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February 27, 2014

Minn. man on trial for filming police, medics with patient

He's being charged with interfering with emergency medical care, but says he has the First Amendment right to record law enforcement personnel

By Richard Chin
Pioneer Press

LITTLE CANADA, Minn. — Andrew Henderson said he routinely carries a video camera with him and films police officers in their duties "to promote accountability."

But a prosecutor argued in Ramsey County District Court that the 29-year-old welder from Little Canada committed a crime when he filmed police and an ambulance crew taking a heavily intoxicated man away in an ambulance.

Henderson is accused of disorderly conduct and interfering with an ambulance crew in an Oct. 30, 2012, incident in which he was outside his apartment building on the 200 block of East County Road B2 shortly before midnight.

An ambulance crew and Ramsey County sheriff's deputies were called to the building to check on the welfare of an intoxicated man who also lived in the building, had been in a recent auto accident, had quit his job and wasn't answering or returning his sister's phone calls.

At his trial on the misdemeanor charges, which began Wednesday, Henderson testified that a Ramsey County sheriff's deputy told him "if she ended up on YouTube, she was going to be upset."

Henderson said he replied that he was not doing anything wrong, but the deputy took his video camera.

About a week later, he was cited on misdemeanor charges, he said. He said he wasn't able to get the camera back from the police for about three weeks after the incident. He said he thought he would be exonerated by the evidence from the video recording. But he said there was no video recording saved on the camera.

"I was extremely surprised," Henderson testified. "I knew I was recording that."

"I record just about every other day," he said.

Henderson's case has drawn the attention of civil liberties advocates. The Minneapolis-based law firm Fredrikson & Byron is providing free legal representation to Henderson in association with the American Civil Liberties Union of Minnesota.

A handful of spectators in the audience at the trial included a blogger, a law student and a motorist who likes to record video from his vehicle's dashboard camera.

"It's the principle of it," Henderson said after opening statements in the case. "It's our First Amendment right to film law enforcement personnel."

But Kevin Beck, prosecuting the case for Little Canada, said Henderson is not being prosecuted for filming a police officer. He's being charged with interfering with emergency medical care.

Joshua Norgaard, an Allina Health Emergency Medical Services paramedic who was on the ambulance call that night, said that as the drunken man was being taken out of the building, Henderson was about three to four feet away, filming the emergency workers conducting a medical assessment and the police frisking the man.

"It caught my attention because he was so close," Norgaard said. He said he asked Henderson to stop filming.

"Part of my job as a paramedic is to be an advocate for the patient," Norgaard said. "I wanted to protect his privacy by not having him filmed."

Norgaard said Henderson refused.

"I've never had anybody tell me no. Everybody always puts their phone away," he said.

He said Henderson's actions delayed or impeded his ability to provide medical care to the drunken man and get him to the hospital.

But under questioning from Henderson's lawyer, Norgaard said Henderson never got between him and the drunken man or between the man and police.

And Henderson testified that Norgaard never asked him to stop filming.

Norgaard said he told sheriff's deputy Jacqueline Muellner about Henderson. She testified that "I took his camera basically for evidence."

"This person had a right to privacy," she said of the drunken man being put in the ambulance. She said she didn't have a problem with people filming police while working on a criminal matter.

But, she said, "This person is having a bad day. It doesn't need to be documented in that way."

She said Henderson refused to identify himself, and he insisted he had a right to film the incident. She said that when she left the scene, she checked the camera but wasn't able to see any recording.

But under a cross-examination, she admitted, "I didn't understand the camera."

Under questioning by Henderson's lawyer, Muellner also said she left the camera on the seat of her squad car overnight. She said it was then in her office mailbox for a period of time before being placed in a secure property locker a day or two after the incident.

After the testimony, Henderson's lawyer, Kevin Riach, asked Ramsey County District Judge Diane Alshouse to dismiss the case. Riach said that if there was any obstruction of medical care, it was created by the paramedic who stopped his work to complain to Henderson.

He argued that it is common for people to watch, film or gawk at emergencies, and that's not considered offensive conduct.

But Beck said Henderson forced Norgaard to interrupt the medical care after he refused a request to stop filming.

"It doesn't have to be a physical interruption. It has to have the effect of a physical interruption," Beck said.

Alshouse ruled that the case will go on.

