Sheriff’s deputies claim HIPAA violation, charge man with two misdemeanors for filming them in public
By End the Lie
In a strange case, Andrew Henderson from Minnesota was charged with two misdemeanors after he filmed two Ramsey County sheriff’s deputies in public. The most unusual aspect of the case is that one deputy said he violated the federal Health Insurance Portability and Accountability Act (HIPAA) in the process.
Getting arrested for filming police is hardly surprising these days, especially when people are brutally beaten for exercising their right to film police carry out their public duties in a public space.
Indeed, the cases have become so numerous that it has become somewhat expected at this point. This particular case, however, also involves alleged evidence tampering on the part of police, which is also disturbingly common when police brutality is filmed.
In this case, Henderson was filming deputies frisk a man with a bloody face outside his apartment building in Little Canada after which paramedics loaded the unknown man into an ambulance
“Police are in a position where they have a certain power that should be watched by the citizens,” Henderson said. If he lived in New York City, he would probably be labeled a “professional agitator” for this type of activity.
“The best way to watch them is to film them and hold them accountable for their actions,” Henderson added.
Jacqueline Muellner, a deputy since 1980, approached Henderson and confiscated the camera.
The audio of the encounter was captured by Henderson’s smartphone and is provided by the Pioneer Press.
“We’ll just take this for evidence,” Muellner said. “If I end up on YouTube, I’m gonna be upset.”
Henderson, who insisted that he was well within his rights to film them, refused to give his name to Muellner.
Indeed, according to Jane Kirtley, a professor of media ethics and media law at the University of Minnesota, agrees that Henderson was within his rights.
“I wish the police around the country would get the memo on these situations,” Kirtley said. “Somebody needs to explain to them that under U.S. law, making video recordings of something that’s happening in public is legal.”
According to Kirtley, the courts have been “pretty clear” on the issue.
“Law enforcement has no expectation of privacy when they are carrying out public duties in a public place,” Kirtley added.
While the spokesman for the Ramsey County sheriff’s office, Randy Gustafson, refused to comment on the details of the case since it’s an “ongoing investigation,” he did tell the Pioneer Press, “It is not our policy to take video cameras.”
“It is everybody’s right to (record) … What happens out in public happens out in public,” Gustafson said.
Yet Gustafson said that when an officer decides the recording is needed for evidence, the officer would take the recording and send it to investigators. Gustafson claimed that the officer would return the camera on the spot, which Muellner did not do.
Henderson said that the day after his camera was taken by the deputy on Oct. 30, he went to the sheriff’s substation to retrieve it. When he did, he says that he was told the camera would not be returned to him at that time.
A week after that, Henderson was charged with two misdemeanors: disorderly conduct and obstruction of legal process.
According to Henderson, a 28-year-old welder by trade, he was filming from around 30 feet away and the deputies did not warn him before Muellner took his camera.
In the citation, Muellner wrote, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.”
Jennifer Granick, a specialist on privacy issues at Stanford University Law School said that the deputy’s claim that his recording somehow violated HIPAA was pure nonsense.
“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets,” Granick said. “HIPAA has absolutely nothing to say about that.”
HIPAA deals with the handling of private health information by healthcare providers.
Indeed, Granick said that she had actually never heard of a case in which any law enforcement agency attempted to cite HIPAA to prevent someone from recording.
When Henderson returned to the sheriff’s office in mid-November to retrieve his camera and get a copy of the police report, deputy Dan Eggers would not give him either.
Instead, Eggers pulled Henderson aside to talk to him, which again was recorded by Henderson.
“I think that what (the deputies) felt was you were interfering with someone’s privacy that was having a medical mental health breakdown,” Eggers said. “They felt like you were being a ‘buttinski’ by getting that camera in there and partially recording what was going on in a situation that you were not directly involved in.”
Eggers said that Henderson should “have a little respect” for the unknown man’s privacy.
Interestingly, Eggers said that the incident report noted that nothing was recorded on Henderson’s camera.
Eggers asked, “I mean, were you just pointing it?”
“No. It was deleted,” Henderson replied.
“You deleted it?”
“No. She [Muellner] must have deleted it,” Henderson said.
Eggers claimed that such a thing was simply not possible. “There would have been some documentation about that,” Eggers said.
One might point out that people don’t usually document when they illegally destroy evidence.
Kirtley noted that the seizure of the camera, followed by the alleged destruction of the recording “raises significant Fourth Amendment issues for [Henderson] … The seizure here was not to preserve the evidence — it was to destroy the evidence.”
The day after Henderson’s conversation with Eggers he received a copy of the incident report and two days later his camera was finally released.
Interestingly, while Muellner’s personnel file “includes numerous awards, commendations and thank-you letters,” according to the Pioneer Press, she does have two citizen complaints from the 1980s, although the sheriff’s office said the complaints were “not sustained.”
Henderson, who posted a video on YouTube explaining his side of the story (see below) says he will not take a plea deal if offered one by prosecutors since he’s “in the right.”
“If they don’t drop it, I’m definitely going to trial,” Henderson said.
Henderson, who is representing himself in court, appeared in Ramsey County District Court on Jan. 2 and a pretrial hearing was rescheduled for Jan. 30.
“He said he reached out to the ACLU more than a month ago, but was ignored,” according to Carlos Miller.
When a police officer can be targeted by their department for actually protecting the public or thrown in a psychiatric ward for reporting corruption, it seems that negative behavior from law enforcement is almost guaranteed.
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