Reyes v. City of New York

23-7640
Reyes v. City of New York
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2024
No. 23-7640
SEANPAUL R EYES ,
Plaintiff-Appellee,
v.
C ITY OF NEW Y ORK,
Defendant-Appellant,
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
ARGUED: NOVEMBER 13, 2024
DECIDED: JUNE 18, 2025
________________
Before: K EARSE, R AGGI, and K AHN, Circuit Judges.
________________
Defendant City of New York (“City”) appeals from an order of the United
States District Court for the Southern District of New York (Clarke, J.)
preliminarily enjoining its enforcement against plaintiff SeanPaul Reyes of that
part of a City Police Department policy forbidding video recording in police
facilities under pain of arrest. The City submits that the district court erred when,
after finding it unlikely that Reyes would succeed on his federal claim that the

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policy violates the First Amendment to the United States Constitution, it
nevertheless exercised supplemental jurisdiction to grant Reyes a preliminary
injunction based on the likelihood of his succeeding on state and local law
challenges to the policy. In any event, the City argues that Reyes failed to show a
likelihood of success on the merits of his state and local law claims, irreparable
harm, or the public interest weighing in his favor, all of which are necessary to
support a preliminary injunction.
We identify no abuse of discretion in the district court’s exercise of
supplemental jurisdiction or in its determination of irreparable harm. But whether
the district court erred in concluding that Reyes is likely to succeed on the merits
or that the public interest weighs in his favor depends on a construction of state
and local law, specifically, whether one or both of the laws at issue afford a right
to record police activity inside police stationhouses. See N.Y. Civ. Rights L. § 79-p;
N.Y.C. Admin. Code § 14-189. Because the laws do not speak clearly to that
question, New York courts have not yet construed these laws, and any
construction will significantly affect the state’s important interests in the conduct
of law enforcement activities, we do not now attempt to answer it ourselves.
Rather, we certify the following question to the New York Court of Appeals:
Does either N.Y. Civ. Rights Law § 79-p or N.Y.C. Admin. Code
§ 14-189 afford individuals such as plaintiff Reyes the right to video
record law enforcement activities inside public facilities—
specifically, inside the publicly accessible lobbies of police
stationhouses—notwithstanding a New York City Police
Department policy forbidding any video recording inside its
facilities?
QUESTION C ERTIFIED AND D ECISION R ESERVED.
________________

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C HASE H. MECHANICK (Richard Dearing, Claude S.
Platton, on the brief) for Sylvia O. Hinds-Radix,
Corporation Counsel of the City of New York, and
Muriel Good-Trufant, succeeding Acting
Corporation Counsel of the City of New York,
New York, NY, for Defendant-Appellant.
ANDREW C ASE (Meena Roldán Oberdick, on the
brief), LatinoJustice PRLDEF, New York, NY, for
Plaintiff-Appellee.
Philip Desgranges, Shona Hemmady, The Legal
Aid Society, New York, NY, for Amicus Curiae The
Legal Aid Society, in support of Plaintiff-Appellee.
_________________
R EENA R AGGI, Circuit Judge:
Plaintiff SeanPaul Reyes, who regularly posts his interactions with the
police on YouTube, sued defendant City of New York (“City”) in the United
States District Court for the Southern District of New York (Jessica G. L.
Clarke, Judge) to challenge that part of a City Police Department (“NYPD”)
policy forbidding video recording inside police facilities (“Anti-Recording
Policy” or “Policy”). Reyes, who has twice been arrested for engaging in
such proscribed recording, asserts that the Policy violates rights protected
by (1) the First Amendment, see U.S. Const. amends. I, XIV; and (2) the New
York State and New York City Right to Record Acts (“RTRAs”), see N.Y. Civ.
Rights Law § 79-p(2); N.Y.C. Admin. Code § 14-189(b),1 particularly insofar
1 The State enacting legislation refers to the state law as the “New Yorker’s right to
monitor act,” 2020 N.Y. Sess. Laws Ch. 100, S. 3253-A, and the City’s enacting
legislation describes the local law as one “[t]o amend the administrative code of

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as the Policy prevents him from recording inside the publicly accessible
areas of police facilities, such as stationhouse lobbies. He further contends
that the Policy is null and void because it established a “rule” without
undergoing the rulemaking process required by the Citywide
Administrative Procedure Act (“CAPA”). See N.Y. City Charter § 1043.
The City here appeals from a November 2, 2023 district court order
preliminarily enjoining enforcement of the challenged Policy and requiring
the removal of any posted signs stating the Policy. See Reyes v. City of New
York, No. 23-CV-6369 (JGLC), 2023 WL 7212192 (S.D.N.Y. Nov. 2, 2023). The
City argues that the district court erred in (1) exercising supplemental
jurisdiction to enter the challenged injunction based on Reyes’s State and
City RTRA claims after finding that he was not entitled to such preliminary
relief on his First Amendment claim; and (2) finding Reyes to have satisfied
the requirements for a preliminary injunction, i.e., a likelihood of success on
his RTRA claims, irreparable harm absent an injunction, and the public
interest favoring an injunction.
For the reasons stated herein, we identify no abuse of discretion in the
district court’s exercise of supplemental jurisdiction. Nor do we identify
error in its finding that Reyes satisfied the irreparable harm requirement for
a preliminary injunction. Whether the district court erred in finding Reyes
to have satisfied the other two requirements for such equitable relief,
however, depends on whether it correctly construed the RTRAs to apply
inside the publicly accessible lobbies of police stationhouses. This court
the city of New York, in relation to the right to record police activities,” N.Y. City
Local Law No. 67 (2020). For convenience, like the parties, we refer in this opinion
to both laws as the “Right to Record Acts,” or “RTRAs.”

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cannot confidently answer that question because the statutory texts, even
when considered together with their contexts and legislative histories, do
not clearly address it; New York courts have not yet construed the RTRAs;
and any answer—affirmative or negative—could significantly affect
important state interests, here the conduct of law enforcement in New York
State and City. We, therefore, defer our own resolution of this appeal in
order to certify the following determinative question to the New York Court
of Appeals:
Does either N.Y. Civ. Rights Law § 79-p or N.Y.C. Admin. Code
§ 14-189 afford individuals such as plaintiff Reyes the right to
video record law enforcement activities inside public
facilities—specifically, inside the publicly accessible lobbies of
police stationhouses—notwithstanding a New York City Police
Department policy forbidding any video recording inside its
facilities?
BACKGROUND2
I. The NYPD’s Anti-Recording Policy and the State and City RTRAs
The challenged Anti-Recording Policy dates to June 2018 when the
NYPD issued Procedure No. 203-29 in its Patrol Guide. That Procedure,
titled “When a Member of the Service Encounters an Individual Observing,
Photographing, and/or Recording Police Activity,” instructs officers that
individuals, in fact, “have a right to lawfully observe and/or record police
activity including, but not limited to detentions, searches, arrests or uses of
force.” App’x 46 (emphases added). Consistent with that “right to . . .
record,” the Procedure enumerates guidelines telling officers “DO NOT,”
2 The following facts are drawn from the record developed at the preliminary
injunction hearing and are undisputed.

