The US Supreme Court Says Photography Is Not A Crime Yet Maui Police Pfficer Rusty Lawson Still Arrested MauiTime Publisher Thomas Russo For Filming Operation Recon

On the morning of Tuesday, Nov. 20, two Maui police officers arrested Thomas Russo, MauiTime’s owner and publisher, while he was attempting to film them with his cellphone camera during “Operation Recon,” a massive traffic enforcement operation carried out by the Maui PD during rush hour in which officers handed out pre-printed tickets to vehicles on Haleakala Highway exhibiting illegal window tinting, oversized tires, etc. The officers charged Russo with obstructing a government operation, harassment and resisting arrest.

Click here to watch the video Russo shot.

“I stopped to find out why it was so important to back up traffic for miles,” Russo said after being released. “Social media was blowing up my phone, asking what was going on there. I wanted a report from the scene. I was arrested for filming and all other charges from the MPD are ridiculous. The police chose to arrest me in a direct attempt to stop the documenting of their activities.”

MauiTime strives to report the news and not become the subject of the news. Russo began filming the police officers carrying out Operation Recon as an act of journalism, not activism.

Of course, the filming of police officers in public places by citizens, though protected by the First Amendment of the U.S. Constitution, is controversial across the country. It’s especially provocative on a small island like Maui.

“Mr. Russo, no matter what you say, you should not have been there videotaping the traffic stop,” Lahaina resident and former Maui PD lieutenant Gordon Cockett emailed the paper shortly after we posted Russo’s video of the incident on our website. “I am a retired MPD officer and I would have arrested you to [sic] for the same offenses. Your media connections and credentials do not give you a waiver. Leave the police alone to do their work.”

Cockett, a frequent writer of letters to the editor of The Maui News, was also sentenced in 2000 to three years probation for his role in an illegal gambling ring. Still, his opinion neatly encapsulates the apparent feeling of most Maui cops.

In fact, the courts have ruled repeatedly that citizens have a right to film police officers in the line of duty. When the State of Illinois took the novel approach of prosecuting a citizen for filming a cop by saying he’d violated the state’s wiretap law, the courts howled in protest. On Nov. 26, the U.S. Supreme Court ruled that Illinois prosecutors’ use of the wiretap law in this way violates the First Amendment guarantee of freedom of speech.

What’s more, we believe there is no more important journalistic task than scrutinizing the actions of law enforcement personnel during the course of their work. We believe public accountability of those issued firearms and instructed to use deadly force is a valued contribution to our community–especially given that Maui is such a small island and that state law protects police officers who’ve been sanctioned by Internal Affairs from having their names made public.

And we’re not alone in this belief.

“As a general rule, when in public spaces where you are lawfully present, you have the right to photograph anything that is in plain view,” said Dan Gluck, senior staff attorney for the American Civil Liberties Union Hawaii Chapter. “That includes pictures of federal buildings, transportation facilities and police. Such photography is a form of public oversight over the government and is important in a free society… The ACLU of Hawaii has received complaints from across the state regarding the right to videotape police officers, however, and we encourage individuals who feel that their right to document law enforcement interactions may have been violated to contact our office confidentially.”

Carlos Miller, a journalist who was prosecuted in Florida for filming a cop and who now runs the Photographyisnotacrime.com blog, watched Russo’s footage and posted it on his blog. His reaction was far less measured than Gluck’s.

“It shows the typical attitude that we see from cops all over the country,” he said. “There’s no state where you don’t see that. The first cop [in Russo’s footage] was cool. He talked to him professionally. But the second cop was a complete contrast. They always throw in this obstruction charge. They say you ‘distracted’ the cops, and that’s obstruction. But the cops are distracted because they chose to be distracted.”

*****

Operation Recon began in the early morning hours of Nov. 20. By rush hour, cars were backed up on Haleakala Highway clear up to Hali’imaile. There were five or six Maui PD cars, some unmarked, on both sides of the highway when Russo showed up.

“This operation, named Operation Recon, was in response to complaint letters to the editor of the Maui News regarding oversized vehicles and vehicles with illegal tint,” MPD Lt. Wayne Ibarra said in a Nov. 20 press release sent after Russo’s arrest. In fact, The Maui News reported on Nov. 21 that the paper has run just two letters on those subjects this month and a grand total of six since the January.

In any case, Russo got out of his car shortly after 9am and began filming officers with his iPhone. As the video he shot shows, Russo walked up to an officer on the side of Haleakala Highway and asked him what was going on. The officer told Russo that they were looking for “traffic violations.” Russo then repeatedly asked the officer what gave them the right to back up traffic on a busy morning clear to Hali‘imaile. The officer, who gives his name in the video as Fairchild, then tells Russo to “stay on the side,” which Russo does.