The lawyers then sparred over whether instructions to the jury should refer to First Amendment protections and expectations of right to privacy and whether interfering with emergency workers means a physical interference. Closing arguments in the case are expected Thursday.

Henderson said prosecutors said he could have resolved the case by pleading guilty to a petty misdemeanor and paying a $50 fine.

But Henderson rejected the prosecution offer and insisted on a jury trial.

Riach is a senior associate with the Minneapolis-based Fredrikson & Byron law firm. Also at trial was John Lund-quist, a partner with the firm.

Little Canada was being represented by Beck and Joseph Kelly, attorneys with the firm Kelly & Lemmons of Little Canada.

During selection of the six jurors who will decide the case, Riach asked prospective jurors if they had strong feelings about individuals filming activities of police. Several prospective jurors said that would be acceptable or even helpful.

Beck then asked if their feelings would change if it was someone filming an emergency medical technician or an ambulance crew at work.

Before the jury started was seated, Beck said he wanted to be able to introduce evidence to challenge the credibility of potential testimony from Henderson because he had been discharged from the military under a less than honorable discharge and had faced a court-martial for desertion.

Riach objected, saying Beck's discharge was not evidence of a false statement. It was "just smear evidence to make him look bad in front of the jury," Riach said.

Alshouse disallowed evidence of Henderson's discharge.

Several people watching the case said they showed up because they are interested in the rights of citizens to film public officials.

"This is a test case," said Rex Johnson of New Brighton. "Videotaping is essential for holding people accountable for their actions."

McClatchy-Tribune News Service
Grace Kelly, who said she blogs for the MN Progressive Project website, said forbidding videotaping of emergency medical workers could prevent citizens or journalists from documenting injuries at protests.

