A private attorney working with the American Civil Liberties Union of Minnesota has agreed to represent a Little Canada man whose video camera was taken from him by a sheriff's deputy.
Andrew Henderson, 28, was recording an incident involving a man at his apartment building Oct. 30 when Ramsey County sheriff's deputy Jacqueline Muellner grabbed the camera.
Henderson was later charged with obstructing legal process and disorderly conduct. He said he was sitting about 30 feet away from the incident. Muellner wrote on the citation that Henderson was interfering with the privacy of the other man, who was being loaded into an ambulance.
Henderson eventually got the camera back, but there was no recording on it. He believes it was deleted.
"A citizen such as Mr. Henderson has an absolute right to be present in a public area, as he was, and to take pictures or to film the surroundings, including police officers that were present," said Henderson's attorney, John Lundquist of Fredrikson & Byron in Minneapolis, on Friday, Jan. 11. "And by seizing his camera, they violated in a very dramatic way his First Amendment rights."
Lundquist is a criminal defense attorney with 30 years experience at his firm.
Chuck Samuelson of the ACLU confirmed that the nonprofit had come to a verbal agreement with Lundquist and Henderson on Friday on Henderson's representation.
Attorneys with the firm of Kelly & Lemmons, which is prosecuting Henderson on behalf of the city of
Little Canada, did not immediately return phone calls seeking comment Friday.
"We figure that when they're faced with legitimate legal representation, they'll say, 'Oops, our bad,' and drop the case," Samuelson said.
Henderson's next court appearance is scheduled for Jan. 30.
When Muellner took his camera the night of the incident, she told him, "If I end up on YouTube, I'm gonna be upset."
Henderson told her that what he was doing was legal. He refused to give his name.
But he identified himself when he went to the sheriff's station the next day to retrieve the camera. He received the citation in the mail a few days after that.
Henderson's case is similar to others around the country involving citizens recording police activities.
Courts have ruled elsewhere that law enforcement officers have no expectation of privacy when they carry out their duties in a public place.
Ramsey County sheriff's spokesman Randy Gustafson said Tuesday that it is not the department's policy to take people's cameras. People are within their rights to record deputies' activities, he said.
Henderson said he carries his camera with him and uses it often. Police should be held accountable for their actions, he said.
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."
HIPAA, or the federal Health Insurance Portability and Accountability Act, deals with how consumers' health information is handled by health care providers. It does not cover private citizens recording a medical event.
The 7th U.S. Circuit Court of Appeals in May ruled that an Illinois law barring audio recording of a conversation without consent of all parties "restricts far more speech than necessary to protect legitimate privacy interests." As applied in that case, "(the law) likely violates the First Amendment's free-speech and free-press guarantees," the court ruled.
The U.S. Supreme Court declined in November to hear the state's appeal.
In another case, Boston attorney Simon Glik was arrested in 2007 after he used his cellphone to videorecord several police officers roughly arresting another man. The state charged him with violating Massachusetts' wiretap law; those charges were thrown out.
Glik sued the city of Boston, claiming his arrest constituted a violation of his rights under the First and Fourth Amendments.
The 1st U.S. Circuit Court of Appeals ruled in 2011 that Glik was "exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly established Fourth Amendment rights were violated by his arrest without probable cause."
The city of Boston paid Glik $170,000.
