we'll hear the next case on the calendar present versus city of new york may please the court devon slack on behalf of the city of new york its court has one interpretation of such and seven i'd be for it but on earth and gives effect to the entirety of that provision and also advances the primary legislative purpose behind the entire statute which was to eliminate and avoid congestion on sidewalks in every way possible and if you look at the statute you kind of get this sense that the legislature took this kitchen sink approach to doing to achieving that and it starts by making clear that vending needs to occur in certain designated areas that are subject to a number of placement and other controls  including the key one here that they've and parallel to the curb and within three feet of the curb and then it goes through an enumerator all these other obstacles in a variety of way of ways one after another in these mutually fourth amendment violations in connection with the issuance of summons summonses and i understand that the city has stipulated that each of those summonses involved a fourth amendment event and i'm just before we get to the issues that are in the briefs i'm stumbling has a summons absent a seizure doesn't implicate the fourth and then yeah they had to be honest i think i probably would have taken that position to your honor if i was a little getting this below i believe the theory behind it on the other side is that the without further restrictions doesn't constitute a fourth amendment and that i think that is absolutely true i mean i do think we have litigated it under the assumption that it is sufficient liberty deprivation i probably would have made a different choice before the key decisions by the appeals board admittedly some of them did come after and i think that the most important thing in this is just one indication of the reasonableness of the interpretation that we've been for before the court is that the higher body of the e c b is the appeals board and the clear implication from its decisions and i think this is made most clearly indulge in is that section seven requires vending at the curb the upshot of the respondents arguments in those those appeals board's decisions was that the plaza isn't a sidewalk that was their defense it was projected and once you conclude that the side of the plaza is a sidewalk the only way the e c b appeals board can determine that the officers orders to relocate were lawful is if section seven i require spending at the curb because  plaintiff's interpreter nation those are the same orders that were issued by the issuing officers there would have been unlawful orders because under their understanding you can be anywhere on the sidewalk as long as you're not close to anything else let's let's take g uses is any building or structure and what i think is most significant about that provision is that it then provides an illustrative list i mean granted it's not exclusive but look at what they enumerate all of the things are ordinarily by the curb none of them is comports with the understanding that we're talking about the buildings at the property line lamppost parking meters mailboxes traffic signal stations fire hydrants tree boxes benches bus shelters refuse baskets or traffic barriers i think it's just a little awkward phrase that is building or structure none of those are buildings in the normal understanding that i would do it very few of them are what i would call a structure i mean this is why i think when you look at this statue or really talking about is a legislature that throughout pretty much everything it could think of that might be an obstacle and said stay away from it get by the curb and that's because new york city is aimed massive geography with all kinds of different permutations some seller doors are going to be five feet some are going to be eight feet it is a legislature that at the time of drafting was trying to create rules not just for the city that existed then but the city that might exist for the future and if i could just talk about one more provision that subsection h i think what's interesting about ages is that it does two different things the first one is talking about fixed location business is something that includes that kiosks in newsstands that we walk by every day but what's probably most interesting is that it uses the phrase first fixed location business there but in the second part uses a different phrase and that is any commercial business or store that is the commercial business or stores the building by the property line and that's why we know that the legislature wasn't referring to the building by the property line elsewhere and we know that because the second part of that provision subsection h is trying to talk about barriers to entrance ways to buildings and it creates this radius of exclusion to do that and say though a lot at the located at the further sed possible distance on the sidewalk from the building line and right subsection eight so doesn't you know why doesn't your interpretation of subsection i impose the same requirement  he legislators up in albania but there are statutes are always the tightest tightest rafting but here i think that the provision the piece of h that you're focusing on is actually an exception to a rule and that's the mean work done done by the second part h is this twenty foot radius that pervade prohibits bending even when you are at the curb and that's within twenty feet from an entrance way to any commercial building or store and then the exception is when the entrance ways are forty feet apart and the main work being done by the language there is that the vendor must be equal distance between them and then just to make it crystal clear to say we're saying not forty feet equal distance in the middle of the sidewalk get to the furthest part away from the sidewalk and i asked one question the provision where construing it refers to specialize vending licensees occupying