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State v. Russo

Supreme Court of Hawaii

December 14, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellant,
THOMAS A. RUSSO, Petitioner/Defendant-Appellee.


          Jacob K. Lowenthal, Benjamin E. Lowenthal, and Samuel G. MacRoberts for petitioner.

          Richard K. Minatoya for respondent.



          POLLACK, J.

         This case arises out of a 2012 incident that occurred on the shoulder of Haleakala Highway in Maui County while Thomas Russo was filming police officers conducting a traffic enforcement operation. During Russo's filming of the traffic stop with his cell phone, he was arrested for interfering with government operations and other offenses. Russo was subsequently charged with failing to comply with a lawful order of a police officer, an offense for which he had not been arrested. Russo has consistently maintained that his filming of police activity was protected by the United States and Hawai'i Constitutions.

         We join those jurisdictions that recognize that there is a constitutional right of the public to film the official activities of police officers in a public place. But because we conclude that the record does not support a finding of probable cause that Russo failed to comply with a police officer's order, we do not address whether Russo's constitutional right to access and film the traffic stop was infringed in this case. Accordingly, we vacate the Intermediate Court of Appeals' summary disposition order and affirm the district court's order that dismissed this case with prejudice.


         On November 20, 2012, Russo was arrested on Haleakala Highway by Maui Police Department (MPD) Officers Rusty Lawson and John Fairchild for obstructing government operations, resisting arrest, and harassment. Russo was later charged by complaint with failure to comply with a lawful order or direction of a police officer in violation of Hawaii Revised Statutes (HRS) § 291C-23 (2007)[1] and disorderly conduct in violation of HRS § 711-1101 (1) (d) (1993 & Supp. 2003).[2] At arraignment on January 24, 2013, Russo pleaded not guilty to the charges.

         A. Motion to Dismiss

         On December 27, 2013, Russo filed a motion to dismiss the case against him based on the First Amendment to the United States Constitution, or, alternatively, on the ground that there was no probable cause to support the charges. In his motion to dismiss, Russo contended that this case was "about a police officer arresting a journalist covering a news story because the officer did not want to be filmed." Specifically, Russo contended that he was the publisher of Maui Time Publications and engaged in investigative journalism regarding current events, the arts, and other news of Maui County. According to Russo, on November 20, 2012, he pulled over onto the shoulder while driving along Haleakala Highway to investigate an ongoing law enforcement operation. Russo began filming two police officers who were conducting a traffic stop and was arrested for obstructing government operations shortly thereafter.

         In his motion to dismiss, Russo argued that the First Amendment to the United States Constitution protects the right to take photographs and videos of public places, which includes the right to film the activities and operations of police officers. Russo contended that the First Amendment right to record police activity is limited only by reasonable time, place, and manner restrictions. Russo submitted that he had complied with all police orders given to him by the MPD officers at the traffic stop that he was filming, that his recording was from a safe distance, and that he did not obstruct the officers conducting the stop. Thus, according to Russo, the case against him should be dismissed because his conduct was protected by the First Amendment.

         In the alternative, Russo contended that the case should be dismissed for lack of probable cause. Russo submitted that the charge of failure to comply with a lawful order of a police officer was unsupported by probable cause because he was actually complying with the police officers' orders and directions. Russo also argued that the statute under which he was charged did not apply to his alleged failure to comply with the officers' order because the law "prohibits a driver from ignoring [a police officer's] traffic directions . . . not an officer yelling at someone on the side of a road." Additionally, Russo argued that the disorderly conduct charge should be dismissed because he was not "disorderly" or "persisting" in disorderly conduct, nor was there any evidence that he was "creating a 'hazardous and/or physically offensive' condition."[3]

         In response, the State argued that Russo "did not simply want to record the traffic stop, but wanted to interfere with the administration of the stop." The State acknowledged that other jurisdictions had held videotaping public officials to be protected under the First Amendment. The State submitted, however, that this right has limitations and is subject to reasonable time, place, and manner restrictions. The State contended that the MPD police officers determined that the area where the traffic stop was being conducted was not a reasonable place to film police because it was not safe, and Russo's actions in entering and remaining in the traffic stop area were therefore not constitutionally protected. According to the State, Russo failed to comply with the directives to "step back, " to "cease interfering with the traffic stop, " and to "stop resisting arrest." Thus, the State submitted that the officers exercised proper caution in addressing the situation and probable cause existed to support the charges.[4]

         B. Hearing on Russo's Motion to Dismiss

         At the hearing on Russo's motion to dismiss, [5] the State called MPD Officer Rusty Lawson to testify regarding the events leading to Russo's arrest. Officer Lawson testified that he had been employed by the MPD for eight and a half years and was at that time assigned to the traffic division DUI task force. On November 20, 2012, Officer Lawson was assigned to conduct a specific traffic enforcement called "Operation Recon, " during which MPD sought to enforce traffic regulations relating to "lifted vehicles, tires extended beyond the fenders, window tints, or any other traffic violations [MPD] could see." Officer Lawson testified that he was the acting supervisor of the operation, which involved between five and seven officers, and that he and Officer John Fairchild were positioned in the same area on the side of Haleakala Highway. Officer Lawson testified that he was conducting a traffic stop for a possible window tint violation prior to his interaction with Russo. His unmarked police vehicle was parked on the grassy shoulder of the highway, as was Officer Fairchild's vehicle and the vehicle belonging to the individual subject to the traffic stop.

         At this point in Officer Lawson's testimony, the State played a video recording comprised of three individual clips taken by Russo showing the events leading up to Russo's arrest, which had previously been stipulated into evidence by the State and the defense. In the first clip, Russo holds the recording device[6] and can be heard speaking in the background. The device appears to be taking video from behind the windshield of a vehicle parked on the shoulder of Haleakala Highway in which Russo is sitting.

