CLICK YOU'RE IT

CLICK YOU'RE IT: Photography Is Not a Crime, as the web site dedicated to that tenet iterates.

Courts across the country have pretty much closed that case by stating that police can't arrest you just for taking pictures of them. But locally it's been a fight to get some- especially and specifically a few officers in the Maui and Hawai`i Island police departments- to recognize those rulings, despite memos to that effect from department leadership.

We highlighted the case of Big Island "reporting-blogger" Damon Tucker in August of 2011 when he tried to take some pics of a police action outside a Pahoa bar where a fight had broken out. Apparently, when Tucker refused to stop taking pictures he was allegedly beaten and arrested and his camera was confiscated.

And last week it seems it happened again. Last Tuesday Maui Police arrested Maui Time (not The Maui Times) publisher Thomas A. Russo for, he says, taking video of a police operation to enforce laws regarding "over-sized vehicles and vehicles with windows having illegal tints" with his cell phone, according to a report on Maui Now, a Maui news web site.

Although Maui Time itself seems to be lacking any mention of the incident, Maui Now reports that:

Maui police arrested the publisher of Maui Time today for three alleged offenses including obstruction of government operations, resisting arrest, and harassment.

The incident stems from an attempt by Russo to allegedly video tape a traffic stop that took place this morning (November 20, 2012) along the Haleakala Highway.

Thomas A. Russo, 39, was released after posting $3,000 bail...

Maui police were conducting a traffic stop at around 9:20 a.m. along the Haleakala Highway near the Hana Highway intersection when the encounter with Russo was reported. According to police reports, two police vehicles followed a vehicle that was being pulled over for illegal tints.

Shortly thereafter, police say another vehicle pulled up behind the police vehicles and the lone operator exited and approached the traffic stop. The operator, later identified by police as Thomas A. Russo, publisher of Maui Time, started to video tape the traffic stop with his cell phone, according to police reports.

Police say Russo allegedly proceeded past the police vehicles and continued walking toward the vehicle that had been stopped while still videotaping the incident with a cell phone.

Police say that as a matter of routine police traffic stop procedures designed for officer safety, the officers advised Russo to stay behind the police vehicles while they conducted a controlled traffic stop investigation. According to police reports, Russo allegedly refused to comply and continued approaching and videotaping the officers and the two occupants.

Police said the two occupants of the vehicle then informed the officers that they had been alarmed by Russo videotaping them...

This is Russo’s second incident over the filming of police. On April 12, 2011, Russo claims he was assaulted by an MPD officer while attempting to film the crew of reality television show “Dog the Bounty Hunter” (since cancelled), and later, the same officer attending the scene.

But according to an article at "Maui Feed," an apparent offshoot of Maui Time

Citing substantial inaccuracies in both a official Maui Police Department statement and various news accounts, Maui Time Publisher Thomas Russo has posted the video footage of his Nov. 20 arrest while trying to film various Maui Police Officers engaged in “Operation Recon” on Haleakala Highway, a massive effort to ticket citizens for driving vehicles with over-sized tires and illegally tinted windows. The video clearly shows that he was complying with the Maui Police Officers’ orders that he get back from their traffic stop at the time he was arrested.

Contrary to the Maui Police Department’s assertion that Russo “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,” the video clearly shows Russo was arrested for filming the Maui Police Officers and not for”obstructing a government operation,” as he’s been charged with (along with resisting arrest and harassment).

Indeed, the video shows Russo complying with officer Rusty Lawson’s request that Russo stand back. Indeed, the video shows Russo walking backwards, away from the officers as Lawson repeatedly says, “Stand back.” The video also shows that after Russo identified himself by name and as a member of the media–all the while walking back, away from the officers–Lawson arrested him anyway.

“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.”

Filming law enforcement officers on a public highway is protected under the First Amendment, states the American Civil Liberties Union.

He goes on the quote ACLU-Hawai`i senior staff attorney Dan Gluck about the first amendment right to "photograph anything that is in plain view... includ(ing) 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.”

So, chalk up another episode of Hawai`i cops harassing members of the media for taking pictures of them?

Well, not so fast there.

Russo has chosen to post the recording on YouTube so we took a look. And contrary to Russo's account the recording certainly does NOT show "Russo complying with officer Rusty Lawson’s request that Russo stand back" or most of the other contentions in the Maui Feed article.

As the recording plainly shows Russo was not arrested for taking video but, indeed, for failing to get the heck behind the parked cars as a safety measure after being informed of the safety issue and being asked four times by police to move behind the cars.

The recording shows Russo approached the officer and repeatedly barked questions at him regarding the traffic backup Russo claimed was being being created by the police action. Traffic was apparently moving at a regular pace in the clip. The officer can be seen standing about a foot or so away from the traffic speeding by and, after being told to stand "over there"- with the officer indicating he meant behind the stopped cars- Russo refused and was arrested .

When asked, the cop identified himself as Officer Fairchild.

Contrary to Russo's account, the recording plainly shows another officer- identified by Russo as Lawson- who then approaches him and repeatedly asks him to get behind the car for safety reasons or else, Lawson finally tells Russo, he would be arrested.

Russo ignored the officer and held his ground and finally the officer moved to arrest him at which point Russo started screaming "you touched me."

Then and only then, after the officer started to arrest him for failing to move to a safer location, did Russo start backing up, saying "I'm backing up" while apparently walking backwards very slowly as the officer was attempting to handcuff and arrest him.

The video shows Russo apparently resisting arrest, or at least he did not readily submit to arrest, as Lawson can be heard saying twice. And although there was no evidence the police cared a whit about Russo recording the operation as long as he did so from a safe place, he told the officer his name telling them he was a "member of the media," apparently intimating that he thought that conferred upon him some sort of special protection from arrest.

While simply recording something, including the police, is not a crime, members of the media have no special privileges as opposed to anyone else who is otherwise following the law and recording something. As long as they are doing the recording from a public right of way or a place where they have permission to be, all have the same right to record the police. While in some jurisdictions police will issue "press passes" that generally allow reporters behind "police lines," that did not seem to be the case here and Russo did not produce any press pass.

Why why do we care?

We've been defending the rights of people in Hawai`i to record the police without harassment or arrest for years now. Tucker's was not the first incident. And it seems like police departments around the state have finally starting issuing policy and procedure memos reminding officer that they can't arrest people simply for taking pictures of them as long as the person is otherwise complying with the law.

But when people like Russo claim the "right to photograph" cops on the job and then clearly create an unsafe condition by refusing to comply with repeated reasonable and legal requests to move to a safer location to record the police, he makes that right more tenuous for all of us by misrepresenting the whole event.

At no point did anyone ask Russo to stop taking pictures or even refer to the recording or his cell phone camera.

Taking photos is not a crime. But, the ACLU will tell you, one's right to take them doesn't confer the right to otherwise violate the law while doing so. Trying to toe that line is one thing but obliterating it as Russo did and then claiming his rights were violated puts everyone's right to photograph in jeopardy.

As the recording shows, Russo was rude and obnoxious and it appears has some kind of chip on his shoulder over the issue, thinking the cops knew or even cared who he was when all they apparently cared about was insuring safety on the roads by checking for illegally oversized vehicles and tinted windows. And of course, insuring their own safety in doing so.

It just takes one to ruin it for everyone. In this case it leaves us shaking our head and wondering what world Russo lives in... and what video he was watching.