusion, he argues in court documents, “vests unbridled discretion” in police to pick and choose how and when First Amendment rights apply.

“The effect of the statute is to prevent persons from accessing public areas, such as sidewalks and street corners,” Nicodemus wrote in his appellate brief. “While at times, it may be necessary for police to deny such access, those instances are the exception, not the rule.”

The case reached the Seventh Circuit after five months in federal court in South Bend.

Nicodemus first sued the city in August 2023, with the state of Indiana joining as an intervenor defendant a few weeks later. Then, in January, U.S. District Judge Damon Leichty, a Donald Trump appointee, ruled against him, writing that the law had only an “incidental effect” on the public’s First Amendment rights.

“Law enforcement officers have a right to perform their lawful duties unimpeded,” Leichty wrote. “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,” he continued. “The law is directed toward encroachment on an officer’s lawful duties within 25 feet. It doesn’t target speech.”

On appeal, the state and South Bend echoed Leichty’s conclusions.

Indiana Deputy Solicitor General Jenna Lorence told the appellate panel Friday that the law regulated conduct, not speech. Journalists were still free to record the police, she reasoned — just not within the noninterference zone that the law allows police to create.

Following that logic, she brushed off Nicodemus’ assertion that the law gave the police “unbridled discretion” over First Amendment activity. Lorence added the state had concerns over effective policing that outweighed Nicodemus’ wish to record police more closely.

“If a police officer is responding to someone who’s having a mental health crisis, and the police officer hears someone coming up behind them while they’re trying to respond to the person with the mental health crisis, they can say, ‘Hey, I need you to stay 25 feet away while I’m dealing with this,’” the deputy solicitor argued.

U.S. District Judge Doris Pryor, a Joe Biden appointee, countered that Indiana law already offered police similar protections while carrying out sensitive duties such as interviews with crime victims.

On rebuttal, Falk argued that the stated ends of the law — giving police more room to work — did not justify its means.

“The bottom line, your honors, is that the statute here allows people to be pushed back [and] away for no reason whatsoever,” Falk said.

The appellate panel, which also included fellow Joe Biden appointee U.S. District Judge Candace Jackson-Akiwumi and Donald Trump appointee U.S. District Judge Michael Brennan, took the case under advisement but did not say when they might rule.

Follow @djbyrnes1