Fuller and Hart Want to Know: What Is a "Sidewalk"?

H.L.A. Hart and Lon Fuller famously discussed whether roller skating in a park amounts to operating a motor vehicle in a park. Cf.

Monday, January 02, 2006

Riding While Under the Influence: Is a Horse a Vehicle?

and

Monday, April 04, 2011

The Hart-Fuller Debate Resurrected: What Is a Vehicle in a Park?

In September 2011 the Is-roller-skating-in-the-park-driving-a-motor-vehicle-in-the-park? hypo took on yet another guise. Marc Weber pointed out a case he was involved in: People v Pena (Joshua) 2011 NY Slip Op 21340 (Sept. 28, 2011). There defendant "was charged with riding a bicycle on a sidewalk in violation of section 19-176(b) of the Administrative Code of the City of New York, upon allegations that he rode the bicycle "on a pedestrian pathway inside the entrance of a [specified] subway station." The prosecutor argued that "'sidewalk' ... encompass[es] all manner of 'pedestrian conduits,' even those 'set back from the street.'" The court rejected this argument:

[W]e agree with defendant that the underlying information was facially insufficient since it failed to set forth, prima facie, defendant's commission of the charged offense. Even if established as true, allegations that defendant was observed riding a bicycle inside a subway station entrance would not make out a legally sufficient case that defendant violated Administrative Code § 19-176(b), an essential element of which is proof that the bicycle riding take place on a "sidewalk," a term narrowly defined in the ordinance as "that portion of the street ... between the curb lines or the lateral lines of a roadway and the adjacent property lines, intended for the use of pedestrians." We decline to adopt the People's broad reading of the term "sidewalk" as encompassing all manner of "pedestrian conduits," even those "set back from the street." Had the City Council intended to extend the definitional reach of the term "sidewalk" in [*2]such an expansive fashion, it would have been a simple matter to include appropriate language to that effect, as it did elsewhere in the Administrative Code (see Code § 7-201[c][1][b] [The Pothole Law], defining a sidewalk to include "a boardwalk, underpass, pedestrian walk or path, step and stairway"]).

This bicycle rider knows that the issue was never in doubt. Nothing in New York City constitutes a "sidewalk" for purposes of bicycle riding in New York City (if, that is, the rider proceeds slowly and cautiously and does not swear at pedestrians who obstruct his [her] path).
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