Wheeling, WVa.- (WTRF) Is it alright if I record the police in public? It is, in fact, legal and here’s why.  

A person arguably has a First Amendment right to videotape a police officer who is doing his or her job in public. 

Sheriff Helms says, “There’s no expectation of privacy and what the police do and what law enforcement does we do is in the public eye. We are keenly aware of that.”  

Sheriff Helms has been in the public eye since 1994 when he began his career as a Moundsville police officer.  

Keep in mind, as you record the police in public, the police will be recording you too. 

Sheriff Helms says, “There are cameras all around us nowadays and as a matter of fact all of my deputies wear cameras. It’s a tool that’s vital. It’s something we use every day.” 

According to Sheriff Helms, he remembers when the in-car cameras were installed in the police cruisers more than two decades ago. Sheriff Helms says it didn’t take long for officers to realize how the recordings on these cameras could be a great teaching tool for them.  

“The truth is they want to watch the video and they want to learn from it,” he says, “They want to become better at what they do. Not only are we used to it, we embrace it. We like having the video and the audios and the cameras running.” 

Sheriff Helms says, “It’s an invaluable resource that we use. It allows you to go back and review things that happened in the heat of the moment. It’s great for obtaining search warrants. I’m going back over what actually occurred and what happened. As we all know, if you have ten witnesses to whatever and said it takes place then you have ten different stories. The cameras are infallible. It’s a great resource to go back. Looking back, I don’t know how we got by without it so many years ago. The support we have is incredible and we do appreciate it.” 

Sheriff Helms says there have also been countless times he can recall when deputies have relied on the public. 

He continues, “This area that we live in we police in. We enjoy the support of the public. It’s been such a great thing to have. It is invaluable and that’s what I found the people do want to help and they do want to assist us and if they do have a recording it’s so easy to get it. There’s been times in the past we reached out to the public and we do appreciate that help when we get it from the public when we’re looking for video and what not and invariably we are met with an overwhelming effort from people to help with what we do.” 

Sheriff Helms promises the deputies in his department will not confiscate your phone if you don’t impede in their investigation during an incident. 

He says, “If you have your cell phone out and you are recording something as long as you’re not interfering with the officer that phone is yours and what’s on the phone belongs to you and an officer has no right or power of authority to seize it without significant probable cause or a warrant. You have every right to do that. Officers don’t have a right to seize your phone from you.”   

WTRF Legal Expert Diana Crutchfield, who has spent time as a Marshall County prosecutor, a criminal justice professor at West Liberty University and an attorney in private practice, says if you are in public and there’s no reasonable expectation of privacy then you are within legal parameters. 

According to Crutchfield, “Clearly a picture or a video is worth a thousand words. There’s no question about that, but it has to be in the context of a court case and it has be admissible and that means that has to have some certain foundational requirements. If you’re out in public then pretty much all bets are off because if anybody else can hear your conversation there’s no reasonable expectation of privacy and there are no restrictions at that point.”

She adds, “As long as you don’t interfere or obstruct with what the officers are trying to accomplish as long as you are videotaping an officer in his official duties and you’re in a public place then you have absolutely a constitutional right to do that.” 

Crutchfield agrees there are special circumstances when the police can confiscate a device you are using to record. 

She says, “There are some situations where after you videotape if you have proof of a crime and you’re a witness and you have evidence like that then arguably if the police officer had probable cause to believe you were going to destroy evidence then they could secure the evidence and a get a warrant. Normally, they would not be able to take your phone or use your phone without a warrant. They could seize it temporarily if they believed you were going to destroy evidence. but they would have to have a pretty solid belief that you were going to destroy it. They would simply retain it, go get a warrant and then be able to look at it. They would never be able to look at the contents without a warrant.”

Can you sue an officer for taking your phone?

Crutchfield explains what can happen in some cases, “You can sue for any reason, but prevailing in an action against a police officer requires that you prove they have violated one of your constitutional rights. Your First Amendment right to videotape them, your due process rights under the 4th, 5th and 14th amendment rights, your right to reasonable searches and seizures under the 4th Amendment. If you can prove that they’ve done that, then you could bring a lawsuit under a Civil Rights Act either in the state or the federal government.”

Crutchfield says the police are protected under the law. 

She also says, “Police have what we call qualified immunity and if the right to videotape isn’t well established in that state, and some states don’t have cases that say it is or it isn’t allowed, then it would be difficult to prevail against a police officer if the rights aren’t clearly established. Also, you have to prove there is some sort of damages associated with it, but yes, you can sue a police officer for you violating your constitutional rights either under your state Constitution or the federal Constitution.”

Crutchfield commented on the George Floyd case following the verdict in the Derek Chauvin trial. She says there were many public videotapes and body cam tapes to sift through in this particular case. Crutchfield believes there was no question the videotaped evidence played a significant role. 

She says, “There’s no question the videotaped evidence, if I understand it correctly, is the result of a very young girl having the presence of mind to take her camera out and videotape the encounter. Without that, the jury would have had to rely upon the words and the description of everyone involved. When you have a videotape like that, it’s very powerful and there were angles of that videotape and I believe there were others and, of course, the body cams. That videotape was powerful and there’s simply no question that had a significant impact on the jury’s decision-making process.” 

Strong video evidence can complicate matters for either side, if it’s not in their interest or if it’s opposite to what their position is, but if what lawyers are doing is seeking justice, trying to get to the truth, then attorneys according to Crutchfield, have an obligation to get to the best evidence no matter who that complicates. 

Like Crutchfield, Sheriff Helms trusts the system and wants justice whatever the outcome. 

Sheriff Helms says, We strive everyday in this office here to be the most professional, abled law enforcement agency we can. The people, who work for me, do and I have a tremendous amount of pride in this job, in this uniform I wear. I think the feeling is mutual with people and again we would ask that it not be used for nefarious purposes. I feel that it strengthens the good relationship we have with the people in the county.” 

Just as lawyers and law enforcement have an obligation to obtain the best evidence, people have that same sense of responsibility every time they push the record button on their phones in public and photograph police.  

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