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e.g., discourage recording, obstruct cameras, or delete pictures from an
observer’s recording device. Id. (emphasis in original). At the same time,
however, the Procedure states that the right to record does not obtain
wherever police activity occurs. Rather, it “extends to individuals in public
places, such as streets, sidewalks, and parks, as well as private property in
which the individual has a legal right to be present.” Id. In the particular
provision challenged in this case—the Anti-Recording Policy—the
Procedure explicitly states that there is no right to record within NYPD
facilities and provides a three-step process for dealing with persons who
insist on doing so:
Members of the public are not allowed to photograph and/or
record police activity within Department facilities. Members of
the service may order any member of the public who is
photographing or recording within Department facilities to
stop such activity. If such person refuses to stop, they then
should be ordered to leave the premises. If such person refuses
to leave the premises, members of the service may take proper
enforcement action under the trespass statutes (i.e., Penal Law
Sections 140.05 and 140.10).
Id. at 47.3
Some two years after issuance of Procedure No. 203-29, New York
State on July 14, 2020, and New York City on August 14, 2020, enacted their
respective RTRAs.
3 The quoted paragraph is repeated in the NYPD’s June 10, 2021 updated
Procedure No. 304-21, also titled “When a Member of the Service Encounters an
Individual Observing, Photographing, and/or Recording Police Activity.” Thus,
herein “Anti-Recording Policy” references the Policy both as promulgated in
Procedure No. 203-29 and as now in effect.

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The State RTRA states as follows:
Right to record law enforcement related activities. A person
not under arrest or in the custody of a law enforcement official
has the right to record law enforcement activity and to maintain
custody and control of that recording and of any property or
instruments used by that person to record law enforcement
activities, provided, however, that a person in custody or under
arrest does not, by that status alone, forfeit the right to have any
such recordings, property and equipment maintained and
returned to him or her. Nothing in this subdivision shall be
construed to permit a person to engage in actions that
physically interfere with law enforcement activity or otherwise
constitute a crime defined in the penal law involving
obstructing governmental administration.
N.Y. Civ. Rights Law § 79-p(2). The City RTRA similarly states:
Right to record police activities. A person may record police
activities and maintain custody and control of any such
recording and of any property or instruments used in such
recording. Nothing in this chapter shall be construed to permit
a person to engage in actions that physically interfere with an
official and lawful police function, or to prevent the seizure of
any property or instruments used in a recording of police
activities where the seizure is otherwise authorized by law, or
to prohibit any officer from enforcing any other provision of
law.
N.Y.C. Admin. Code § 14-189(b). Both laws afford a private right of action.
See N.Y. Civ. Rights Law § 79-p(3); N.Y.C. Admin. Code § 14-189(c).4
4 Given the statutes’ similar wording and structure, the parties have not argued
that Reyes’s claims should be analyzed any differently under one RTRA or the

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In response to these laws, in July 2020, the NYPD Legal Bureau issued
a “Bulletin” to provide officers with “guidance” on “the rights of
individuals to record and/or criticize police action” as now “codified into
state and local law.” App’x 70–71 & nn. 3–4 (citing RTRAs). That guidance
lists situations in which “police officers may NOT order an observer” to stop
recording, arrest him for doing so, or seize recording equipment. Id. at 71
(emphasis in original). It also emphasizes that “UNDER NO
CIRCUMSTANCES” may an officer take a list of specified actions to
prevent, discourage, penalize, or destroy the recording of police activities.
Id. (emphasis in original).
The bulletin instructs that the newly codified right to record is “not
absolute” in that it does not permit “actual interference with a police
officer’s investigation.” Id. at 72 (explaining that for conduct “to reach the
requisite level of interference, there must be some additional activity (other
than video recording or criticism) that leads to actual interference with the
performance of an official police function” (emphasis in original)). The
bulletin advises that the new RTRAs “do not change the [NYPD’s]
prohibition on recording inside its facilities” as reflected in the NYPD Patrol
Guide. Id. at 73. As pertinent here, the bulletin explains:
1. Department Facilities
Police stationhouses are a public place for purposes of public
access. Courts, however, have held that where municipal
property is generally held open to the public, the privilege to
other, and accordingly, we have not undertaken an independent inquiry into
whether one law is broader than the other. Although we treat them similarly for
purposes of this opinion, the New York Court of Appeals may, of course, decide
to analyze them independently, should it accept the question certified herein.

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enter and use the space may be regulated to prevent
interference with the property’s ordinary use. Due to the
sensitive nature of what occurs inside police stationhouses, law
enforcement agencies can limit expressive activities within the
confines of a stationhouse in order to uphold the sanctity of
investigations, protect witnesses, and allow officers to perform
essential functions without interference. Patrol Guide Section
203-29(7) prohibits recording inside Department facilities.
When an individual is observed recording inside a Department
facility, such as a precinct stationhouse, in any manner, an
officer should immediately order the person to stop recording.
If the person refuses to stop recording, the officer should order
the person to leave the premises. If the person does not stop
recording and does not leave the premises, enforcement for
trespass is appropriate.
The new laws do not change the Department’s prohibition on
recording inside its facilities. A claim of unlawful interference
for recording law enforcement activity is not valid when such
recording is not authorized by law. Where a person enters a
Department facility to record activities in the facility, the
person is not there to obtain police services — and their conduct
impacts the officers’ ability to perform such services as well as
the ability for other members of the public to obtain them.
Thus, the recording and continued presence of the person in the
Department facility is not lawful, and warrants proper trespass
enforcement.
Id. (footnotes omitted).
II. Reyes’s Recording of Police Activities and Arrests
Reyes, a resident of Suffolk County, New York, describes himself as
an “independent journalist” who records his encounters with public
officials performing official duties “to educate others on what to expect from
such encounters and as an expression of his First Amendment rights.” Id. at

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15. Reyes alleges that some of his encounters are prompted by “tips” he
receives about official misconduct. Id. at 116. Reyes edits and then posts his
recordings on his YouTube channel, “Long Island Audit,” which has more
than a half-million subscribers. Id. at 15. He also posts recordings on
platforms such as Facebook, Instagram, and TikTok, resulting in what he
estimates as a total of more than 20 million views per month.
On or about April 3, 2023,5 Reyes went to the NYPD’s 61st Precinct
stationhouse in Brooklyn, having received a “tip” that police were
“arresting people for recording in the lobby.” Id. at 63, 119. After Reyes
himself began video recording,6 two NYPD officers approached him and,
referencing the Anti-Recording Policy, repeatedly told him either to stop
filming or to leave the stationhouse. They also pointed out a wall sign
stating that, under the Policy, “[m]embers of the public are prohibited from
audio/video recording or photography inside this facility.” App’x 84. When
Reyes refused to stop recording or to leave the stationhouse, the officers
repeated their instructions and warned that if Reyes did not heed them, he
would be arrested, which is what ultimately happened. Reyes was held at
the stationhouse for approximately six hours before being released with a
Desk Appearance Ticket charging him with trespass in violation of N.Y.
Penal Law § 140.05. Subsequently, the district attorney’s office declined
prosecution and the charge was dismissed.
5 There is some record discrepancy as to the exact date.
6 Reyes’s video recording of the incident is available on his YouTube channel:
https://perma.cc/5PF3-P6EM.

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Two months later, on June 1, 2023, Reyes attempted to record inside
the lobby of the NYPD’s 75th Precinct stationhouse in Brooklyn, and was
again arrested.7
III. Procedural History
On July 24, 2023, Reyes initiated this action, invoking federal question
and supplemental jurisdiction to claim that the Anti-Recording Policy
violates his rights under the First Amendment of the United States
Constitution and the State and City RTRAs. See 28 U.S.C. §§ 1331, 1367. The
following day, Reyes moved for a preliminary injunction (1) prohibiting the
City from enforcing the challenged Anti-Recording Policy, and (2) requiring
it to remove any signs in NYPD stationhouses detailing the Policy. After
conducting an evidentiary hearing at which it heard testimony from both
Reyes and NYPD Captain Joseph Leone, the district court granted Reyes’s
motion, finding that, although he did not satisfy the likelihood-of-success
requirement for a preliminary injunction on his First Amendment claim, he
did satisfy that and all other injunction requirements with respect to his
State and City RTRA claims. See Reyes v. City of New York, 2023 WL 7212192,
at *4–13.8
7 The charges against Reyes for trespass, N.Y. Penal Law § 140.05, third-degree
criminal trespass, id. § 140.10(A), and obstructing governmental administration,
id. § 195.05, were subsequently dismissed. See Decision and Order at 6, People v.
Reyes, CR-019322-23KN (N.Y. Crim. Ct. Jan. 30, 2023). Reyes alleges that the June
1, 2023 arrest confirms that he is at risk of rearrest should he again “choose to
exercise his rights” to record inside police stationhouses. App’x 29.
8 The district court deemed it unnecessary then to consider Reyes’s CAPA claim.
Id. at *11. Its subsequent dismissal of that claim, see Reyes v. City of New York, No.