the linear feet of a public space parallel to the or but in the next in the clause that we are concerned with it refers to specialize vending licensees operating in any vending business on any sidewalk and my question was is are vending do some of these licensees  actually position themselves on the street there are there is another provision i believe it would go to what it is in thirty five a that prohibits vending from a parked or double parked vehicle and you're not otherwise allowed to obstruct traffic so  i think the provision in some ways contemplates vending in the street but i in reality i don't think it happens i mean if it if it could happen then that would be i think an argument supporting your construction because they're not really then two clauses falling on each other the one specific to the sidewalk is saying it has to be measured if you're on the sidewalk you have to measure from the curb yeah i mean i do think that there there might have been a time when there  vending in the us in the streets there certainly was back in the one nine hundred centuries when when we are first trying to regulate vending i think as a practical matter it just doesn't doesn't actually happen i mean the core difference between the two clauses to me is is that the second perpendicular but even that would be somewhat strange something something that would allow vending carts to be right in the middle of the sidewalk is so fundamentally contrary to both what the legislature was trying to achieve and just our normal understanding of where vending is done on the sidewalk that you would expect them to be much more clear about such an odd result in just this kind of hidden construction awkward reading proverb kathryn's question about age  seven one three also prohibits placement over for example sell or doors grills manholes access greeting for subways is your response to same as to age which is this was kind of a belt and suspenders maybe it was in the cleanest drafting in the world i mean i think i think that's part of it again i think one of the most interesting things about that is it enumerates for the most part everything that is found by the curb ordinarily the only thing that th e planners have pointed to are cellar doors but but remember that in parts of the city you can vend on the sidewalk so long it is least ten feet and so are doors are quite long in the city they can easily cross over into this eight by three zone and it would make an imperfect sense for the legislature to say when a cellar door crosses over into that eight by free zone you can't bend there thank you thank you they expect this court as they did the district court to simply read away every canon of statutory interpretation because as you will know in their brief they refer to none not a single canon of statutory interpretation supports their view in this case even when they describe the away from the curb language it's pretty clear in the statute it's not your honor if i may it's not saying that you need to be away from the curb and saying that shall occupy more than three linear feet to be measured from the curb toward the property line which is actually consistent with the way that new york other statutes define the width of a subway i mean the width of a sidewalk because there is no definition of the length of a sidewalk because the length of a sidewalk runs continuous continuously around a building block the width of the sidewalk has to be defined between the curb and the property line it and i would say to that point even when they describe this restriction even when one council just referred to a requirement that vendors be within three feet of the curb within three feet from is exactly the language or within blank feet from is exactly the language in numerous other sections in this statute so the other sections i i think i understand the city's interpretation of this provision but i'm i'm not sure i understand what your interpretation is are you saying that the provision is just requiring that any and the under be no more than eight feet long and three feet wide and even essentially that in that amount of space your honor yes they can occupy that amount of space that is not really that amount of space i'm sorry more than that amounts for more than that amount of space yes and the other provisions so if that's interview titian isn't this an incredibly weird way to say what the width of the car should be and why measure from the curb at all well it's not saying i don't believe it's saying just the with of the card it's saying no specialized vending licensee shall occupy meaning the car i mean most of these are on our respective we are disabled vendors so they might be in wheelchairs they might otherwise be occupying additional space other than the vending card itself so it's the space that they can totally occupy cart and themselves included on the sidewalk not just the vending car that's why it wouldn't make sense to just specify the carts dimensions and if the idea is specifying how many feet why why measure it from the curb if it has no relationship to the curb but it has to measure it from the curb towards the property line because that's the with of a sidewalk that measured in the opposite direction it would be into the street and vending actually is permitted in the street pursuant to thirty a seven j that's why it has to be it's referring to the width and the length of the sidewalk it's referring to sidewalk vending not street vending that's why it's measuring it from the curb toward the property line and i believe i referenced and in my brief other new york courts and statutes that define a sidewalk to be the distance from the curb to the building line it's not a it's not a unique drafting measure that  meant to keep these vendors next to the curb and i would point out there's a lot of us there was a lot of talk in the briefing even an argument about common understanding and what you see every day on the street i would employ you the