Kel Murphy (photo courtesy of Kel Murphy)

SPD May Have Violated HIPAA Laws — and May Have Lied While Doing It

by Carolyn Bick

The Emerald’s Watchdragon reporting seeks to increase accountability within our city’s institutions through in-depth investigative journalism.

Kel Murphy spent most of his time in the days following his arrest last November trying to get ahold of the insulin he needs to survive. Even though he was in the hospital for one of those days — he had fallen into a coma following his arrest — and there was, in theory, insulin available for him, he had no way of proving that he needed it. The Seattle Police Department (SPD) officers who had arrested him had confiscated all of his items, including his insulin, his insulin delivery pen, his continuous blood glucose monitor receiver, his insurance card, his medical card, his two main payment cards, his driver’s license, his glasses, and several other items, including additional medical equipment. They were sitting somewhere in the SPD’s Evidence Unit while Murphy was sitting in a hospital bed trying desperately to coordinate proper medical care.

“Figuring out how to get fast-acting insulin was both costly and a time-intensive task without having access to my property. … Enforcement delivered me to the hospital without my medical explanation card or my insulin pens,” Murphy said, reading an official statement to the Emerald in an interview on July 26, 2021. “Those items were deliberately stowed [by me] in the pockets of my pants I was wearing when I was accosted and were taken off my person before transporting me.”

As the Emerald wrote last November, Murphy — then Murphy-Duford — had been arrested on Capitol Hill for allegedly engaging in property destruction. Following his arrest, during which several officers piled on top of him, Murphy-Duford had to be transferred to Harborview Medical Center because he appeared to have suffered some sort of “medical episode” that caused him to fall unconscious during the arrest, according to SPD’s Blotter post about the arrest, which the Emerald has also uploaded. For about 24 hours, Murphy remained unconscious on a ventilator (content warning: photo of Murphy on a ventilator). Later, SPD’s media team updated the post to claim that Murphy-Duford had “ingested a substance” that had caused him to go into a coma. 

This claim has remained on SPD’s Blotter ever since. Problem is, Murphy and his legal team say that it’s not true — and even if it were, Murphy never gave SPD his medical records or permission to publish any of his medical information. He also never gave Harborview permission to share his medical information. His lawyer, Sarah Lippek, of Cedar Law, PLLC, said that this is a violation of Washington State’s medical privacy laws. SPD may not be subject to HIPAA laws. She also said that even if it were true, this does not negate Murphy’s claim that officers used unreasonable force on him. 

But despite the fact that it is not true, the claim remains on SPD’s Blotter, which Murphy and his legal team say is knowingly libelous on the part of the department. They say it is strictly there to smear Murphy’s name and attempt to clear the blame from SPD officers whose actions Murphy and his team contend caused Murphy to fall into a coma.

“It’s almost like they … are just trying to … discredit the fact that they … tackled me, and so I went unconscious,” Murphy said. “It’s almost like the force they are using … is not justified.”

In describing his arrest to the Emerald, Murphy said that past run-ins with officers during protests throughout the summer and autumn had instilled in him a fear response.

Before his arrest in November 2020, Murphy said that the police had already fired incendiary devices meant to be aimed at the ground at his body (July 25, 2020; a graphic image of one of his many bruises can be found here); chased him, surrounded him, and sprayed him with pepper spray (mid-August 2020); charged him with bikes, slammed into him with said bikes, maced him directly in the face, shoved him to the ground and trampled him (Sept. 7, 2020); and pepper-sprayed him, knocked him down, and walked on top of him, reinjuring the knee that Murphy had injured some years before, setting back the progress he had made in physical therapy (Sept. 26, 2020).

So when Murphy realized that SPD officers’ hands were on his shoulders and back the night of Nov. 4, 2020, he says his body moved for him.

“There was no reason for me to believe I was not going to be sustaining further injury from them unjustly. To avoid more bodily harm, I moved my arms, shoulders, and wrist in a way that might allow me to slip from their grip,” Murphy said, reading from a statement. “This movement was both involuntary and non-offensive. I do not remember a lot of what was said by them [the SPD officers], but I imagine that if I had more symmetric, reasonable responses from the City of Seattle’s police department previous to this point, I would have been physically able to comply.

