Louisiana's First Amendment 'buffer zone' wipes out police accountability

Police officers blamed a 16-year-old boy for a violent encounter outside a bowling alley in Lafayette, Louisiana. They arrested him on suspicion of interfering with an investigation, resisting arrest and battery.

“I believe it turned physical because he may have approached the officers and got into their personal space,” Lafayette Sgt. Wayne Griffin told the media following the 2020 incident.

This story might have stuck. But at least four bystanders pulled out their phones when the police showed up and started recording. Video clips, posted on social media, show the police strike first. They slam the teen into a door before holding him on the ground and punching him.

The footage, although shaky and incomplete, was enough to flip the narrative. The Lafayette Police Department placed one officer on paid leave and pulled two others from regular duty pending additional investigation.

Outcomes like this might no longer be possible in Louisiana.

A state law, which took effect on Aug. 1, 2024, makes it a misdemeanor for anyone to be within 25 feet of a law enforcement officer who orders them back. Citizen journalists cannot always record clear images from this distance, especially at night or in crowded spaces.

Police agencies might like it this way. Everywhere they go, they can claim a First Amendment buffer zone where the Constitution does not apply. Having space to work is important, but laws already exist to prevent interference in official proceedings.

City and town councils, for example, can remove disorderly persons from public meetings. Schools can remove trespassers. And law enforcement officers can give reasonable orders on a case-by-case basis. Arbitrary, blanket rules invite expensive litigation.

The predictable lawsuits already have come in Arizona, Indiana and Florida, which previously adopted police buffer zones. The movement away from transparency comes even as calls for police accountability increase.

Cameras have forced these conversations. Millions of viewers watched in horror as a police squad, aptly named the Scorpions, beat Tyre Nichols to death during a 2023 traffic stop in Memphis, Tennessee. One year earlier, a bystander recorded three officers beating a man pinned to the ground in Crawford County, Arkansas. And in 2020, the nation saw Minneapolis police murder George Floyd.

Without digital evidence and social media, the police might have kept these cases and other incidents of government abuse hidden. Agencies know this in Louisiana, which has a history of suppressing potentially embarrassing video.

Associated Press investigators caught Louisiana state troopers turning off or muting their cameras during pursuits. Even when footage is recorded, the agency has routinely refused to release it, the 2022 investigation found.

Not all agencies are so opaque, but access to dashcam and bodycam video is almost always slow. A civilian oversight board tried to speed up the process in Milwaukee by requiring release of bodycam footage within 15 days of officer-involved deaths, but a local police union fought back immediately with a lawsuit. To date, the new release policy has not taken effect.

The fight to withhold government video makes citizen journalism all the more important. Raw footage can reach the world in minutes or hours, not months or years. The transparency builds trust in the government and checks the spread of unfounded theories.

Mario Rosales wanted to make sure he had video of his 2022 traffic stop in Alexandria, Louisiana. But when his girlfriend, Gracie Lasyone, asked the police for permission to use her phone, they prevented her.

Their excuse? They said their bodycams were sufficient to document the encounter. Rather than accept the constitutional violation and others related to unlawful search and seizure, Rosales and Lasyone sued the police. Our public interest law firm, the Institute for Justice, represents them.

As their case moves forward, Louisiana is moving backward—further out of step with the rest of the nation. Recognizing the importance of video when it comes to policing, eight of 12 federal appellate courts have held that the First Amendment protects the right to record police.

In the most recent decision, issued by the 4th U.S. Circuit Court of Appeals in 2023, the court explained something people intuitively know: “Recording police encounters creates information that contributes to discussion about governmental affairs.”

The Fifth Circuit, which has jurisdiction over Louisiana, reached the same conclusion in 2017.

Louisiana does not seem to care. Worse than other attempts to shield police from view, the new law prohibits not just video recording but observation of police from closer than 25 feet. Such disregard for the Constitution invites litigation, which a coalition of media companies filed on July 31, 2024.

The people of Louisiana should root for the coalition to win. Police might want cameras as far away from themselves as possible. But government works best with accountability.

Patrick Jaicomo and Anya Bidwell are senior attorneys at the Institute for Justice in Arlington, Virginia. They lead its Project on Immunity and Accountability.