next time you see a vendor on the street take a look and see where they are on the curb they might be near the curb but they're certainly not flushed to the curb and a vending car itself is typically about three feet in wit so in order for them to comply with the city's version of the statute they would literally have to be flush with the curb the vendor potentially standing out in the street creating impediments to traffic they're not they're never against the curb like that they're usually two or three feet off of the curb into the sidewalk and then the district court's interpretation basically prevent vendors from placing their their eight foot by three foot carts interpretation doesn't that prevent vendors from placing their eight foot by three foot carts perpendicular to the curb you mean the long long way versus the because essential of the with there's always go perpendicular to the curb anyway but yeah it would it would prevent it from being placed a long way but the statue would prevent that anyway because the eight feet assuming the long way is that eight feet are the longer section of the cart that that section could not occupy in more than more than three feet under any circumstance anyway so i mean it would and less of what we're talking about a square cart that was three by three you never really have that scenario with respect being controlling specifically i believe you just referenced the dalton decision it's interesting we enough not only did none of those decisions ever deal with the interpretation of the statute as a district court found but each and every single one of the hundred twenty eight decisions where the e c b courts actually did deal with the interpretation of the statute all occurred after dalton which appellants claim is the most relevant and telling example of what the appeals e c b appeals courts interpretation of the statute was it makes no sense again if we're talking about common sense that a lower court and if your honour's were to issue a decision and  someone said that decision said x but every single district court was interpreted as why either the district courts are all wrong or they're rogue courts or the person who's saying this court's decision is x is not right those issues that issue the interpretation of that statue was never raised in any of those appeals decisions it was raised in those e c be lower court decisions and it was found specifically comport with the definition that the district court found correct me to make sure i'm understanding correctly but if we were to conclude that the city's construction is reasonable we really don't have to construe this provision right this time would say that if it would be a reasonable mistake of assuming without deciding that it is a mistake it was reasonable they would be the city would still be entitled to really your honor you that's correct but i would say to that point one setting aside the waiver issue because it's clear that that the high in issue was never raised in their moving papers and th is one of the facets of problem your i just it's just interesting leave that seminal case on reasonable mistake would make no appearance in their moving papers but setting that aside setting that aside the fact is that this court  ask ins makes a distinction between individual liability and qualified immunity hind's is a reasonable cause in the context of a investigatory stop in a criminal case not a  relief from civil liability and what i would i would submit is that the one again my first point would be one it's not a reasonable mistake because the statute is unambiguous so it you know it does not  insulate officers or municipalities for that matter from sloppy study of the law but to is that it would turn it would fold the municipal exception to qualified immunity to  itself i don't i'm not understanding that argument i read your papers carefully it's not this is not about qualified immunity highness about the meaning of the fourth amendment so and your clients have to establish a fourth amendment violation and if a reasonable precedent established that a municipality cannot make reasonable to say that that analysis is not part of the municipality analysis because you're not talking about individual officers who are interpret the law we're talking about a calm conscious choice that this municipality took in order to interpret the law this way and if it would mean one thing if an individual officer is making an assessment of reasonable suspicion on his or her own and would mean something has to mean something else if it's if it's if it's a policy of the city well my position is that does not apply in the civil context because it is not talking about the as this court has distinguished in the context of civil the law is distinctly part of the qualified immunity analysis if you import an additional if the if there is an additional reasonable mistake requirement i cannot see a situation where a municipality would ever  be liable in a situation where their interpret the law if they were making a real reasonable mistake askings would be essentially undone because of the officer could make a reasonable mistake can be entitled to qualified immunity but in that situation i mean it's a pallet he couldn't how are you circumventing that to allow the municipality at the first level to make a reasonable most mistake but not at the second level aide it to me it's an in congress  position i'm on the on the waiver issue you say that you know the words reasonable mistake of law you know can't be found had a reasonable legal justification for issuing a summons why isn't that sufficient to preserve the argument a reasonable just reasonable legal justification i don't believe means the same thing as making a reasonable interpretation based on the statutes a reasonable justification could mean maybe there was another reason to issue these summonses unrelated to this particular statute say under a devon pact theory that said again i think the