Judge Kelsey Kawano Ends Prosecution Of MauiTime Publisher Tommy Russo–No Probable Cause

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After nearly two years, Wailuku District Court Judge Kelsey Kawano has finally ended the travesty that was the case State of Hawaii v. Thomas Russo, the publisher of MauiTime. On Wednesday, July 9, Judge Kawano ruled that Maui Police Officers Rusty Lawson and John Fairchild had no probable cause to arrest Russo on Nov. 20, 2012 when he was photographing them on Haleakala Highway during their Operation Recon traffic stop and threw out the whole case.

“I’m pumped,” Sam MacRoberts, Russo’s attorney, told me. “I don’t know what will change. I certainly hope this opens the police department’s eyes as to how they should interact with the public, including journalists.”

MacRoberts put the credit for much of the victory on New York attorney/photographer/sheriff’s deputy Mickey Osterreicher, who MacRoberts called to testify on Feb. 12, 2014 as an expert in media-police relations. “It sure seemed to me the judge was interested in what he had to say,” MacRoberts said.

Indeed. Whenever I ask someone at the County Counsel’s office or the Maui Police Department about how island cops deal with the media, I get a boilerplate response about how all officers get “training” on that. The specifics on that training–when it occurs, what it entails, how often officers have to go through it–are never forthcoming, but a transcript of that hearing MacRoberts provided shows what Osterreicher–who has trained officers in this in the past–believes it should include:

Q. And what facts or factors do you take into account to determine whether a police officer is appropriately exercising his discretion?

A. Well, again, being a law enforcement officer, we all take an oath to uphold the constitution. The first amendment is part of that. And I would work under the assumption that all officers understand and know what rights people are entitled to as they are — in particular, in this case, first amendment rights.

According to Osterreicher’s testimony, Officer Lawson was “not reasonable” when he repeatedly told Russo to stop filming the operation and leave:

Q. And if you haven’t said why, please tell the Court why it’s not reasonable and, specifically, the facts and factors that make it unreasonable.

A. The fact that he was asking Mr. Russo to leave without articulating why; the fact that he was limiting that speech; he was not giving any clear direction as to where Mr. Russo could or couldn’t stand; he just wanted him to leave the area. So that certainly implicates content in terms of he may not have liked what Mr. Russo was doing at the time. It certainly didn’t appear to be content neutral. And, as I said, not leaving reasonable alternate avenues of communication of what he was doing.

Ultimately, it didn’t matter that Russo was a member of the media when he was taking shots of Lawson and Fairchild during Operation Recon. They were on a public road that was open to traffic. There was no perimeter set up. They had no expectation of privacy, as Osterreicher said during the hearing. Every citizen in the U.S. has the right to photograph them under such conditions.

If the County of Maui decides that it’s going to learn from this case, then it would be best if they reinforce in every cop’s mind that this is the constitutional, legal reality in which they operate.

One more thing: though The Maui News saw fit to put Russo’s name, mug shot and story on the front page of its Nov. 21, 2012 edition when he was arrested, they buried the story of his exoneration on page 3 of today’s paper (but still found a way to refer to MauiTime as a “tabloid,” which they love to do). Guess that’s objective journalism, for you.

Photo of Tommy Russo: Sean M. Hower

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