The Snapshots, the Cops, and the Lawsuit
It was supposed to have been a relaxing time. When Aaron and Eric Happel drove down to Florida in December last year, they were planning to stay: They rented an apartment, searched for jobs, and enjoyed a little fun in the sun--sand, salt water, a few Kodak moments. On January 26, the couple (Eric changed his last name to Aaron's in 1997) dropped off five rolls of color film at a Walgreen pharmacy in a suburb of Fort Lauderdale, with express instructions, says Aaron Happel, to develop only the negatives. No prints, please. What happened next has become the main point of contention in a civil lawsuit the two men filed on April 22 against "The Pharmacy America Trusts."
What Aaron and Eric Happel, then ages 23 and 20, didn't mention to the Walgreen photo-counter clerk was that the film contained shots of them having sex. That, they figured, was no one else's business. They're consenting adults, they reasoned, and the machine Walgreen uses to develop negatives is a closed system: The film feeds in one end and spits out the other, so no employee need ever see what the camera saw. "You can't make out what's on the negatives unless they're processed into prints," confirms Bonnie March, who works at the suburban Wilton Manors store. What's more, Aaron says, they looked for but noticed no signs posted at the service desk warning that customers were prohibited from processing negatives containing sexually explicit pictures.
When a Walgreen employee called the Happels later that day to say their order was ready, the two men drove over to the pharmacy, paid $2.14 for the negatives, and meant to be on their way. But as they headed across the parking lot, Eric recalls, he and Aaron heard someone beckoning, "Gentlemen! Gentlemen!" They assumed that the voice belonged to a panhandler, and ignored it. Moments later they heard someone yell, "Police!" They stopped in their tracks, turned, and were approached by a man dressed in a suit--a plainclothes detective, it turned out, flashing his badge and waving an envelope full of photos a Walgreen clerk had printed from the Happels' negatives and turned over to the police.
Just then, two marked cop cars, an unmarked car, and a police motorcycle swarmed the parking lot in what appeared, says Aaron, "to be an ambush." The detective informed the couple that their film appeared to contain child pornography, and demanded first their IDs, then their Social Security and credit cards. "Once they saw we were of legal age," Eric recalls, "the story changed: We were told--after being informed that we'd broken every law in the book--that it was simply illegal to have this material. They said they were detaining us." In a matter of minutes, Aaron says, the police confiscated their negatives and advised the men to stick around town and wait for a call from the county prosecutor's office, whose job it would be to verify the men's ages in regard to possible child pornography charges against them. Neither man was arrested.
"None of this would've happened if it weren't for Walgreen," concludes Aaron; in their lawsuit, the Happels are asking a minimum of $15,000 in damages for false and malicious prosecution, deceptive trade practices, breach of fiduciary contract, and invasion of privacy. In plain English, they contend that Walgreen management failed to train its photo-lab employees in the finer points of properly dealing with graphic--but legal--material. Walgreen employees, the suit alleges, could have simply asked the two men for IDs when they picked up their negatives. Instead, the Happels charge, the company permitted staffers "unfettered discretion in determining how issues involving customer confidentiality would be handled."
"No one is saying that Walgreen can't refuse to print what they don't want to," contends the Happels' attorney, Jason Scott Coupal, who recently won a high-profile Florida court battle that resulted in a lesbian mother getting custody of her daughter. "There are some processing houses who do say they reserve the right not to print. But with this case, it's all going to come down to whether or not calling the police was reasonable."
In a motion to dismiss the case filed on May 19, Walgreen cites a Florida criminal statute that requires photo-lab employees with "reasonable cause to suspect" child abuse to contact police. The two male subjects on the film, the company argues, "appeared to be minors" (the incident report notes that Aaron stands 5 feet 4 inches, weighs 130 pounds, and had removed all of his body hair). The motion does not specify why Walgreen employees went ahead and ran prints from the Happels' negatives without authorization.
Robert Sykora, former head of the Lambda Justice Center in Minneapolis, characterizes Walgreen's line of defense as dubious. "If it looks like an adult with a child, then I'd definitely say call the police. But they basically wanted to use [mandatory reporting] as a tool," he says, suggesting that Walgreen's dislike of gay people may have been the driving force behind its move to contact police.
Unlike Florida, Minnesota has no law on the books requiring photo labs to report suspected child abuse. Still, says First Amendment attorney Mark Anfinson (whose clients include the Minnesota Newspaper Association and City Pages), "We've got this perpetual problem of a head-on collision between criminal laws forbidding child pornography and the basic expectation people have to their privacy. The real question is: On what basis did [Walgreen employees] conclude that there was reasonable grounds for some kind of illegal activity on the film? If it was because these two guys are gay, that's outrageous. On the other hand, if on some truly random basis they select rolls and study every negative on them, and if there is a law requiring them to contact the cops--agree with it or not, their behavior may have been reasonable."
In this case, the complaint most likely to win in court is invasion of privacy, says Anfinson, pointing to a similar claim before the Minnesota Supreme Court. In Dilworth, just outside Moorhead, a young woman dropped off a roll of film for processing at a local Wal-Mart. On a lark, a friend had taken a picture of her standing naked outside the shower while on vacation in Mexico. Wal-Mart notified her that store policy prohibits printing that particular frame, but processed and delivered the remainder of the roll. Several weeks later, the woman alleged in a lawsuit she filed against Wal-Mart, she learned that a photo-lab employee had printed the nude shot and circulated copies around town.
"There's a bunch of fine lines in [both these cases]," says a Walgreen store manager in Minneapolis who requested anonymity. "It's so sensitive--the privacy issue overlaps with the pornography one. We do have a blanket policy: We're not supposed to print anything that's sexually graphic, legal or not." The manager goes on to confirm that Minnesota law "allows corporations and labs to police themselves" and adds that in the wake of the Florida lawsuit, he'd "just received new policy guidelines from corporate headquarters" prohibiting stores from handling depictions of "exhibitionism and sexual contact of any kind." Prints, he notes, "drop down out of the machine in front of God and everyone. That's how our process works." But as for negatives, "you'd really have to hold them up to the light and study them closely to see for sure what's on them."
Michael Polzin, spokesman for Illinois-based Walgreen Co.--the nation's most profitable drugstore chain with over 2,400 U.S. stores--declines to comment on the pending Florida suit. He does, however, offer that national headquarters provides "general guidelines" about what constitutes pornographic material and bans printing or distributing to customers sexually explicit material involving adults or children. "A lot of it comes down to store management exercising their judgment in these situations," Polzin says, adding that "there is no policy for managers to contact police" in Florida, Minnesota, or any other state--a position that would appear to pave the way for Walgreen Co. to distance itself from its employees' actions in court, leaving the Florida photo-counter staffers out on a limb without company backing.
In the meantime, attorney Jason Scott Coupal has had a difficult time arranging for retrieval of his clients' confiscated negatives from the Wilton Manors police department in Florida. And the Happels say they still haven't seen the photos Walgreen employees printed from their film.
Associate Editor Josie Rawson contributed to this story.
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