most telling whether they use the word reasonable mistake or not is the seminal case on this issue is jane and that case makes no appearance in their moving brief the first time they made it makes an appearance in their reply brief which tells me that perhaps they realized that their interpretation was not correct i don't want to give myself credit for that but i just that that's what it looks like to me with respect to just a few more things i would like to say is basically every statutory canon that needs to be read away has to be excused by that the idea that the term buildings as it as it's as it's referenced in other subsections means something different than it's every day understanding not only is there's no evidence in the statute of that but the rules of statutory construction say if the build the word building is not defined in the statute which it is not then it then it takes on its every day ordinary understanding they cannot read away words that everyone knows what these words mean and say that they mean something else to say a display window of a fixed location business as a newsstand when newsstands are specifically reference another section in the statute you know again it's just it shows to me it's telling of the fact that the only way that their interpretation works is if all of the statutory canons are ignored in case and the simple fact is my clients were vending lawfully in the met plaza which is a seventy thousand square foot area this is not a small sidewalk subway congestion i mean sidewalk congestion was never an issue in this it was this statute had never been enforced this way prior to august in two thousand and eleven and then for two years when they were trying to move these individuals who were lawfully vending trying to make a living after the service to our country they tried to move these individuals and when it didn't work when e c b told them it didn't work they stopped when we followed lawsuit they stopped and now they're trying to justify their behavior after the fact because there's not enough curbside space for all the vendors that wanted to that and there are in other words why in front of the met so much is that because there's a lot of people we know right now is that because the all the space would be taken up right next to the street and they had to find another location to put their cards it's just too many vendors for the three feet from the curb location that's linear there why they were being moved is that we're asking your honor why they wouldn't just comply with the be within three feet of the curb it seems as if because there are so many people there there's too many cards for that space is that right i can answer the question of why they wouldn't comply with with with an illegal directive i mean i know why they why they chose not to comply with what they believe was an illegal directive the reason why they were being you know the reason why we there is evidence that we had that's not before this court that was sort of conceded was that the they're paying vendors to vend in these locations and who refused to who will refuse to alternately pay for those spots when a disabled veteran vendor can bend there for free they don't have to lease these locations there's no bidding process the only thing that they have to worry about is priority with other vendors and the create inherent protections against sidewalk congestion that makes it unnecessary and the fact of the matter is is in addition to all the other sections that would be  the one section where they specifically made this rule where you had to be at the furthest point away from the buildings in section age they said clearly no one disputes that that exactly what they're saying that's the interpretation that the city wants why would the legislature have written it that way there and not written it that way anywhere else here you say that there are some specialized pending licensees who operate on the street today i don't i don't think it is a practical reality they there been a challenge to that to say you know it's unclear or not that i'm aware of now i don't i don't know if the language is identical because that is a it's a city regulation city law and this was an act by the state legislature  did just a few things i didn't i think the main statutory canon of interpretation here is plain language and i still have not heard from the plaintiffs why the legislature made that core drafting choice and seven i and that's the first necessity second clause is tied to a fixed point and measure toward the property line we're not talking about the width of a sidewalk it doesn't matter if you're measuring it from the from in a particular direction from fixed point under plaintiff's understanding we're talking under their understanding about a purely dimensional understanding of the statute and if that's what the legislature intended it would have said a car can be eight feet by three feet or a vendor can occupy eight feet by three feet and if they cared a little bit more and all they cared about that it was parallel to the curb they would have said you can occupy three feet parallel to the curb they didn't say perpendicular they were quite deliberate in saying this three feet is to be measured from the curb toward the property line i think my adversary is also laboring under the same misapprehension of hisn that the district court did and i think the problem seems to be that this is a focus on the word mistake and it's true that reasonable mistakes of the law are captured in probable cause but the more important point of hisn is that the touchstone of probable cause is reasonable yes and it's it might be awkward to think about what is a mistake of law and i'm in a construction of the statute but it does it it resolves this case before the court answers the federal question without intruding on a domain that is ordinarily but better left the state courts thank you on a spirit thank you thank you both for your arguments the