Maui Time

Hawaii Supreme Court rules in favor of MauiTime Publisher Tommy Russo, dismisses case against him

There is no more State v. Thomas Russo. Maui County Prosecutor J. D. Kim’s five-year effort to punish MauiTime‘s publisher for photographing two Maui Police Officers back in November 2012 is finally over.

Very long, stupid story short, Russo was coming down Haleakala Highway on the morning of Nov. 20, 2012 and encountered unusually heavy traffic. In fact, he’d run into the Maui Police Department’s “Operation Recon,” a big crackdown on illegally lifted vehicles and tinted windows. Pulling to the side, Russo got out his smartphone and began walking towards two police officers who were stopping cars. After a few minutes of back-and-forth with the officers, during which Russo repeatedly insisted that he was a journalist and had every right to stand on the side of the road and photograph them, the police officers arrested him.

In 2014, Maui District Judge Kelsey Kawano had dismissed the whole ridiculous case (Maui Prosecutors were insisting that Russo’s arrest was because he had “failed to comply” with the officers’ orders). Kim could have left it there, but decided to appeal to the Intermediate Court of Appeals (ICA). In the spring of this year, that court overturned Kawano’s decision, which threatened to start the entire prosecution over from the beginning. Instead, Russo and his attorneys–Ben Lowenthal, Jake Lowenthal and Samuel MacRoberts–then appealed the ICA decision straight to the Hawaii Supreme Court.

On Nov. 9 of this year, Jake Lowenthal argued Russo’s case before the Supreme Court, which heard the case in front of students at University of Hawaii at Hilo’s Performing Arts Center (Richard Minatoya argued for the state). Today, the Hawaii Supreme Court issued its 40-page opinion, which was written by Justice Richard W. Pollack.

“[W]e vacate the ICA’s May 1, 2017 Judgment on Appeal and affirm the district court’s July 9, 2014 Notice of Entry of Judgment And/Or Order dismissing charges against Russo with prejudice for lack of probable cause,” states the opinion.

Dismissing the charges “with prejudice” means the ruling is on the merits of the case and the state cannot bring action again on this claim. It means the case is over, though J. D. Kim could still ask the Hawaii Supreme Court to reconsider the case (which is rare).

Anyway, the Hawaii Supreme Court’s reasoning was simple: Maui Police Officers Rusty Lawson and John Fairchild should never have arrested Russo because he wasn’t doing anything wrong and had, in fact, complied with Lawson’s and Fairchild’s instructions. Page 37 of the opinion makes all this abundantly, explicitly clear:

The video footage stipulated into evidence by the parties shows that Russo did, in fact, comply with the officers’ order. When Officer Fairchild instructed Russo to return to his vehicle and turn on his hazard lights, Russo complied. When Officer Fairchild waved his hand and directed Russo to “step off to the side” to avoid getting “run over,” Russo likewise complied–responding, “Okay,” and walking away from the general area to which Officer Fairchild had gestured. When Russo was subsequently approached and ordered by Officer Lawson to “stand back there,” Russo complied by taking a few steps away from the area and asking whether he could stand on private property. When Officer Lawson responded that he could not and ordered him to “stand back there,” Russo took several steps back towards the highway and asked, “Can I stand on public property?” When Officer Lawson then threatened Russo with arrest, Russo immediately began walking backwards, away from the area and towards the general direction to which Officers Lawson and Fairchild pointed. For the remainder of the video, as the police officers persisted in walking towards Russo and commanding that he “stand back there,” Russo continued to walk backwards and away from the traffic stop area. It appears from the video recording that Russo only stopped walking backwards when he was physically prevented from doing so and arrested by the officers.

Commenting a few hours after the Court handed down their opinion, attorney Jake Lowenthal was ecstatic. “We’re very pleased with the results,” he said by phone. “We are happy that the Hawaii Supreme Court has adopted the path that we advocated for. And we believe this is a significant ruling and it’s going to help the citizens of Hawaii understand what exactly their First Amendment rights entail.”*

And now I’m going to say something as Editor of this paper, a job I’ve held for 11 years. In that time, people have often asked me questions like “Why do you hate cops?” We–this paper, its publisher, staff and myself–do no such thing. We have never hated cops, and never will. But we do hate stupidity conducted at taxpayer expense. We hate clearly unjust actions taken by the state against members of the public. And we hate petty, vindictive prosecutions–again carried out at taxpayer expense–that are designed to intimidate both the press and public.

This entire five-year ordeal–this monstrous “State v. Thomas Russo”–fits all of that. That it took so many years and a ruling by the Hawaii Supreme Court to show that Russo was simply doing his job as a journalist back on Nov. 20, 2012 and should never have been arrested is why we publish the stories that we do about Maui law enforcement, and why it’s so important that all news organizations out here do the same.

Click here to read the Hawaii Supreme Court’s opinion on State v. Thomas Russo.

* I wasn’t able to get ahold of Lowenthal until a few hours after this post went up, so this quote was added later.

Photo courtesy MauiTime