The United States Court of Appeals for the Seventh Circuit recently struck down an Indiana statute making it a crime for a person to stand within 25 feet of a police officer who is "lawfully engaged in the execution of the law enforcement officer's duties . . ." The Court found the law "void for vagueness." Because the law was vague, the Court was concerned that police officers would invoke the law in an arbitrary and erratic manner.
The relevant text of the statute provides: '[a] person who knowingly or intentionally approaches within twenty-five (25) feet of a law enforcement officer lawfully engaged in the execution of the law enforcement officer's duties after the law enforcement officer has ordered the person to stop approaching commits unlawful encroachment on an investigation, a Class C misdemeanor." In adopting the statute, Indiana believed that the 25-foot buffer area was sufficiently clear and objective to avoid the "vagueness" argument. By its reasoning, the statute was different from statutes which courts had previously struck down.
Indiana argued that even if someone "is not sure about where a 25-foot marker is, he cannot be arrested" under the buffer law because it only criminalizes those who "knowingly or intentionally" approach within 25 feet following a warning. In its mind this solved any problem with the statute.
But the Court looked at the statute from a slightly different angle -- whether the buffer law encourages arbitrary or discriminatory enforcement. And on this point, the statute failed. Citing previously decided cases, the Court noted: [a] statute encourages arbitrary or discriminatory enforcement if it impermissibly delegates to law enforcement the authority to arrest and prosecute on 'an ad hoc and subjective basis,' giving police unfettered discretion to make 'arbitrary and erratic arrests.'"
The Court agreed that "a law criminalizing approaching within 25 feet of an officer is more objective than one criminalizing annoying behavior." It also acknowledged that the buffer law "requires a do-not-approach warning before subjecting an individual to arrest." But the Court concluded that those objective features could "not immunize the buffer law from arbitrary or discriminatory enforcement." The fundamental problem with the statute is that "the buffer law offers no 'guidance to the officer deciding whether [a do-not approach] order should issue' in the first place." Absent such guidance, the Court noted, "any on-duty officer can use the buffer law to subject any pedestrian to potential criminal liability by simply ordering them not to approach, even if the pedestrian is doing nothing more than taking a morning stroll or merely walking up to an officer to ask for directions."
Interestingly, Indiana did not put up much of a fight on this issue. As the Court recounted the oral argument, "w]e asked counsel to explain when an officer could invoke the buffer law to tell someone to stop approaching. The answer? 'If an officer is conducting their official duties, an officer may tell someone to stop approaching.' For any reason? A good reason, a bad reason, a reason the officer just makes up? 'Yes.' Could an officer invoke the buffer law just because he had a bad breakfast? Again, counsel answered in the affirmative."
A statute that allows a police officer to arrest someone because the cop had a bad plate of bacon and eggs is the very definition of arbitrary. The Court wisely struck this down.
There is a bigger issue at play here. The activities of ICE have been concerning to say the least. It's important that the public be able to see up close what the masked ICE agents are up to. A statute that allows ICE (or any other cop) to force a law-abiding citizen to stay 25 feet from the action on the pain of criminal prosecution is not just unconstitutional, it's terrible policy.
