[Infowarrior] - HIPPA used by cops to charge public photographer

[Richard Forno]

(The HIPPA angle is a bit into the article but seriously.  ---rick)

Little Canada man videotaped sheriff's deputies, and got charged for it

By Emily Gurnon
egurnon at pioneerpress.com
Posted:   01/08/2013 12:01:00 AM CST
Updated:   01/08/2013 11:37:23 PM CST

 http://www.twincities.com/localnews/ci_22333563/little-canada-man-videotaped-sheriffs-deputies-and-got

Andrew Henderson and his camera with the parking lot of his Little Canada apartment building in the background, where he filmed Ramsey County deputies arresting a man. His camera was confiscated and he was charged with obstructing justice. He plans to sue. (Pioneer Press: John Doman)
Andrew Henderson watched as Ramsey County sheriff's deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.

Henderson, 28, took out his small handheld video camera and began recording. It's something he does regularly with law enforcement.

But what happened next was different. The deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said.

"We'll just take this for evidence," Muellner said. Their voices were recorded on Henderson's cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. "If I end up on YouTube, I'm gonna be upset."

Henderson calmly insisted he was within his rights to do what he was doing. He refused to give his name.

His is the latest in a string of cases nationwide involving citizens who record police activities.

"I wish the police around the country would get the memo on these situations," said Jane Kirtley, professor of media ethics and media law at the University of Minnesota. "Somebody needs to explain to them that under U.S. law, making video recordings of something that's happening in public is legal."

The courts have been "pretty clear" on the issue, Kirtley said. "Law enforcement has no expectation of privacy when they are carrying out public duties in a public place."

Randy Gustafson, spokesman for the Ramsey County sheriff's office,

declined to discuss details of the case, saying it is an "ongoing investigation."
But, he said, "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."

One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said.

Kevin Beck, whose law firm prosecutes nonfelony cases for Little Canada and other cities, declined to comment Tuesday, Jan. 8, on the specifics of Henderson's case.

Henderson said he carries his camera with him and uses it often. Occasionally, he will post something online.

"Police are in a position where they have a certain power that should be watched by the citizens," he said, explaining his motivation. "The best way to watch them is to film them and hold them accountable for their actions."

The day after Henderson's camera was taken Oct. 30, he went to the Arden Hills sheriff's substation to get it back.

He gave staff there his name. The camera, they said, would have to wait, according to Henderson.

A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors.

He had been filming from about 30 feet away, he said. Henderson said deputies gave him no warning before Muellner took his camera.

The deputy wrote on the citation, "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."

Henderson appeared in Ramsey County District Court on Jan. 2. A pretrial hearing was rescheduled for Jan. 30.

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

The rule deals with how health care providers handle consumers' health information.

"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."

She had never heard of a case in which a law enforcement agency cited HIPAA to bar someone from recording, she said.

Henderson went back to the sheriff's office in mid-November to get a copy of the report and try once again to retrieve his camera. Deputy Dan Eggers refused to give him either. He pulled Henderson aside.

"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, as heard on another recording Henderson made. "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."

He suggested that Henderson should "have a little respect" for people's privacy.

Henderson reiterated that he was doing nothing illegal.

Eggers noted that the incident report said nothing was recorded on the camera.

"I mean, were you just pointing it?" he asked Henderson.

"No. It was deleted," Henderson surmised.

"You deleted it?"

"No. She must have deleted it," Henderson said, referring to Muellner.

Not possible, Eggers replied. "There would have been some documentation about that."

Beck, representing Little Canada, said Tuesday that any allegation that Henderson's video was deleted is false.

Kirtley said the seizure and alleged erasure of the recorded material "raises significant Fourth Amendment issues for him ... The seizure here was not to preserve the evidence -- it was to destroy the evidence."

The Fourth Amendment guards against unreasonable search and seizure.

Henderson got a copy of the report the day after his conversation with Eggers. His camera was released to him two days later.

Muellner has been with the sheriff's office since 1980. Her personnel file includes numerous awards, commendations and thank-you letters. There are two citizen complaints from the 1980s, found by the office to be "not sustained."

Henderson said he does not intend to make a plea deal with prosecutors if one is offered.

"I'm in the right," he said. "If they don't drop it, I'm definitely going to trial."

Henderson works as a welder and does not qualify for a public defender. He is representing himself in court.

Emily Gurnon can be reached at 651-228-5522. Follow her at twitter.com/emilygurnon.

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Just because i'm near the punchbowl doesn't mean I'm also drinking from it.