Hawaiian Supreme Court Says The First Amendment Protects Filming Law Enforcement

from the another-feather-in-the-First-A's-cap dept

Thu, Dec 28th 2017 7:39pm — Tim Cushing

There's no unified national view on First Amendment protections for filming police, but a few recent cases have established this right in some judicial circuits. Until a case makes its way to the US Supreme Court, cops who don't like being recorded in public can still roll the dice on immunity when arresting people for operating cameras.

Via the Volokh Conspiracy (at its new, paywall-free home at Reason) comes another decision in favor of a First Amendment right to record. This one was delivered by the Hawaiian state supreme court, which at least ensures residents can't be hassled for recording officers… or at least ensures success in the pursuant lawsuit.

In this case, journalist Thomas Russo happened upon a police checkpoint and decided to film it. During his filming of a traffic stop, he was instructed to do several things -- like back up and turn his vehicle's hazard lights on. Every instruction given by officers appeared to be followed in Russo's recording but officers still arrested him and took his phone. The charges -- failing to comply with a lawful order and disorderly conduct -- were ultimately dismissed. The court examined the footage of the stop and found it did not show Russo disobeying orders. Anything that appeared as noncompliance on Russo's part was due to the vagueness of the officer's orders, rather than direct disobedience.

More importantly, the court takes a stand on the First Amendment issue.

We agree with the reasoning of the First Circuit and of other federal courts of appeal that have considered this issue. The rights to free speech and press serve not only to protect the individual's right to self-expression, but also to promote the vital goal of “affording the public access to discussion, debate, and the dissemination of information and ideas.” Bellotti, 435 U.S. at 783... This aspect of the First Amendment is all the more critical when the ideas and information sought to be disseminated pertain to government officials and law enforcement personnel, “who are granted substantial discretion that may be misused to deprive individuals of their liberties.” Glik, 655 F.3d at 82; see also Gentile, 501 U.S. at 1034-35. Public access to such information serves to guarantee “public oversight of law enforcement” and “minimizes the possibility of abuse by ensuring that police departments and officers are held accountable for their actions.” Peer News LLC v. City & Cty. of Honolulu, 138 Hawai‘i 53, 73-74, 376 P.3d 1, 22-23 (2016) (considering accessibility of police officer disciplinary records under state public records law). In light of these principles, this court likewise concludes that the “filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities,” Glik, 655 F.2d at 82, is protected by the First Amendment to the United States Constitution and by the independent protections afforded by article I, section 4 of the Hawai‘i Constitution.

[...]

In this case, Russo was engaged in video recording Officers Lawson and Fairchild as they conducted a traffic stop pursuant to a scheduled law enforcement action. Whether he was acting in an individual capacity or as a representative of the media, Russo's conduct in videotaping the police officers in public was protected by the First Amendment to the United States Constitution and article I, section 4 of the Hawai‘i Constitution.

[...]

[W]e observe that “[i]n our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights,” and, to ensure the protections that the First Amendment affords, officers may often be expected to show restraint when “they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.” Glik, 655 F.3d at 84.

As for the government's claims the officers had every right to arrest Russo for disobeying orders, the court has this to say:

The video footage stipulated into evidence by the parties shows that Russo did, in fact, comply with the officers' order. When Officer Fairchild instructed Russo to return to his vehicle and turn on his hazard lights, Russo complied. When Officer Fairchild waved his hand and directed Russo to “step off to the side” to avoid getting “run over,” Russo likewise complied--responding, “Okay,” and walking away from the general area to which Officer Fairchild had gestured. When Russo was subsequently approached and ordered by Officer Lawson to “stand back there,” Russo complied by taking a few steps away from the area and asking whether he could stand on private property. When Officer Lawson responded that he could not and ordered him to “stand back there,” Russo took several steps back towards the highway and asked, “Can I stand on public property?” When Officer Lawson then threatened Russo with arrest, Russo immediately began walking backwards, away from the area and towards the general direction to which Officers Lawson and Fairchild pointed. For the remainder of the video, as the police officers persisted in walking towards Russo and commanding that he “stand back there,” Russo continued to walk backwards and away from the traffic stop area. It appears from the video recording that Russo only stopped walking backwards when he was physically prevented from doing so and arrested by the officers.

Although Russo may have continued to engage Officers Lawson and Fairchild in conversation and questions during the encounter, the video itself plainly demonstrates that Russo obeyed their command. Russo appeared to make a concerted effort to comply with the officers' instructions, and the video shows that he walked away or backwards when ordered by the officers to step or stand back. The parties agreed that the video footage was the best evidence of the encounter, and the footage impels the conclusion that Russo did, in fact, comply with the officers' order. Thus, given the evidence in this case, there was no probable cause to support the charge of failure to comply with a lawful order of a police officer in violation of HRS § 291C-23.

