Plaintiff Distressed by Neighbors' Cameras—Because of His PTSD—Can't Get Restraining Order

The standard under Minnesota law for what is impermissible harassment, the Minnesota Court of Appeals concludes, is objective, not subjective.

|The Volokh Conspiracy |

From the decision Monday written by Judge Tracy M. Smith in Nygard v. Walsh (Minn. Ct. App.); it strikes me as quite correct;

This dispute is between two neighbors …. At issue in this action are three surveillance cameras that [Patrick] Walsh and his wife, Nancy Walsh, installed on their property. The district court found that the Walshes installed the cameras on their home and directed them primarily toward different sections of their property. The cameras' field of view does include some parts of [Jay T.] Nygard's yard, and one of the cameras views the bottom of Nygard's house, but it observes no windows. The cameras record images, which are stored remotely. If no one saves the images, they are deleted after 48 hours. The Walshes testified that they installed the cameras after multiple incidents involving Nygard.

After the Walshes installed the cameras, Nygard petitioned the district court for an HRO [harassment restraining order]. Nygard sought a no-contact order and an order preventing Walsh from recording him on his property. After a hearing on the matter, the district court dismissed Nygard's petition….

A district court may issue a restraining order if it has "reasonable grounds to believe that the respondent has engaged in harassment." Harassment includes "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and intended target." "[S]ection 609.748 requires both objectively unreasonable conduct or intent on the part of the harasser and an objectively reasonable belief on the part of the person subject to harassing conduct." …

Nygard … asserts that his PTSD diagnosis is, in fact, an objective condition and that the district court erred by failing to consider it when assessing whether Walsh harassed him. He then argues, in the alternative, that the standard under the HRO statute is subjective, not objective.

In its order, the district court stated that "[Nygard's] particular emotional vulnerability is not disputed, but this is a subjective feeling and not an objective action by [Walsh.]" … [T]he district court did not misapply the objective standard under the harassment statute. The objective standard is "[a] legal standard that is based on conduct and perceptions external to a particular person." The subjective standard is "[a] legal standard that is peculiar to a particular person and based on the person's individual views and experiences."

Here, by describing Nygard's sensitivity to cameras as a "subjective feeling," the district court was noting that Nygard's PTSD was something specific to Nygard and his perceptions; the district court was not stating that PTSD was not a legitimate medical condition. To issue an HRO, the district court had to assess the conduct and perceptions external to Nygard's particular perceptions. Nygard's PTSD, even though acknowledged by the district court, was not part of an objective assessment of the impact of the cameras and their placement. {Nygard makes a policy argument that the HRO statute should also protect individuals who suffer from PTSD, but he provides no legal authority for why PTSD should be considered under an objective standard.} …

Which areas of the yards the cameras are recording, how long the cameras store the information, and whether the cameras can see any of the windows of Nygard's house are all factual considerations external to the perceptions of a single person. The district court applied an objective standard in considering the effect of the cameras on Nygard, rather than a subjective standard that considered his particular sensitivity to cameras.

Nygard alternatively contends that the objective standard applied by the district court is the wrong standard, arguing that the language of section 609.748 "is clearly subjective, especially in this instance." He asserts that "[w]hat might be a substantial adverse effect for one person … might not be for another" and that "[t]here really is no way to specifically quantify that phrase." But the law is clear that the district court may issue an HRO only if it has "reasonable grounds" to believe harassment has occurred and that whether "reasonable grounds" exist is an objective, not a subjective, analysis….

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  1. Perhaps Nygard should have cloaked his claim in religion and hoped for a judge steeped in recent Republican thinking.

    1. He sounds like a typical democrat. Your kind of people Rev. You should be praising him.

      1. RAK coming in hot with the partisanship is pretty silly, but your speculating that everyone you don’t like is a Democrat manages to top that.

        1. RAK coming in hot with the partisanship is pretty silly

          It would be silly if he were sincere. He’s a troll.

          1. My objection to recent developments in limitless special privilege for religion-based claims is sincere — and reason-based, which may prevent some people from understanding it.

            In this case a religious claim would depart from the norm to some degree in that it wouldn’t be attempting to promote bigotry; it nonetheless might have been a more effective legal strategy.

    2. “…hoped for a judge steeped in recent Republican thinking.”

      For a three judge panel in Minnesota? That might be difficult. 😉

  2. I wonder about the legality of privacy screening — even tarps.

    Spite fence rules usually limit fences to 6 feet — but when someone has a camera above that, what constitutes privacy rights?

  3. Here, by describing Nygard’s sensitivity to cameras as a “subjective feeling,” the district court was noting that Nygard’s PTSD was something specific to Nygard and his perceptions . . .

    Back in the 60s I encountered a videographer who asserted that it would be possible to make a restaurant kitchen catch fire, merely by making a conspicuous point of recording on video what happened there. In one case, he conducted an experiment, and got the video evidence to demonstrate that his speculation proved well founded.

    Anyone who insists aversion to camera surveillance is a personal quirk, and not an objective condition people share in common, doesn’t know much about people and cameras.

    1. This sounds like a Dr. Ed post.

    2. That’s quite an anecdote, considering the first camcorders for professional and consumer use were released by Sony in 1983. Was he indeed using a ’60’s vintage video recording setup, or did you perhaps mean film?

  4. Some of their cameras record his property, and if his aversion to being recorded is such that he can’t enjoy the portion of his property which is being recorded he might have something worth trying.

    1. He might, though I suspect that his case would be weakened by the court’s acceptance of the neighbor’s claim that they put up the cameras in the first place because of his behavior – which in context I interpret at likely misbehavior.

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