“I was forced to the ground and vaguely remember pain. I was still anticipating further harm, but things were becoming even less coherent. After being on the ground, I remember having five or six bodies on top of me, and having no perceivable way of avoiding damage,” Murphy continued, reading from his statement. “Then, I believe I was unconscious for a while. I also vaguely recall being unable to control or move my body, being talked about, and being physically moved onto a tarp and being moved into a vehicle. But I don’t have any visual memory during this time. After that, I don’t remember anything until trying to touch my face and throat in the hospital.”

It’s not entirely clear to Murphy how SPD came up with the theory that he had “ingested a substance” that would cause him to go into a coma, but he thinks that officers may have been listening in on the medical personnel attending the then-unconscious young man in the emergency room.

“I was escorted by officers to the hospital and I think for a time, they stuck around, hoping to pull me back into the precinct or the jail or something,” Murphy told the Emerald. “It’s possible that while … the ER was doing bloodwork and tox screens, officers were listening. I have ADHD [attention deficit hyperactivity disorder], so I take a very small dosage of Adderall for it, so that could show up as an amphetamine. I am also transmasculine, and I take testosterone. 

“I don’t know what that looks like in bloodwork, whether it looks like male hormones, or something additional but basically what I am gathering is that officers overheard medical information and, despite HIPAA laws, decided to tell their superiors or whoever … is running this … blog and said, ‘Oh, well, it sounds like they are taking something,’ — which, in both of those cases, is an absurd link,” Murphy continued. “They are definitely stimulants and not enough to make someone pass out. More like keep you awake.” 

In the Emerald‘s second story about what happened to Murphy, SPD public information officer Sgt. Randall Huserik said that this information came from a Harborview Medical Center public information officer. Harborview’s media relations director Susan Gregg denied this, but Huserik said that SPD stood by its post and source of information.

In a public disclosure request email exchange obtained by the Emerald following the initial publication of this article, a public information officer with SPD said that “Sergeant Huserik informed me that he was not the one who spoke with the PIO at Harborview, that was another detective in his unit and that he cannot confirm that it was the FIT [Force Investigation Team] captain that backed up the information from HMC [Harborview Medical Center]. He indicated the person at HMC that provided the information was a Susan Gregg.”

The Emerald asked Gregg in an Aug. 5 email whether this is true. Gregg replied, “No that is not true.  That definitely did not come from me.”

Murphy also said that though he is diabetic, his blood sugar levels were not low enough to cause him to go into a hypoglycemic coma. Lippek, Murphy’s lawyer, told the Emerald in a July 28, 2020, interview that “to the extent that the police even have a public relations department — that department should just be coordinating news.” 

“They should not be commenting on active Office of Police Accountability investigations,” Lippek said, referring to the currently active OPA investigation into Murphy’s arrest. “They definitely should not be releasing private medical information. They definitely should not be attempting to try to stigmatize someone by implying that they overdosed, when they were rendered unconscious during an arrest.”

Moreover, Lippek said, she called the Force Investigations Team (FIT) investigator who was handling Murphy’s case to ask where the SPD Blotter claim that Murphy had ingested a substance had originated. Lippek said that the FIT investigator told her she had no idea what Lippek was talking about.

“And I was like, ‘In the Blotter, it said that the officer had found that there had been … ingestion of a substance.’ And [the FIT investigator] said, ‘I never said that.’ She never talked to anyone from the Blotter,” Lippek recalled. “I was like, ‘Where did that information come from? Is there someone else in your investigation? And she said, ‘No.’ And I asked, ‘Did your investigation find that?’ And she said, ‘No.’ So, in that case, I think they just made it up.

“Yes, Kel does take medication. But the idea that they talked to someone who saw them eat the substance earlier? That part is not true,” Lippek continued. “At best, they could say, ‘Well, this person takes a medication.’”

As noted above in the public disclosure request email the Emerald received following the initial publication of this article, SPD said that Huserik could not confirm that the FIT investigator “backed up the information from HMC.”

