STATE POLICE DENY PHOTOGRAPHY OF ACCIDENT SCENE - A Violation Of Constitutional Rights

(05/05/2002)

Opinion And Comment: By Bob Weaver

PUBLIC ACCESS DENIED - It has been a trying week for The Hur Herald, from being declared a pornographic connected site, to fighting viruses to another encounter with the West Virginia State Police, where access was denied.

The Hur Herald was angrily ordered to leave the scene of an accident yesterday by State Trooper Fred Hammack. Hammack indicated photographing of his "crime scene" was illegal. He ordered us to leave. We felt the scene, on a public road, was under the jurisdiction of emergency workers, and was not a "crime scene."

While standing at a distance on private property in a meadow for about fifteen minutes, Trooper Hammack approached and said we should not be photographing dead bodies, juveniles or victims of wrecks, and we were "liars," referring to an earlier conversation regarding taking pictures of an accident scene.

We advised the Trooper we have never published a picture of a dead body, and the reporting about juveniles in accidents is not against the law. The Herald has attempted to be prudent in how victims pictures are published, in most cases at a distance.

We asked the trooper repeatedly if we were breaking the law, and he declined to answer, demanding we "Leave and leave now." He stated he was in charge of the "crime scene," and we should take pictures only with his permission.

He briefly left and reportedly asked individuals if they wanted pictures taken.

Our understanding of the law and our First Amendment rights is as follows:

The First Amendment does not give journalists an unfettered right to gather news. There are places journalists may not be allowed to go when covering the news.

Police may restrict access to places to protect safety or to prevent interference with criminal investigations. Journalists do not have greater rights than the public's to access crime scenes, nor do they have lesser rights. A journalist who crosses a crime scene perimeter or interferes with a police officer may be subject to arrest, usually on some sort of obstruction charge.

"Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded," the U.S. Supreme Court announced in its 1972 Branzburg v. Hayes decision.

The general public was not excluded from the wreck scene, only The Hur Herald. The Herald, under written agreement, also takes pictures to be used by emergency services for internal evaluation and education.

We contend the actions of Trooper Hammack is in direct violation of First Amendment Rights. We did not break the law.

The Herald publishes pictures of accidents and fires because it is news, but more importantly to let people know about the work our law enforcement, emergency services, fire departments and volunteers do in helping others through difficult situations.

We try to champion our police, firemen and EMS personnel. We also play a role to accurately report the situation, which under some instances the "report" may have been modified or reported differently. Non reported news stories get filtered around the community, by word of mouth, and that becomes the "truth." In instances where people have become victims, we have tried to ask the community to support and lend a helping hand.We have also stood up for people when we felt they have be wronged.

It certainly is an accountability issue, and The Herald leans strongly toward the public's right to know, although at times individuals have become angry over being reported upon.

On more than one occasion the West Virginia State Police in Calhoun has threatened The Herald. Trooper Doug Starcher, before several witnesses, almost arrested us at an accident on Leatherbark last year, stating we were obstructing an investigation, although we were leaving the scene at the time. He also claimed we were rifling through a wrecked vehicle. We were simply taking pictures of the accident, in the presence of the Arnoldsburg VFD, the victims having already been removed from the scene.

That conversation has been made a matter of record, and stands as an example of an officer stepping over the line.

We have frequently reported on the behavior of the State Police, based upon dozens of complaints and stories that have affected the lives of many people in our area. The State Police are unhappy with us.

In all cases, our decision to report is to create a balance with an agency many people feel is out of control. If we have erred, I would hope it has been for the people of Calhoun County and the State of West Virginia.

We respectively request the State Police officers to professionally advise us what laws they think we are breaking, other than implying we're breaking the law, and discontinue using bullish tactics and threats of arrest.

We are at a turning point regarding whether to buckle-under to the State Police and quit covering such events, sometimes feeling it will be little noted nor long remembered. We try to stand-up for everyone's First Amendment rights.

There are, however, choices and decisions to be made.

What do you as a reader of The Hur Herald think? We want your opinions, which will be kept confidential if requested.

If you have concerns or care about this at all, we really need to hear from you now.

We apologize to the area's firemen, emergency service personnel and other law officers, for being caught in the middle of the State Police's muscle flexing. Without exception, they have been professionally respectful and aware of legal boundaries and I have respected their professional directions and orders.


Hur Herald from Sunny Cal
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