Pioneer Press | January 8, 2013
By Emily Gurnon

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 out of his hand, Henderson said.

"We'll just take this for evidence," Muellner said. Their voices were recorded on Henderson's cellphone as they spoke. Henderson provided a copy 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 nationally involving citizens recording 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."

Kevin Beck, whose law firm prosecutes non-felony 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, regarding his motivation for the recording. "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.

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 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 around Nov. 17 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 him 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.

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

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

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

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.