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Written by Attorney Philip B. Adams on 06/29/2023. The Louisiana legislature recently passed in both the House and Senate a proposed bill colloquially referred to as the “25-foot” bill. It has engendered a tremendous amount of controversy, particularly among civil liberties advocates (myself included). In my opinion, Governor John Bel Edwards correctly vetoed this bill that would have severely affected the constitutional rights of Louisiana citizens in multiple ways. This proposed legislation would have created a new crime under Louisiana Revised Statutes 14:109. The text of the proposed bill reads as follows: “A. No person shall knowingly or intentionally approach within twenty-five feet of a law enforcement officer who is lawfully engaged in the execution of his official duties after the law enforcement officer has ordered the person to stop approaching or to retreat. B. For the purposes of this section, "law enforcement officer" means any commissioned police officer, sheriff, deputy sheriff, marshal, deputy marshal, correctional officer, probation and parole officer, constable, wildlife enforcement agent, livestock brand inspector, forestry officer, or state park warden. C. Whoever violates the provisions of this section shall be fined not more than $500 dollars, imprisoned for not more than sixty days, or both.” Multiple news outlets ran stories discussing the bill’s ramifications. Here are some news stories for those of you are interested in reading further:
The bill’s sponsor is Michael Johnson (R-Pineville). More information about him can be accessed through the following link: https://house.louisiana.gov/h_reps/members?ID=27. News stories reported that he sponsored the bill out of concern for officer safety and a desire to establish a buffer zone between police and civilians, such as when officers are investigating the scene of a crime. This claim appears disingenuous because criminal laws already sufficiently protect police officers and can be invoked if necessary, even through the power of arrest. If a citizen assaults or batters an officer, any reasonably well-trained police officer will be prepared to meet such a scenario. Officers are trained in how to meet force with force and can take lawful action to protect themselves should they genuinely feel threatened or harmed. Moreover, La. R.S. 14:329 already makes it a crime to interfere with a law enforcement investigation. Given existing law, this sponsored bill is completely unnecessary, ill-considered, and a waste of taxpayer resources. This bill’s language is constitutionally problematic in many ways. The analysis of whether this law is constitutional involves several factors and legal principles, primarily related to the First Amendment, Fourth Amendment, and Fourteenth Amendment of the U.S. Constitution. 1. First Amendment – Freedom of Speech and Right to Assemble: The First Amendment of the U.S. Constitution protects freedom of speech and assembly. Louisiana State Constitution, Article I, Section 7 (Freedom of Expression), similarly protects freedom of speech and assembly. This law potentially infringes on these rights by restricting a person's ability to approach a law enforcement officer. In City of Houston, Texas v. Hill, 482 U.S. 451 (1987), the Supreme Court struck down an ordinance that made it unlawful to interrupt a police officer in the performance of his duty. The Court noted that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." However, these rights are not absolute. The government can place reasonable restrictions on the time, place, and manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. The law does not seem to be narrowly tailored to serve a significant governmental interest, as required by the Supreme Court's ruling in Ward v. Rock Against Racism, 491 U.S. 781 (1989). A court may consider the law as content-neutral because it does not seem to target specific speech but instead restricts physical proximity. The stated interest of ensuring the safety of officers engaged in their duties may be considered significant. However, the narrow tailoring of this law might be challenged. Critics could argue that the 25-foot restriction is overly broad and impedes citizens' rights to record police activity, ask questions, or protest law enforcement actions, especially if there's no imminent threat to officer safety. The law does not specify alternative channels for communication, which could be problematic. This law could arguably be deemed overbroad because it could potentially prohibit or chill constitutionally protected activities. For instance, the broad language of the law might deter the press and individuals from lawfully recording police officers in public, a right that is protected by the First Amendment and that has been recognized in several court cases, including Phillip Turner v. Driver, et al, No. 16-10312 (5th Cir. 2017). Trying to record officers from twenty-five feet away might prove difficult, if not downright impossible, depending on the level of technology in the hands of the recorder. Surely, we don't want any less transparency as to the conduct of law enforcement officers on our streets given the already high level of mistrust many members of the public have towards the police? Additionally, this law could potentially inhibit lawful protests or gatherings near law enforcement officers. The U.S. Supreme Court in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), struck down a "floating" buffer zone that kept protesters certain distances from people entering a medical facility, in part because the zone covered "public sidewalks, a traditional public forum." This law does not make any exceptions for public forums. Finally, the law may be subject to challenge as a form of prior restraint. This refers to a governmental restriction preventing speech or other expression before it can take place. Since it potentially stops individuals from engaging in protected speech (e.g., criticizing or questioning police action, protesting, recording officers) before it can occur, the law could be seen as a type of prior restraint. The Supreme Court has generally been very skeptical of prior restraints, considering them to be presumptively unconstitutional. For instance, in Near v. Minnesota, 283 U.S. 697 (1931), the Court declared that government action suppressing speech is subject to a heavy presumption against its constitutional validity. 2. Fourth Amendment – Unreasonable Seizures: The law might be seen as promoting unreasonable seizures. