Hawaiian Supreme Court Says The First Amendment Protects Filming Law Enforcement

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

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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Comments on “Hawaiian Supreme Court Says The First Amendment Protects Filming Law Enforcement”

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Anonymous Coward says:

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?"

Anonymous Coward says:


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?”

Anonymous Coward says:

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.

Anonymous Coward says:

Re: Re: Re:2 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.

orbitalinsertion (profile) says:

Re: 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?

Anonymous Coward says:

Re: Re: Re:2 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

Anonymous Coward says:

Re: 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

Anonymous Coward says:

Re: Re: Re:3 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.

Anonymous Coward says:

Re: Re: Re:4 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.

Anonymous Coward says:

Re: Re: Re:5 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.

Anonymous Coward says:

Re: Re: Re:9 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?

Anonymous Coward says:

Re: Re: Re:11 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.

Ben (profile) says:

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.

Anonymous Coward says:

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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