Recording Police in West Virginia: One-Party Consent, No Express Right

Start with what does not exist. Searches of the West Virginia Code for the phrases a drafter would use return nothing: there is no section using the wording right to record, record a law-enforcement officer, observe and record, or interfere with a law-enforcement officer, and no West Virginia counterpart to California Penal Code §148(g), New York Civil Rights Law §79-p or Nevada's NRS 171.1233. There is also no West Virginia buffer-zone offence setting a distance a bystander must keep from an officer after a warning. The question is therefore answered by two general statutes, not by a dedicated one.

The first is the interception statute. Section 62-1D-3(a)(1) makes it unlawful to intentionally intercept, attempt to intercept, or procure another person to intercept any wire, oral or electronic communication, and subsection (b) makes a violation a felony punishable by up to five years in the penitentiary or a fine of not more than $10,000, or both. That is a serious offence, which is why the exception in subsection (e) matters so much. It is lawful under the article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication, or where one of the parties has given prior consent, unless the interception is made for the purpose of committing a criminal or tortious act in violation of the state or federal constitution or laws. West Virginia is a one-party consent state, and a person speaking with an officer is a party to that conversation.

The definition of oral communication narrows the statute further. Under §62-1D-2(i), an oral communication means one uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. Words spoken by an officer on a public street, at a roadside stop, or in a lobby open to the public are hard to fit inside that definition, because the expectation the statute requires is not one that the circumstances justify. That is the same structural limit that decides the question in other expectation-based states, and in West Virginia it sits alongside, not instead of, the one-party consent rule in §62-1D-3(e).

Silent video is further out still. Article 1D of chapter 62 is written about wire, oral and electronic communications, all of which are communications rather than images. The narrow article that does address recording conduct rather than speech, chapter 62 article 1F, is aimed at the police rather than at the public: §62-1F-1(a)(5) defines electronic interception as the simultaneous recording, with a body wire, of a nonconsenting party's conduct or oral communications in his or her home by an investigative or law-enforcement officer or informant who is invited into the home and is physically present. It does not reach a member of the public filming in public.

The realistic legal risk is the obstruction offence, and its text is the reason recording is usually defensible. Section 61-5-17(a) reaches a person who by threats, menaces, acts, or otherwise forcibly or illegally hinders or obstructs, or attempts to hinder or obstruct, a law-enforcement officer, probation officer, parole officer, courthouse security officer, correctional officer, the State Fire Marshal, or a full-time deputy or assistant fire marshal acting in an official capacity. The conduct elements are forcible or illegal hindrance. There is no proviso inside §61-5-17 protecting recording, of the sort Oklahoma wrote into its obstruction statute, but there is equally nothing in the section that makes filming itself a form of hindering. The penalty is a fine of not less than $50 nor more than $500 or up to one year in jail, or both.

Two neighbouring provisions are worth knowing. Section 61-5-17(o) creates a separate offence of filing a false complaint against a law-enforcement officer, committed by knowingly initiating a false complaint of improper action, reporting conduct that did not occur, or reporting an offence or incident that did not in fact occur, punishable by a fine of not more than $1,000 or up to six months in jail, or both. A recording is the ordinary way to avoid that exposure when making a genuine complaint. And §62-1A-12 shows the Legislature legislating about cameras in the other direction: it bars an officer from installing a surveillance camera on private land without consent or a warrant, while expressly providing that a law-enforcement officer's vehicle dash camera or body camera is not a surveillance camera for that purpose.

An unlawful interception under §62-1D-3(a) is a felony, punishable under subsection (b) by imprisonment in the penitentiary for not more than five years or a fine of not more than $10,000, or both. That is the charge a person faces for recording a conversation they are not a party to and to which no party has consented, for example by leaving a device to capture officers speaking privately among themselves. It is not the charge for recording your own stop, because §62-1D-3(e) makes a party's recording lawful.

Obstruction under §61-5-17(a) is a misdemeanor with a fine of not less than $50 nor more than $500 or confinement in jail not more than one year, or both, and it requires threats, menaces, acts, or otherwise forcibly or illegally hindering the officer. Filing a false complaint against a law-enforcement officer under §61-5-17(o) is a misdemeanor with a fine of not more than $1,000 or up to six months in jail, or both. Nothing in the West Virginia Code authorises an officer to delete a recording or to seize a phone without a warrant, and no statute requires a bystander to stop recording on request.