NYC Cops Prejudiced Against the Big Apple?

MANHATTAN (CN) - A Times Square performer who wears a Big Apple costume claims New York City police threatened, harassed and fined him, saying "there was no street performing in Times Square," though they allow other performers there, including the Naked Cowboy.

In a federal complaint against the City of New York and Police Commissioner Raymond Kelly, Steven Mercier says he is a licensed street vendor who has been performing as the Big Apple in Times Square for years.

"Plaintiff dresses up as a 'Big Apple' with his appearance entirely obscured by the costume, and as part of that street performance, he receives payment," the complaint states. "Plaintiff also incidentally vends souvenirs that are based on his street performing persona."

While most police officer leave Mercier alone after checking his identification and vendor's license, he says several cops have threatened him and made him feel afraid to work in Times Square.

"Plaintiff has performed in Times Square for years and has spoken with other street performers and has seen how the police department of the City of New York does not bother many other vendors and/or street performers," the complaint states. "Instead, the department singles out plaintiff."

Mercier says the police do not harass the Naked Cowboy, who strolls around Times Square wearing a cowboy hat, boots and tight white briefs, carrying a strategically placed guitar to give the illusion of nudity.

"When plaintiff was harassed by police officers for his street performance as the Big Apple in Times Square, and asked why the Naked Cowboy was never harassed, an officer told him that the mayor said the Naked Cowboy is popular, even iconic, and for that reason was never to be bothered," according to the complaint.

Mercier says that as he performed in Times Square in August 2006, police officers told him he could not work there and cited him for violations when he would not leave the area.

Police fined and cited him for vending in a prohibited zone and for vending in bus stop or taxi stand within 10 feet of a subway or corner

"Upon information and belief, the police officers are uncertain whether Municipal Code 20-465 applies to street performers in Times Square, and therefore haphazardly enforce such code against street performers and against plaintiff," according to the complaint.

Mercier says wwo cops tried to kick him out of Times Square in 2008, claiming that "no vending was allowed in the area" and "there was no street performing in Times Square."

In July 2009, Mercier says, eight officers surrounded him and told him to remove his Big Apple costume and leave. He says the officers pushed him and threatened him.

"About 20 minutes later, a different police captain and three more police officers approached plaintiff and insisted that he remove his Big Apple costume," the complaint states.

"Plaintiff did so, after much embarrassment and in front of children, and the police captain told him to leave, telling him, 'We run the streets out here, whatever we say you have to do. Pack up your stuff and go home.' Officer Dannon said to the plaintiff, 'If you don't hurry up it's not going to be pretty out here.'"

The officers cited and fined him for peddling in a prohibited zone, disorderly conduct and failure to comply with a law officer.

"During the altercation, plaintiff felt the threat of violence caused by an immediate show of force by the police officers," according to the complaint. "During the altercation, the police officers used unlawful application of force against plaintiff that resulted in offensive touching."

Mercier says he was chased out of Times Square again the next month, with police saying that he could not vend there.

"Plaintiff has rarely returned to Times Square to perform as the Big Apple since that date, as he feels threatened by the New York City Police Department," according to the complaint.

Mercier says his performance persona depends upon the Times Square location.

"Plaintiff's Big Apple persona has been successful with passers-by in the past and earns plaintiff a living," according to the complaint. "Plaintiff expects that it will be successful, artistically and financially, in the future."

Mercier seeks damages, an injunction and a judgment declaring the municipal code unconstitutional and wants the defendants prohibited from enforcing the code or harassing him. He is represented by Jacqueline Hollander.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit