Hawaii Protects Filming Police Inside Two Criminal Offenses, Not as a Standalone Right

The starting point is that Hawaii's obstruction offense is already narrow. HRS §710-1010(1) requires the obstruction to be carried out "by using or threatening to use violence, force, or physical interference or obstacle," so standing back and filming was never within the elements. The Legislature nevertheless found in 2016 that recordings of officers exercising their duties "may be seen as obstructing government operations," and added subsection (2)(c) to put the question beyond argument. The Legislative Reference Bureau prints that history in the supplemental commentary under the section, citing Senate Standing Committee Report No. 2525 and Conference Committee Report No. 129-16.

The second half of Act 164 matters just as much and is easy to miss. HRS §711-1111(1)(d) makes it violation of privacy in the second degree to install or use, in any private place and without the consent of those entitled to privacy there, a device for observing, recording, amplifying or broadcasting sounds or events. Act 164 added a proviso saying that paragraph "shall not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is in the performance of the officer's duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy and the person is not interfering with the officer's ability 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." Note the drafting difference between the two: §710-1010(2)(c) is phrased as a power the officer retains, while §711-1111(1)(d) is phrased as a condition on the recorder, that the person is not interfering. The practical test converges, but the second is the one that puts the burden on the person holding the camera.

Audio is separately safe in Hawaii because the state is a one-party consent jurisdiction. HRS §803-42(b)(3)(A) provides that it is not unlawful for a person not acting under color of law to intercept a wire, oral or electronic communication "when the person is a party to the communication or when one of the parties to the communication has given prior consent to the interception," unless the interception is for the purpose of committing a criminal or tortious act. A driver or bystander who is part of the exchange with an officer can therefore record the audio without asking, which is the opposite of the all-party-consent problem that constrains recording in some other states.

What the provisos do not cover is worth stating plainly. Neither section creates a right to enter a closed scene, to refuse a lawful order to move, or to keep possession of a device seized under a warrant. Both are worded around a public place or the absence of a reasonable expectation of privacy on the officer's part, so recording inside a private home where the officer is lawfully present sits outside the express carve-out and falls back on general privacy law. And §710-1010(2)(a) separately removes obstruction of the making of an arrest from the section entirely, which is a different exception with its own consequences, since interfering with an arrest is dealt with elsewhere in chapter 710 rather than being lawful.

If the carve-out does not apply, the underlying grading is what bites. Obstructing government operations under §710-1010(3) is a misdemeanor, punishable under HRS §706-663 by a definite term of imprisonment not exceeding one year and under §706-640(1)(d) by a fine of up to $2,000. " A person recording an officer who crosses into physical interference loses the §710-1010(2)(c) protection because the officer may take reasonable action to maintain safety and control and to secure crime scenes and accident sites, and under §711-1111(1)(d) the protection is conditioned on the person not interfering with exactly those functions.

Note also that the section's own printed commentary describes Act 150, Session Laws 1980, as having reduced the offense to a petty misdemeanor; the codified text in force today reads "misdemeanor" in subsection (3), and the text controls over the historical commentary note.