No. SCWC-14-0000986, Thursday, November 9, 2017, 10:00 a.m.

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, vs. THOMAS A. RUSSO, Petitioner/Defendant-Appellee.

The above-captioned case has been set for argument on the merits at:

 University of Hawaiʻi at Hilo Performing Arts Center
200 W. Kawili Street
Hilo, HI 96720

Attorneys for Petitioner:

Jacob K. Lowenthal, Benjamin E. Lowenthal, and Samuel G. MacRoberts

Attorneys for Respondent:

Richard K. Minatoya and Artemio C. Baxa, Deputy Prosecuting Attorneys

NOTE: Order accepting Application for Writ of Certiorari, filed 08/01/17.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]  
  
Brief Description:

On November 20, 2012, Petitioner Thomas Russo (Russo) pulled over onto the shoulder of Haleakala Highway to investigate a traffic enforcement operation being conducted by officers of the Maui Police Department (MPD).  Upon exiting his vehicle, Russo walked toward the cars that were parked in front of him on the side of the highway.  Russo spoke with a MPD officer while video recording his interaction with police on his cellular phone.  A short time later, a second police officer at the scene stated that he instructed Russo several times to “stand back” but that Russo failed to comply.  The officer then arrested Russo for failure to comply with a lawful order or direction of a police officer in violation of Hawaii Revised Statutes (HRS) § 291C-23 and disorderly conduct in violation of HRS § 711-1101(1)(d).  Russo pleaded not guilty to the charged offenses.  

On December 27, 2013, Russo filed a motion to dismiss the charges against him.  In his motion, Russo argued that his conduct was protected by the First Amendment to the United States Constitution; that the charges against him were not supported by probable cause; and that the statutes under which he was charged were unconstitutionally void for vagueness and overbreadth.  The State opposed Russo’s motion.  On May 17, 2014, a hearing was held on the motion, at which testimony was elicited and the video recording was played.  On July 9, 2014, the district court issued its oral ruling, findings of fact, and conclusions of law, concluding, inter alia, that HRS § 291C-23 did not apply to Russo’s conduct and dismissing both charges for lack of probable cause (order of dismissal).  

The State appealed the dismissal of the charge of failure to comply with a lawful order of a police officer.  On March 31, 2017, a majority of the Intermediate Court of Appeals (ICA) disagreed with the district court, determining that HRS § 291C-23 applied to Russo’s conduct and also concluding that there was probable cause to support the charge of failure to comply with a lawful order of a police officer.  The ICA majority accordingly vacated the district court’s order of dismissal and remanded the case for further proceedings.  Chief Judge Craig H. Nakamura issued a concurring and dissenting opinion, in which he agreed with the ICA majority’s interpretation of HRS § 291C-23, but disagreed that the charge of failure to comply with a lawful order of a police officer was supported by probable cause.

In his application for a writ of certiorari, Russo argues that the ICA erred in vacating the district court’s order of dismissal.  According to Russo, even if the ICA concluded that the district court’s interpretation of HRS § 291C-23 was incorrect, the ICA should have affirmed the order of dismissal because there was no probable cause to support the charge of failure to comply with a lawful order of a police officer.  In addition, Russo asserts that the ICA majority erred in not considering the merits of his First Amendment argument that he has a constitutional right to film police activity, subject to reasonable time, place, and manner restrictions.  Furthermore, Russo contends that the district court incorrectly concluded that he had the burden of proof to establish that the police instructions were unreasonable.