         The video depicts Russo exiting his vehicle and walking towards the cars parked in front of him. The camera pans along Haleakala Highway as Russo narrates that the road is "backed up" with traffic. The camera then focuses on the vehicles parked ahead on the side of the highway, and two uniformed police officers wearing orange and yellow vests are seen walking near one of the vehicles. Russo continues to walk towards these uniformed officers, and one of the officers--subsequently identified as Officer Fairchild--can be heard asking Russo to turn his hazard lights on. Russo replies, "Sure I can do that." Officer Fairchild then walks back towards the parked vehicles, and Russo appears to begin walking back towards his vehicle.

         In the second clip, the recording begins with the camera pointed towards Russo's parked car. The vehicle's hazard lights are on. Russo appears to begin walking towards the vehicles parked ahead, where Officer Fairchild and the second uniformed police officer--identified as Officer Lawson--are standing.

         In the third and final clip, which appears to be an immediate continuation from the second clip, Russo continues to walk towards the vehicles parked ahead. Russo comes into proximity with the closest vehicle, which appears to be an unmarked police car. Officer Fairchild, who is standing next to this first unmarked vehicle, sees Russo approaching and appears to wave his hand. As Russo comes closer to the officer, the officer again appears to wave his hand to indicate the shoulder of the highway and states to Russo that the police are pulling people over "in this area here." Russo then questions Officer Fairchild as to why the police are pulling people over, to which the officer responds, "Traffic violations." Russo asks Officer Fairchild whether he thinks it is "justifiable to back traffic all the way up to Hali'imaile, " and they engage in a brief dialogue regarding the extent of the surrounding traffic. The officer again waves his hand along the highway shoulder and states to Russo, "We're pulling peop--cars over in this area right here okay, so please step off to the side I don't want you to get run over." Russo responds, "Okay."

         At this point, Russo appears to begin walking away from Officer Fairchild and towards the second unmarked police vehicle, which is parked immediately behind the car subject to the traffic stop; Officer Lawson can be seen standing at the driver-side window of the vehicle subject to the stop. As Russo approaches the area parallel to the front passenger-side of the stopped vehicle, Officer Lawson leaves his position at the driver-side window and walks around the front of the vehicle towards Russo. The following exchange occurs:

Officer: Excuse me, sir --
Russo: Yes sir?
Officer: Can you stand back there? Can you stand back there? Don't come over here. There's a traffic stop being conducted. Can you stand -- can you stand back there?

         As the officer asks Russo to "stand back there, " he points backwards in the general direction of Officer Fairchild's and Russo's parked vehicles.

         In response to Officer Lawson's request, Russo answers, "Uh -- no, I'm [inaudible]." Russo is interrupted by the officer, who states, "You're obstructing a government operation." Russo responds that he is "not obstructing at all" and appears to walk backwards, away from the officer. Again pointing in the general direction of Russo's vehicle, Officer Lawson states, "Don't intervene . . . this is a traffic stop . . . you need to stand back there."

         Russo can then be heard asking, "Where can I stand?" Russo walks a few steps to the right--away from the highway, and towards what appears to be an adjacent field--and asks, "Can I stand here . . . this is private property, right?" The officer appears to indicate that Russo cannot stand there, gesturing again in the general direction of Russo's vehicle and stating, "You stand back there, you're on private property." Russo then takes several steps back towards the highway, closer to the officer, and asks, "Can I stand on public property?" At this point, Russo can be heard telling Officer Lawson, "Don't -- are you touching me -- you're touching me." Officer Lawson then places his right hand on his belt and states, "I'll arrest you for obstructing." Russo repeats that he is "not obstructing anything" and relays that "[he has] got video."

         Russo begins walking backwards again, away from the officer and towards Russo's car. Officer Lawson continues to walk towards Russo, repeatedly stating that "there's a traffic stop back here" and asking him to "stand back there." Officer Fairchild then joins Officer Lawson, and both continue to walk towards Russo as he backs away. As he walks backwards, away from the officers, Russo states, "this is more than a traffic stop . . . this is a circus, " and he repeats that he is not obstructing anything. Officer Lawson responds that he "told [Russo] five times" and states that he will "place [Russo] under arrest" for "obstructing government operations." Russo then identifies himself by name and relates that he is a member of the media. As he continues to walk backwards and as Officer Lawson continues approaching him, Russo can be heard stating twice, "Don't touch me, officer." Officer Lawson then states, "Sir . . . sir, you need to comply, " to which Russo responds, "I am complying officer, I am ... I am."

         The camera tilts down towards the ground as a scuffle ensues, at which point the video recording suggests that Russo is placed under arrest. An officer is heard telling Russo, "Stop resisting, stop resisting, " and that the officer was "sorry about this." Russo replies, "I'm not resisting ... I was walking backwards, just as the video shows, officer." Russo can then be heard stating, "No, no . . . you're not allowed to take my phone." At this point, the video footage concludes.

         After the State played the video, Officer Lawson testified that he directed Russo to "step and/or stand back" around "five, six, seven times." He also testified regarding the procedures that the MPD has in place concerning media contact. When asked to describe the MPD's policy governing when members of the media are permitted to film police activity, Officer Lawson suggested that the MPD may in some situations require a pre-approved media pass:

I don't think it governs as far as filming the police, but I believe it's a -- I guess a courtesy request of the media to contact the police department for, I guess, what they call like a media pass. Any media from the police department has to go through our chief. I cannot make any statements of the media. But if such, they wanted to come and give, I guess, a courtesy to these guys or to the media to have like a sit-in or like a ride-along, that's no problem, as long as it's cleared with the chief of police.

         Officer Lawson further testified that he was not notified by the MPD that the media would be recording ...

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