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As to the former, the district court concluded that Reyes was not likely
to succeed on the merits of his First Amendment claim because NYPD
stationhouse lobbies are limited public fora, where restrictions “on the form
or manner of speech need only be . . . viewpoint-neutral and reasonable in
relation to the forum’s purpose.” Id. at *8 (internal quotation marks
omitted). The district court concluded that the challenged Policy appeared
to be not only viewpoint-neutral but also reasonable in light of the City’s
uncontradicted justifications related to the “privacy, safety and security” of
people who visit stationhouse lobbies, including potential informants and
crime victims. Id. at *9–10.9
23-CV-6369 (JGLC), 2024 WL 4354877, at *4 (S.D.N.Y. Sept. 30, 2024), is not at issue
on this appeal.
Reyes, nevertheless, argues that this court can affirm the challenged injunction
based on the City’s failure to follow CAPA rulemaking procedures in
promulgating the challenged Policy. We decline to do so given that (1) the district
court did not rule on that ground, see Melendez v. City of New York, 16 F.4th 992,
1046 (2d Cir. 2021) (declining to consider argument “advanced in plaintiffs’
motion for preliminary injuncti[on],” on which “district court did not rule”);
(2) Reyes did not appeal the preliminary injunction order on that basis; and (3) in
a letter to this court Reyes stated that, because “no preliminary injunction had been
issued pursuant to the CAPA claim,” the ruling “has no bearing on the instant
appeal,” Appellee Ltr., Oct. 21, 2024.
9 Significantly, the district court did not then dismiss Reyes’s First Amendment
claim. In fact, the following year, it expressly denied dismissal of that federal
claim, departing from the forum analysis it had applied at the preliminary
injunction stage and identifying “intermediate scrutiny” as the appropriate First
Amendment test, i.e., was the challenged Policy (1) a “reasonable time, place, and
manner” restriction, and (2) “content-neutral, narrowly tailored,” and one
allowing “alternative channels for speech.” Reyes v. City of New York, 2024 WL
4354877, at *4–7 (internal quotation marks omitted). The district court concluded

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As to the RTRA claims, however, the district court concluded that
Reyes had demonstrated a likelihood of success on the merits because these
laws “mean what they say: people can record the police,” and provide no
“carve out” for police stationhouses. Id. at *11.
The City timely appealed and moved for a stay of the injunction
pending appeal, which a panel of this court granted “to the extent it applies
to members of the public other than [Reyes] and to the extent it requires
police department signs to be removed or altered.” Reyes v. City of New York,
23-7640 (2d Cir. Mar. 15, 2024) (Motion Order). Reyes now urges this court
to uphold the challenged injunction “as modified,” i.e., as applied only to
him. Appellee Br. at 63.
DISCUSSION
I. Standard of Review
We review both a district court’s grant of a preliminary injunction and
its exercise of supplemental jurisdiction over pendent state law claims for
abuse of discretion. See Vans, Inc. v. MSCHF Prod. Studio, Inc., 88 F.4th 125,
135 (2d Cir. 2023); Carver v. Nassau Cnty. Interim Fin. Auth., 730 F.3d 150, 154
(2d Cir. 2013), as corrected (Sept. 27, 2013). This encompasses deferential
clear error review for factual findings, and de novo review of legal
conclusions, including the district court’s interpretation of state laws such
as the RTRAs here at issue. See Vans, Inc. v. MSCHF Prod. Studio, Inc., 88
that the case had to proceed to discovery to determine if the Anti-Recording Policy
was “narrowly tailored” to serve the government’s “legitimate state interests.” Id.
at *7. Neither the denial of a preliminary injunction on Reyes’s First Amendment
claim, nor the correct standard of review for that constitutional claim is before us
on this appeal.

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F.4th at 135; McGrath v. Toys “R” Us, Inc., 356 F.3d 246, 249 (2d Cir.), certified
question answered, 3 N.Y.3d 421 (2004).
II. Supplemental Jurisdiction
The City argues that the district court erred when, after concluding
that Reyes was not entitled to injunctive relief on his First Amendment
claim, it nevertheless exercised supplemental jurisdiction to grant him a
preliminary injunction based on his State and City RTRA claims. We
identify no error in the exercise of jurisdiction.
Congress has afforded district courts “supplemental jurisdiction over
all other claims that are so related to claims in [an] action within [their]
original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
There is no question here that Reyes’s State and City RTRA claims and his
First Amendment claim, both challenging the same Anti-Recording Policy,
“are so related . . . that they form part of the same case or controversy.” Id.
Congress does not, however, compel the exercise of supplemental
jurisdiction over all such related claims.
[D]istrict courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—(1) the claim
raises a novel or complex issue of State law,10 (2) the claim
10 As the statutory text makes plain, the first circumstance operates in the
disjunctive, i.e., a court “may decline to exercise supplemental jurisdiction” over a
claim that “raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)
(emphasis added). Insofar as the district court cast this language in the
conjunctive, see Reyes v. City of New York, 2023 WL 7212192, at *10 (“Courts in this
circuit have generally declined to exercise supplemental jurisdiction . . . [when]

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substantially predominates over the claim or claims over which
the district court has original jurisdiction, (3) the district court
has dismissed all claims over which it has original jurisdiction,
or (4) in [other] exceptional circumstances.
Id. § 1367(c) (emphasis added). As the highlighted word “may” indicates,
the presence of one of the statute’s enumerated factors “does not mean that
dismissal [of related state or local claims] is mandated.” See Oneida Indian
Nation of N.Y. v. Madison Cnty., 665 F.3d 408, 439 (2d Cir. 2011). Rather, upon
identification of such a factor, “the district court may then undertake the
discretionary inquiry of whether to exercise supplemental jurisdiction.”
Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018). We
have advised district courts that, when doing so, they should generally
retain jurisdiction of state claims related to pending federal ones unless it
“would not promote the values . . . [of judicial] economy, convenience,
fairness, and comity.” Id. (internal quotation marks omitted); see United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
The City argues that once the district court determined that Reyes was
not entitled to a preliminary injunction based on his First Amendment
claim, it should have declined to exercise supplemental jurisdiction over his
RTRA claims because they present “novel” questions of state law. 28 U.S.C.
§ 1367(c)(1). To the extent no New York court has yet interpreted either the
State or City RTRA, much less done so as applied to the NYPD’s Anti-
Recording Policy, the City correctly identifies this case as presenting novel
the state law claim was both novel and complex.” (emphasis in original)), we do
not understand it to have been pronouncing any higher standard for declining
jurisdiction, but only to have been identifying circumstances when courts have
most frequently exercised their discretion not to exercise supplemental
jurisdiction.

