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Court vacates order in case against tabloid publisher

The Maui News

Saying a law applies to pedestrians as well as drivers, a state appeals court vacated a Wailuku District Court order that had dismissed a charge against a weekly tabloid publisher who was detained when he used his cellphone to videotape a police traffic enforcement operation five years ago.

In an opinion filed Friday, the Intermediate Court of Appeals concluded there was probable cause to support the petty misdemeanor charge of failure to comply with a lawful police officer’s order against Thomas Russo, publisher of Maui Time weekly.

The opinion sent the case back for further proceedings in Wailuku District Court.

Russo was arrested the morning of Nov. 20, 2012, when police Traffic Section officers were doing enforcement along Haleakala Highway near its intersection with Hana Highway. The officers were 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 using his cellphone to record the operation.

The District Court found that Russo was told by police traffic officers that he was in their area of operations and in danger of being struck by a vehicle. Two officers told Russo multiple times to step back out of the area, but he didn’t comply with the officers’ instructions, the court found.

On July 9, 2014, Wailuku District Judge Kelsey Kawano dismissed the failure to comply charge, finding it applied only to the operation of vehicles on the highway.

The appeals court said that the law wasn’t limited to vehicles and included provisions imposing restrictions on pedestrians — in this case, Russo.

The higher court took up the case after the prosecution appealed the dismissal of the failure to comply charge. The prosecution didn’t challenge the dismissal of another charge of disorderly conduct, conceding that Kawano “was right” in dismissing the charge, according to the opinion.

Russo’s attorney, Ben Lowenthal, couldn’t be reached for comment Friday.

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