Can you videotape inside a police facility?

The plaintiff in this case sued the City of New York, challenging its policy against video-recording in police facilities, including stationhouse lobbies. He posts his interactions with the police on YouTube, but these videos have gotten him arrested. He claims these arrests violate the First Amendment. This case has reached the Second Circuit, which has determined the State Court of Appeals has to resolve whether New York State and City statutes allow people to make these video recordings. The State Court of Appeals will have to issue a definitive ruling.

The case is Reyes v. City of New York, issued on June 18. The trial court said plaintiff was likely to win this case, entering an injunction in his favor. That ruling is now on hold while New York's highest court sorts out this issue. 

While an NYPD policy says people can film police activity, that right does not extend to the interior of police facilities. But state and city laws, which also allow non-arrestees to record police activity, do not speak to whether you can record video inside a police facility. But the city stood firm on its policy that video recording is prohibited in these facilities. Plaintiff tested the NYPD policy because he had heard the police were arresting people for videotaping in police facility lobbies. He got arrested for doing this, but the charge was dismissed. Still, an arrest is enough for a First Amendment lawsuit.

Since state and city law do not address the issue raised in the NYPD policy. However, since the Second Circuit (Raggi, Kearse and Kahn) cannot predict how the State Court of Appeals would resolve this issue, the Second Circuit sends this case to the State Court of Appeals to take up this issue in the first instance. We call that "certification." The Second Circuit says, "If those laws are properly construed to codify a right to record law enforcement activity  wherever it occurs and whomever it involves . . . 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." But if the state and city laws at issue in this case are construed more narrowly, affording a right to record law enforcement only on public streets or within publicly accessible premises, or subject to time, place and manner limits under the First Amendment, then the NYPD's policy may be enforced. 

Since this case involves an important area of state law, and the Second Circuit does not like to intrude on state prerogatives without some guidance from the New York Court of Appeals, which is presumably more familiar with state laws and legal principles, the latter court will have to take on this issue. Once it does so, the case returns the Second Circuit to finally resolve the appeal. This will take more than a year, as the parties will have file new briefs in the state Court of Appeals and then have oral argument on the issue, so plaintiff will have to wait quite a while for final resolution.