No false arrests in veterans' curbside vendor case

The Court of Appeals has rejected a district court false arrest judgment in favor of disabled veterans who operate vending carts on New York City sidewalks.

The case is Crescenzi v. City of New York, issued on October 3. New York City law allows disabled vendors to operate the food carts. They got arrested when the police asked them to move their carts closer to the curb. The district court ruled in the veterans' favor, finding that the city does not require curbside vending. The Court of Appeals (Livingston and Droney) disagrees, over the dissent of Judge Katzmann, who would certify this state law situation to the New York Court of Appeals, which sometimes takes up issues like this to help the Second Circuit reach the proper result.

We got ourselves a case of statutory construction. The regulation at issue reads: no disabled veteran vendor "shall occupy more than eight linear feet of public space parallel to the curb in the operation of a vending business and, in addition, no [disabled veteran vendor] operating any vending business on any sidewalk shall occupy more than three linear feet to be measured from the curb toward the property line."

In other words, the regulation has two clauses: the first clause provides that no vendor “shall occupy more than eight linear feet of public space parallel to the curb.” "The second clause provides that no vendor “shall occupy more than three linear feet to be measured from the curb toward the property line." The Court recognizes the second clause is ambiguous. But it accepts the City's interpretation of the regulation:

first, it limits the dimensions of vending carts to eight feet in length by three feet in width; second, it requires that carts be positioned lengthwise alongside the curb, out of the way of pedestrians. This interpretation gives full effect to every word in the second clause. Carts can occupy the three feet nearest the curb, “to be measured from the curb toward the property line.”

I know, it's all very fuzzy. In the end, the two-judge majority says the regulation ultimately requires the vendors to place their carts near the curb, closer to the street. "To do otherwise, and allow carts to be placed in the middle of the sidewalk, would be to defy common sense as well as both the text and context of the statutory provision before us."

Judge Livingston opens the opinion with an ode to the streets of New York City, a City like no other, which places in context the complexities of regulating human activity in a city that is home to more than eight million people, plus workers and tourists:

The City is a bustling metropolis in which walking is the primary means of getting around for many of the 8.5 million people who call the City home (not to mention the City’s 60 million annual visitors). See Winnie Hu, New York’s Sidewalks Are So Packed, Pedestrians Are Taking to the Streets, N.Y. Times, June 30, 2016. Much of this pedestrian traffic takes place on sidewalks. Congestion and blockages on these busy sidewalks, then, can create frustrating challenges and real dangers for people simply trying to get to work, school, or the grocery store. The City, cognizant of the sometimes‐difficult circumstances of its pedestrians, regulates its sidewalks with a complex patchwork of laws and regulations in order to ensure a steady—and safe—flow of foot traffic.