Ve-» TBOGAME Gi POY Utes 21g Uo wdsiehi gt» i +278 ELE IN CLERKS: UNITED STATES DISTRICT COURT Us. DISTRICT COURT ED EASTERN DISTRICT OF NEW YORK. & MAY 18 201 * = x BROOKLYN OFFICE KYLE PETERSON, Plaintiff, : MEMORANDUM DECISION AND ORDER -against- 10 Civ. 5254 (BMC) ‘THE CITY OF NEW YORK, P.O. KEVIN M. BROWNE, P.O. KINCKINER, P.O. “JOHN DOE” |- 10,1 ‘through’ 10 inclusive, the names of the last defendants being fictitious, the true names of the defendants being unknown to the plaintif"(s), Defendants. COGAN, District Judge. ‘This case is before me on defendants’ motion to dismiss plaintiff's second amended complaint, The motion is GRANTED. ‘The facts of this false arrest and malicious prosecution action under 42 U.S.C. § 1983 are straightforward and mostly undisputed. Plaintiff, a professional circus performer specializing in juggling, hulahooping, and unicycling for the Big Apple Circus, on two occasions received a summons while riding his unicycle on a public sidewalk. On the first occasion, one officer derisively hummed circus music while he wrote the ticket. He issued the ticket pursuant to NYC Code § 19-176, which is a traffic infraction that prohibits the operation of human powered, wheeled conveyances on New York City sidewalks. The second summons was issued pursuant to New York Penal Law § 240.20 (“Disorderly Conduct”), which is a violation that prohibits certain aets if they, inter alia, “obstruct[] vehicular or pedestrian traffic.” During both encounters, the officers involved took plaintiff's passport and detained him for approximately 30 minutes to run his name for warrants (he had none) and issue the summons.gx OY Utve? »2ig Urn iidé 7 Dg» 276 Apparently unbeknownst to the first set of officers, NYC Code § 19-176 does not apply to unicycles. Indeed, it is entitled, “Bicycle operation on sidewalks prohibited.” One might conclude that it only applies to two-wheeled pedal-powered conveyances ~ hence the title “Bicycle operation but that would be wrong, for the NYC Code contradictorily defines bicycle to include “a two or three wheeled device on which a person or persons may ride.” Id. Although it is arguable that unicycles are even more dangerous than bicycles, because unlike bicycles, unicycles have no brakes other than the unicyclist's reversal of the direction of the pedals to effect a stop, the definition does not encompass a one-wheeled device. Accordingly, plaintiff obtained a dismissal of the first summons on its return date. ‘Not deterred by his first encounter with the police, and perhaps emboldened by the dismissal, plaintiff once again rode his unicycle on a sidewalk and was once again stopped by police officers. At some point during the stop, plaintiff informed the officers that it was not illegal for him to ride his unicycle on the sidewalk. One of the officers thanked plaintiff for the information and then issued him a summons for disorderly conduct (specifically for blocking pedestrian traffic) despite the fact that there were no other pedestrians on the sidewalk at the time. Like with the first summons, plaintiff made one court appearance, at which time the summons was dismissed. ‘The attomeys and I discussed plaintifs complaint at the initial status conference, 1 expressed some skepticism that a statute originally enacted to protect African-Americans from the most heinous deprivations of life and liberty in the Reconstruction Era had devolved into permitting circus performers to recover money from the public fisc for having wrongfully received two minor summonses for riding on the sidewalk instead of the bike lane. We also discussed Burg v. Gosselin, 591 F.3d 95 (2d Cir. 2010), in which the Second Circuit affirmed theg & gx Ver» 1 BOOS BEI Y Utye »2ig Unde i Deli 7d dismissal of a false arrest claim arising from the issuance of a summons for a violation. There, the Court held that the mere issuance of a summons requiring a later court appearance, even though the plaintiff was required to travel to and from court, did not constitute a seizure of her person under the Fourth Amendment and was therefore not actionable under § 1983. I suggested to plaintiff that getting an undeserved ticket or two might well be no more than an annoying, byproduct of modern urban life for a unicyclist, where people and open space are in constant competition, rather than something that rises to the level of a violation of the United States Constitution. Perhaps buoyed by my inquiries to plaintiff's counsel (although I am sure she would have come to this same conclusion on her own), defendants’ counsel expressed her intent to move for judgment on the pleadings. To his credit, plaintiff's counsel was not intimidated. After the conference, he reviewed the authorities we discussed and filed an amended complaint. It tumed out that the facts in the restated pleading did not, as it originally had seemed, parallel the facts in Burg. In Burg, the plaintiff claimed that she was seized because, as a result of receiving a summons, she had to appear in court at a specified date and time. She did not, however, claim that she was seized while the officer wrote out the summons that necessitated her later court date. In fact, in dictum, the Court suggested that being issued the summons would constitute a seizure when it favorably cited a district court case, which had held that “a plaintiff pleads a seizure when he alleges that a police officer ‘held on to” his identification and ordered him to ‘stay put’ while the police officer wrote out the summons.” Burg, 591 F.3d at 96 n.3 (citing Vasquez v. Pampena, No. 08 Civ. 4184, 2009 U.S. Dist. LEXIS 42378, at *4-5 D.N.Y. May 18, 2009)), Here, as distinct from Burg, plaintif?’s false arrest claim alleges that he was seized during both stops when the officers took his passport and detained him for approximately 30 minutes