WAILUKU - Ruling there wasn't probable cause for the arrest, a judge Wednesday dismissed charges against the publisher of a weekly tabloid who was detained while using his cellphone to videotape a police traffic enforcement operation nearly two years ago.
In his ruling Wednesday afternoon, Wailuku District Judge Kelsey Kawano said that the evidence presented didn't fit the allegations of refusing to comply with any lawful order or direction of a police officer and disorderly conduct against Thomas Russo, publisher of Maui Time Weekly.
"We're excited we won, but it's bittersweet at the same time because it's taken so long to get to this point," Russo's attorney, Sam MacRoberts, said after the ruling. "I'm happy for Tommy, and it's nice that this is finally resolved."
Russo, 40, of Wailuku was arrested the morning of Nov. 20, 2012, when police Traffic Section officers were doing enforcement as part of Operation Recon. 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.
A police officer told Russo to turn on the hazard lights on his car, which he did. Then Russo walked toward officers into the area that was being used to direct vehicles off the highway and onto a grassy area. Officer Rusty Lawson testified he warned Russo, who was in danger of being struck by a vehicle, to step back multiple times.
Russo didn't step back and continued to engage Lawson and officer John Fairchild, asking the officers whether it was appropriate for the Maui Police Department to cause the traffic backup.
In his ruling, Kawano said Russo was charged with failing to obey a police officer's direction under a part of the law that applies only to the operation of a vehicle on the highways.
"The conduct in this case does not involve defendant Russo's operation of a vehicle upon a highway," Kawano said. "In short, this section does not apply."
As for the disorderly conduct charge, Kawano said, "It is very clear that the officers were concerned for the safety of defendant Russo."
"But it is entirely unclear whether by failing to follow the officers' directions, defendant Russo created a hazardous situation," Kawano said.
Under the law, the disorderly conduct charge also requires the intent or reckless risk of causing "physical inconvenience or alarm by a member or members of the public."
Saree Alo, who was in a white vehicle that had been pulled over for investigation of illegal window tint, testified that she was alarmed by Russo's videotaping. But she said she didn't know about the videotaping until being told by Lawson.
She also said the reason for her concern was that she was on probation and worried that a possible violation was being documented, Kawano noted.
"This reason was entirely personal to her and would not be alarming from an objective standpoint," Kawano said. "There was no evidence otherwise adduced as to whether actual hazard was created by being in the area of operations."
Kawano said Russo failed to establish his claim that officers infringed on his First Amendment rights to take photographs and videos in public places.
But Kawano said the court didn't have to base its decision on the constitutional issues raised. "This isn't the case for that determination," he said.
The prosecutor's office did not immediately comment on the decision.
*Lila Fujimoto can be reached at firstname.lastname@example.org.