United States District Court, Eastern District of New York
April 10, 2001
MOHAMMAD KHAN PLAINTIFFS,
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
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.
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 §
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
color in combination with other colors in any
pattern . . .
See Public Safety, New York City Administrative Code § 10-131(g)
(amended Jan. 16, 2000) (emphasis added).
This version of the code was not in force when plaintiff was arrested
A. Prerequisites For Summary Judgment
Summary judgment is appropriate only if "there is no genuine issue as
to any material fact and . . . the moving party is entitled to a judgment
as a matter of law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202(1986); see also Mitchell v.
Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir. 1999).
"In considering the motion, the court's responsibility is not to resolve
disputed issues of fact but to assess whether there are factual issues to
be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
The burden rests initially with the moving party to demonstrate the
absence of a genuine issue of material fact. Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). In deciding the motion, all inferences and ambiguities are to be
resolved in favor of the party opposing summary judgment. See Gallo v.
Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d
Cir. 1994). Only when reasonable minds could not differ as to the import
of the proffered evidence is summary judgment proper. See Anderson, 477
U.S. at 250-52, 106 S.Ct. 2505; Bryant v. Maffucci, 923 F.2d 979, 982 (2d
B. False Arrest and False Imprisonment
A section 1983 claim for false arrest is substantially the same as a
state claim for false imprisonment. See Covington v. City of New York,
171 F.3d 117, 125 (2d Cir. 1999). Under the Fourth Amendment and section
1983, a person may not be arrested by a state officer without probable
cause. Cook v. Sheldon, 41 F.3d 73, 77 (2d Cir. 1994). In the context of
section 1983 claims, federal courts have held that the plaintiff bears
the burden of establishing the absence of probable cause. See Campbell
v. Giuliani, 2000 U.S. Dist. LEXIS 1617 * 7 (E.D.N.Y. 2000). Moreover,
"the existence of probable cause to arrest constitutes justification and
is a "complete defense to an action for false arrest." Bernard v. United
States, 5 F. Supp.2d 128, 133 (E.D.N.Y 1998).
Courts evaluating probable cause for a false arrest must consider the
information available to the officer at the time of the arrest and
immediately before it. See Warren v. Dwyer, 906 F.2d 70, 73 (2d Cir.),
cert. denied, 498 U.S. 967, 111 S.Ct. 431, 112 L.Ed.2d 414(1990).
Probable cause exists when there are "facts and circumstances `sufficient
to warrant a prudent man to believe that the [suspect] had committed or
was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111, 95
S.Ct. 854, 862, 43 L.Ed.2d 54(1975) (citation omitted).
C. Malicious Prosecution
To prevail on a claim of malicious prosecution, four elements must be
established: (1) the defendant initiated a prosecution against
plaintiff, (2) without probable cause to believe the proceeding could
succeed, (3) the proceeding was begun with malice, and (4) the matter
terminated in plaintiff's favor. See 42 U.S.C. § 1983; Ricciuti v.
New York City Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997).
Plaintiff must show conduct that was tortious under state law and that
the injury was "caused by the deprivation of liberty guaranteed by the
Fourth Amendment." Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d
Cir. 1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d
The Fourth Amendment protection against unreasonable "seizures" may be
pursued in a suit brought under section 1983 even in cases of pretrial
release if "accompanied by burdensome conditions that affect a
significant restraint of liberty." Murphy v. Lynn, 118 F.3d 938, 944 (2d
Cir. 1997) (requirement that defendant attend court appointments
constituted a "seizure" within the meaning of the Fourth Amendment
despite pre-trial release); see also Lowth v. Town of Cheektowaga,
82 F.3d 563, 571 (2d Cir. 1996); Noel v. Hautman, 1997 WL 176316 (N.D.N Y
Apr 8, 1997) ("[W]arrantless arrests — up to the time of arraignment
— are usually considered under the rubric of false arrest and not
malicious prosecution . . . However, . . . because the Lowth court found
factual issues on a malicious prosecution claim despite the absence of
liberty after the issuance of process, . . . [the Court] must examine the
elements of a common law malicious prosecution claim.").
Under New York law, "even when probable cause is present at the time of
arrest, evidence could later surface which would eliminate that probable
cause." Cox v. County of Suffolk, 780 F. Supp. 103, 108 (E.D.N.Y. 1991);
see also Maxwell v. City of New York, 156 A.D.2d 28, 554 N.Y.S.2d 502
(N.Y. A.D. 1990). The New York Court of Appeals has noted that "the
failure to make a further inquiry when a reasonable person would have
done so may be evidence of lack of probable cause." Lowth v. Town of
Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (citing Colon v. City of New
York, 60 N.Y.2d at 82, 455 N.E.2d 1248, 468 N.Y.S.2d 453 (citation
The element of malice does not connote actual spite or hatred, but
means only "that the defendant must have commenced the criminal
proceeding due to a wrong or improper motive, something other than a
desire to see the ends of justice served." Lowth v. Town of Cheektowaga,
82 F.3d at 572 (citing Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03,
377 N.E.2d 975, 976, 406 N.Y.S.2d 443, 445(1978)). In most cases, the
lack of probable cause — while not dispositive — "tends to
show that the accuser did not believe in the guilt of the accused, and
malice may be inferred from the lack of probable cause." Id. (plausible
to infer malice when no facts demonstrated probable cause for resisting
D. Qualified Immunity
Defendant officers may be qualifiedly immune from liability under
section 1983 if "1) their actions did not violate clearly established
law, or 2) it was objectively reasonable for them to believe that their
actions did not violate the law. See Warren v. Keane, 196 F.3d 330, 332
(2d Cir. 1999). The first prong of the test requires courts to determine
"whether preexisting law sufficiently foreshadows the direction it will
take such that government officials have reasonable notice of the
illegality of their actions." See Bowman v. City of Middletown,
91 F. Supp.2d 644, 661 (S.D.N.Y. 2000). The second turns on whether "a
reasonable officer could have believed that [his action was] lawful in
light of clearly established law and the information the officer
possessed" at the time the criminal proceeding was commenced. Mejia v.
