WAILUKU - Citing his First Amendment right to take photographs and videos in public places, the publisher of a weekly tabloid is seeking to have charges dismissed in connection with his arrest while using his cellphone to videotape a police traffic enforcement operation.
"This case cannot keep going under the First Amendment," said attorney Sam MacRoberts, who is representing Thomas Russo, publisher of Maui Time Weekly. "Maybe he was obnoxious . . . that doesn't mean he can be arrested for being obnoxious. He was filming as he's allowed to do as a member of the media."
During argument Wednesday in Wailuku District Court, MacRoberts said the charges against Russo should be dismissed. Russo, 40, of Wailuku has pleaded not guilty to refusal to obey any lawful order of a police officer and disorderly conduct.
But Deputy Prosecutor Jared Auna said Russo's First Amendment rights weren't violated.
"This is not about the First Amendment. I don't think there's a dispute here about whether media can film or cannot film," Auna said. "This is about safety."
He said the best evidence was Russo's video of what occurred the morning of Nov. 20, 2012, when police Traffic Section officers were doing enforcement as part of Operation Recon. At least five officers were positioned along Haleakala Highway near its intersection with Hana Highway, looking for oversized vehicles and ones with illegally tinted windows.
After reports of downhill traffic being backed up to Haliimaile, Russo stopped on the side of the highway's makai-bound lanes behind two unmarked police cars and began filming.
Police officer Rusty Lawson told Russo to turn on the hazard lights on his car, which he did. Then Russo walked toward the officers, who were in an area where a white vehicle had been pulled over about 30 seconds before Russo arrived, according to the prosecution's statement of facts.
After being told by officer John Fairchild that vehicles were being pulled over for traffic violations, Russo asks: "You think it's justifiable to back traffic up all the way till Haliimaile?" and "You think that's appropriate to do that to the residents of Maui County?"
Gesturing to the road shoulder that officers were using to pull over vehicles, Fairchild told Russo, "We're pulling cars over in the area over here so please step off to the side. I don't want you to get run over."
According to the prosecution, Fairchild had directed his attention back to vehicles on the highway before noticing that Russo had walked past Fairchild and up to officer Lawson, who was talking to the driver of the white vehicle that had been pulled over for having illegal window tint. Russo was recording Lawson and the occupants of the white vehicle and trying to get Lawson's attention, according to the prosecution.
Russo ignored repeated warnings to leave the vehicle stop area and to stop interfering with the traffic stop before he was told he was under arrest, according to the prosecution.
In court Wednesday, Auna asked Lawson how many times he had asked Russo to step back or stand back.
"Multiple times - five, six, seven times," Lawson replied. "It was repetitive. I was repeating myself."
Lawson testified he considered a safe distance from civilians to be a length of an arm and a half. The officer said he was within an arm's length away from Russo at one point.
Auna, in his argument, noted that Lawson had a .40-caliber Glock pistol and Taser on his belt.
Saree Alo, who was in the white vehicle, said a police officer was talking to her about her window tint when he was interrupted and told her someone was videotaping. She said she saw someone with a phone but didn't know she was being videotaped.
"I did feel an invasion of privacy," she testified. "I was alarmed. I was unaware of the situation. I was shocked about what was going on."
Under cross-examination by MacRoberts, Alo said she hadn't told officer Lawson she was alarmed but was because she was on probation and dealing with an officer about a vehicle that was in her husband's name.
MacRoberts said the video shows that Russo was complying with the police officers' orders, turning on his vehicle hazard lights as directed, staying on the side of the road and doing nothing to obstruct the police operations.
After officer Lawson left the white car and approached Russo, the video shows Russo moving backward as Lawson moves toward Russo, MacRoberts said. Russo gave his name to the officer and said he was a member of the media.
"There is absolutely no reason why officer Lawson can leave that car and start harassing a member of the media for doing his job, which he's allowed to do under the constitution," MacRoberts said.
He said the officers didn't give Russo specific instructions, including outlining the time, place and manner of restrictions on him. In an earlier court hearing, attorney Mickey Osterreicher of the National Press Photographers Association, testified as a defense expert about those requirements, MacRoberts said.
"It's not a lawful police order to tell a member of the media to 'go over there,' " MacRoberts said.
"Members of the media have the right to film," MacRoberts said. "The Rodney King beating was caught on film. It's an important right. What Mr. Russo's doing is simply keeping track of the police while they're doing their job.
"This case is about a police officer arresting a journalist covering a news story because the officer did not want to be filmed," MacRoberts said in his motion to dismiss the case. "Instead of reprimanding the officer, the government has prosecuted the journalist.
"This prosecution cannot continue. It must be dismissed. Recording police officers engaged in public duties is protected by the United States and Hawaii constitutions."
In a document opposing the dismissal, Auna said neither officer told Russo to stop recording, only to move from the area where he was doing the recording.
"Directions that were given pertained to (the) defendant's and the public's safety, and to allow the officers to perform their duty safely," he said.
"This case is about non-ompliance of repeated orders from police," Auna wrote. "The Defendant did not simply want to record the traffic stop, but wanted to interfere with the administration of the stop. After multiple requests by both officers to step back and/or stand back, the Defendant failed to comply with orders from the officers."
Russo posted a $3,000 bail bond to be released shortly after his arrest.
Judge Kelsey Kawano said he would take the case under advisement and set a June 19 hearing for the court's ruling.
* Lila Fujimoto can be reached at firstname.lastname@example.org.