Critics point to violation of First Amendment, potential of retaliatory arrests

TOPEKA — More than 10 news entities objected Monday to a bill before the Kansas Legislature granting federal law enforcement officers authority in Kansas to impose 25-foot buffer zones in public spaces and secure immunity in lawsuits related to fulfillment of executive orders or federal laws.

The Kansas Press Association, Kansas Association of Broadcasters, Kansas Newspaper Foundation and publishers of the Linn County Record, Council Grove Republican, Ark Valley News and Eureka Herald challenged the legislation on constitutional grounds. They also objected to enactment of a state law exposing reporters to arrest, fines and jail sentences for violating the setback while responding to news events.

Emily Bradbury, executive director of the Kansas Press Association, said Senate Bill 452 would be contrary to First Amendment free press rights and 14th Amendment rights of due process and equal protection. She said the legislation would grant law enforcement officers and other emergency responders, including federal agents, discretion to take action against peaceful onlookers and expose Kansas taxpayers to enormous liability.

Bradbury said the bill before the House Federal and State Affairs Committee didn’t articulate reasonable standards for warning a person before arrest if an officer decided distance from others was necessary for safety of people or property. She said the legislation ignored federal court guidance on regulation of speech or assembly, which required it include narrowly tailored restrictions on time, place and manner of expression.

“Twenty-five foot roving buffer zones the bill proposes would violate the clearly established First Amendment right to film law enforcement personnel performing their official duties in public,” Bradbury said.

She said placement of the bill in statute would lead to constitutional violations and lawsuits. She said officers who arrested someone lawfully observing the public conduct of law enforcement cannot claim qualified immunity in court.

Officers’ sentiment

One lobbyist representing Kansas law enforcement officers offered testimony in support of SB 452, while more than 50 people shared opposition in oral or written testimony. Many critics were alarmed Kansas law would be amended to grant more power to the U.S. Immigration and Customs Enforcement, or ICE, amid President Donald Trump’s immigration crackdown.

Rep. Tom Kessler, a Wichita Republican who chairs the House committee hearing the bill, said he was frustrated with testimony against the bill referencing only one federal entity.

“The entire testimony was nothing but ICE, ICE, ICE, ICE, ICE, ICE, ICE, ICE, ICE,” Kessler said.

The bill was introduced at urging of Senate President Ty Masterson, an Andover Republican and a candidate for governor. The bill passed the Senate on March 5 on a vote of 31-7.

Ed Klumpp, who represents the Kansas Association of Chiefs of Police, Kansas Sheriffs Association and Kansas Peace Officers Association, said the bill created the framework for local, state and federal officers to declare a problem with public interference in official duties that necessitated imposition of a 25-foot halo perimeter. The proposed state law would allow federal agents to order the buffers and adopt liability protection for federal officers at the FBI, U.S. Marshals Service, ATF, DEA, Secret Service and U.S. Department of Homeland Security.

“These provisions to include federal law enforcement officers in several statutes are not just related to ICE officers,” Klumpp said. “These acts of interference are not just applicable to immigration enforcement, but to all federal agencies we frequently work with.”

Klump was asked to outline an example of how the bill could have been useful in Kansas during state or local enforcement actions involving federal agents.

“Well, fortunately we haven’t had the ICE demonstrations in Kansas like we’ve had in other states,” he said. “This was an effort by the people that brought the bill to give us these tools to deal with those situations if they did start happening here.”

‘ICE, ICE, ICE’

Under the Senate bill, the crime of “unlawful approach of a first responder” would be established and federal law enforcement officers would be included in the state’s revised definition along with police, sheriff, ambulance and firefighter personnel. The barrier would apply to people who received a visual or audible signal not to “approach or remain within 25 feet” of a first responder who had reason to believe the separation distance was necessary.

Justification for applying the statute would range from a first responder being distracted while performing duties or feeling increased concern for physical harm to a person or property.

