Two Views of One Story

While Radley Balko is busy studying up for his CPA exam (or something like that), he’s got some friends providing guests posts at the Agitator.  One guest is Lenore Skenazy from Free Range Kids, fighting to keep our children from being put in a hermetically sealed bubble so they never skin their knee and, instead, have a life.

Lenore picked up on a story in the  New York Post about unicycling high school student, 18-year-old Isaih Rosemond.




Isaih was stopped on Rockaway Parkway in Canarsie on May 23 as he was riding his unicycle to Edward R. Murrow HS in Midwood.  He said a patrol car pulled up behind him and honked. He was surprised to see that the cop was cross. “I just assumed they were going to ask me about my unicycle,” Isaih said.  But the female officer was in no mood for chitchat.



“Don’t you know it’s illegal to ride a bicycle on a sidewalk?” she snapped. Isaih assured her unicycles aren’t banned from sidewalks and whipped out his iPhone to show her a government Web site that would prove it.  She didn’t want to see it and gave him a ticket that carried a possible maximum fine of $100.


[Note: New York Post readers have difficulty reading paragraphs of more than one sentence. I have taken the liberty of modifying the content into longer paragraphs.]  What caught Lenore’s eye was what happened in court afterward.



Which reminded me of today’s “happy” story in the NY Post about a young man who’d been given a $100 ticket for riding his unicycle on a Brooklyn sidewalk — even though he offered to show the cop a government web site on his iPhone that stated it is NOT a crime. The cop didn’t care. Worse — when he got to court, at first the judge refused to listen to him.



[Judge] Delury also warned him not to ride his bicycle on the sidewalk again “or I’ll put you in Rikers.”


Isn’t that a little FLIP? A high school student rides a unicycle on the sidewalk (incidentally NOT breaking the law) and the next thing you know a judge is threatening to send him to JAIL?


Eventually the judge backed down — but only after the kid had the guts to request a second appearance in front of him to ask for a jury trial. By then the judge had finally DEIGNED to read the ACTUAL LAW. He then declared the issue “dismissed.”


What a lucky break! The kid is not going to do hard time for not breaking a law!


While this story may appear to reflect a terrible failure of the courts, and thus be used to bolster anger and frustration, when viewed through the eyes of a lawyer, it’s not quite so bad.

Initially, the City of New York has regulations about riding bicycles on the sidewalk because of unsurprisingly regular collisions between cyclists and pedestrians. With the population density of New York, bikes and people collide all the time, and the ensuing harm to the pedestrian is often quite severe. This is a very real problem, and most New Yorkers have at least had a close call with a bike and appreciate the strict enforcement of this law.

As for unicycles, however, the law is different.  But unicycles are zebras, oddballs. While one might hope that a cop would know the difference, it comes as no surprise in this instance that the cop was unaware of the nuance.  This isn’t the sort of thing they run into regularly, and while police often get the law wrong on matter they should certainly know, they are sometimes caught unaware with outlier problems. This was an outlier.

This isn’t to excuse the cop’s issuance of a summons for perfectly lawful behavior, and indeed is it lawful to ride a unicycle on the sidewalk.  It’s the cop’s responsibility to know the law before issuing a ticket, even when the circumstance is an outlier. Ignorance doesn’t give the cop greater authority.  When confronted with an outlier situation, the responsibility should be to first ascertain whether any wrong has occurred rather than merely assume the law to apply and the act to be unlawful. 

Isaih then relied on a “government website” to show that riding his unicycle on the sidewalk was lawful.  What government and what website isn’t stated in the story, but it’s critical for people to understand that websites do not “prove” that something is lawful. There are two primary sources for the law, statutes (including local ordinances and regulations) and court decisions.  Websites are not proof, and if when looking to a “government” website, make sure it’s the right government.