Not only was it a baseless charge, it was stacked on top of a First Amendment violation and a catch-all "disorderly conduct" rap. No credit of good faith is given and the court finds in favor of Russo and filming police officers. It's a solid win for Hawaiian citizens and another favorable court opinion to be cited in upcoming courtroom battles.

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Filed Under: filming police, first amendment, free speech, hawaii

47 Comments

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Anonymous Coward, 28 Dec 2017 @ 7:58pm

The parties agreed that the video footage was the best evidence of the encounter

That this actually needed to be brought up in the decision though...

Officer: "What do you mean he was obeying orders, I just said he wasn't."

Everyone else: "Yes you did, but the video clearly shows he was."

Officer: "... Who are you gonna believe, me or your lying eyes?"
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Anonymous Coward, 28 Dec 2017 @ 8:07pm

http://en.wikipedia.org/wiki/Nasreddin

A neighbour came to the gate of Mulla Nasreddin's yard. The Mulla went to meet him outside.
"Would you mind, Mulla," the neighbour asked, "can you lend me your donkey today? I have some goods to transport to the next town."
The Mulla didn't feel inclined to lend out the animal to that particular man, however. So, not to seem rude, he answered:
"I'm sorry, but I've already lent him to somebody else."
All of a sudden the donkey could be heard braying loudly behind the wall of the yard.
"But Mulla," the neighbour exclaimed. "I can hear it behind that wall!"
"Whom do you believe," the Mulla replied indignantly, "the donkey or your Mulla?"
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Anonymous Coward, 28 Dec 2017 @ 10:10pm

That is one reason to link your phone with Find My Anroid.

If he had done, all he would have had to have done was to go home, log on to his Google account, and then send a command to the phone to password protect it, so the cops could no longer access it.

That is why I have my Android devices linked to that, so that if my phone ever is seized, I can log onto my Google account as soon as I get home, and send the command to lock it down with a password so it cannot be accessed.
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David, 29 Dec 2017 @ 12:29am

Re:
Once the phone has been entered into evidence, tampering with it will not earn you the sympathies of the court.
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Ninja (profile), 29 Dec 2017 @ 2:12am

Re:
This is particularly funny to me because in Portuguese the word 'mula' refers to another type of animal used to transport cargo. And it is a slang for 'idiot' as well.
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Ninja (profile), 29 Dec 2017 @ 2:14am

Re: Re:
Assuming any case will be made against you...
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Anonymous Coward, 29 Dec 2017 @ 4:16am

hope he is going to go for a lawsuit now. the only way to stop the police from violating citizens rights and wrongful arrest, while lying through their back teeth is to make them pay and put all cases in the media spotlight. if it results in some offices losing their jobs, so much the better!
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Anonymous Coward, 29 Dec 2017 @ 4:19am

Re: Re:
If they arrest you for locking down your phone with a password, you just post bail then not show up in court.

After you post bail, you just flee the country as soon as possible
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Anonymous Coward, 29 Dec 2017 @ 4:24am

Re: Re:
They would to prove that it was you that sent the command to lock the phone down with a password

First, you use a VPN or proxy to access your Google account, then after you have sent the command to lock the phone, you just run one of any number of programs out there to wipe the evidence off your hard disk, then just resintall Windows, so when they come to seize your computer to get evidence that it was you who locked down your phone, the evidence is not there.

No evidence = no case
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Anonymous Coward, 29 Dec 2017 @ 4:57am

Hawaiian Supreme
Is this a half-and-half pizza?
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Iggy, 29 Dec 2017 @ 6:31am

Unfortunately, what this story shows is theres a million ways for officers to harass citizens and journalists without technically arresting them for failing to stop filming. As another poster said, the only way to stop this behavior is to sue.
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Anonymous Coward, 29 Dec 2017 @ 6:38am

Re:
"the only way to stop this behavior is to sue."

nope, read history.
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Anonymous Coward, 29 Dec 2017 @ 7:26am

Re: Re:
Ok bloody revolution is better than attempting to solve this through the courts?
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Anonymous Coward, 29 Dec 2017 @ 7:38am

Re: Re: Re:
I didn't say that either. Just saying that he was wrong and to read history.

You should read it as well.
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Mason Wheeler (profile), 29 Dec 2017 @ 8:23am

Re: Re: Re:
...seriously? "Abandon your entire life and become a fugitive" is your answer? There is something severely wrong with you...
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Mason Wheeler (profile), 29 Dec 2017 @ 8:24am

Re: Re: Re: Re:
"History" is an extremely broad topic. Care to offer any less vague suggestions WRT what to read?
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Anonymous Coward, 29 Dec 2017 @ 8:55am

Re: Re: Re: Re: Re:
It is not so broad as you claim, considering the subject matter here any wise person should be able to quickly deduce the appropriate historical subject matter to check. Check any nation and its policing history, one will quickly learn that punishing the policeman does little. The policeman's boss or their boss' boss must be punished to stop the environment that breeds bad policing.