Comments
The comments below are member-generated and do not necessarily reflect the opinions of EMS1.com or its staff. If you cannot see comments, try disabling privacy and ad blocking plugins in your browser. All comments must comply with our Member Commenting Policy.
Tammy Kester Engel Tammy Kester Engel Thursday, February 27, 2014 12:02:24 PM I do not think it is appropriate for the general public to run around filming medical (or any other) emergencies - if there is accountability to be had, it should be done by the agency in question. It would seem to me that this type of activity is a violation of patient privacy and it would REALLY piss me off, personally, to see a family member of mine on somebody's YouTube channel or on Facebook after being filmed without their knowledge or permission! I have had individuals ask me after a call was over if it would have been appropriate for them to film the incident and when I replied, I explained the same thing to them - while videotaping an accident in progress may be helpful to law enforcement and medical personnel to see what happened, recording the care and actions provided after are a violation of patient privacy (I have nothing to hide in my patient care activities, so this isn't about me or my colleagues) and that individual might be sued by the patient - or their family - after the incident if their faces were to show up on social media without their permission. How about we put down the camera and learn to help those in need instead? Just sayin'...
Julie Etheridge Corley Julie Etheridge Corley Thursday, February 27, 2014 12:07:20 PM Wouldn't this be a violation of the patient's right to privacy. He wasn't sprawled on the street, he was being taken from his home to the hospital.
Drew Thorne Drew Thorne Thursday, February 27, 2014 12:32:46 PM HIPPA! Patient advocacy, and protection are primary duties of any medical personnel. Three to four feet at a medical scene is too close, a distraction and hindrance to assessment and care of any patient. Ask LEO to remove offender. Fine for obstruction of care, erase recording media, and return camera in timely fashion.
Daniel Gerard Daniel Gerard Thursday, February 27, 2014 12:35:24 PM So help me figure this out...every cellphone is equipped with a camera...and there are many people out there with high end digital SLR's that can also record HD video...plus there are video camera's in stores, outside their stores...people have them monitoring the inside and outsides of their homes...cars have them to record accidents/traffic...people have them on their helmets (GoPro) for riding their bikes...STREAMING VIDEO REAL TIME...the google car is driving all around...you have a situation that is impossible to enforce...at the scene of any incident you would have to many cameras and not enough people to enforce to collect them. In the general public there is no expectation of privacy (this is acknowledged under HIPAA) and while this may be an unfortunate set of circumstances for a person who is a patient, with the proliferation of technology it is virtually unenforceable. You could not even stop someone from WRITING that they saw George Washington get hit by a car on Jefferson Street and he pooped his pants and then posting it on the internet...how can stop someone from making a video or taking a picture?
Todd LeJeune Todd LeJeune Thursday, February 27, 2014 12:36:00 PM HIPPA
Drew Thorne Drew Thorne Thursday, February 27, 2014 12:37:27 PM Scene safety! Camera, baton, knife, gun...whatever in the hands of a by-stander is going to make me pause for my safety, my partner's safety and the patient's safety. Hypothetical situation - adversarial gang member recording to verify damage to patient, notices patient still alive, then in turn swaps out camera for gun to finish the nefarious deed.....NOT ON MY SCENE!
Andrew T. Caruso Andrew T. Caruso Thursday, February 27, 2014 1:01:33 PM I agree with Mr. Gerard in that the public has a right to observe and record what is happening in public. Situations like these are an unfortunate byproduct of the technology. All we can and should do is act like a professional and ignore it until the person filming or recording gets in the way of patient care. Then it's up to the police to intervene. We should be acting like we are being filmed in every moment of doing our job, making sure we look and act like professionals.
Robert Benson Robert Benson Thursday, February 27, 2014 1:23:36 PM HIPPA only applies to health care workers not bystanders or even police.
Michael Strausbauch Michael Strausbauch Thursday, February 27, 2014 2:02:09 PM Since I take a lot of pictures ( but not of people ) the general legal guidline I have seen is if you can see it in the normal course of activities you can shoot it - anything. Other than interferring with offical duties the other restriction is that you can't make money selling of someones identifyable image without a release. Police (or anyone) cannot take, sieze or destroy private property (including images) with out the owners permission in the absence of a court order - not even a memory card. The most they can do is ask for the evidence to be preserved . If you don't and erase it you are in much much more serious trouble. Better to cooperate and hand it over (no brainer) But the photographer here if he wants to push it has several counter claims and legal precendence to back him up ( TV protrayals to the contrary) even if he is an idiot and definately a malcontent. Up to the possiable destruction of evidence he claims would exhororate him and illegal sizeure of private property. A private citizen would actually have more standing objecting to the invasion of privacy here than the police. OH, HI TAMMY, I MISS WORKING WITH YOU ON THE 5TH FLOOR.