Lenore argues that when Isaih went to court, the judge refused to listen to him.  That’s not quite accurate.  Isaih was offered an ACD, an adjournment in contemplation of dismissal, which means that the case would be dismissed if he didn’t get in trouble again in six months.  The “send you to Rikers” pap is the normal “scared straight” speech given to anyone offered an ACD. It isn’t real, but is regularly used to keep people from violating the ACD.

While he may have argued that what he did was perfectly lawful, competent lawyers will come prepared with the statute or caselaw that supports the argument. Unlike television, it’s not all cheap talk.

The question of whether the judge should have known the law is another problem. Not even judges are omniscient, which is one of the reasons for lawyers to exist. People expect lawyers (and judges are just lawyers with robes) to know everything there is to know about the law, every law, every nuance of every law, off the top of their heads.

We don’t. Judges don’t. No matter how much we know, there’s always more to know. This is why we do research. This is why we come to court prepared to support our arguments. Perhaps there shouldn’t be so many laws, so many variations on the law, but that’s a matter for the legislature and the voters, not the lawyers.

To his credit, Isaih refused the ACD and returned for a second appearance to challenge the ticket. Lenore is quite right that it’s a pretty bold move for an 18-year-old kid.  But to the judge’s credit, after the initial appearance, he did his research and ascertained that Isaih was right, and that a unicycle is not a bicycle and is not prohibited on sidewalks.  In other words, the judge did the job that a lawyer would have done for Isaih had he come with counsel at his initial appearance, and determined how the law applied to this outlier situation.

And Judge John Delury dismissed the summons.

Stories are legion of bad judges and courts gone awry.  This just isn’t one of them. While it’s understandable that a nonlawyer might read the New York Post story and be left with a misimpression that something went terribly wrong, blaming Judge Delury is misguided. All things considered, this case reflects a court doing a pretty decent job, and a judge who made an effort to make sure the right thing happened.

As much as people on the internet thrill at the notion that every case shows the failure of the system, it’s important that people not overlay ignorance about the system to create failure where it didn’t happen. It didn’t happen here.





24 comments on “Two Views of One Story

  1. alastair baker

    Was there not a prosecutor, what was his role in this? Also would not the charge sheet have to state the actual statute/ordinance? Some more serious problems going on there I think.

  2. Anonis Nym

    As for unicycles, however, the law is different. But unicycles are zebras, oddballs. While one might hope that a cop would know the difference, it comes as no surprise in this instance that the cop was unaware of the nuance. This isn’t the sort of thing they run into regularly, and while police often get the law wrong on matter they should certainly know, they are sometimes caught unaware with outlier problems. This was an outlier. …

    Not even judges are omniscient, which is one of the reasons for lawyers to exist. …

    But to the judge’s credit, after the initial appearance, he did his research and ascertained that Isaih was right, and that a unicycle is not a bicycle and is not prohibited on sidewalks.

    I realize that intelligence requirements for employment as cops or judges are minimal, and that belligerent attitude and political connections are much more important.

    But the law is clear. It distinguishes unicycles from bicycles.

    You have just excused cops and judges for not having the intelligence necessary to count to two.

  3. John David Galt

    This was a failure as soon as the officer refused to look at the website. And this kind of “mistake” will keep happening until cops (and preferably judges, too) start going to jail for it.

    If “ignorance of the law is no excuse” for the ordinary citizen, it certainly must never be an excuse for those who act as agents of that law.

  4. SHG

    A summons wasn’t issued for a crime, but an infraction, and the prosecution is based on the summons rather than a separate accusatory instrument, so the prosecutor doesn’t prepare a complaint or speak with the officer in advance of court.  The ordinance listed on the summons would have been the one  prohibiting riding bicycles on sidewalks.

    I realize that nonlawyers (but notably, not a single lawyer) find this all terribly mysterious. It’s just not.

  5. SHG

    First, if you want to post a comment, you will have to use a real email. If you don’t, then your comment won’t post.

