HONOLULU --
KITV 4 News has learned prosecutors and police are trying to bring criminal charges against a Honolulu police officer who posted a hospital-bed photograph of an alleged thief on his Facebook page.
The Honolulu Police Department began an internal affairs investigation after KITV 4 News notified the department of the photo Monday.
An HPD patrol officer posted the photo on his Facebook page with the caption: "See when you like steal copper." The photo showed the 40-year-old suspected copper wire thief badly burned earlier this month, in a hospital bed at Straub Hospital’s burn unit. His upper body is exposed with burns to his skin.
Sources told KITV 4 News city prosecutors and police department internal affairs detectives from HPD's Professional Standards Office are trying to figure out if there's a crime they can charge the officer with in this case.
But that's proving to be difficult. First problem: HPD does not have a social media policy. A police spokeswoman said the department is finalizing a social media policy, a task it’s been working to complete since early this year.
"HPD is among the thousands, tens of thousands of other agencies, not only law enforcement, but government, military, private sector, they try to grasp technology, social media including, and the internet,” said Chris Duque, a cyber security expert who retired from HPD where he spent nearly 30 years on the force, most of them as a detective.
"Technology moves at such a fast rate, because before the ink is dried on the printer that prints out the policy, new technology comes up that throws the previous policy out the window," Duque said.
Duque said authorities might be able to press some kind of invasion-of-privacy case against the officer who is a 12-year veteran of HPD.
"The fact that it's in a hospital room, there might be the expectation of privacy in the fact that certain areas are protected environment, like a bedroom, bathroom," Duque said.
A representative of HPD met with officials from Straub Hospital after KITV 4 News broke the story, trying to “repair the damage,” one source said. Some police officials are worried the hospital may now require police officers to be escorted by hospital employees when they photograph patients, as police often do for use as evidence.
Duque said police officers need to realize that whatever they post online, "Will affect their personal, their professional life. And it will affect not only them, but their families, their friends, their associates and their organization if they're working or associated with some organization. You get officers who may be doing things they're not thinking about it. They're just doing things as a reflex type of thing. They post it, and they realize 'maybe I shouldn't have posted it,'"Duque added. “When they post something online, send an email. Once you hit enter, that message can never be recalled, and now (they) have to face the consequences of (their) actions.”
Law enforcement sources familiar with the Facebook case told KITV 4 News without a specific law to cite, it's difficult for them to get subpoenas and warrants and conduct a criminal investigation.
Law enforcement officers have been brainstorming ways a case of what they're calling “bad judgment” can become a crime, a source familiar with the investigation said.
In the meantime, the officer accused of wrongdoing continued working in the patrol division in Kalihi as of Friday afternoon, an HPD spokeswoman said.
At least 15 of the officer's Facebook friends saw the photo and commented on it and the officer responded to their comments at least three times.
“There goes my lunch,” wrote one Facebook friend.
“Karma,” wrote another.
“Did his skin just peel off? It looks like a flap of it hanging on his side,” asked another Facebook friend of the officer.
“I hope he at least had medical insurance as I’d be pissed if I had to pay for that too,” wrote another.
HPD released a three-sentence statement Tuesday, saying: "The department is concerned and is looking into this matter. We expect our officers to act professionally and abide by departmental policies. The department is currently finalizing a social media policy.”
Police officers routinely are sent to hospitals to check on the condition of suspects in criminal cases or crime victims.
Posting a photo of a hospital patient on the internet without authorization could violate federal law. The Health Insurance Portability and Accountablity Act (HIPAA), passed in 1996, protects the privacy of medical patients. Sources said that HIPAA applies only to health care providers like hospitals, doctors, paramedics and nurses, not to police officers.
HIPAA is a civil, not criminal, statute, so anyone whose privacy was violated would have to sue a health care provider for damages. In this case, the plaintiff would have to prove that an employee at Straub participated in the disclosure, which would be difficult, law enforcement sources said.
Straub Clinic and Hospital has the only burn unit on Oahu. A Straub spokeswoman would not confirm if the man photographed is a patient there because of those medical privacy rules.
KITV 4 News was unable to reach the police officer accused in this case for comment.
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