MauiTime Subpoena Withdrawn
June 30, 2011 | 07:56 AMWith little fanfare and no apology, the County of Maui has withdrawn the subpoena for all IP addresses in a 24-hour period of online commenters for an April MauiTime story. This marks the end of an absurd drama that has been hanging over the paper since the county issued the subpoena in late May.
"The Maui Police Department has clearly shown that they're incompetent, lazy or just a force for harassment," said Tommy Russo, MauiTime publisher. "They brass at MPD are wrong, and they know it."
It all began on April 14 when MauiTime published a story—which included video footage—concerning an incident in which Maui PD Officer Nelson Johnson struck Russo while trying to prevent him from filming both himself and the crew of Dog the Bounty Hunter in the Wailuku municipal parking lot. Online comments, virtually all excoriating the Maui PD, flooded the MauiTime website. Then one commenter, using the moniker, "Federal Reserve," wrote the following (errors in the original): "the MPD,, the ONLY reason I own a LARGE CALIBRE, high powered rifle. who needs criminals with this bunch of dog eating public menaces running around. Johnson needs a bullet when he walks out his door."
A month later, two Maui Police Officers showed up at the MauiTime office in Wailuku and asked Russo for the IP address of the individual who wrote the above comment. Russo refused to provide that or any other IP address. On May 24 Officers Wendell Loo and Stephen Orikasa returned with a subpoena asking for all the IP addresses of all commenters to the story within a 24-hour period that included "Federal Reserve's" statement. Once again, Russo refused to hand over any IP addresses. Then he told the officers that while they were at it they should also subpoena reddit.com, youtube and craigslist–those sites contained far more vitriolic and aggressive comments towards Maui police officers.
"You don't tell me how to investigate," Orikasa told Russo. "I will investigate how I like."
The matter moved to the courts. Two Maui judges recused themselves from the case, including District Court Judge Rhonda Loo, whose husband Wendell Loo is the Maui Police Officer who delivered the subpoena to Russo.
Through it all, Russo and MauiTime received support and attention from both national and local sources. Immediately after the county filed its subpoena, the Board of Directors of the Association of Alternative Newsweeklies (a trade group that includes MauiTime) unanimously approved a resolution "supporting the efforts of Maui Time to resist a subpoena that violates the First Amendment and the rights of the free press." What's more, Village Voice Media, the largest owner of alt weeklies in the nation, donated $1,000 to the paper for legal assistance. The chain also encouraged other papers to take a similar stand.
Even The Maui News editorialized against the subpoena. Calling the county's actions "ill-advised" and "scary," the paper said the comment in question did not "justify a fishing expedition through Maui Time's records."
MauiTime was preparing for an evidentiary hearing scheduled for June 30 in Judge Joseph Cardoza's courtroom when we received Tam's June 21 letter. "We have been advised by the Maui Police Department that they have been able to identify a person living on Maui who uses the name "Federal Reserve" on communications to the public," Deputy Prosecuting Attorney John E. Tam wrote to MauiTime attorney Philip H. Lowenthal on June 21. "Please therefore advise your client that the subpoena duces tacem that was issued for information on this posted comment is hereby immediately withdrawn."
On June 23, Lowenthal and fellow attorneys Benjamin E. Lowenthal and Samuel G. MacRoberts filed a notice of withdrawal of our motion to quash the subpoena, officially ending the matter.
And that was it. No apology for putting the legal screws to the paper, trampling the First Amendment, misusing the Grand Jury process or ignoring their own police procedures. Indeed, Tam's letter indicates that a Maui PD investigator "will seek to locate and interview this person ["Federal Reserve"] regarding a specific comment posted on the Maui Time webpage on April 15, 2011 at www.mauitime.com regarding "[Officer] needs a bullet when he walks out his door."
"Will" send an investigator? What took them so damn long? Using publicly available Internet search engines, this newspaper was able to determine the identity of "Federal Reserve" in about 0.17 seconds. Considering that police investigators–even those on Maui–have access to far more databases and investigatory equipment than our little alt weekly, Tam's statement would be hilarious if it didn't insult our intelligence so much.
Let's take the Maui PD at its word that the comment constituted "terroristic threatening" against one of their officers (that would be the aforementioned Johnson, who Tam wouldn't even name in his official subpoena withdrawal letter). Imagine someone went online and posted soemthing threatening the life of one of your loved ones. Wouldn't you expend all possible resources at your disposal to find out who the person was before taking the cumbersome and very controversial step of asking the Grand Jury for a subpoena against the news site that hosted the comments in the first place? Wouldn't you, at the very least, take the posted nickname of the commenter in question–in this case, "Federal Reserve"–and do a quick Internet search, to see if perhaps this person had made other similar, threatening comments elsewhere?
And yet, the county's subpoena shows that MPD did not literally lift a finger to ascertain the identity of the individual before getting a Grand Jury subpoena to allow them to wade barefoot through our sensitive computer records.
No one is safe when police departments leap to the throats of the media before exhausting the resources of their taxpayer-funded detective bureaus. Similarly, the county's Prosecuting Attorney's office erred egregiously when it simply rubber-stamped MPD's request for a Grand Jury subpoena.
But worst of all, the subpoena diverted attention away from the critical issue at the heart of Russo's original confrontation with Officer Johnson: Maui PD is far too aggressive when dealing with citizens who are trying to film them doing their jobs in public areas. This is not just a Maui problem, but a national problem.
On May 12, Rochester, New York police arrested Emily Good, who was standing on her front lawn, filming a routine traffic stop.
On April 9, Lonnel Duchine was standing in his own Vallejo, California garage filming cops as they arrested some neighborhood juveniles when the cops suddenly demanded his cellphone, saying what he was recording was "evidence." When he refused and handed the phone off to a friend, the police arrested Duchine.
In April 2010, Maryland state troopers indicted Anthony Graber for allegedly violating wiretap laws by videotaping them during a traffic stop without their consent.
In February 2009, East Haven, Connecticut police arrested Father James Manship (a priest!) for videotaping them at a small general store.
These are just a few of many, many cases of police officers roughing up citizens who dare to record their actions. They are the actions of police state thugs, not peace officers sworn to serve and protect the very citizenry who pay for their uniforms, training, weapons and salaries.
And they must stop. ■
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