Federal Court Shuts Down Louisiana’s Unconstitutional ‘Police Buffer Zone’ Law

Last June, Louisiana became the third state to decide the US Constitution was subservient to cops’ wishes that they not be filmed while performing their public duties.

Arizona had already tried this twice, starting at 25 feet before trimming the “halo” to an 8-foot diameter. It didn’t matter. A federal court permanently blocked the law due to its obvious unconstitutional nature. Florida has tried the same thing — a 25-foot “no go” zone around “first responders” — utilizing the dubious theory that too many people filming cops are somehow “interfering” with their ability to do their jobs. At this point, the law remains in place, but it’s only a matter of time before it’s kicked to the curb do to its inherent illegality.

Louisiana may have been the third to get in on the anti-accountability train, but it’s the second to see its law erased from existence by a federal court decision, as Nola.com reports.

A federal judge has blocked a Louisiana law that allows police to arrest people who come within 25 feet of an on-duty law enforcement officer after they have been ordered to disperse.

The so-called police buffer law violates the Fourteenth Amendment because it is too vague, U.S. District Court Judge John deGravelles said in a ruling on Friday.

The law is not clear as to what actions might prompt officers to issue an order to retreat, the judge said, and it lacks standards that officers should follow in issuing such orders.

“The threat of arbitrary and discriminatory enforcement is great,” deGravelles wrote.

For some reason, the journalists at NOLA (as well as the AP correspondents piggybacking on Nola’s reporting) are unable (or unwilling) to provide readers with a copy of the decision. We respect our readers too much to cut them out of this loop.

Here’s the federal court decision [PDF] issued by the Middle District of Louisiana — one that says this law cannot possibly be allowed to remain on the books unaltered, at least not if the state hopes to enforce it.

Whether or not the state has actually enforced the law doesn’t matter all that much, not when it’s obvious the threat the law poses to free speech. The plaintiffs — a large group of local journalists and new agencies — are more than likely to succeed in this lawsuit. And that means the law must be shut down to protect long-held rights while the merits of the case receive further scrutiny.

Plaintiffs’ journalists face a chilling effect in the field, where they face arrest if they do not comply with the Act. As these claims center around the First Amendment, the threshold for ripeness is lowered. Wright & Miller, supra, at § 3532.3. The chilling effect on Plaintiffs’ First Amendment rights is not “fanciful,” as journalists are regularly in contact with law enforcement
and are likely to receive an order to retreat.

Defendants point to the lack of enforcement of the Act in the six months since it went into effect, saying that the contacts cited by Plaintiffs that occurred before the Act was in effect should not be taken into account. The Court disagrees.

While the Act has not been enforced since it went into effect, Plaintiffs have shown that journalists have routine contact with law enforcement officers in circumstances where they must choose between exercising their First Amendment right to cover newsworthy events or suffer the risk of arrest and prosecution. This chilling effect is sufficient to meet the ripeness requirement.

The First Amendment issue is split, with the plaintiffs winning (for now) the chilling effect argument, but unable to continue pursuing their overbreadth argument. For now. The court appears to believe this might apply to the law as well but has given the plaintiffs the opportunity to amend this part of the complaint.

As for the other constitutional claim, the court sides completely with the journalists. The law is void under the 14th Amendment because its vagueness makes it impossible for citizens to truly understand how and when they might violate the halo law.

Here, while the Act clearly states that an officer can enforce a 25-foot buffer zone, it lacks any standard by which an officer may issue an order to stand back or retreat. La. R.S. § 14:109. This affects both prongs of the void for vagueness analysis, as it does not give the public notice of when an order may be issued and does nothing to prevent arbitrary or discriminatory enforcement.

[…]

[W]hen viewing the Act in the light most favorable to Plaintiffs, there is no language that indicates to the public when an order to retreat may be given, meaning that any person, at any time, partaking in any activity (or engaging in no activity) near law enforcement may be given an order to retreat, which places them in danger of arrest or prosecution. […] The public is not put on notice or given any warning about what activity, if any, they must be engaged in when they may be subject to such an order.

So, the law is not completely dead. But it’s 99% dead, and — until further litigation ensues — cannot be enforced against anyone. It doesn’t matter if the First Amendment issues still remain partially unresolved. It’s unconstitutional under the Fourteenth Amendment and all the court needs to shut the law down. No doubt the government will appeal this ruling, but it’s unlikely even the Fifth Circuit Appeals Court will be willing to revive this law. It’s clearly wrong and that’s why most states haven’t even attempted to craft laws like this one and why the few that have are finding themselves on the wrong side of the Constitution when they do.