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KHAN v. RYAN

April 10, 2001

MOHAMMAD KHAN PLAINTIFFS,
v.
PATRICK P. RYAN, JOHN DOE, RICHARD ROE AND THE CITY OF NEW YORK DEFENDANTS.



The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge:

MEMORANDUM. ORDER & JUDGMENT

I. Introduction

Plaintiff, the manager of a small pharmacy in Jamaica, Queens, sues the City of New York and three New York City police officers alleging that he was unlawfully arrested, imprisoned and prosecuted for selling toy guns. He claims that he did not violate the New York City Administrative Code regulating the sale of such guns and that there was no probable cause to arrest him. His false arrest, false imprisonment and malicious prosecution actions rest on section 1983 of title 42 of the United States Code and state common law.

Defendants have moved for summary judgment on five legal grounds: 1) probable cause existed to arrest the plaintiff; 2) plaintiff has not demonstrated malice; 3) defendants are entitled to qualified immunity; 4) plaintiff cannot satisfy the elements of a claim against the City under section 1983; and 5) common law negligence cannot be established. Because there was probable cause to arrest and no negligence, the motion to dismiss is granted.

II Facts

In August 1998, New York City police officers fired seventeen shots at a sixteen year old boy who they thought was carrying submachine gun; it turned out to be a water pistol. Lawstreet Journal, NYPD Officers Fire 17 Shots at Teen Carrying Water Gun (August 28, 1998), available at http://www.lawstreet.com/journal/art980828briefhtml. As a result of the incident the New York City Police Department's Chief of Patrol directed commanding officers in all precincts to "inspect all stores within their boundaries that sell imitation toy pistols that resemble real weapons." Levine Dec. Exh. B. A copy of the relevant section of the Administrative Code (§ 10-131(g)) was attached to an order instructing officers who found toy guns being offered for sale in violation of the Code to arrest the person in charge of the store selling the items. Id.

The Code provision outlawed toy guns unless they were colored other then black, blue, silver, or aluminum. It provided:

It shall be unlawful for any person to sell or offer for sale . . . [a]ny toy or imitation revolver which substantially duplicates an actual pistol or revolver, unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, silver, or aluminum . . .

See Public Safety, New York City Administrative Code § 10-131(g)(1998).

On September 8, 1998 plaintiff Mohammad Khan, was at work, managing the Hillside Pharmacy. The defendants, three plainclothes police officers, entered the store and inspected a display of toy guns. Sergeant Witt informed Mr. Khan that the toy guns he was selling violated the New York City Administrative Code. Although Mr. Khan offered to remove the guns from the shelves, the officers placed him under arrest. At least two of the officers read copies of the Code provision prior to the arrest.

The plastic guns are predominantly black. See Exhibit A attached. They have red plastic plugs and cylinders. At the hearing on this motion for summary judgment, a demonstration showed that the red colored portions of the guns could be removed or covered by the hand holding them in shooting position, so that, as displayed to a person threatened, they would appear to be real black pistols.

Mr. Kahn remained in criminal custody overnight and was released after arraignment. The criminal case against plaintiff appeared on the calendar of Criminal Court on September 29, 1998. See Levine Dec. Exh. I. Two of the toy pistols at issue were examined by the Court. The Court found them to be in compliance with the Administrative Code and, on the People's motion, dismissed the case against Mr. Khan. Id. The instant civil suit was then brought by Mr. Khan.

New York City Administrative Code has been revised and expanded since the filing of this complaint, to clearly outlaw toy guns such as the ones in question. In relevant part, it reads:

It shall be unlawful for any person to sell or offer to sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can be reasonably be perceived to be an actual firearm unless:
(a) the entire exterior surface of such toy or imitation firearm is colored white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple, either singly or as the predominant ...

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