Sen. Mike Thompson, a Shawnee Republican who carried the bill on the Senate floor, said the imaginary barrier between law enforcement officers and the public was important because federal agents were tracking people who could be murderers or drug kingpins. The senator said there were the type who “do not follow the law” and “are probably going to be armed.” A distance of 25 feet respected the “danger zone” around officers, he said.

“Within about 20 to 25 feet is what they consider the danger zone,” Thompson said. “Somebody can get to you very quickly before you can actually react or draw a weapon to protect yourself.”

Thompson, who worked as a television meteorologist from 1983 to 2018, said individuals who posted videos to social media or reporters who included video in news broadcasts were distorting the reality of immigration-related disturbances in the United States.

“People take small clips on video of something happening, but they only share the portion that tends to indict the actions of federal officers,” Thompson said. “Unfortunately, people believe what they see. I can tell you, it’s biased. It’s one-sided. We are putting our federal officers in danger because of that.”

The legislation pending in the House says a federal agent could issue the order for people to respect the distance, but only local or state officers could arrest an individual on suspicion of a Class B person misdemeanor with potential sentences of six months in jail and a $1,000 fine.

The bill also would declare federal vehicles, including unmarked vehicles operated by ICE, as emergency vehicles in the traffic code of Kansas. It would provide federal agents the power to order removal of “an abandoned vehicle interfering with any law enforcement operation.”

Newspapers, broadcasters

Jan Sciacca, publisher of the Council Grove Republican, said the newspaper had a responsibility to inform residents of Morris and Chase counties of events affecting their communities. The proposed minimum gap between reporters and first responders could undermine news coverage, she said.

“Responsible reporting requires observation,” she said. “In practice, this could place a reporter at risk of arrest for simply observing events from a distance that has historically been acceptable.”

Gregg Hibbeler, president and executive director of the Kansas Association of Broadcasters, said the organization opposed the bill. He said Arizona enacted a police-recording buffer law that was struck down in federal court as unconstitutional because it restricted the public’s ability to document law enforcement activity in public places. In addition, he said, Kansas law currently made it a crime for people to interfere with law enforcement.

Jackie Taylor, publisher of the Linn County News, said the proposed statute could place reporters in jeopardy of being arrested at the direction of first responders who wanted to retaliate for stories printed in the past.

“We feel that the bill, if passed at all, needs serious change to allow the press to be differentiated from mobs, such as those seen at recent ICE demonstrations,” Taylor said. “Further, the press needs a three-warning system where they can’t be arrested by an alleged vindictive law enforcement officer carrying a grudge. If the press is belligerent and does not heed law enforcement, then they know of the consequences.”

Other voices

In addition to private individuals presenting objections to the Senate legislation, organizations working with immigrants and organized religious groups argued against the bill.

The Rev. Rick Behrens, pastor of Grandview Park Presbyterian Church in Kansas City, Kansas, said members of Kansas Interfaith Action were convinced the bill was inspired by resistance to the federal government’s immigration crackdown overreach and opposition to ICE’s violent tactics. The bill would be another step in the process of blurring lines between federal and local law enforcement authority, he said.

Behrens said the small congregation worshiped for the past year in a locked basement rather than be exposed to ICE raids in the church sanctuary.

“It’s ironic and shameful, is it not, that the safe places called sanctuaries are no longer safe,” he said. “What ICE is doing today, what our federal government is doing today, goes against Christian ethics and values. ICE does not deserve to be treated like local law enforcement.”

Diosselyn Tot, a resident of Wyandotte County working with Latino Community Network, said the legislation granted federal agents more authority and less accountability when operating in Kansas. She said it would grant ICE agents who received six weeks of training the same legal protection afforded Kansas officers who underwent five months of training.

She said SB 452 posed a risk for all Kansans regardless of immigration status because it raised constitutional concerns searches and seizures.

“If enforcement actions occur with unmarked vehicles or unclear identification, how are ordinary people supposed to know they must yield, move over or stay 25 feet away?” Tot said. “Are Kansans now expected to recognize unmarked vehicles and assume federal enforcement is taking place?”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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