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Efforts to criminalize ‘encroachment’ on police encroach on First Amendment rights

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  1. First Amendment
The law makes it a crime to stand within 25 feet of an officer after being told to stop approaching.
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In April, the governor of Indiana signed HB 1186 into law, making it a crime to “encroach on an investigation,” which it defines as standing within 25 feet of a law enforcement officer after being told to stop approaching. The law has no exceptions. It does not matter if the officer’s order to stop approaching is objectively unreasonable. Nor does it matter if complying would make observing law enforcement activity impossible, because it would obstruct the view of onlookers. (In fact, the state legislature rejected an amendment that would have carved out an exception for such a circumstance.) Finally, it does not matter if the person being told to stop approaching is a journalist.

According to its author, Rep. Wendy McNamara (R-Evansville), the legislation was prompted by the “riots” of 2020 that followed the murder of George Floyd, and a sentiment that “the public is getting more and more involved in a situation that’s none of their business.” Echoing this, a representative from the Indiana Sheriffs’ Association testified in support of the law that “just because your friend is getting arrested doesn’t mean it’s your concern.” But as several members of the state legislature pointed out in hearings on the law, the video of Floyd’s murder that prompted a nationwide reckoning on racial justice and the treatment of Black Americans at the hands of police may not have been possible if HB 1186 was in place.

Any one of the police officers present at the scene of Floyd’s murder could have asked Darnella Frazier, who recorded the video, to step back and if she refused, they could have arrested her for violating the encroachment law. Indeed, Tou Thao, an officer at the scene of Floyd’s murder, was recently found guilty of aiding and abetting second-degree manslaughter for holding bystanders back and “prevent[ing] an off-duty Minneapolis firefighter from rendering the medical aid Floyd so desperately needed.” If Thao had the express authority to arrest Frazier, her video may never have existed.

This law is particularly concerning for journalists who, in the words of Amelia McClure, executive director of the Hoosier State Press Association, “act as the eyes and ears of the people.” The U.S. Court of Appeals for the Seventh Circuit, which includes Indiana, has held that there is a First Amendment right to record government officials performing their duties in public. Though this law does not mention recording law enforcement explicitly, it poses an acute challenge to the right to record. Police would be able to arrest a journalist quietly and peacefully filming nearby, regardless of whether that journalist was interfering with police duties.

Troublingly, a virtually identical bill has recently passed the Louisiana Legislature, and if the governor does not veto it by June 27, it will likely become law. That bill, HB 85, would likewise make it a crime to “intentionally approach within twenty-five feet of a law enforcement officer” after being told to “stop approaching or to retreat.” We’ll keep you posted on the fate of this bill, and we hope this does not become a trend.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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