“Certification of the Right to Record Inside Police Facilities” – A Commentary on Reyes v. City of New York (2d Cir. 2025)

1. Introduction

The Second Circuit’s decision in Reyes v. City of New York, No. 23-7640 (June 18 2025), is a procedural but potentially transformative opinion at the intersection of free-expression values, statutory civil-rights innovation, municipal police practice, and federal–state judicial comity. While the court stopped short of definitively declaring that New Yorkers possess a statutory right to record law-enforcement activity inside NYPD stationhouses, it (i) affirmed the district court’s exercise of supplemental jurisdiction, (ii) sustained a finding of irreparable harm grounded in statutory expressive rights, and (iii) certified to the New York Court of Appeals the novel question whether the State and City “Right to Record Acts” (RTRAs) extend indoors.

The litigation stems from plaintiff-appellee SeanPaul Reyes, a self-described “First Amendment auditor,” who was twice arrested after filming in NYPD precinct lobbies in alleged violation of a 2018 NYPD Patrol Guide provision (the “Anti-Recording Policy”). Reyes sued the City of New York, asserting (1) a federal First Amendment claim, (2) claims under the State (N.Y. Civ. Rights Law § 79-p) and City (N.Y.C. Admin. Code § 14-189) RTRAs, and (3) a New York City Administrative Procedure Act (CAPA) challenge. He obtained a preliminary injunction in the Southern District of New York barring enforcement of the Anti-Recording Policy against him.

The City appealed, contending that the district court abused its discretion both in exercising supplemental jurisdiction and in granting injunctive relief on purely state-law grounds after finding no likelihood of success on the First Amendment claim.

2. Summary of the Judgment

• Supplemental Jurisdiction. The panel (Judges Kearse, Raggi, Kahn, per Judge Raggi) held that the district court did not abuse its discretion under 28 U.S.C. § 1367 in retaining the pendent RTRAs, notwithstanding their novelty, because:
  • the federal First Amendment claim remained alive;
  • judicial economy, convenience, and fairness would not be served by parallel state litigation; and
  • comity concerns could be accommodated via certification rather than dismissal.
• Irreparable Harm. The Second Circuit affirmed the finding that Reyes faces imminent, non-compensable harm:
  “Reyes stands between the Scylla of intentionally flouting the Policy and the Charybdis of foregoing what he believes to be protected expression.”
• Open Merits & Public-Interest Prongs. The court withheld judgment on likelihood of success and public interest because the outcome turns on the scope of the RTRAs—a pure question of New York law.
• Certified Question. The panel certified to the New York Court of Appeals:
  Does either § 79-p or § 14-189 confer a right to video-record law-enforcement activity inside publicly accessible police-station lobbies, overriding NYPD’s contrary policy?

3. Analysis

3.1 Precedents Cited

• Supplemental-Jurisdiction Cases. Carver v. NIFA, 730 F.3d 150 (2d Cir. 2013) (reversing exercise of § 1367 jurisdiction) and Oneida Indian Nation, 665 F.3d 408 (2d Cir. 2011) (discretion to dismiss or certify) frame the discretion calculus.
• Irreparable-Harm Line. Elrod v. Burns, 427 U.S. 347 (1976) (loss of First-Amendment freedoms irreparable); Vincenty v. Bloomberg, 476 F.3d 74 (2d Cir. 2007).
• Government-Property Doctrine. Rogers v. NYCTA, 89 N.Y.2d 692 (1997) and People v. Leonard, 62 N.Y.2d 404 (1984) (trespass vs. protected activity inside government buildings).
• Forum-analysis & Recording Cases. First, Seventh, Ninth, and Eleventh Circuit opinions acknowledging a First-Amendment right to record police were referenced in legislative history (e.g., Glik, Akins, Fields).
• State-Law Interpretation Methodology. New York rules on legislative history weight (Knight-Ridder, Majewski), common-law displacement (Hechter), and avoidance of absurdity (Ocasio).