This is important given what follows later in the incident. Russo said that because Fairchild told him to “stay on the the side,” he felt he was free to walk down the highway, towards a vehicle the MPD had pulled over.

In the official Maui PD press release on Operation Recon (seven of the statement’s eight paragraphs deal with Russo’s arrest) that was sent out on the late afternoon of Nov. 20, Maui Police Lt. Wayne Ibarra states that one of the reasons the MPD arrested Russo was that “The two occupants of the vehicle then informed the officers that they had been alarmed by RUSSO videotaping them.”

This is bogus for a couple reasons. First, Russo was filming the officers, not the occupants of any vehicle that had been pulled over. In the video, no occupant is identifiable. Second, even if Russo had been filming them, they–like the Maui Police officers–were on a public highway and thus had no expectation of privacy that would prevent Russo from filming them.

The video shows a Maui Police Officer who later identified himself as Rusty Lawson, who had earlier told Russo to put his car’s hazard lights on, walked clear around to Russo and told him that he was “obstructing” a traffic stop, in contradiction to the first officer who merely told Russo to “stay on the side.”

At this point, the video shows Russo saying “no,” that he would not stand back. It shows him confrontational, repeatedly asking the officers why they’re conducting all these traffic stops on such a busy morning.

According to Ibarra’s written statement, “RUSSO then compromised the officers’ safety, after failing to comply with numerous requests from the officers to move back behind the police vehicles and was then placed under arrest.”

Russo’s video footage directly contradicts this assertion. While it does show that Russo first told the officers “no,” it also clearly shows Russo swiftly walking away from the vehicle that had been pulled over and back to the police cruiser. It also shows both officers following him and continuously telling him to “stand back,” even as he is doing exactly as they say.

“Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations,” Gluck of ACLU Hawaii told MauiTime. Of course, ACLU Hawaii’s website also includes the following note: “Professional officers, however, realize that such operations are subject to public scrutiny, including by individuals photographing them.”

At this point in the encounter, Officer Lawson had still only threatened Russo with arrest. Still walking back away from the officers, the video shows that Russo identified himself by name and told the officer that he was a member of the media. Moments later, the video shows Lawson telling Russo that he was under arrest. Even though Russo was walking backwards, away from the officers, Lawson then arrested him.

According to the Maui PD’s statement, “When the officers attempted to place RUSSO under arrest, RUSSO began to resist by pulling his arms away, however, officers were able to safely gain custody of RUSSO.”

Russo denies resisting arrest, calling the allegation “ridiculous.”

*****

Police officers willing to arrest citizens and journalists for filming them is hardly a strictly Maui phenomena:

• In June 2011, Emily Good was arrested in Rochester, New York for filming a routine traffic stop from her home.

• In June 2012, Jennifer Gondola said police arrested her after she refused to hand over her iPhone, which she had used to film them making a separate arrest.

• In September 2012, New Jersey cops arrested 15-year-old Austin DeCaro after he began filming a traffic stop he was involved in.

And as just about every news story on Russo’s arrest has noted, this isn’t the first time Russo has run into trouble trying to film Maui police officers. On April 12, 2011, Russo attempted to film members of Duane “Dog the Bounty Hunter” Chapman shoot an episode for his then-still airing cable TV show. After being struck by one of Chapman’s security guys, Russo called the police. But when Russo tried to film Maui Police Officer Nelson Johnson, Johnson then struck Russo repeatedly.

The Maui PD statement on Russo’s arrest was also unusual. It starts out talking up Operation Recon, but the vast majority deals with Russo. Immediately after hearing of the arrest, Mauitime sent Ibarra an email at 11:58am asking for an official statement. He called back three minutes later, seemingly surprised at the arrest. He asked again for the name of our publisher, and said he’d get back to us.

Ibarra didn’t send out a statement until nearly 4pm that day. He also emailed the statement to Maui County Police Commissioners, various police and county officials and nearly every reporter and editor in the state of Hawaii (including the late Maui News City Editor and columnist Ed Tanjii, who died two months ago). Ibarra also very helpfully included a copy of Russo’s booking photo with the press release–all courtesies the Maui PD doesn’t extend to every individual they arrest.

But by then, The Maui News–which had apparently received the MPD’s statement hours before the rest of the state’s media–posted its own story on their website.

In any case, Russo posted $3,000 bail shortly after his arrest. He’s scheduled to appear in Wailuku court on Thursday, Dec. 27 at 10:30am.

And as blogger Carlos Miller noted, regardless of what happens to Russo, the issue of citizens filming cops will not go away.

“Cops have got to get used to the fact that we all have cameras,” he said. “In a way, we are all publishers. These cops have to learn basic customer service. If cops want to be respected, then they have to respect citizens. That’s basic human logic.”