City of New York, 119 F. Supp.2d 232, 255 (E.D.N.Y. 2000) (citing
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987)).
E. Monell Claim
A city may be liable under section 1983 if plaintiff can show that
executing an official policy caused the plaintiff to be subjected to the
"denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983); Monell v. Dep't of Soc. Serv., 436 U.S. 658,
690-91(1978). In the absence of an official policy, plaintiff must allege
a Constitutional deprivation resulted from a failure to train or properly
supervise employees. City of Canton v. Harris, 489 U.S. 378, 388(1989).
The failure to train must rise to the level of deliberate indifference or
gross negligence with respect to a Constitutional deprivation of rights.
Id. If there is no underlying constitutional violation by a municipal
official, the municipality is not liable. See Collins v. City of Harker
Heights, 503 U.S. 115, 121(1992).
IV Application of Law to Facts
A. Probable Cause
The presence of probable cause is fatal to plaintiff's false arrest,
false imprisonment, and malicious prosecution claim.
1. False Arrest and False Imprisonment
Plaintiff contends that because some of the pistols had red cylinders
and red plastic plugs in the barrels, they complied with the New York
City Administrative Code section 10-131(g) then in force, an ordinance
worded to exclude his wares. He contends that the Code clearly provided
that guns colored red were outside the scope of the ordinance. Because
parts of the gun were red he argues that the defendants lacked probable
cause to arrest, giving rise to a valid malicious prosecution claim.
See, e.g., Lowth v. Town of Cheektowaga, 82 F.3d at 572 (plausible to
infer malice when no facts demonstrated probable cause for resisting
The facts belie plaintiff's contention. Sufficient probable cause
existed to defeat plaintiffs false arrest, imprisonment and malicious
The original ordinance was ambiguous. It did not specify how much or
what parts of the gun had to be brightly colored to be considered a
"toy." The recent version of the ordinance seems to have corrected this
deficiency, and characterizes guns as toys when the "entire surface" is
colored to reveal that it is a toy. See Public Safety, New York City
Administrative Code § 10-131(g) (amended Jan. 16, 2000).
While ambiguity in the original ordinance could serve as a defense to a
criminal charge, in a civil suit the tables are turned. The question now
presented is whether the duty officers had sufficient probable cause to
arrest the plaintiff. In this light, the officers could have reasonably
interpreted the ordinance to include the toy pistols the plaintiff was
selling. The guns substantially duplicate an actual pistol and are mainly
black. See In the Matter of Kareem McL., 276 A.D.2d 632, 714 N.Y.S.2d 130
(N.Y. A.D. 2000) (finding toy gun violated the code despite the
"negligible presence of colors other than blue, black, silver, or
aluminum"). Given that the reason for Code section 10-131 was to prevent
the sale of toy guns so closely copied from actual weapons as not to be
readily discernable as toys, a prudent police officer reasonably could
have read the ordinance to outlaw guns that were primarily colored
black. City of New York v. Job-Lot Pushcart, 213 A.D.2d 210, 211 (N.Y.
A.D. 1995). Defendants thus had sufficient probable cause.
Plaintiff's false imprisonment and false arrest claims are dismissed.
2. Malicious Prosecution
Plaintiff's malicious prosecution claim is also deficient. No evidence
came to light after the arrest to "eliminate the probable cause"
necessary to prosecute Mr. Khan under the ordinance. See Cox v. County of
Suffolk, 780 F. Supp. 103, 108 (E.D.N.Y. 1991). Moreover, the plaintiff
has failed to demonstrate sufficient malice to bring a malicious
prosecution claim. In most cases, the lack of probable cause — while
not dispositive — "tends to show that the accuser did not believe
in the guilt of the accused, and malice may be inferred from the lack of
probable cause." Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.
1996). Plaintiff has not offered any alternative evidence showing
officers lacked a good faith belief that selling the imitation guns in
question violated the Administrative Code. The plaintiff cannot
demonstrate actual malice sufficient to support a claim for malicious
B. Qualified Immunity
Even if the claim were not to be dismissed for the reasons already
stated, the officers are entitled to qualified immunity. Qualified
immunity protects government officials performing discretionary functions
from liability for civil damages when their conduct does not violate any
clearly established statutory or constitutional rights of which a
reasonable person would have been aware. See Harlow v. Fitzgerald,
457 U.S. 800, 818(1982). Their interpretation of the ordinance — as
it applied to these toy guns — was objectively reasonable. Cf. Cook
v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994) (finding no qualified immunity
when Vehicle Identification Number statute unambiguously set out standard
C. Monell Claim
The plaintiff also brings a section 1983 claim against the City of New
York. This claim is also dismissed. Since there is no underlying
constitutional violation by a municipal official, the City of New York
may not be held liable. See Collins v. City of Harker Heights,
503 U.S. 115, 121(1992).
D. Common Law Negligence
Plaintiff's pendant state law claims substantially mirror his federal
claims. For the reasons described above, they are also dismissed.
Defendant's motion for summary judgment is granted. No costs or
disbursements are awarded since the plaintiff has suffered sufficiently,
partly as a result of a poorly drafted ordinance. The individual officers
were represented by the City of New York so they suffered no loss in
defending this suit.
© 1992-2003 VersusLaw Inc.