Daniel Gerard Daniel Gerard Thursday, February 27, 2014 2:28:28 PM So help me figure this out...every cellphone is equipped with a camera...and there are many people out there with high end digital SLR's that can also record HD video...plus there are video camera's in stores, outside their stores...people have them monitoring the inside and outsides of their homes...cars have them to record accidents/traffic...people have them on their helmets (GoPro) for riding their bikes...STREAMING VIDEO REAL TIME...the google car is driving all around...you have a situation that is impossible to enforce...at the scene of any incident you would have to many cameras and not enough people to enforce to collect them. In the general public there is no expectation of privacy (this is acknowledged under HIPAA) and while this may be an unfortunate set of circumstances for a person who is a patient, with the proliferation of technology it is virtually unenforceable. You could not even stop someone from WRITING that they saw George Washington get hit by a car on Jefferson Street and he pooped his pants and then posting it on the internet...how can stop someone from making a video or taking a picture?
Richard Lawlor Jr. Richard Lawlor Jr. Thursday, February 27, 2014 2:46:06 PM Dan, it's not a violation of HIPPA. The U.S. SUPREME COURT has already ruled it's O.K. to film in the Public Domain!
Terry Roskamp Terry Roskamp Thursday, February 27, 2014 2:48:38 PM I agree that he should be prosecuted. Everyone in healthcare is held accountable for hippa violations and prosecuted and lose there jobs this man should be fined and spend time in jail. The incident in question did not involve him or his family so he needs to learn to leave well enough alone. And yes I work in EMS.
Dan Vitale Dan Vitale Thursday, February 27, 2014 3:09:15 PM I think that adding more obstacles to our already challenging jobs (both EMS and PD) may seem unfair but it just goes to show how the times and technology are changing. Im with you on this one.. Just have to go with the flow!
Peter Green Peter Green Thursday, February 27, 2014 3:19:05 PM It is your Constitution being torn to shreds, piece by piece. Started with George Bush and continues with Obama, so it does not even appear partisan. My first recommendation is to de-militarize the police, they have forgotten who the work for and what the job is about.
Todd LeJeune Todd LeJeune Thursday, February 27, 2014 3:25:39 PM Can argue that EMS not able to perform a proper assessment because questions would be Non HIPPA compliant.
Mike Longfield Mike Longfield Thursday, February 27, 2014 5:11:54 PM When it comes to a medical problem, no matter what, the individual who is being attended to has the right of privacy. I would think if the person were alert and was asked if it was okay to film him being treated, he may not have given his permission.
Dana Swift Dana Swift Thursday, February 27, 2014 5:55:24 PM 911 DISPATCH INFO, unless encrypted is public knowledge and public domain, so how can filming in a public location be illegal??? Civil rights seem to be less available to the public but what's NSA taping??
Stephanie Collins Stephanie Collins Thursday, February 27, 2014 7:43:56 PM Just because you are distracted by a person who is practicing their rights hardly means they should be arrested, or have their property taken away. This man was acting legally and did not hinder patient care in anyway. In fact, it was the medic who stopped performing patient care to intervene with a bystander in this situation.
Stephanie Collins Stephanie Collins Thursday, February 27, 2014 7:48:37 PM While it may not comply with many of our personal morals, what this man was doing was perfectly legal. Freedom of the press, as entailed in the first amendment. HIPAA does not apply to the general public, only to those rendering medical care. Everything we do in public, as everyday citizens or EMS providers, can and may be recorded, remember to always act as such!
Sue Kester Sue Kester Thursday, February 27, 2014 7:50:44 PM It is a breech of Dara privacy to film or make public any part of patient care you have provided. Huge HIPAA violation punishable by just as huge fines.
Robert B. Reno Robert B. Reno Thursday, February 27, 2014 10:21:18 PM 1st amendment. As long as it's in public and they are not interfering people have the right to film. If possible the crew should move the pt to a private area but that is not always possible. Just do your job and be professional
Tom Steiner Tom Steiner Friday, February 28, 2014 12:00:32 AM As an EMT and one who has worked as a cameraman for several local and National Networks. I can honestly say, those of you who think it's a violation of the Pts rights and violates HIPAA. You are all wrong. Once in public you lose all roghts to privacy. There is NOTHING in HIPPA that prevents the media or publicfrom filming you or a patient. Since this gentleman was 3-4 ft away he was not interefering with patient care. The Medic on the other hand stopped Pt care. The police officer violated the photographers Constitutional Rights. She also confiscated his camera, which is against the law
Mike Ledgerwood Mike Ledgerwood Friday, February 28, 2014 12:02:55 AM It would depend how he was recording the call and the patient. I have been recorded by bystanders on scene before. I usually like to piss them off by blocking their shots. If they get close enough to touch me then that is a crime, but if they are across the street nothing I can do about that. They can record the sheet or my back all they want. When I was a police officer we were told to always assume we were on camera. The only time we had issues with people recording us was if it put them or us in danger or if they were doing live recording of tactics (i.e. at a SWAT call). Other than that record away.
Mike Mondrone Mike Mondrone Friday, February 28, 2014 1:59:42 AM Common sense and common decency, things our society is not famous for, would state that you're right to film stops when it encroaches on my right to privacy. Just like yelling "fire" in a crowded theater isn't considered protected free speech, rights have established end points. That said, some liberal judge will most assuredly protect the trivial and arguable right to video tape while trouncing on the right of the individual who, quite possibly through no fault of their own, is having a very private matter dealt with in public...
