A new Louisiana law that makes it a crime to approach police officers engaged in their official duties will likely face a legal challenge due to its encroachment on First Amendment rights, the head of a statewide criminal defense attorney group predicts.
Edward King Alexander Jr., president of the Louisiana Association of Criminal Defense Attorneys (LACDA), said that House Bill 173, which was signed into law May 24 by Gov. Jeff Landry, is “facially unconstitutional” on federal free-speech grounds.
“I would expect and hope that the overbreadth of this new law, a version of which the previous governor vetoed, will be litigated in federal court,” Alexander told the Louisiana Record in an email. “It is only one of many measures in which the new Louisiana Legislature has gone ‘hog wild’ in the two special sessions, especially the second that was dedicated to criminal justice, and the regular session now wrapping up.”
Law enforcement groups have supported the new law, which becomes effective on Aug. 1, arguing that the state has a valid interest in ensuring that police officers can carry out their duties. But Alexander said HB 173, which was authored by Rep. Bryan Fontenot (R-Thibodaux), is too broad to withstand legal precedent.
“Any law that derogates from fundamental constitutional rights such as liberty, free speech, association, press, freedom of movement, etc., must be narrowly drawn in order to pass constitutional muster,” he said.
The new law makes it a crime for people who knowingly or intentionally come within 25 feet of a peace officer carrying out official duties once the officer orders them to retreat, according to the Legislature’s analysis of the measure. Those who break the law can be fined up to $500, be jailed for not more than 60 days, or both.
“(The) proposed law provides that it shall be an affirmative defense to this crime if the defendant can establish that the lawful order or command was neither received nor understood by the defendant nor capable of being received or understood under the conditions and circumstances that existed at the time of the issuance of the order,” the analysis states.
Alexander, a lifelong Louisiana Republican and an elected member of the Republican State Central Committee, said he supported much of Landry’s agenda, including the governor’s efforts to improve the state’s business climate and reduce population declines – but not HB 173.
“The Legislature has wholesale reversed several carefully considered criminal justice reforms enacted over the past several years to mitigate the state's egregious incarceration rate, and they have gone further than that,” he said. “They have now put into place a long wish-list of those whose default is entirely toward security and law enforcement, seemingly without any regard to civil liberties or the interests of innocent people. My default is toward liberty.”
The state’s Republicans as a whole are not in sync with state bills that trample on civil liberties and due process, according to Alexander.
“I predict that there will be a correction, as a result of litigation and future legislation, starting soon after Aug. 1 when the voters of Louisiana begin to see the negative and predictably tragic effects of all this overreaching,” he said.
Other critics said the bill would make it more difficult for the public to hold officers accountable for use of force or other misconduct.
“If law enforcement officers were operating in a manner that safeguarded the well-being and constitutional rights of the public, there should be no objection to being observed,” Alanah Odoms, the ACLU of Louisiana’s executive director, said in a prepared statement. “Moreover, HB 173 is impractical to enforce consistently and will exacerbate tensions in any situation involving law enforcement.”
The Louisiana Law Enforcement Association did not respond to a request for comment.