    Second, the ordinance prohibits bicycles, but defines bicycles as having two or three wheels (not just two). Other statutes apply equally to bicycles, tricycles and unicycles, where there is no distinction based on number of wheels. Do you think cops or judges (or lawyers) have memorized every word of every law?  And if the accusation is wrong, which happens with some regularity, that’s the job of the lawyer (or defendant, if he’s pro se) to argue to the judge when he appears before the court to alert the court to the mistake and obtain a dismissal.

  6. SHG

    As for looking at the websites. that’s idiotic. As for cops being ignorant of the law, that’s why there are courts.

  7. TomH

    Another issue arising from the offer of the, otherwise benign ACD, is the young man’s loss of a malicious prosecution action (had he actually endured being processed after arraignment). As it is, you may only bring false arrest claims if you take one.

    In this case, both causes of action seeming to be quite valid.

  8. SHG

    True. While an ACD is benign (which is no doubt why nobody gave the summons much concern), it is not a termination in favor of the accused for purposes of malicious prosecution. Though I doubt in this case it would be sustainable, as the cop made a stupid mistake, but wasn’t malicious, as where they fabricate charges or plant evidence.

  9. TomH

    This case is pretty easy- the law clearly did not apply. How much criticism should be levied on the cop? Not so much. But IMHO, the kid should never have even been offered an ACD. It just struck me, as a CYA by the prosecution to where the kid had the 4th A. on his side.

    Maybe I am just fishing for work too hard.

  10. Steve

    This particular case really points out how the absence of basic knowledge of the legal system can cause people to go off the deep end when there’s no significant issue. I guess I can blame the non-lawyer commenters or Lenore for misunderstanding, but it reflects the fact that they need to be more cautious in drawing conclusions from things they don’t understand.

  11. SHG

    He was offered an ACD because of the write up on the summons, and it was a throwaway, crap offense, kid with no priors. I doubt anythought was put into it at all, and it was just part of the machine grinding through the calendar in the SAP Part. I give the kid enormous credit for turning it down. That was a tough move on his part.

  12. SHG

    I regularly get emails with stories that, at least to me, are interesting and seem wrong, but are outside my scope of knowledge, whether by my practice area or knowledge of procedure.  Military law, for instance. I don’t doubt the Lenore and the commenters are well intended, and right-minded (though some wear their tin foil hat a bit too tight), but you still can’t assume away the salient details to make a story something it’s not.

    We’re all ignorant, just about different things. Law doesn’t tend to be a good thing with which to play make believe to serve an agenda, even if it’s an agenda most of us generally agree with. As I said, there’s enough bad stuff happening that we don’t need to make it up.

  13. Anon

    You give way too much credits to these morons. They rant like lunatics with gross generalities filled with anger and ignorance. They do nothing to help, but make those of us who actually fight these matter look like we’re part of their lunatic fringe.

  14. SHG

    We can’t all be CDLs. Even though they may not understand the law and process some of the time, most of them have their heads and hearts in the right place.

  15. Matth

    While Lenore’s writing style verges on hysterical, I think you go too far in the other direction; this story reflects an embarrassing lack of professionalism by the police and court system. We should expect them to get it right, and where there exists uncertainty about the law, they should err on the side of leaving the citizen be.

  16. MacK

    Seems to me we are at the old “ignorance of the law is no excuse”.

    Unless you are one of the anointed upholders of said law.

    Had this young man been wrong, he would have had 6 months of tiptoeing on eggshells just to prevent his being convicted, or worse incarcerated for something he was mistaken about.

    Yet it seems you are saying, we should give the people whose duty it is to know the law a break?

    “As much as people on the internet thrill at the notion that every case shows the failure of the system, it’s important that people not overlay ignorance about the system to create failure where it didn’t happen. It didn’t happen here.”

    I would say it did happen here.
    The ticket should not have been given and after it was it should have been dismissed immediately by the judge.