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questions of state law. That conclusion, however, did not compel the district
court to decline supplemental jurisdiction. Such a declination decision is
properly informed by the above-referenced Gibbs factors.
The first Gibbs factor, judicial economy, does not weigh in favor of
declining supplemental jurisdiction over Reyes’s RTRA claims. This is not
the “usual case in which all federal-law claims are eliminated before trial.”
Catzin v. Thank You & Good Luck Corp., 899 F.3d at 85 (internal quotation
marks omitted). Rather, Reyes’s First Amendment challenge remains
pending in the district court and would proceed even if the district court
declined supplemental jurisdiction over Reyes’s RTRA claims. See Reyes v.
City of New York, 2024 WL 4354877, at *7. The dismissal of the RTRA claims
and their refiling in state court while Reyes’s First Amendment claim
remains pending in this action would thus unnecessarily draw on the
resources of two tribunals (rather than one) to resolve federal, state, and
local challenges to the Anti-Recording Policy arising out of identical factual
circumstances.
As for fairness, it is not apparent how that would be enhanced by
requiring the parties simultaneously to litigate before a state and federal
court. Meanwhile, more inconvenience than convenience could result from
requiring duplicative factual presentations in two tribunals.
A closer question is presented by comity, the fourth Gibbs factor. In
Carver v. Nassau Cnty. Interim Fin. Auth., we cited comity in concluding that
the district court exceeded its discretion in exercising supplemental
jurisdiction over state claims. 730 F.3d at 150. The City cites Carver to urge
the same conclusion here, but that case is not analogous to this one.

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The defendant in Carver, the Nassau Interim Finance Authority
(“NIFA”), was “a public benefit corporation created by the New York State
Legislature in June 2000” to address a “growing financial crisis facing
Nassau County.” Id. at 152. When, in 2011, NIFA ordered a wage freeze for
county employees at odds with certain collective bargaining agreements,
police unions sued, alleging both (1) that the freeze violated the Contracts
Clause, U.S. Const., art. I, § 10, cl. 1, and (2) that NIFA “lacked the authority
under state law to order a wage freeze,” Carver v. Nassau Cty. Interim Fin.
Auth., 730 F.3d at 153. On the parties’ cross-motions, the district court
entered summary judgment in favor of the unions, ruling that NIFA had
exceeded its authority under state law without addressing the Contracts
Clause claim. See id. This court reversed, holding that the district court
abused its discretion in exercising supplemental jurisdiction, and remanded
for dismissal of the state law claim. Id. at 154–56. In so ruling, we observed
that comity there required that a state court be permitted to construe and
apply “a significant provision of an extraordinarily consequential legislative
scheme [designed] to rescue Nassau County from the brink of bankruptcy.”
Id. at 154.
This case is distinguishable in at least two important respects. First,
the entry of the preliminary injunction (as modified by this court) was not
an equivalent “decision[] of state law,” let alone a needless one. United Mine
Workers of Am. v. Gibbs, 383 U.S. at 726. The district court’s adjudication of
state law in Carver resulted in the entry of a final judgment, which closed
the case without any consideration of the federal claim. See Carver v. Nassau
Cty. Interim Fin. Auth., 730 F.3d at 156 (vacating judgment). By contrast, the
district court here entered no final judgment conclusively deciding Reyes’s
RTRA claims. Rather, it granted only a preliminary injunction based on

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these state claims pending further litigation on their merits along with the
merits of the federal claim to which they relate. See Anderson News, L.L.C. v.
Am. Media, Inc., 680 F.3d 162, 192 (2d Cir. 2012) (stating that preliminary
injunction “is not a final judgment of the court on the merits” (internal
quotation marks omitted)); see also Pugh v. Goord, 345 F.3d 121, 125 (2d Cir.
2003) (“Preliminary injunction motion papers should not be treated as if
they were a response to a motion for summary judgment, because parties
are not required to present everything they have when moving for a
preliminary injunction.” (internal quotation marks omitted) (alteration
adopted)). Thus, in this case, by contrast to Carver, the effect of the appealed
preliminary injunction on the City is necessarily only provisional and
contemplates further litigation as to both Reyes’s state and federal claims.
Second, while Reyes’s RTRA challenges to the Anti-Recording Policy,
like the unions’ challenge to the NIFA freeze orders in Carver, “concern the
state’s interest in the administration of its government,” the RTRAs are not
aimed at preventing the “demise” of a county, municipality, or municipal
department. Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d at 155–56. In
short, the impact of the challenged injunction on state interests, while
certainly important, is not existential.
Moreover, as this court has recognized, there is available to this
court—though not to the district court—”an alternate method for resolving”
the novel issues of state law raised by Reyes’s RTRA challenges to the Anti-
Recording Policy, i.e., certification. See Oneida Indian Nation of N.Y. v.
Madison Cnty., 665 F.3d at 439; see also infra at 36–37 (discussing rules and
standards for certification). To be sure, in Oneida, this court decided that
dismissal of state claims was preferable to certification. But that conclusion
was informed by the fact that in Oneida “almost all of the . . . federal claims—

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with just one narrow exception—” had been dismissed and “there [were]
already pending state-court proceedings” in which the state law issues had
been raised. Id. at 439 & n.26. No such circumstances are present in this
case. Thus, we conclude that, to the extent Reyes’s RTRA challenges to the
Anti-Recording Policy present novel questions of state law implicating the
state’s interest in the administration of its justice system, comity can here be
satisfied by certification and does not demand dismissal of these state and
local claims.
Accordingly, we identify no abuse of discretion in the district court’s
exercise of supplemental jurisdiction to grant the challenged preliminary
injunction, and we decline to vacate the injunction on that ground. Instead,
we await the New York Court of Appeals’s response to our certified
question, which will allow us to review the challenged injunction on the
merits.11
III. The Preliminary Injunction
The City argues that even absent jurisdictional error, the district court
abused its discretion in entering the challenged preliminary injunction
because, notwithstanding the district court’s findings, Reyes did not
demonstrate that (1) he is likely to succeed on the merits of his RTRA claims,
(2) he would likely sustain irreparable harm absent injunctive relief, and
(3) the public interest weighs in favor of injunctive relief. See Agudath Israel
11 We express no view as to whether the exercise of supplemental jurisdiction over
Reyes’s RTRA claims will be warranted at later stages of this litigation. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (directing courts to consider
propriety of supplemental jurisdiction “at every stage of the litigation”).

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20
of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir. 2020).12 The City’s irreparable
harm argument is meritless. The other two arguments, however, depend on
how New York’s highest court would construe the RTRAs. Because we
cannot predict how it would do so, we defer our resolution of this appeal in
order to certify that determinative question to the New York Court of
Appeals.
A. Irreparable Harm
A party seeking a preliminary injunction must demonstrate that
absent such relief it “will suffer an injury that is neither remote nor
speculative, but actual and imminent, and one that cannot be remedied if a
court waits until the end of trial to resolve the harm.” JTH Tax, LLC v.
Agnant, 62 F.4th 658, 672 (2d Cir. 2023). If Reyes had failed to carry this
burden, this court could vacate the challenged preliminary injunction on
that ground without needing to construe the scope of the RTRAs supporting
the injunction. The district court did not err, however, in concluding that
Reyes satisfied the irreparable harm requirement.
12 This standard applies to so-called “prohibitory” preliminary injunctions, which
“maintain the status quo pending resolution of the case.” N. Am. Soccer League,
LLC v. U.S. Soccer Fed'n, Inc., 883 F.3d 32, 36–37 (2d Cir. 2018). “Mandatory”
preliminary injunctions, which “alter” the status quo, usually by mandating some
affirmative act, are subject to a “heightened legal standard,” id., requiring
“plaintiff [to] show a clear or substantial likelihood of success on the merits and [to]
make a strong showing of irreparable harm,” Daileader v. Certain Underwriters at
Lloyds London Syndicate 1861, 96 F.4th 351, 356 (2d Cir. 2024) (emphases in original)
(internal quotation marks omitted). On this appeal, the City does not contend that
the challenged injunction is mandatory, but only that Reyes failed to satisfy the
standard for a prohibitory preliminary injunction. We, thus, need not consider
whether the heightened standard is satisfied in this case.