A police officer is just like any other human, if you give them clear orders that they cannot abuse their powers or else then they will respect them when they see their fellow officers getting into trouble from their BOSSES! Getting sued by "malcontented" citizens does not convey this message in any meaningful way. The police just consider it a lucky win for the oppressed and just keep oppressing because their bosses still have their backs!

This goes to show how humans will constantly serve the "group" or their "fraternity" over doing what is right. It is what entrenches the left/right rep/dem conflict that pervades American politics.

No one cares about what is right or wrong in practice, because they will not first fight the corruption in their own groups before running of to right the wrongs of others.
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Ben (profile), 29 Dec 2017 @ 9:34am

It's a solid win for Hawaiian citizens and another favorable court opinion to be cited in upcoming courtroom battles

Is it really? How much did it cost the reporter's side to fight this? How much did the citizens of Hawaii pay for defending what amounts to a stupid arrest? The win may be solid, but the road to get there was a little too mushy for my taste.
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Anonymous Coward, 29 Dec 2017 @ 9:48am

Re: Re: Re: Re: Re: Re:
Wow, more of this crappola - don't you get tired of spewing the perpetual dogma fed to you by your handlers?

"No one cares about what is right or wrong"

Who is this nebulous "no one" to which you refer? There are plenty of people out there who actually care about what is going on but apparently not enough of them are in positions of influence and/or authority. While your sacred politicians are busily stealing your past, present and future you whine about how the populace is not supporting your anarchist driven agenda.

Seriously, your bs is old and tired.
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Anonymous Coward, 29 Dec 2017 @ 10:00am

Re: Re: Re: Re: Re: Re: Re:
"you whine about how the populace is not supporting your anarchist driven agenda."

A lie, further proving my point that no one cares about right or wrong. You only care about your "groups" agenda and lying is just one wrong you "willingly" commit to advance that agenda.

"Seriously, your bs is old and tired."

The real BS is how you arrived at the conclusion that I was advocating for anarchy because I told someone that just punishing the bad cop is not enough to fix the problem.
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Anonymous Coward, 29 Dec 2017 @ 10:02am

Re:
I don't think they are capable of understanding something that complex to consider. As usual, superficial wins and chest beating will continue.
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Anonymous Coward, 29 Dec 2017 @ 11:26am

Re: Re: Re: Re: Re: Re: Re: Re:
"You're a liar", said the liar.
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Anonymous Coward, 29 Dec 2017 @ 11:27am

Re: Re:
.... and you want to be my latex salesman.
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Anonymous Coward, 29 Dec 2017 @ 11:28am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Point to the exact passage where I advocate where people overthrow the government and create anarchy.

I know you folks like to lie without evidence but at least try a little harder... liar.
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Anonymous Coward, 29 Dec 2017 @ 11:31am

Re: Re: Re:
Well... I did become your dad's latex salesman after you were born, so he send me your way.

I guess the thought of you successfully adding more offspring to the world was a bad idea to him.
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Anonymous Coward, 29 Dec 2017 @ 1:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Point to the exact passage where I advocate where people overthrow the government and create anarchy."

Please point to the exact passage where I accused you of advocating for the overthrow of .... anything - you damned anarchist - LOLOLOLOL
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Anonymous Coward, 29 Dec 2017 @ 1:10pm

Re: Re: Re: Re:
You don't watch Seinfeld do you?
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orbitalinsertion (profile), 29 Dec 2017 @ 1:35pm

Re: Re: Re:
If holding the button to power off the phone does not turn it off lock it, idk what is wrong with your phone. And you can do that with no problem at any time or while complying with an order to stop recording. If you want it recording as long as possible, you have to live with the possibility that they will poke it enough to keep it unlocked, unless you don't use a password, code, fingerprint, etc., lock when the screen goes off. Using a strong password only for screen timeout in that case would seem sensible yeah?
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Lawrence D’Oliveiro, 29 Dec 2017 @ 2:21pm

Re: nope, read history.
OK, let’s see: history ... history ... history ...

How about peaceful protest versus armed uprising?

Which one did a better job of getting public opinion on their side? Which one achieved more in the end?
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Anonymous Coward, 29 Dec 2017 @ 2:32pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Please point to the exact passage where I accused you of advocating for the overthrow of .... anything - you damned anarchist"

Right here...