Teresa Palmer-Holloway Teresa Palmer-Holloway Friday, February 28, 2014 5:57:03 AM Hearing everyone talking about first amendment rights, scene safety, HIPPA violations are while very valid, let's think of this also on a "human" level. It is well known that people "gander neck" when they see and accident..but put yourself in the place of the victim..do you wish images of worst day to be posted all over the web and news both tv and newspapers? If it were your family member ..maybe they perished in the incident..do you wish to keep seeing their lifeless body slammed all over the media? For those thinking it is "ok" to capture images or video because of your first amendment rights..are you forgetting you are taking away the basic humanity rights of the victims? Did you ask them if they minded if you were taping or taking pictures of them? Something you should be thinking about!!
Shannon Edwin Wiles Shannon Edwin Wiles Friday, February 28, 2014 8:02:01 AM Well as a retired paramedic I would pose one question where has common sense gone for this idiot with the camera, how would he feel if someone did this to one of his family (i.e. mom, dad,) during a medical emergency or some type of crisis.
Pamela Daley Bertone Pamela Daley Bertone Friday, February 28, 2014 9:09:35 AM Your right to film does not supersede a patient's right to privacy or to treatment. This guy could have filmed from across the street and not hindered the process and been able to keep the man's identity private. Once again, the public thinks they understand certain processes, and want to make a name for themselves at an individual's expense.
Pamela Daley Bertone Pamela Daley Bertone Friday, February 28, 2014 9:10:33 AM Damn it-I was right the first time!
Steve Kady Steve Kady Tuesday, March 04, 2014 9:28:03 AM and this just in:The terms of a recently settled lawsuit in Indianapolis, Indiana will require the city’s police force to remind officers that it’s legal for civilians to videotape on-duty cops, but it will also cost the department more than just that. In addition to having to adopt an official policy recognizing the right for citizens to record law enforcement officials, the City of Indianapolis is also cutting a $200,000 check for a local man who was arrested and injured by police in 2011 after he refused to stop filming a nearby arrest. Willie King was watching Indianapolis police officers arrest a young man in his neighbor’s driveway three years ago this month when he decided it would be a good idea to grab his cellphone and start recording. The cops weren’t too keen about being caught on film, however, and ordered King, then 66 years old, to hand over his phone. “Sir, you know that if he resists any more they can take your phone as evidence,” an officer was caught saying, according to transcripts published this week by local news network WISH-TV. “I don’t give a [expletive] what you do, y’all just don’t harm him,” King responded. When King refused to stop recording from his neighbor’s porch, he was tackled to the ground, arrested and charged with resisting arrest, disorderly conduct and public intoxicating. King was ultimately found not guilty of those charges, but turned around and filed a civil suit against the city over alleged First, Fourth and Fourteenth Amendment violations. That case was scheduled to go to trial starting March 10, but it’s now been reported that the city decided to settle this past January. King is being awarded $200,000 from the city as part of that settlement, but the Indianapolis Metropolitan Police Department is also being forced to institute a new policy prohibiting police officers from bothering with eyewitnesses who are recording their actions. According to excerpts of the policy published on Thursday by WISH-TV, local law enforcement officials have 60 days to adopt a policy that states “police officers should not interfere with civilians who are observing or recording their actions by video or audio in public, so long as the civilians maintain a safe and reasonable distance if necessary from the scene of a police action, do not physically interfere with the officers’ performance of their duty and do not represent a physical danger to the officers, civilians or others.” “Willie King was wronged when the officers stopped his videotaping and took away his cellphone,” King’s attorney, Richard Waples, was quoted as saying by The Indiana Lawyer website. “We want to make sure that in the future police officers understand that people have the right to video record their actions." “We thought it was important in this case, not to just try to get compensation from Mr. King which we were able to do, but also to get the police department to realize, hey, they need to train their officers, and say you can’t interfere with people’s rights to record and observe what you’re doing in public,” Waples told the network. According to Marilyn Odendahl at The Indiana Lawyer, Waples added that the recent victory “secures the right of all citizens to observe and record police officers’ public actions.” Previously, the United States Court of Appeals for the Seventh Circuit — whose jurisdiction includes Indiana, among other states — acknowledged that "The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” “Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply,” reads a portion of the American Civil Liberties Union’s official website.
Tom Bearden Tom Bearden Tuesday, March 04, 2014 1:26:06 PM About damned time. Unfortunately it probably only applies to the 7th Circuit. We need the Supremes to rule, too.
Jim Lilja Jim Lilja Tuesday, March 04, 2014 4:18:11 PM A very long time ago I was dispatched to Littleton to take pictures of a defendant walking into court. While waiting on the sidewalk with my trusty Bell & Howell I was informed by 2 cops that pictures were not allowed to be taken from a pubic sidewalk. Then I was ushered into the judges chambers for an explanation. Of course while I was in the judges chambers the defendant was escorted into the court room. Jim Bennett was outraged, Hugh Terry got involved as did a bunch of Time-Life lawyers. There may have been a judicial reprimand for the judge, but I am not sure. Remember it was Mr. Terry and KLZ that were responsible for cameras in the court room in Colorado.
Steve Kady Steve Kady Wednesday, March 05, 2014 7:08:45 AM Hey Drew, may i suggest you serk another life style. Being a public servant is not for sissys

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