South Bend man at center of ACLU lawsuit on 25-foot police 'encroachment' law
SOUTH BEND — A South Bend man who monitors activity of local law enforcement is the plaintiff in a lawsuit filed Tuesday by the American Civil Liberties Union of Indiana, claiming the state's new 25-foot “encroachment” law violates his constitutional right to observe and record the police.
The new law that went into effect July 1 prohibits a person from knowingly and intentionally approaching within 25 feet of a law enforcement officer after the officer has ordered the person to stop. ACLU officials said they seek to challenge the constitutionality of the law.
Donald Nicodemus of South Bend is a contributor to "Freedom 2 Film," a YouTube channel that Nicodemus, who calls himself a citizen journalist, regularly posts videos to. According to a news release from the ACLU, he has 23,000 followers.
More: South Bend firefighter disciplined for shouting at and bumping men filming public incident
The allegations in the lawsuit say that South Bend police have enforced the new law against Nicodemus to prevent him from getting close enough to observe and record their activities.
“The unbridled discretion given to law enforcement officers by the new 25-foot law allows for, and invites content and viewpoint-based discrimination,” said Ken Falk, legal director at the ACLU of Indiana, in a prepared statement. “This gives police officers unchecked authority to prohibit citizens from approaching within 25 feet of the officers to observe their actions, even if the actions of the citizens are not and will not interfere with the police.”
Falk said Wednesday the complaint seeks a preliminary injunction and he expects the city and the state to respond.
"We step in when we see someone who has been aggrieved, and we believe Mr. Nicodemus has been aggrieved," Falk said.
A call to the South Bend Police Department officials for comment was not returned before publication.
According to the complaint, Nicodemus was observing and recording an area of police activity on July 20, already from much further than 25 feet, while live streaming the event to “Freedom 2 Film.” The lawsuit complaint alleges he was not interfering with the police investigation.
In the video recorded by Nicodemus, an officer is seen stepping off what he indicated was 25 feet from the location where Nicodemus and other observers were standing, telling them they had to move further away from the police activity. The video is at this link, but readers should be warned it contains a great deal of profanity.
More: Bill creating 25-foot zone between police and civilians draws criticism from ACLU
According to the complaint, after about 12 minutes, another police officer approached Nicodemus and others who were gathered at the first officer's 25-foot designated spot and said that sport was his crime scene, and that everyone had to move back another 25 feet.
The officer allegedly threatened those on the corner, including Nicodemus, saying they would go to jail if they did not move back another 25 feet, stating that there was a “new law.”
“The right of citizens to observe and record the police is a critical check and balance,” said Katie Blair, advocacy and public policy director at the ACLU of Indiana. “Whether it’s a traffic stop, a police response to a mental health crisis, or other police-community interactions, community members cannot hold police officers accountable if they cannot observe what is going on.”
During Statehouse debate before the bill's passage, testimony addressed the fact a citizen's recording of Minneapolis police officer Derek Chauvin's murder of George Floyd by keeping his knee on Floyd's neck for more than 9 minutes created broad public awareness of the incident.
Past issues with Freedom 2 Film
The Freedom 2 Film group formerly had a run-in with members of the South Bend Fire Department.
In August 2021, the city’s Board of Public Safety suspended firefighter Lance Gunderson for five days without pay, ordered him to complete anger management training, and banned him from signing up for overtime for 30 days as punishment for his behavior toward two men who were filming firefighters and police during an incident on June 13, 2021, on Duey Street near Eddy Street Commons.
Gunderson had approached two people filming an incident and exchanged words with them before Gunderson was seen physically bumping one of the men. A South Bend police officer then approached and spoke with the two men. The men later filed a complaint with the department.
Fire Chief Carl Buchanon determined, and the board agreed, that Gunderson had violated a department rule of conduct that prohibits “discourteous conduct towards the public and other personnel." The rule states, "Firefighters shall be tactful, in control of their tempers, and exercise patience and discretion.”
Email Tribune staff writer Greg Swiercz at gswiercz@sbtinfo.com
This article originally appeared on South Bend Tribune: ACLU lawsuit on Indiana police recording law has South Bend plaintiff