"While your sacred politicians are busily stealing your past, present and future you whine about how the populace is not supporting your anarchist driven agenda."

if I have an "anarchist drive agenda" it means I seek to overthrow the government, or are you another one of the incompetent and ignorant lurkers here that does not know what words mean when you use them?
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Anonymous Coward, 29 Dec 2017 @ 2:45pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Is it possible to take one's self too seriously?
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Anonymous Coward, 29 Dec 2017 @ 4:43pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well I am just as good with a cop out as the next guy.

And no, it is not possible to take one's self too seriously in a debate about things.

If you did not mean to imply that, then I can accept that you did not choose the best words to convey your thoughts.

I am a stickler for definitions.
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Anonymous Coward, 29 Dec 2017 @ 4:47pm

Re: Re: Re: Re: Re:
Nope, I never saw the appeal, and apparently missed the reference you were making.
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Anonymous Coward, 30 Dec 2017 @ 7:39am

Re:
What is it the LEOs say?
You can beat the rap, but you can not beat the ride.
There was that one ride that ended up killing the perp, way to go LEOs - mission accomplished.
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Anonymous Coward, 30 Dec 2017 @ 7:41am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I rest my case
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Anonymous Coward, 30 Dec 2017 @ 7:46am

Re: Re:
"read history"

Hmmm, how about the rise and fall of the roman empire. Perhaps that would shed some light upon our present day perils.
No? That is not what you were getting at?

Ok, how about the rise and fall of the third reich.
No? Again?

Well, why don't you simply tell me what you are going on about?
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Anonymous Coward, 30 Dec 2017 @ 10:18am

Id be willing to respect their wishes on the individual level depending on their individual behaviour, when they start to codify laws that respect OUR wishes not to be seen as property to do as they please, laws that are strictly followed and not some damn placating lip service.

The existence of "intelligence services" shows the completely different directions THATS going in.......so, DONT BE FUCKING HYPOCRATE'S

You want respect, better show respect, well, when it comes to governmental laws, actions and promises, you need to stop the things you are ALREADY doing, JUST to come back to our level of mutual respect, to break even with the plebs on that proverbial (un)balancing scale between freedom and "security" ........

We still have a class systems people, upperclass, plebs, and the one ive recently realised, the old merchant class of the old england era.....we call them companies these days

"The more things change, the more things stay the same" (a completely contradictory quote, but damned if it dont apply sometimes)
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Anonymous Coward, 31 Dec 2017 @ 10:37am

We're at the point were its important to protect yourself from POS cops like this. Only complete submission and utter respect is expected from these POS cops otherwise they'll abuse the law as shown over and over.
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Anonymous Coward, 31 Dec 2017 @ 10:42am

Re:
Yep - otherwise no consequences for the POS cop
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Anonymous Coward, 31 Dec 2017 @ 10:47am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"I am a stickler for definitions."

no you are an idiot
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G Thompson (profile), 31 Dec 2017 @ 9:27pm

Re: Re: Re: Re:
Well... in all fairness there could be a one armed man after him, highly unlikely but meh...stranger things have occured
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Anonymous Coward, 1 Jan 2018 @ 2:10am

Re: Re: Re: Re:
That is assuming I was even charged in the first place

After sending the command to lock them them out of the phone, all I would have to do destroy any eviden, in my computer, of what I did.

Evidence Eliminator, CyberScrub, KillDisk, and a number of other products will defaeat all forensic tools.

No evidence = NO CASE

Hence, they would not have the evidence to prosecute me for either tampering with evidence, or obstruction of justice.

If they cannot recover any evidence, they cannot build case against you.
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Anonymous Coward, 1 Jan 2018 @ 2:17am

Re: Re: Re: Re:
Another way, which I do on road trips, before I do, is to lock the phone down with a password, so that if my phone ever is seized for any reason, the password will prevent them from accessing the phone. So when they turn it on again, they will greeted by a password screen, and will be unable to go through the phone.

Before you go on a road trip, it is good idea password protect the phone, so the cops cannot go through it, if it is seized for any reason
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Anonymous Coward, 2 Jan 2018 @ 7:30am

Re:
The police are all HUGE LIARS!!! I'd believe a so-called criminal these days over the police.
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Anonymous Coward, 2 Jan 2018 @ 10:47am

Re:
Officer: right thats it, you <points at the Judge> and you <points at the jury> are all under arrest for contempt of cop.
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Anonymous Coward, 2 Jan 2018 @ 10:48am

Re: Re: Re: Re:
It is if the local PD decide he's non-white and that they have to travel the 45 miles (at high speed) to the guys house (stopping off for donuts and beer) and shoot him and his dog in the back "in fear of their lives"
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Anonymous Coward, 2 Jan 2018 @ 10:45pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"I am a stickler for definitions."

Yet you don't know what words mean.
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