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21
The district court reached this conclusion because it found the
challenged Policy had “already caused [Reyes] to forgo recording in police
precinct lobbies,” and “[w]ithout an injunction, [he] faces a choice between
filming the police . . . or being arrested.” Reyes v. City of New York, 2023 WL
7212192, at *12. In arguing error, the City submits that the district court
“relied exclusively on a presumption of irreparable injury arising from
constitutional violations,” which was unwarranted after the district court
concluded that Reyes was unlikely to succeed on the merits of his First
Amendment claim. Appellant Br. at 31 (emphasis in original). The City
argues that its Policy preventing Reyes from filming inside police
stationhouses amounts to a mere “personal inconvenience,” and that any
loss in government “transparency” resulting from Reyes’s inability to
record does not cause him irreparable harm. Id. at 32–35 (internal quotation
marks omitted and alteration adopted). We are not persuaded.
The Supreme Court has recognized that “being required to forego
constitutionally protected activity in order to avoid arrest” can constitute
irreparable injury. 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1160 (2d Cir.
1974) (collecting cases); see Vincenty v. Bloomberg, 476 F.3d 74, 89 (2d Cir.
2007) (holding irreparable harm conclusion not erroneous where plaintiff
had “refrained from their artistic expression because they feared
prosecution”). We think the same conclusion obtains here, where, Reyes
claims that the challenged Policy requires him to forego statutorily
protected rights of expression in order to avoid arrest. See generally N.Y.
Assembly Debate on Senate–Assembly Bill S3253-A, A1360-A (June 8, 2020)
at 118 (Statement of Assemblymember Perry) (“We’re putting [the right to
record police activities] in the law of New York State, so that if the police
transgress[] on that right, you have a cause of action to seek redress as a free

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citizen with the right to freedom of expression, and one of your free
expressions is the one to monitor misbehavior by your police department.”).
That conclusion applies whether the legislatures intended to codify a right
of expression coextensive with the First Amendment or to afford a broader
right. In either circumstance, Reyes here plainly stands “between the Scylla
of intentionally flouting [the Anti-Recording Policy] and the Charybdis of
foregoing what he believes to be . . . protected [expressive] activity in order
to avoid becoming enmeshed in a criminal proceeding,” a circumstance that
this court has recognized presents a real and imminent risk of irreparable
harm. 414 Theater Corp. v. Murphy, 499 F.2d at 1160 (internal quotation
marks omitted).
If Reyes chooses the first option, he loses his liberty. That is no
speculative possibility; the City has already enforced the challenged Policy
by twice arresting Reyes for filming inside police stationhouse lobbies, and
it has not disavowed an intent to rearrest him he does so again. See Vincenty
v. Bloomberg, 476 F.3d at 89 (affirming “finding of likely irreparable harm . . .
based in part on the record evidence that the City intends to enforce
[challenged law]”). If he chooses the second option, his ability to document
police activity occurring at a particular time and place is forever lost. Each
video Reyes might record is “a unique product,” the monetary value of
which is impossible retroactively to quantify. Cf. Reuters Ltd. v. United Press
Int'l, Inc., 903 F.2d 904, 907–08 (2d Cir. 1990) (“Each picture tells a story and
carries a reminder of the truth contained in the old adage that weighs one
picture against a thousand words.”). Thus, foregoing video recording to
avoid arrest deprives Reyes not only of the “personal convenience” of being
able later to review what he has witnessed, but also of the ability to share
the recording with the public, which is thus denied the ability to scrutinize

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police activity that might otherwise have been documented. Such a loss of
the ability timely to communicate with others on matters of public
concern—whether constitutionally or statutorily protected—is not
compensable with money damages. Cf. Elrod v. Burns, 427 U.S. 347, 373–74
& n.29 (1976) (holding “loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury,”
and recognizing “timeliness of political speech [as] particularly important”
in view of “right to a free discussion of public events and public measures,
and to enable every citizen at any time to bring the government and any
person in authority to the bar of public opinion by any just criticism upon
their conduct in the exercise of the[ir] authority” (internal quotation marks
omitted)).
In sum, the challenged injunction is not based on a “presumption” of
irreparable harm, as the City argues. It is based on actual, imminent, and
irretrievable loss either of liberty or of the ability to record police activities
for public scrutiny. Thus, the district court did not err in concluding that
Reyes satisfactorily demonstrated irreparable harm.
B. Likelihood of Success on the Merits
Whether the district court erred in finding Reyes likely to succeed on
the merits of his RTRA claims depends on how broadly one construes the
right to record afforded by those state and local laws, specifically, whether
the right obtains inside the publicly accessible lobbies of police
stationhouses.
To answer that question, a federal court looks first to whether the
state’s highest court—here, the New York Court of Appeals—has spoken to
the point at issue in a controlling decision. See Chufen Chen v. Dunkin'

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Brands, Inc., 954 F.3d 492, 497 (2d Cir. 2020). It has not. Indeed, it appears
that no New York court has yet construed the State or City RTRAs, much
less construed either law to apply inside police stationhouses or to preclude
enforcement of the Anti-Recording Policy therein.
In such circumstances, a federal court next properly considers
whether state-law principles of statutory interpretation and related
precedents permit it to “predict how the forum state’s highest court would
decide” the point at issue. Khan v. Yale Univ., 27 F.4th 805, 831 (2d Cir. 2022)
(internal quotation marks omitted), certified question answered, 347 Conn. 1
(2023); see also East Fork Funding LLC v. U.S. Bank, N.A., 118 F.4th 488, 503
(2d Cir. 2024) (Liman, J., concurring) (reasoning federal courts should apply
state, “and not federal, principles of statutory interpretation” when
construing state law); Charles Alan Wright & Arthur R. Miller, 19 Fed. Prac.
& Proc. § 4507 (3d ed. 2025) (“The Erie doctrine should require federal courts
to use the forum state’s interpretive method.”). When we do that here, we
cannot confidently predict whether the New York Court of Appeals would
construe the State and City RTRAs to apply inside police stationhouse
lobbies so as to warrant enjoining enforcement of the Anti-Recording Policy
therein.
The New York Court of Appeals has identified as the first rule of
statutory construction that laws be construed “to effectuate the intent of the
Legislature.” People v. Iverson, 37 N.Y.3d 98, 103 (2021) (internal quotation
marks omitted); see People v. Roberts, 31 N.Y.3d 406, 418–19 (2018) (stating
that court should “construe the act in question so as to suppress the evil and
advance the remedy” identified by the legislature (internal quotation marks
omitted)); accord Article 13 LLC v. Ponce DeLeon Fed. Bank, 132 F.4th 586, 593
(2d Cir. 2025) (stating that under New York principles of statutory

