Tommy Russo’s life changed forever the morning of Nov. 20, 2012.

That’s when the MauiTime publisher was arrested after videotaping two Maui County police officers with his iPhone as the cops were conducting an operation along Haleakala Highway targeting drivers with illegal window tinting.

The four-minute video shows Russo asking Officers Rusty Lawson and John Fairchild why they had backed up traffic for miles. It ends with Russo’s arrest for interfering with a government operation, harassment and resisting arrest.

He was later charged in a complaint with “failure to comply with a lawful order or direction” of a police officer, and disorderly conduct, both violations of state law.

A still from video of Maui Police Department Officers Rusty Lawson and John Fairchild approaching Tommy Russo in November 2012. YouTube

Last week, the Hawaii Supreme Court ruled that Russo had, in fact, responded to the officers’ orders. It thus dismissed the case of State of Hawaii vs. Russo and gave the defendant some news to celebrate.

But the high court also recognized, as other courts have, that there is a constitutional right to film the official activities of cops in public places. That’s important for Hawaii, which has its crop of cops behaving badly.

Maui Time Publisher Tommy Russo. 

“We’re pleased the court ruled in our favor,” said Russo, 44, who lives in Wailuku. “It’s unfortunate that, with all the national attention to filming police officers in the line of duty, Maui County has not successfully trained their officers.”

Russo continued: “But the bigger problem is, why did Maui County Prosecutor John Kim hold this up for five years?”

Update: Kim did not respond to Civil Beat’s inquiry about the case before we published. Nor did Gregg Okamoto, public information officer for the Maui Police Department.

But Kim spoke with Civil Beat Thursday morning.

“I read somewhere that he was upset that I went after him for five years,” he said. “We appealed the case because we thought the judge was wrong with the facts and circumstances of what went down. We work with law enforcement, and we are told that their safety zone is 21 feet. If they are doing their job, you have to be 21 feet away because we don’t want officers’ attention taken away from what they are doing.”

Kim continued: “We don’t oppose filming or videotaping the police doing their job. It’s just that they should not have come into their safety zone. That was our basic stance.”

Bad Blood?

Russo makes clear that he believes there has been bad blood between him and Maui County officials. And the content of MauiTime, a news, arts and culture weekly, is a major reason.

Consider a July 2011 cover story titled “Lawsuit Alleges Harassment And Sleaze At Maui Prosecutors Office” that begins this way:

Pornographic images downloaded on official county computers. Spurned lovers. Jealous superiors. Inter-office romance gone bad. Demeaning comments about breasts and pregnancy. Falsified attendance reports. Rampant name-calling.

This is juicy stuff, but it’s not from a cheesy beach novel or even a new Fox reality series. These are allegations leveled against the County of Maui’s own Department of the Prosecuting Attorney, laid out in a new lawsuit filed in both state and federal court in late May by former county Deputy Prosecuting Attorney Jacki Jura.

The story was written by Anthony Pignataro, MauiTime’s editor.

The Jura case, which was later dismissed, named as one of its defendants another former deputy prosecuting attorney, Marie Kosegarten. Kosegarten’s own lawsuit against the Maui office, which alleged her mistreatment by the department, was tossed in 2013.

Kim has run the department since Mayor Alan Arakawa appointed him in 2010. He previously served as deputy prosecuting attorney for 17 years.

‘Alleged Favoritism’

John Kim Courtesy

In 2015, Pignataro wrote that the “office had definitely calmed down” under Kim. But in the same story, which was about Kim’s reappointment, he also described a “bizarre” County Council hearing on the matter.

“Kim’s reappointment this year was supposed to be easy — not the often comical circus that finally ended on Mar. 3 with his confirmation,” Pignataro wrote. 

On Feb. 18, the Maui County Council brought up Kim’s reappointment, and were set to rubber-stamp it like they do for nearly every other mayoral appointment. But then a few current and former clerical employees of the Prosecutor’s Office came forward to tell dark tales of ‘alleged favoritism’ and ‘mismanagement’ of Kim, everything went sideways.”

Pignataro dutifully noted in that article that Kim at the time was appealing a District Court judge’s ruling that threw out the the criminal prosecution of Russo.

The editor seems to have relished reporting on Dec. 14 the Hawaii Supreme Court’s dismissal of the same case.

“They put me through hell — in fact, they have broken me.” — Tommy Russo on Maui County officials

Pignataro recapped the 2012 incident as a “very long, stupid story short” and noted that the charges had been dismissed “with prejudice,” meaning, he explained, “the ruling is on the merits of the case and the state cannot bring action again on this claim.”

Russo’s Maui attorney, Jacob Lowenthal, said he did not know whether the case might be appealed.

“I certainly hope not,” he said. “The writing on the wall is clear that citizens have a First Amendment right to film police doing their duties in traffic stops as long as they don’t interfere. It has to be in a reasonable time, place and manner.”

Update: Kim told Civil Beat Thursday the case would not be appealed.

The news makes the news: The cover of MauiTime, Nov. 29, 2012. Art_Director

Lowenthal said he hoped Maui County would instead incorporate the court’s ruling into prosecutorial directions and police regulations.

For his part, Russo is gratified that his case is now a matter of case law nationally. But it comes at a cost.

“They put me through hell — in fact, they have broken me,” he said. “I am afraid they have had a chilling effect on my activities. I don’t film police officers anymore. I am afraid for my life, so they won, ultimately. They sidelined someone that was holding someone accountable.”

Russo does take satisfaction, however, in the fact that the Legislature in 2016 passed Act 164 — or the Tommy Russo Act, as Russo likes to call it. It amends state law to require the following:

Establishes exceptions to the offense of obstructing government operations and the offense of violation of privacy in the second degree for a person making a video or audio recording or photograph of a law enforcement officer while the officer is in the performance of duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy; provided that the officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.

The bill’s authors included two Maui senators. Opponents included the prosecuting attorneys’ offices on Oahu and Kauai, the Honolulu Police Department and the Department of the Attorney General.

The work of Russo and MauiTime, which he began in 1997, will continue.

A 2013 profile of Russo by Civil Beat captured that work well:

Tommy Russo has a nose for bullshit. Political malfeasance? Animal cruelty? Police corruption? Environmental hazards? The Maui Time publisher and his shoestring staff routinely sniff out stuff people in power don’t want discovered.”

Hawaii Supreme Court Opinion Dec. 14, 2017, In Hawaii Vs. Russo:

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