HIPAA – Health Insurance Portability and Accountability Act is a federal law designed for how health care providers handle a person’s personal health information.
However, in Little Canada, Minnesota, a quaint little suburb of about 10,000 just 7 miles due north of St. Paul, sheriff’s deputies have issued a citation to Andrew Henderson for violating the HIPAA laws while video recording them in action on a public street.
The incident all started October 30 of last year when Henderson happened upon a scene and pulled out his small video camera as he often does. He filmed the police frisking a bloody man and then loading him into an ambulance. Then Sheriff Deputy Jacqueline Muellner went up to Henderson, who was about 30 feet away from the scene, grabbed his video camera out of his hand and told him:
“We’ll just take this for evidence.”
When Henderson protested her actions, she wanted his name and he informed her that he had the legal right to video in public and that he wasn’t going to give her his name. In the course of the discussion, she told Henderson:
“If I end up on YouTube, I’m gonna be upset.”
What Muellner didn’t know at the time was that Henderson was recording the audio of everything taking place on his cell, which captured his confrontation with the deputy. Some of the conversation is hard to make out because of the engine noise of the ambulance, but you can hear most of what was said:
The next day, Henderson went to the Arden Hills sheriff’s substation to retrieve his video camera but was denied and told the camera had to wait.
A week after trying to retrieve his video camera, Henderson was cited for obstruction of legal process and disorderly conduct. Both charges are misdemeanors which Henderson says he is not guilty of and will fight both charges in court. On the citation, Deputy 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.”
In mid-November, Henderson returned to the sheriff’s substation to attempt to retrieve his video camera again and to obtain a copy of the police report filed with the charges against him. Deputy Detective Dan Eggers beat around the bush and gave Henderson obvious stalling tactics before finally refusing to give him the camera or a copy of the report which he is legally entitled to. Once again Henderson had his cell phone recording the conversation with Eggers:
The next day, Henderson finally received a copy of his report, but it took two days to get his camera back. It also seems that somewhere along the line, the video file he recorded that day had mysteriously been deleted. Deputy Eggers said that it’s not the policy of their department to delete files, and Henderson knows for a fact that he was recording. He strongly suspects Deputy Muellner deleted the file, especially when she had told him that she would be very upset if she ended up on You Tube.
Commenting on what happened to Henderson, University of Minnesota Professor of Media Ethics and Media Law, Jane Kirtley, said:
“I wish the police around the country would get the memo on these situations. Somebody needs to explain to them that under U.S. law, making video recordings of something that’s happening in public is legal.”
“Law enforcement has no expectation of privacy when they are carrying out public duties in a public place.”
Stanford University Law School expert on privacy issues, Jennifer Granick says that she has never heard of any law enforcement officer or organization ever using HIPAA to prevent someone from filming anything. She also commented on the case with reference to Muellner’s citation invoking a violation of HIPAA privacy laws, saying:
“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets.”
All of you are familiar with your Miranda rights (they don’t call them that anymore, but you know what I mean), where it says that if you cannot afford an attorney that one will be appointed for you. Well, since Henderson works as a welder, he has been told that he does not qualify to have a public defender represent him in court. Therefore, he plans to represent himself, if the charges are not dropped.
One of his defenses that he plans on using is the Fourth Amendment which protects US citizens from unlawful search and seizure. He argues that when Deputy Muellner seized the video camera from him, she did so without any prior warning, constituting a violation of the Fourth Amendment.
The incident with Henderson seems to be a growing trend with police throughout the nation. I suspect that after some officers have been videoed beating suspects and committing other unlawful acts, that they are afraid of being recorded and having it used against them. My argument to that is simple. They are officers of the law and should therefore be acting in a lawful manner at all times. If they are, then they should welcome being filmed in case anyone files false charges against them. If I were the mayor of a town or the chief of police, I would start an investigation of any police officer who protested or took actions against anyone videoing them, because it sounds like they may have something to hide.
I hope that the charges against Henderson are dropped and if not, that one of the legal foundations would pick up his case and defend him in court.