Your Right to Record Cops on Duty and in Public

State v. Russo (HSC December 14, 2017)

Background. Maui Police Department officers were conducting traffic surveillance on the side of Haleakala Highway. Thomas Russo stopped his vehicle on the road shoulder and started to record the officers on his phone. Russo first approached Officer John Fairchild. Officer Fairchild asked Russo to turn his hazard lights on. Russo says he can do that and starts walking back to his vehicle and turns his hazard lights on. Russo briefly talked to Officer Fairchild about slowing down traffic “all the way up to Haliimaile.” Officer Fairchild told him that they were pulling cars off the roadway into an area on the shoulder so Russo would have to “step off to the side.” Officer Fairchild said “I don’t want you to get run over.” Russo replied, “Okay.”

Russo next again approached the officers and walked past Officer Fairchild. He approached Officer Rusty Lawson, who was standing near a vehicle that had been stopped. As Russo neared him, Officer Lawson leaves his position near the vehicle and approaches Russo. He told Russo to “stand back there” and points in the general direction toward Officer Fairchild. He told Russo that he was obstructing a government operation. Russo walked backward but kept recording. Officer Lawson kept telling Russo he needed “to stand back there.” Russo asked where could he stand? At one point Russo stood near the vehicle on a field near the road shoulder, but Officer Lawson said to stand “back there, you’re on private property.” Russo stepped back and asked if he could stand on public property. By then Officer Lawson moves toward Russo, grabbed him, and arrested him as Russo started walking backward away from the officers.

See it for yourself.

Russo was charged by way of complaint of failing to comply with a lawful order in violation of HRS § 291C-13. Russo filed a motion to dismiss on the grounds that there was no probable cause underlying the charge and on the grounds that the prosecution violated his right to free speech and press. The motion was granted on non-constitutional grounds. The prosecution appealed and the ICA vacated the dismissal order without examining the constitutional issue. Chief Judge Nakamura dissented. Russo petitioned for certiorari.

Your First Amendment Right to Record Police Officers in Public. A person commits the offense in HRS § 291C-13 when the person willingly fails or refuses to comply with “any lawful order or direction” of a police officer. The issue in this case is whether Officer Lawson’s direction to “stand over there” and “get back” were lawful in light of Russo’s constitutional rights.

“Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. Am. I. Similarly, “[n]o law shall be enacted . . . abridging the freedom of speech or of the press.” Haw. Const. Art. 1, Sec. 4. These freedoms encompass the right to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972); Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).

And based on these cases, there are numerous courts that have recognized that individuals have the constitutional right to photograph and film police officers in public places. Gilk v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“filing of government officials engaging in their duties in a public place, including police officers performing their responsibilities” protected); Turner v. Lt. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police.”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012).

The HSC adopted the federal cases and agreed that under both constitutions, an individual has the right to record public officials engaged in their duties in a public place, including the police.

But it’s not an Unlimited Right . . .

This right to record the police “may be subject to reasonable time, place, and manner restrictions.” Gilk, 655 F.3d at 84. A time, place, and manner restriction can be imposed by the officer “only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere with [the officer’s] duties.” Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014).

The HSC also adopted this limitation and added that once issued, “police orders pertaining to the time, place, and manner of filming must be narrowly tailored to mitigate the actual damage or risk posed by the recording and leave open ample alternative channels to engage in the protected activity, consistent with established principle of First Amendment jurisprudence.” It must also be clearly and unambiguously communicated by the officer so that “ordinary individuals exercising their constitutional rights to free speech can readily identify the conduct that the order prohibits.” See LeMay v. Leander, 92 Hawaii 614, 625, 994 P.2d 546, 557 (2000).

Despite establishing these standards, the HSC did not apply it to the case here because it resolved the case on other, more pedestrian grounds.

The Ol’ Probable Cause Problem. The HSC held that there was insufficient probable cause to support the charge. Probable cause is “established by a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” State v. Atwood, 129 Hawaii 414, 419, 301 P.3d 1255, 1260 (2013). Here, the HSC examined the recording, which was stipulated into evidence at the hearing on the motion to dismiss, and concluded that—even if the officers’ commands were unconstitutional—Russo was complying with them. Compliance with the officer’s order rendered the charge against Russo fatal for the prosecution.

An Interesting Point . . . This case has a lot of pronouncements: a newly-fashioned constitutional right under the Hawaii Constitution, limitations of that right, and standards for police departments across the State to consider for the new year.

But it also finally, without expressly stating it, stands for the very simple and basic notion that like the indictment issued by the grand jury and as with a complaint after a preliminary hearing, a complaint alleging a criminal offense must still be backed by probable cause.

Mahalo and Disclosure. I worked on this case. First, Sam MacRoberts represented Russo in the district court and filed and argued the motion to dismiss. I represented Russo on appeal in the ICA and in applying to the HSC. Jacob Lowenthal represented Russo at oral argument in Hilo. Mahalo everyone!