Though he did not know this at the time, Murphy said that friends later told him he was lying unconscious in the street, surrounded by officers, for a good 15–30 minutes before Seattle Fire Department emergency transport arrived to take him to the hospital, despite there being a fire station two blocks away. Murphy said that not only does SPD officers’ body-worn camera footage show officers asking him if he is “faking it,” but that there must have been “a very big difference” between the officers’ chosen medical professionals’ assessment of his condition and Harborview’s medical staff’s assessment.

“At some point, when they got me to the hospital, they … measured my O2 [oxygen] levels or something, and it was severe enough to cut off all of my clothing with trauma scissors and intubate me,” Murphy told the Emerald.

Murphy said he was unconscious for about 24 hours, roughly from late in the evening on Wednesday, Nov. 4, to early in the morning on Friday, Nov. 6. When he awakened, “most of that day was spent trying to figure out how I was going to get insulin, without having my stuff.

“I was released on Saturday, and then it was … four days until I would have had access to my insulin again [if I had had to wait to get it from SPD’s Evidence Unit],” Murphy said.

Part of the issue, Murphy said, was that he had just refilled his insulin, so his insurance would not cover yet another refill. It ended up costing Murphy $650 to recoup his insulin glucose monitoring supplies after his release from the hospital. Murphy said that he was fortunate that he was privileged enough to have an additional credit card through his mother’s account to pay for that medicine up front.

But if Murphy had not been able to get ahold of insulin — which, again, is vital to his survival — it would have been almost an entire week before he would have been able to get any.

When the Emerald asked SPD about officers taking away Murphy’s insulin in November, Huserik had responded that “[a]ll items were put into the subjects [sic] property and he is free to pick it up anytime from the SPD Evidence Unit. At no time was any medication withheld from Murphy-Duford by the Seattle Police Department.”

While this latter statement is technically true, the fact remains that Murphy’s insulin was anything but easily accessible: Murphy was in a coma and SPD’s Evidence Unit was only open on Tuesdays and Thursdays from 8 a.m. to 5 p.m. last November, due to the novel coronavirus pandemic.

And it’s not as though all Murphy had to do was get down to the Evidence Unit. With no form of identification — as stated earlier, his driver’s license and medical card were also in the Evidence Unit — he doubts very much that he would have gotten his belongings back without Lippek’s help. The Emerald has touched on the difficulties people have faced in attempting to get their belongings back from SPD.

“If Sarah hadn’t gone with me, I don’t know how much luck I would have had getting the person at the desk [in SPD’s Evidence Unit] to confirm or decide that that property was actually mine, because I didn’t have my ID,” Murphy said.

Not that he got all of his belongings back: Murphy said that SPD took a radio as well as personal protective equipment that cost between $200 and $400.

Murphy believes that, ultimately, he was lucky, because he was a white person who was participating in a high-profile event that was going to get a lot of media coverage.

“Now, imagine that they are doing this to a Black or another POC person who is maybe not doing something that would end up on the news. That person could be dead,” Murphy said. “And that person would be dead, probably for just going about their day. It happened to me because I was protesting. This same kind of thing happens to people while they are just … living their lives, because of their skin color. That is the real key message in all of this. … This kind of horror happens to people for nothing. You just have to exist in order for this to happen.”

Murphy is part of a 50-person civil lawsuit (linked below) against the City of Seattle, the State of Washington, King County, and Dawit Kelete, who was charged for killing Summer Taylor and gravely injuring Diaz Love last summer. The suit covers a range of alleged violations, including wrongful death, personal injury, civil rights violations, and public records act violations. (Content warning: There are graphic depictions of injuries within the lawsuit.)

The Emerald reached out to SPD for comment about the issues raised in this story. Sgt. Randall Huserik said in an Aug. 3 email that because Murphy and his legal team have filed a civil suit against the City of Seattle, he could not comment on the arrest, the Blotter post, or the suit.

Correction: An earlier version of this article stated that Lippek had said SPD had committed a HIPAA violation. Lippek said that SPD had violated Washington State’s medical privacy laws.

Carolyn Bick is a local journalist and photographer. As the Emerald’s Watchdragon reporter, they dive deep into local issues to keep the public informed and ensure those in positions of power are held accountable for their actions. You can reach them here and can check out their work here and here.

📸 Featured Image: Kel Murphy (photo courtesy of Kel Murphy)

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