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interpretation “primary consideration when interpreting a statute is
legislative intent” (internal quotation marks omitted)). Toward that end, a
court properly “look[s] first to the statutory text, which is the clearest
indicator of legislative intent.” People v. Iverson, 37 N.Y.3d at 103 (internal
quotation marks omitted). In doing so, however, New York courts will also
consider “context” and “legislative history.” Id. (instructing that, “[i]n a
manner consistent with the statutory text, [a court] interpreting a statute
may also look to the purpose of the legislation, which requires examination
of the statutory context of the provision as well as its legislative history”
(internal quotation marks omitted)). In particular, New York courts give
“considerable weight in discerning legislative intent” to lawmakers’
“contemporaneous interpretation[s] of a statute,” especially those expressed
in the “Governor’s Bill Jacket” attached to all New York laws and the
“sponsor’s Memorandum” contained therein. Knight-Ridder Broad., Inc. v.
Greenberg, 70 N.Y.2d 151, 158–59 (1987); accord Brokamp v. James, 66 F.4th 374,
398 n.22 (2d Cir. 2023) (observing that under New York law,
“contemporaneous interpretation of a statute [in bill jacket] is entitled to
considerable weight in discerning legislative intent” (quoting Vatore v.
Comm'r of Consumer Affs., 83 N.Y.2d 645, 651 (1994))), cert. denied, 144 S. Ct.
1095 (2024).
Here, the district court focused on statutory text in construing the
RTRAs as “broad” and “straightforward” laws that “mean what they say:
people can record the police” as long as the person does not physically
interfere with law enforcement. Reyes v. City of New York, 2023 WL 7212192,
at * 11. From this, it reasoned that Reyes was likely to succeed on his RTRA
challenges to the Anti-Recording Policy because the Policy is an “outright

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26
ban of all recording” in police stationhouses, and neither the State nor City
RTRA “carve[s] out” a recording exception for police stationhouses. Id.
On de novo review, we agree that the RTRAs’ texts clearly codify a
“right to record law enforcement activity.” Supra at 7 (quoting RTRAs). But
what does that right entail, given potentially competing privacy and safety
considerations? Does it apply anywhere and everywhere that law
enforcement is taking place? Does it apply to anyone and everyone present
during such activity? The RTRAs do not speak to that. They state only that
the right does not permit a person “physically [to] interfere” with or
otherwise to obstruct law enforcement activity. Supra at 7 (quoting RTRAs).
Reyes argues that there is nothing ambiguous about this text and that the
codified right to record in both RTRAs is, in any event, sufficiently broad to
apply to the publicly accessible lobbies of police stationhouses, thereby
prohibiting enforcement of the Anti-Recording Policy against him in such
lobbies so long as he does not physically interfere with or obstruct any law
enforcement activity.
In urging otherwise, the City submits that nothing in the statutory
texts prohibits government entities “like the NYPD[] from establishing rules
governing conduct within government facilities,” consistent with general
principles of property law. Appellant Br. at 3; see generally Rogers v. N.Y.C.
Transit Auth, 89 N.Y.2d 692, 698 (1997) (“Government, no less than a private
owner of property, has power to preserve the property under its control for
the use to which it is lawfully dedicated.” (quoting Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985))). Indeed, it submits that
construing the statutory text so broadly as to preclude rules such as those
reflected in the Anti-Recording Policy risks “absurd” results, insofar as it
would allow persons to record law enforcement activities occurring in both

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non-public and public areas of police stationhouses (as well as numerous
other premises, including courthouses) and involving possibly vulnerable
persons such as confidential informants, crime victims, and undercover
officers. Appellant Br. at 39–40.
“Both sides of this argument score some points,” but not enough to
allow us “confidently [to] predict how the” New York Court of Appeals
would interpret the RTRAs as applied to the facts of this case. Loomis v. ACE
Am. Ins. Co., 91 F.4th 565, 575 (2d Cir.), certified question answered, 244 N.E.3d
908 (Ind. 2024). If those laws are properly construed to codify a right to
record law enforcement activity wherever it occurs and whomever it
involves—subject only to the statutory caveat about physical interference
with or obstruction of police activity—that would presumably supersede
any common law property or privacy rights that the City or persons might
claim to limit recording at odds with these enacted laws. See Hechter v. New
York Life Ins. Co., 46 N.Y.2d 34, 39 (1978) (“[I]t is a general rule of statutory
construction that a clear and specific legislative intent . . . override[s] the
common law.”); accord BL Doe 3 v. Female Acad. of the Sacred Heart, 158
N.Y.S.3d 474, 479 (4th Dep’t 2021); see People v. Leonard, 62 N.Y.2d 404, 410–
11 (1984) (stating New York’s common law of property allows government
to eject persons from its premises based on failure to act in manner
consistent with property’s use but not based on participation in
“constitutionally or . . . statutorily protected activity”). Further, if the
legislatures clearly intended for the RTRAs to reach that broadly, the City
could hardly maintain that affording persons a right to record in police
stationhouses is “absurd,” however much it might question the prudence of
that legislative choice. See People v. Graham, 965 N.Y.S.2d 271, 272 (2d Dep’t
2013) (“It is well settled that in construing a statute, a court should attempt

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to effectuate the intent of the legislature and ‘not sit in review of the
discretion of the Legislature, or determine the expediency, wisdom or
propriety of its action on matters within its powers.’” (citation omitted)
(quoting People v. Friedman, 302 N.Y. 75, 79 (1950))).
On the other hand, if the RTRAs are properly construed more
narrowly—e.g., to afford a right to record law enforcement activities only
when occurring on public streets or within publicly accessible premises, or
subject to time, manner, and place limits consistent with those acceptable
under the First Amendment, that could permit some enforcement of the
challenged Anti-Recording Policy. Thus, insofar as Reyes argues that People
v. Leonard, 62 N.Y.2d 404, resolves this appeal, we are not persuaded because
the Anti-Recording Policy would not conflict with the RTRAs or Leonard if
the laws are construed not to afford a right to record inside police
stationhouses.13
In short, we cannot confidently discern from the RTRAs’ statutory
texts, contexts, or legislative histories how broadly or narrowly the enacting
legislatures intended the codified right to record to apply. Thus, we cannot
predict how the New York Court of Appeals would construe these statutes
as applied to this case. A number of factors inform our hesitancy.
13 Reyes argues that because, under Leonard, “[s]tate trespass laws may not be
enforced . . . solely to exclude persons from exercising First Amendment or other
protected conduct,” the NYPD may not exclude him from police stationhouses
solely for recording video therein (i.e., exercising his statutory rights under the
RTRAs). Appellee Br. at 47–51 (quoting People v. Leonard, 62 N.Y.2d at 410). But
that argument presupposes that the RTRAs protect the right to film inside police
stationhouses.

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First, nothing in the RTRAs’ texts or contexts indicate that the
enacting legislatures considered the recording of law enforcement activities
occurring inside any premises, government or private. Nor have we located
any mention of such facilities in the laws’ legislative histories. To the extent
the histories permit us to identify any focus of legislative attention, it
appears to have been the sort of police misconduct on public streets that
resulted in the death of George Floyd, which was documented because a
bystander was able to record it. See, e.g., N.Y. Assembly Debate on Senate–
Assembly Bill S3253-A, A1360-A (June 8, 2020) at 122 (Statement of
Assemblymember Bichotte) (“We would not even be here . . . [unless] we
were able to witness the murder of George Floyd.”); id. at 120 (Statement of
Assemblymember Perry) (“New Yorkers . . . have a right to monitor and
record police arrests and other police activity occurring in public spaces on
our public streets.” (emphasis added)); Council of City of N.Y. Pub. Safety
Comm., Comm. Rep. of the Justice. Div. 4–5 (June 9, 2020) (discussing
murder of George Floyd in connection with right to record police activity).
But we can hardly reach that conclusion confidently.14 Nevertheless, the
absence of any legislative discussion of whether a right to record law
enforcement activities obtains inside police premises as well as on the street
14 It appears that the State RTRA was first proposed in 2016, and the City RTRA in
2018, some years before George Floyd’s death, see N.Y. Senate Introducer’s Mem.
in Support, Bill Jacket, L. 2020, ch. 100 at 5; N.Y. City Council, Transcript of the
Minutes of Stated Meeting, March 7, 2018, but only enacted in 2020, soon after his
death.

