Wyoming Is One-Party Consent and Protects Public Speech, but Guards Its Own Body Cam Footage

Wyoming legislates electronic eavesdropping in Title 7 chapter 3 article 7, W.S. 7-3-701 through 7-3-712, and that article is where a recording question is answered. Two features of it settle the ordinary case of a citizen filming an officer.

The first is consent. W.S. 7-3-702(b)(iv) says nothing in the prohibition applies to any person intercepting an oral, wire 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 for the purpose of committing a criminal or tortious act. A driver who records the trooper talking to them is a party to that conversation, so the interception ban never engages. Wyoming is a one-party-consent state, and the carve-out is written broadly enough to cover audio, video with audio and a livestream.

The second is the definition itself. W.S. 7-3-701(a)(xi) defines an oral communication as any oral communication uttered by a person who reasonably expects and circumstances justify the expectation that the communication is not subject to interception, and expressly excludes electronic communications. An officer giving commands at a roadside stop, on a sidewalk or in a lobby is not uttering something he reasonably expects will go unrecorded, so a bystander who is not a party to the exchange still falls outside the statute. That definitional limit is the same mechanism that decides the question in all-party-consent states, and Wyoming has it on top of the one-party rule rather than instead of it.

The stakes if you get the analysis wrong are serious, which is worth knowing before recording a conversation you are not part of. W.S. 7-3-702(f) makes a violation a felony punishable by a fine of not more than $1,000, imprisonment for not more than five years, or both, dropping to a misdemeanour where the intercepted communication is the radio portion of a cellular call, a cordless handset transmission, a public land mobile radio service communication or a paging communication. W.S. 7-3-710(a) adds a civil action for actual damages but not less than $1,000 a day for each day of violation, plus punitive damages and reasonable attorney's fees. W.S. 7-3-711 declares the article the exclusive means by which interception may be permitted for investigating any Wyoming law or municipal ordinance.

What Wyoming has not done is write a protection into its obstruction offence. W.S. 6-5-204(a) makes it a misdemeanour punishable by up to one year and a fine of not more than $1,000 to knowingly obstruct, impede or interfere with or resist arrest by a peace officer engaged in the lawful performance of his official duties. There is no proviso about a public area, no safe harbour saying recording does not by itself constitute interference, and no buffer distance either allowing or forbidding a set number of feet. Wyoming has also enacted no 25-foot or 8-foot approach offence of the kind several states added recently. The practical line is behavioural: the camera is lawful, the position and conduct around it are governed by the ordinary interference offence.

The asymmetry with the state's own recordings is stark. The Wyoming Public Records Act defines a peace officer recording at W.S. 16-4-201(a)(xi) as any audio or video data recorded by a peace officer on a camera provided to or used by the officer in official business and designed to be worn on the body or attached to a vehicle. W.S. 16-4-203(d)(xviii) then places that material in the mandatory-denial list, meaning the custodian shall deny the right of inspection. Four routes reopen it. The custodian shall allow inspection by law enforcement personnel or public agencies for official business or pursuant to a court order. The custodian may allow inspection to the person in interest, where the information involves an incident of deadly force or serious bodily injury as defined in W.S. 6-1-104(a)(x), in response to a complaint against law enforcement personnel where the custodian determines inspection is not contrary to the public interest, or in the interest of public safety. Three of those four are discretionary, so a Wyoming resident recording an encounter themselves has a materially better chance of holding evidence of it than one relying on the agency's camera.

For the person recording, the exposure is not in the wiretap article but in the interference offence. S. S. 6-5-204(b) escalates to a felony of up to ten years where the person intentionally and knowingly causes or attempts to cause bodily injury to an officer. S. 6-5-204(d) extends the definition of peace officer for that section to Department of Corrections probation and parole agents and supervisors. S. S. 7-3-710(a) running at not less than $1,000 per day of violation plus punitive damages and fees. S. 7-3-710(b) gives a complete defence for good faith reliance on a court order. S. S. S. 16-4-205 supplies the penalties and remedies.