Federal judge to decide if Louisiana’s buffer law for police is constitutional

A state law the Louisiana Legislature passed earlier this year allows police to arrest people who come within 25 feet of an on-duty law enforcement officer after they have been ordered to disperse.

Attorneys representing six news organizations challenged the statute in a federal courtroom this week. The legal team from Reporters Committee for Freedom of the Press, a Washington, D.C., nonprofit, argued for an injunction to block Louisiana officers from enforcing the new law, which went into effect Aug. 1.

Now the decision rests in the hands of U.S. District Court Judge John deGravelles, who listened to arguments from the plaintiffs’ attorneys as well as defense rebuttals made by attorneys from the Louisiana Attorney General’s Office. The hearing was held Wednesday morning inside the U.S. Middle District of Louisiana courthouse in downtown Baton Rouge.

At issue are the merits of House Bill 173, a measure that state lawmakers gave overwhelming support during this year’s regular session and Gov. Jeff Landry signed into law May 24. State Rep. Bryan Fontenot. R-Thibodeaux. sponsored the bill, which gives officers a 25-foot buffer zone and makes it illegal to encroach on that protective area if an officer orders someone to move.

Fontenot and others who supported the law said it is another weapon to help ensure safety for law enforcement officials if they feel threatened while on duty. But attorneys for Verite News, Gannett, Gray, Nextstar, Scripps and Tegna argued that the buffer law, as written, is too broad and doesn’t provide any framework to restrain officers from abusing the statute.

Plaintiff attorney Grayson Clary indicated that an officer can order someone to disperse for any reason, as arbitrary as not liking the shirt they are wearing. If the person refuses, they could be subjected to arrest and whisked away to jail.

Clary told Judge deGravelles it amounts to a First Amendment violation — one that could have a “chilling effect” on journalists who worry about being arrested if they come too close to officers while covering crime scenes, crashes, parades, sporting events, protests and other newsworthy events. He argued that provisions are already built into state law to protect against obstructionists who interfere with investigations or threaten officer safety.

Clary suggested the new law’s aim could be to stop reporters and other bystanders from filming police conduct, and it gives officers “unbridled discretion” to stop what he said should be a First Amendment right.

“The law seems to be to discourage observation and documentation of police authority in particular,” he said.

Assistant Solicitor General Caitlin Huettemann, of the AG’s office, said that in the nearly five months since the law took effect, no officers have made arrests or even issued a move-along order under the new rule, and the state hasn’t prosecuted anyone for violating the law. She said the 25-foot buffer gives officers time to realize their safety may be at risk and allows them a chance to respond.

Characterizing worries that the law will have a chilling effect as conjecture, she said the plaintiffs had no standing for their complaint because the law hasn’t been enforced, so there is no injurious conduct to litigate. In asking deGravelles to dismiss the lawsuit, Huettemann insisted the case isn’t ripe for judicial review because no officer has abused or even enforced the law. 

“No rights have been or are likely to be affected,” she argued. “These are all claims based on anticipated future action.”

But deGravelles pressed Huetteman on the language in the statute. When the judge asked if officers can give move orders “willy nilly” even if there is no basis for the directives to disperse, she conceded the law does give police unbridled discretion. But she said that doesn’t make the law vague, reiterating her stance that those are hypothetical scenarios not founded in actual incidents. 

Clary maintained his position that the law needs more specificity to narrowly define the situations when officers can employ the buffer zone. He noted that Indiana is the only other state that has a police buffer law, but it is currently enjoined as the focus of two ongoing legal battles in the Hoosier State.

“The problem in this law is there’s nothing in the law that says officers can make people withdraw if they pose a risk to obstruction, public safety or officer safety,” Clary argued. “There’s too much innocent conduct left in. Officers need some way to pick and choose. There needs to be some way to distinguish the good conduct from the bad.”