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is noteworthy because law enforcement activities routinely take place
within a variety of private as well as governmental spaces.15
Also absent from the RTRAs’ texts or histories are any references to
the Anti-Recording Policy. In considering the scope of legislation intended
to minimize police misconduct, that omission is noteworthy given that the
NYPD is by far the largest law enforcement entity in New York State; its
Anti-Recording Policy had been in effect for two years when the RTRAs
were enacted; and the RTRAs would effectively invalidate that Policy if, in
fact, they were intended to codify rights to record inside police
stationhouses. In such circumstances, we hesitate ourselves to locate in
legislative silence an intent to take such significant action. See generally
People v. Ocasio, 28 N.Y.3d 178, 183 n.2 (2016) (observing that legislative
silence and/or inaction “is inconclusive in determining legislative intent . . .
[and] susceptible to varying interpretations” (internal quotation marks and
citation omitted)).
Second, to the extent the RTRAs’ legislative history provides any
insights into how broadly the legislatures intended for a right to record to
apply, the record is neither clear nor consistent. On the one hand, there is
some suggestion that the legislatures’ intent was not to confer any new right
to record but, rather, to codify in state and local law a right that some federal
15 Law enforcement activities can occur in almost any state, county, or municipal
building, including city halls, public hospitals, public schools, penal institutions,
courthouses, as well as police stationhouses. They can also occur within privately
owned premises, including sports and entertainment venues, commercial
establishments, non-profit facilities, apartment complexes, and even private
homes. We locate nothing in the texts, contexts, or histories of the RTRAs that
references such premises or indicates legislative intent as to whether or how the
codified rights to record would apply therein.

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31
courts had already located in the First Amendment. As explained in the
“justification” statement included in the State RTRA bill jacket,
Several Federal Circuit Courts, the First, Seventh, Ninth, and
Eleventh Circuits, have issued clear and consistent opinions
finding that the First Amendment of the United States
Constitution openly confers and protects the rights of ordinary
citizens to record police activity. The right of people to
document the public activities of law enforcement helps to
ensure that the police and others engaged in law enforcement
activities are accountable to the public.
N.Y. Senate Introducer’s Mem. in Support, Bill Jacket, L. 2020, ch. 100 at 5.16
An intent to afford state law protection to a right already afforded by
the federal Constitution finds further support in legislative debates. See, e.g.,
N.Y. Assembly Debate on Senate–Assembly Bill S3253-A, A1360-A (June 8,
2020) at 101–02 (Statement of Assemblymember Perry) (stating that RTRA
“affirm[s] . . . the Constitutionality of the right” to record law enforcement
activities); id. at 107 (Statement of Assemblymember Perry) (stating that
evidence showing “blatant misbehavior by the police” is “why we need to
assert this Constitutional right”); id. at 118 (Statement of Assemblymember
Perry) (“The constitutional right to monitor is a sacred constitutional right
. . . [that the RTRA] will codify.”); id. at 129 (Statement of Assemblymember
Rodriguez) (“In a free and open Democratic society we have to affirm this
Constitutional right.”); id. at 130 (Statement of Assemblymember Colton)
(“This bill basically affirms the Constitutional right that everyone has to take
a video.”). Similarly, upon introducing the City RTRA in 2018, its sponsor,
Council Member Jumaane Williams, stated that the local law “does not
16 Neither this court nor the Supreme Court has yet recognized a First Amendment
right to record law enforcement activities. We do not address that question further
in this opinion.

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32
create any new rights.” N.Y. City Council, Transcript of the Minutes of
Stated Meeting, March 7, 2018. These statements, however, do little to help
us predict whether the New York Court of Appeals would look to the First
Amendment in construing either RTRA because that Court accords the
statements of individual legislators—as opposed to pronouncements made
in the formal bill jacket—little, if any, weight in construing statutes. See
Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 586 (1998)
(instructing that “statements and opinions of legislators uttered in the
debates are not competent aids to the court in ascertaining the meaning of
statutes” (internal quotation marks omitted)).17
In any event, as we have recognized, “state courts are not bound to
interpret state laws in accordance with federal court interpretations of
analogous federal statutes” or constitutional provisions, although “they
may choose to do so.” McGrath v. Toys “R” Us, Inc., 356 F.3d at 250. Even
assuming the quoted legislative history might prompt the New York Court
of Appeals to look to First Amendment jurisprudence to construe the
RTRAs, it would not be compelled to do so. Thus, we cannot confidently
predict whether that court would cabin the RTRA therein to spaces and
facilities open to the public or subject them to the sort of time, manner, and
place limits sometimes tolerated by the First Amendment. See generally Kass
v. City of New York, 864 F.3d 200, 207–08 (2d Cir. 2017) (“The First
17 In subsequent, separate federal litigation, Council Member Williams stated that
the City RTRA was intended to protect people’s right to record “wherever they
interacted with police,” which included “the public spaces of a police station.”
Declaration of NYC Public Advocate Jumaane Williams in Opposition to
Defendants’ Motion to Dismiss, ECF 55-1 at 31, Rodney v. City of New York et al., 22-
CV-1445 (S.D.N.Y. Nov. 1, 2022)). The New York Court of Appeals has instructed
that statements made after a law’s enactment, which therefore were “no part of the
legislative process, [are] not entitled to consideration as legislative history.”
Matter of Lorie C., 49 N.Y.2d 161, 169 (1980).

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Amendment, however, does not guarantee the right to communicate at all
times and places or in any manner that may be desired. The extent to which
the government may permissibly restrict such communications depends in
part upon the circumstances under which those communications and the
receipt of those communications occur.” (alteration, citation, and internal
quotation marks omitted)).
On the other hand, some legislative history might be read to suggest
an intent for the codified rights to record to be cabined only by the texts’
physical interference and obstruction caveats. For example, the State
RTRA’s “purpose” statement—found just above the above-quoted
“justification” in the bill jacket—pronounced an intent “to unambiguously
affirm, by statutory enactment, the right of New Yorkers to record, with
expressed exceptions, the actions of persons acting under the color of law.”
N.Y. Senate Introducer’s Mem. in Support, Bill Jacket, L. 2020, ch. 100 at 5
(emphasis added). Even more emphatically, in floor debate,
Assemblymember Perry stated, “What we are concerned about as
lawmakers and as citizens is abuse, abuse of power, violation of citizen’s
right, the right to monitor to the greatest extent as long as—so long as you do
not interfere with the police activity.” N.Y. Assembly Debate on Senate–
Assembly Bill S3253-A, A1360-A (June 8, 2020) at 112 (emphasis added).
Would this history prompt the New York Court of Appeals to construe the
RTRAs to apply to all police activities, wherever occurring, whomever
involving, and subject to no time, manner, and place limits so long as there
was no physical interference with or obstruction of the police activities?

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34
Because we cannot confidently answer that question, we conclude that
certification is the best path to decide this appeal.18
C. Public Interest
In opposing Reyes’s motion for a preliminary injunction, the City
offered evidence from an NYPD Captain and an NYPD attorney that
allowing video recording inside police stationhouses risks the privacy and
safety of numerous people conducting sensitive business therein, including
arrestees, crime victims, witnesses, informants, and undercover officers.
These concerns are matters of significance to the public’s interest in
responsible and effective law enforcement. The district court credited this
evidence but, nevertheless, found that the asserted “privacy, security and
safety concerns” did not outweigh the public interest in “the enforcement of
18 In any event, construing the RTRAs to afford “the right to monitor to the greatest
extent” not interfering with or obstructing police activity, as Assemblymember
Perry stated, raises a number of questions for which statutory text, context, and
history admit no easy answers: Does the right apply to law enforcement activity
occurring on private as well as government premises? Does the right apply even
if one is not lawfully on the premises where the recorded police activity is taking
place so long as one does not interfere with or obstruct that activity? What exactly
constitutes “law enforcement activity,” N.Y. Civ. Rights Law § 79-p(2), or “official
and lawful police function,” N.Y.C. Admin. Code § 14-189(b)? Does it include
giving testimony in court, so as to afford a right to record such testimony? Does a
person have a right to record police activity occurring in non-publicly accessible
premises if he can see the activity with a camera lens? E.g., a crime victim being
interviewed in his home or an informant in a private police interview room? While
these questions are not here at issue, the reasoning employed in deciding whether
the RTRAs do or do not afford a right to record in police stationhouse lobbies that
precludes enforcement of the challenged Anti-Recording Policy may well inform
how these questions are answered in the future. This reinforces our decision to
certify the state law question at issue in this case to the New York Court of
Appeals.

