It’s hard to believe it’s been nearly five years since two Maui Police Officers arrested MauiTime Publisher Tommy Russo (on Nov. 20, 2012) when he was photographing them on Haleakala Highway during a traffic stop. The Prosecuting Attorney’s office charged him with failure to comply with police officers and disorderly conduct (the cops’ original charges of resisting arrest, obstruction of a government and harassment were suddenly forgotten), but that was bogus. As the video Russo showed, Russo was complying with the officers’ demands when they arrested him, and in any case the U.S. Supreme Court (just four days after Russo’s arrest) upheld an Illinois appeals court ruling that citizens have a right to photograph police officers in public.
Nearly two years later, on July 9, 2014, Maui District Court Judge Kelsey Kawano threw the whole case out, ruling that that failure to comply charge was only for motor vehicle operators. In a just world, that would have been the end of it. Hell, last year the Hawaii state Legislature even passed Act 164 (we call it “The Tommy Russo law),” inspired by Russo’s arrest that reasserts the public’s right to photograph police officers in public.
But the Maui County Prosecutor’s Office appealed the decision, saying the failure to comply charge was legit and Kawano’s ruling was wrong. On the last day of March of this year, the Intermediate Court of Appeals (ICA) agreed, ruling that the Judge Kawano should not have thrown out the failure to comply with the officers charge (the disorderly conduct charge was okay to toss, though), and kicked the whole thing back to his court.
In a move to finally end this madness, on June 22 Russo’s attorneys filed an Application for Writ of Certiorari to affirm the District Court’s dismissal order with the Hawaii Supreme Court. The 12-page filing asks two questions of the state Supreme Court:
Did the Intermediate Court of Appeals gravely err by vacating the dismissal order when the record clearly established there was no probable cause to bring the charge of obedience to a police officer against Mr. Russo?
Did the ICA gravely err in failing to review and examine if the prosecution against Mr. Russo violated his constitutional right to record the police conducting a traffic stop before vacating and remanding the case to the lower court?
Put simply, the filing goes after the ICA ruling for both failing on the issue of probable cause in regards to the failure to comply charge and the basic constitutional grounds that Russo had a right to photograph the officers. It also eloquently shows why the case is so important.
“Before the government infringes upon a person’s freedoms of speech and press, the government–not the individual–must show constitutionality,” states the filing. “Police have come under increasing scrutiny with the technological advancement of cameras recording their operations in public. Police misconduct from the Rodney King beating in Los Angeles to the death of Eric Garner in New York City were brought to light when members of the public exercised their right to record law enforcement officers. When the ICA was called upon to establish definitive guidelines for courts, the police, and the local media, it abdicated its duty to determine the issue.”
According to Ben Lowenthal, Russo’s attorney (along with Samuel MacRoberts), the State of Hawaii has 15 days to respond to his filing. After that, he’ll have another seven days to respond to that. Regardless of response, the Hawaii Supreme Court will have to decide whether to hear the case in 30-45 days.
Photo of Aliʻiōlani Hale, where the Hawaii State Supreme Court meets: Christo Vlahos/Wikimedia Commons