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that, in order for a seizure involving a detention to be constitutionally reasonable, it must be based on reasonable articulable suspicion that a crime has been committed, is being committed, or is about to be committed. Detaining or arresting someone merely for approaching a police officer, without any additional behavior indicating criminal activity, could be seen as violating this principle. The Fourth Amendment protects citizens against unreasonable searches and seizures. Louisiana State Constitution, Article I, Section 5 (Right to Privacy), similarly protects against unreasonable searches and seizures. The vague nature of what constitutes a "lawful engagement in the execution of official duties" might make it prone to misuse and therefore a potential Fourth Amendment violation. Under the Fourth Amendment, the law could even potentially be construed as providing a means for officers to bypass the requirement for a warrant before conducting a search. For example, if the law were to be used to create an artificial buffer zone in which officers could search individuals or their belongings without a warrant, this could be a potential Fourth Amendment violation. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court established the principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment." 3. Fourteenth Amendment - Vagueness Doctrine: Under the Due Process Clause of the Fourteenth Amendment, laws must be clear in their terms to give people appropriate notice of what behavior is prohibited. Louisiana State Constitution, Article I, Section 2 (Due Process of Law), similarly protects the right to due process. The vagueness of certain terms in this law could make it susceptible to a vagueness challenge. The vagueness doctrine serves two important purposes: 1. It gives individuals fair warning of what conduct is prohibited. 2. It provides standards for law enforcement to prevent arbitrary or discriminatory enforcement. As per the Supreme Court decision in Connally v. General Construction Co., 269 U.S. 385 (1926), a law can be deemed unconstitutionally vague if “men of common intelligence must necessarily guess at its meaning and differ as to its application.” A few potential areas of vagueness in this law exist, making its application ripe for widespread abuse by unethical police: 1. "Approaching or or to retreat": This term is not specifically defined. Does it refer to any movement in the direction of the officer, or does it require a certain speed or manner of movement? Does it apply if the officer moves towards a stationary person, decreasing the distance to within twenty-five feet even if the person may be trying to leave? What does it mean to "retreat"? Do you have to just stop, or do you have to turn around? If you turn around, do you walk or run? 2. "Within twenty-five feet": The average person may not be able to accurately judge a distance of 25 feet, especially in a dynamic situation or without a point of reference, thus rendering this law potentially unconstitutionally vague. A citizen could easily inadvertently violate this law without realizing it, which is antithetical to the principle of fair warning that laws should provide. Moreover, the ambiguity of what exactly constitutes 25 feet can open the door for arbitrary or discriminatory enforcement of the law by police officers. In other words, it leaves too much discretion to individual officers to decide when someone has violated the law, which can result in unequal enforcement, a concern that was noted in the Supreme Court case of Grayned v. City of Rockford, 408 U.S. 104 (1972). How will any law enforcement officer know that a citizen is "within 25-feet" if that citizen is near a hypothetical twenty-five-foot boundary? At the risk of sounding facetious, without measuring devices, tape measures, and/or lasers, it will be downright impossible for officers and citizens to know when they've crossed an imaginary twenty-five-foot circle around any given officer. What if you're at 24 feet 11 inches? Too bad. It's your word versus the officer's word. If he thinks you've crossed that practically indiscernible boundary, he can arrest you and turn your life upside down. 3. "Law enforcement officer who is lawfully engaged in the execution of his official duties": The law does not clearly define what constitutes "lawfully engaged in the execution of his official duties". Does it apply to any action taken by an officer while on duty, or only certain types of actions? Isn't it true that an officer is "lawfully engaged in the execution of his official duties" every second that he is on the job and clocked in? How can an average person determine if an officer is "lawfully engaged" in their duties at a given moment? 4. "Has ordered the person to stop approaching or to retreat": The clarity of the officer's order could be a point of contention. How clearly must the order be communicated? What if the person cannot hear or understand the order due to a language barrier, hearing impairment, or environmental noise? All of these aspects can contribute to the law being considered vague. 4. Fourteenth Amendment – Equal Protection Clause: Finally, under the Fourteenth Amendment, this law might be enforced in a discriminatory manner. If the law is disproportionately enforced against certain groups, it could be seen as violating the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. In Yick Wo v. Hopkins, 118 U.S. 356 (1886) the Supreme Court held that a law is unconstitutional if it is applied in a discriminatory manner, even if the law itself appears to be neutral. Louisiana State Constitution, Article I, Section 3, provides for equal protection of the laws as well. Given that this bill, if it had become effective law, would have trampled upon the First Amendment, Fourth Amendment, and Fourteenth Amendment rights of Louisiana citizens, Governor John Bel Edwards made the right decision in vetoing it. A copy of his veto letter is attached at the bottom of this blog post. At least our state governor understands the importance of the Bill of Rights in the context of this proposed legislation. The same cannot be said for our state legislature. It doesn't require much intellect to see many problems inherent in this poorly worded statute. If this abominable bill ever gets resurrected down the road, or if you or a loved one is arrested under a similarly constitutionally suspect bill, Attorney Philip B. Adams can help fight for your rights against government tyranny. Contact him here to schedule a consultation if your rights are in jeopardy. 
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