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clear laws duly passed by elected state and city officials.” Reyes v. City of
New York, 2023 WL 7212192, at *12. The district court observed that
recording police activities and providing access to such recordings “is
particularly important because it leads to citizen discourse on public issues,”
id. (internal quotation marks omitted), most obviously, the issue of
professional and lawful police conduct.
Whether or not the district court acted within its discretion in so
balancing competing public interests necessarily depends on whether the
RTRAs are correctly construed to afford a right to record police activities
occurring not only on public streets but also inside premises, specifically,
the publicly accessible lobbies of police stationhouses. If the laws are
correctly construed to obtain inside stationhouse lobbies, that reflects a
controlling policy choice by the legislatures to place the right to record (and,
therefore, to scrutinize) police activities above the safety and privacy
concerns here raised by the City. But, if the laws are correctly construed
more narrowly, then it is possible—depending on how narrowly—that the
City’s concerns might tilt the public-interest balance in its favor.
For reasons stated in the preceding section, we do not think the
RTRAs’ texts, contexts, or legislative histories clearly speak to whether the
codified rights to record obtain inside police stationhouses, and we cannot
confidently predict how New York’s highest court would answer that
question. This cautions against us here reaching any conclusion as to
Reyes’s satisfaction of the public-interest or the success-on-the-merits
requirements for the challenged injunction. Rather, we defer further
consideration of this appeal in order to seek guidance from the New York
Court of Appeals as to the proper construction of the RTRAs.

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IV. Certification to the New York Court of Appeals
Under the rules of this court and the courts of New York, we are
permitted to certify to the New York Court of Appeals “determinative
questions of New York law . . . involved in a case pending before [our] court
for which no controlling precedent of the Court of Appeals exists.” N.Y.
Comp. Codes R. & Regs. tit. 22, § 500.27(a); 2d Cir. R. § 27.2(a); see, e.g.,
Nitkewicz v. Lincoln Life & Annuity Co. of N.Y., 49 F.4th 721, 728–29 (2d Cir.
2022), certified question answered, 40 N.Y.3d 349 (2023). In deciding whether
certification is appropriate, we consider whether the question of New York
law at issue before us: (1) has yet been addressed by the New York Court
of Appeals, (2) ”is of importance to the state and may require value
judgments and public policy choices,” and (3) ”is determinative of a claim
before us.” Gov't Emps. Ins. Co. v. Mayzenberg, 121 F.4th 404, 420 (2d Cir.),
certified question accepted, 42 N.Y.3d 1044 (2024) (internal quotation marks
omitted). In this case, all three factors weigh in favor of certification.
First, and as already noted supra at 23–24, we have identified no
decision by the New York Court of Appeals—or any New York court—
interpreting either the State or City RTRA, much less doing so in a context
akin to the one now before us, i.e., recording law enforcement activities
inside police stationhouses. Nor has any party cited a case that, either
because it construes an analogous statute or arises in analogous
circumstances, might allow us to predict how the New York Court of
Appeals would construe the RTRAs as they pertain in this case. Thus, this
first factor weighs in favor of certification.
Second, as this court recognizes, “New York has a fundamental
interest in interpreting its own statutes.” Nitkewicz v. Lincoln Life & Annuity

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Co. of N.Y., 49 F.4th at 729. That interest is particularly weighty here because
both the laws in question and the challenged Policy concern law
enforcement: how it can be conducted effectively by those charged with
that task and how it can be scrutinized by the public that it affects. See
United States v. McCargo, 464 F.3d 192, 200 (2d Cir. 2006) (recognizing
“important [state] interest in police and public safety”); In re K.L., 1 N.Y.3d
362, 371 (2004) (recognizing New York’s “compelling interests in both its
police and parens patriae powers”). As the district court recognized,
codifying a right to record can promote government transparency and
accountability, which in turn can encourage law enforcement that is both
effective and respectful of individual rights. At the same time, however,
affording such a right to record anywhere and everywhere police activities
occur—including inside the publicly accessible areas of police
stationhouses—can pose risks to the privacy and safety of persons therein,
whether undercover officers, crime victims, witnesses, confidential
informants, or others engaging with authorities therein on sensitive matters.
A court construing the RTRAs thus must be mindful of these competing
public interests in seeking to identify and maintain the particular balances
struck by the enacting legislatures and in determining the effect of those
laws on the challenged Anti-Recording Policy. To the extent this task
implicates value judgments and public policy choices that can affect the
conduct of law enforcement in New York, it is best performed by the state’s
highest court. Thus, this second factor also weighs strongly in favor of
certification.
Finally, the question we here certify to the New York Court of
Appeals is dispositive of this appeal—and likely of Reyes’s RTRA claims in
their entirety. If the New York Court of Appeals were to construe the

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RTRAs not to grant a right to record law enforcement activities inside the
publicly accessible lobbies of police stationhouses, then Reyes cannot
succeed on the merits of his state law claims, requiring us to vacate the
challenged preliminary injunction. Indeed, if the Court of Appeals were so
to construe the RTRAs, then, barring settlement, the district court might well
also have to dismiss Reyes’s RTRA claims at an appropriate dispositive
juncture. But, if the Court of Appeals were to construe the RTRAs
sufficiently broadly to afford Reyes a right to record inside the publicly
accessible lobbies of police stationhouses, then we would uphold the
injunction, the district court having correctly found him to have carried both
his merits and public interest burdens. In that event too, the Court of
Appeals’s answer could be dispositive on the merits of Reyes’s RTRA claims
and support a final judgment in his favor.
In sum, all three factors support certification.
CONCLUSION
For the foregoing reasons, we CERTIFY the following question to the
New York Court of Appeals:
Does either N.Y. Civ. Rights Law § 79-p or N.Y.C. Admin. Code
§ 14-189 afford individuals such as plaintiff Reyes the right to
video record law enforcement activities inside public
facilities—specifically, inside the publicly accessible lobbies of
police stationhouses—notwithstanding a New York City Police
Department policy forbidding any video recording inside its
facilities?
The New York Court of Appeals may reformulate or expand the
certified question as it deems appropriate to address any further pertinent
questions of New York law involved in this appeal. This panel retains

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jurisdiction to decide the case once the New York Court of Appeals has
either provided us with its guidance or declined certification.
It is hereby ORDERED that the Clerk of this Court transmit to the
Clerk of the New York Court of Appeals a certificate in the form attached,
together with a copy of this opinion and a complete set of briefs, appendices,
and the record filed by the parties in this Court. Decision is RESERVED.
CERTIFICATE
The foregoing is hereby certified to the Court of Appeals of the State
of New York pursuant to 2d Cir. R. 27.2(a) and N.Y. Comp. Codes, R. & Regs
tit. 22, § 500.27(a), as ordered by the United States Court of Appeals for the
Second Circuit.

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