3.2 Legal Reasoning

1. Threshold – § 1367(c). Novelty alone does not compel declination. The court balanced Gibbs factors—
   • Economy/Fairness. Splitting the case would duplicate discovery and motion practice.
   • Comity. While police-governance is sensitive, certification can protect state prerogatives without derailing federal proceedings.
2. Irreparable Harm Logic. The opinion embeds a subtle doctrinal move: it extends the Elrod presumption beyond constitutional speech to legislatively created expressive rights, reaffirming that denial of contemporaneous newsgathering is uniquely irremediable.
3. Statutory Construction Difficulty.
   • Text. RTRAs grant a “right to record law-enforcement activity,” limited only by physical interference/obstruction clauses.
   • Silence. No mention of indoor spaces, privacy, or stationhouses.
   • History. Mixed messages: codification of existing First-Amendment right vs. expansive “greatest extent” rhetoric.
   • Policy Clash. Transparency/accountability vs. safety/privacy of vulnerable persons.
   The court concluded that prediction was too uncertain, warranting certification rather than Erie guesswork.

3.3 Potential Impact

• If Court of Appeals answers “Yes.”
  • The Anti-Recording Policy’s indoor ban is likely invalid under state law; Reyes’s injunction becomes permanent; NYPD and other state agencies must reassess signage and training statewide.
  • Could spur legislative amendments to carve out sensitive zones (victim rooms, juvenile areas).
  • Will influence developing national right-to-record jurisprudence by illustrating a statutory alternative to constitutional adjudication.
• If Court of Appeals answers “No.”
  • Indoor filming would depend on First-Amendment analysis (limited public forum, reasonableness) where the City currently prevails.
  • RTRAs remain powerful on streets but not inside government facilities, potentially inviting further litigation on hybrid spaces (courthouse steps, hospital foyers).
• On Federal Procedure. The decision clarifies that certification—not dismissal—is a “middle path” when state interests loom large yet a federal claim remains live. It simultaneously underscores courts’ willingness to enjoin under state law while questions are certified.

4. Complex Concepts Simplified

Supplemental Jurisdiction (§ 1367)

Allows federal courts to hear state-law claims tied to a federal case. Judges can decline in limited circumstances (novelty, predominance, dismissal of federal claims, exceptional circumstances).

Preliminary Injunction Elements

Plaintiff must show (1) likely success on the merits, (2) irreparable harm, and (3) balance of equities/public interest favors relief. A higher standard applies to “mandatory” (status-quo altering) injunctions.

Certification

When a federal court faces an unresolved, state-law question, it can formally ask the state’s highest court for an authoritative answer, preserving comity and accuracy.

Right to Record Acts (RTRAs)

2020 State and City statutes that create a private right of action when officials interfere with civilian video-recording of police activity, subject only to a “physical interference/obstruction” limitation.

Limited Public Forum

A government-owned space that is open for certain expressive activity but can be limited in subject matter or mode of expression if the restriction is reasonable and viewpoint neutral.

5. Conclusion

Reyes does not yet resolve whether citizens may lawfully record inside NYPD lobbies; instead, it charts a meticulous procedural course. By sustaining supplemental jurisdiction, recognizing irreparable harm rooted in statutory free-expression, and certifying the pivotal question, the Second Circuit:

• Affirms the strategic importance of state legislatures crafting rights that complement or exceed federal constitutional baselines;
• Signals that deprivation of such statutory expressive rights is treated with the same urgency as First-Amendment violations for injunctive purposes;
• Models respectful federalism—seeking New York’s authoritative voice before disrupting a major police policy;
• Sets the stage for the New York Court of Appeals to determine how transparency, privacy, and safety are balanced within the RTRAs’ framework.

Whatever the state court’s answer, Reyes v. City of New York illustrates modern judicial dialogue: legislatures enact innovative civil-rights statutes; local governments craft operational policies; federal courts police interim harms; and ultimate interpretive authority resides with state high courts. Practitioners litigating analogous “right-to-record” disputes—whether in schools, hospitals, or court corridors—should watch this certified question closely, as its resolution will reverberate well beyond the precinct lobby.