State v. Russo.
SCWC-14-0000986
| Haw. | Dec 14, 2017Background
- In Nov. 2012 Thomas Russo filmed a Maui police traffic-enforcement operation from the highway shoulder; officers arrested him and charged him with failure to comply with a lawful order (HRS §291C-23) and disorderly conduct.
- Russo moved to dismiss, arguing (1) the First Amendment protects filming police in public (subject to reasonable time/place/manner limits) and (2) lack of probable cause because he complied with orders.
- The district court found officers instructed Russo multiple times to “step/stand back,” concluded the statute did not apply to his conduct (interpreting Part III traffic-code scope), and dismissed both charges for lack of probable cause.
- The Intermediate Court of Appeals (ICA) reversed as to the §291C-23 charge, holding the statute could apply to a pedestrian and that probable cause existed because Russo failed to comply with repeated orders.
- The Hawaiʻi Supreme Court accepted certiorari, recognized a First Amendment right to film police in public (subject to reasonable, narrowly tailored time/place/manner restrictions that are clearly communicated), and reviewed the video de novo.
- The court concluded the stipulated video showed Russo did in fact comply (stepping/backing away when directed); therefore probable cause to charge failure to comply under §291C-23 was absent, and the dismissal with prejudice was affirmed.
Issues
| Issue | State's Argument | Russo's Argument | Held |
|---|---|---|---|
| Does the First Amendment protect photographing/filming police in public? | Right exists but is subject to reasonable time/place/manner limits when filming interferes with duties. | Filming is protected and can be restricted only by reasonable, clearly-communicated limits. | Yes; filming public police activity is protected, subject to reasonable, narrowly tailored time/place/manner restrictions. |
| When may officers issue time/place/manner restrictions on recording? | Officers may restrict when a reasonable officer believes recording is interfering or about to interfere. | Restrictions must be narrowly tailored, leave open alternatives, and be clearly communicated. | Restrictions valid only if an objectively reasonable officer could conclude recording interferes or imminently will; orders must be clear, specific, and narrowly tailored. |
| Did probable cause exist to charge Russo with willfully failing to comply under HRS §291C-23? | Officers repeatedly ordered Russo to stand/step back; he disobeyed, creating probable cause. | Video shows Russo complied (turned on hazards, stepped back, walked backward when ordered); no willful refusal. | No probable cause; video demonstrates Russo complied, so the §291C-23 charge lacked probable cause. |
| Does §291C-23 apply to a pedestrian (non-vehicle conduct at a traffic stop)? | ICA: statute not limited to vehicle operation and can apply when regulating traffic interactions with pedestrians. | Russo: even if statute applies, no probable cause here. | Court agreed ICA’s statutory interpretation was correct but affirmed dismissal on alternative ground (lack of probable cause). |
Key Cases Cited
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (recognizing First Amendment protection for filming police in public)
- Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) (affirming circuits that protect right to record police)
- Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) (discussing public’s right to record and societal benefits of bystander videos)
- Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) (time/place/manner restrictions allowed only if officer reasonably concludes filming interferes or will interfere)
- Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (recognizing right to photograph/videotape police conduct)
- Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (recognizing right to film matters of public interest including police conduct)
- ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (protecting audio/audiovisual recording of public officials)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (discussing news gathering and First Amendment interests)
- Texas v. Johnson, 491 U.S. 397 (1989) (First Amendment protection extends beyond spoken/written word)
- First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (government cannot limit public’s stock of information)