  17. SHG

    We should expect them to get it right. In a perfect world, they would get it right immediately, every time. And this is (and should be) embarrassing to the cops for issuing a ticket for a non-existence offense.  No one applauds the handling of the matter. But if cops were perfect, we wouldn’t need courts. And if courts were perfect, we wouldn’t need lawyers. And if cops, courts and lawyers were perfect, we wouldn’t have appellate courts. Sadly, perfection is unobtainable, and the system doesn’t require it.

  18. SHG

    The phrase you draw from refers to ignorance not being a defense to the commission of a crime.  It is not an admonition that cops or judges are required to be perfect in all actions. Like you (and everyone else who is troubled by what happened here), I don’t applaud the handling of the case. But misapplying an adage isn’t persuasive.

  19. Thomas R. Griffith

    Sir, for you to take time to explain WTF? “CDL” stands for to someone that just used “But IMHO, the kid should never have even been offered an ACD. It just struck me, as a CYA by the prosecution to where the kid had the 4th A. on his side” in a SJ Comment – we salute you.

    For you to take time to defend the rights of others (non-law degreed humans) against the [our shit don’t stink cuz we got a degree] anon crowd to comment if they dare and let the chips fall where ever the hell they may, we salute you.

    Regarding the 18 year old that fought the fake law, the fake probation and got up and walked away – while I’m glad they didn’t shoot his head off as he reached for his phone, or make him fit a description, no one deserves to be placed on any form of pre-probation prior to being found guilty. But yet, this form of judicial BS (the ol hide the case trick) is condoned in NY courts and implemented by those with law degrees to avoid trials & muck up crime stats. Despite this, it’s a good day when a semi – good ump decides to catch a spit-ball and sorta spank those that spit on it. It’s even better when we ‘all’ get to learn about it. Thanks.

    *SJ Employment Section – Intern, 18 year old has; balls, I-phone, reliable transportation and will travel. No prior convictions that I know of.

  20. SHG

    Thanks, Thomas. Not too many fans from the Agitatorhood for this post, but keeping it real means telling the choir that they’re singing off key once in a while.

    There’s a reader who is a regular at Reddit’s Bad Cop, No Donut, which is a great place for non-lawyers to keep abreast of police abuse and misconduct.  He once asked me whether I thought BCND was a bad thing, because much of the commentary was substantially wrong on the law, mind-numbingly simplistic and filled with cop-hating.  I told him while that may be true, it was still a good and necessary thing, both to spread the word that these things were happening, and to provide an opportunity for non-lawyers to discuss. They may not get all the details right, but they still live in this world, often suffer the indignity of police misconduct and need an outlet to discuss.  It serves a real purpose, even if it’s less than perfect.

  21. Irie

    Simple Justice. Justice is not simple, not law and not truth. Courts of law are not courts of justice and not courts of truth.

    Thanks for your patient, polite, informed responses to the replies. I have learned a lot just by reading the thread.

    The law profession is a guild, an interest group. State Bars are self-regulatory. Self-regulation and self-reporting do not work, due to unavoidable actual conflicts of interest. Lawyers have hijacked the drafting of State Bar Codes of professional conduct, so that there is no explicit mention or definition of coercion, threats, abuse, bullying, blackmail or extortion by lawyers against their clients.

    Just as the military in the U.S. is headed and controlled by a (non-military) civilian, maybe the legal profession should be headed and controlled by a non-lawyer citizen or board of non-lawyer citizens.

    Lawyers as a group are a protected species even though they are not endangered. When lawyers start going to jail or suffer meaningful punishment for their egregiously incompetent and unethical practices, more non-lawyers may begin to tentatively trust them, in spite of a long history of lawyers’ predatory betrayal of their client’s best interest.

    Peace.

  22. SHG

    Don’t blame lawyers. Even though we’re all horrible people who look like Snidely Whiplash, we’re all you’ve got. It may not be great with us, but without us it would be Lord of the Flies.  At least some of us are trying to make things better, but it would help for all the angry people to heed what you’ve said: Nothing is as simple as they think. Peace.

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